Environment Protection Authority v Blacktown Waste Services Pty Ltd

[2025] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Blacktown Waste Services Pty Ltd [2025] NSWLEC 31

Hearing dates:

26 March 2025

Date of orders:

4 April 2025

Decision date:

04 April 2025

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

Notice of motion dismissed. Costs reserved.

Catchwords:

ENVIRONMENTAL OFFENCES: case management for summary criminal proceedings – prosecution disclosure – purpose of Div 2A of the Criminal Procedure Act 1986 - scope of duty of prosecutor under s 247J of that Act – obligation to serve separate s 247J notice for each charge – level of detail required by prosecutor in s 247J notice – whether prosecutor must identify specific portions of the information and documents it has disclosed to effect compliance with s 247J – where prosecutor relying on body of evidence in respect of multiple charges arising from the same factual matrix.

Legislation Cited:

Criminal Procedure Act 1986, Div 2A, ss 29, 247B, 247E, 247G, 247I, 247J, 247K, 247T

Protection of the Environment Operations Act 1997, ss 144AAB, 144AA

Cases Cited:

Arcadia Investment Holdings Pty Ltd v Environment Protection Authority [2022] NSWLEC 2

Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48; (2020) 102 NSWLR 72

Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29

Environment Protection Authority v O’Brien [2023] NSWLEC 118

Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

McNamara v The King [2023] HCA 36; (2023) 415 ALR 223

R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454

R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369

Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88; (2024) 259 LGERA 388

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197

Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121

Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39

Category:

Procedural rulings

Parties:

Environment Protection Authority (Prosecutor)
Blacktown Waste Services Pty Ltd (Defendant)

Representation:

Counsel:
B Neild SC (Prosecutor)
T Howard SC (Defendant)

Solicitors:
Environment Protection Authority, Legal Services Branch (Prosecutor)
Minter Ellison (Defendant)

File Number(s):

2024/354612
2024/354613
2024/354614

Publication restriction:

Nil

JUDGMENT

Blacktown Operates a Landfill and Recycling Facility Using Recovered Fines

1. At all relevant times, the defendant, Blacktown Waste Services Pty Ltd (“Blacktown”), operates a landfill facility under Environment Protection Licence (“EPL”) 11497 and a recycling facility under EPL 21193 at 25 Harris Ave, Marsden Park, NSW (“the premises”).

2. On 20 August 2020 Blacktown sought to vary EPL 11497 to authorise the use of recovered fines as a form of alternative daily cover at the premises in accordance with the specifications published in the NSW Government Gazette No 53, dated 21 March 2020. On 16 September 2020 the prosecutor, the Environment Protection Authority (“EPA”), authorised the variation subject to conditions.

Blacktown is Charged with Three Offences

3. As described in the affidavit of Brydie Hand, a solicitor for Blacktown, affirmed 7 March 2025, the EPA commenced the following proceedings against Blacktown for offences against the Protection of the Environment Operations Act 1997 (“POEOA”) on 25 September 2024:

a. that between 16 September 2020 to about 30 August 2021, BWS [Blacktown] committed an offence against s 144AAB of the Protection of the Environment Operations Act 1997 (POEO Act), in that it caused material comprising recovered fines containing asbestos waste to be re-used at the Premises as alternative daily cover for the Landfill (ADC) (Charge 1);

b. that between 14 October 2020 to about 15 September 2021, BWS committed an offence against s 144AA(1) of the POEO Act, in that it supplied information contained in 11 waste contribution monthly reports (WCMRs) to the EPA in relation to recovered fines used as ADC which was false or misleading in a material respect (Charge 2); and

c. that on about 2 October 2021, BWS committed an offence against s 144AA(1) of the POEO Act, in that it caused the supply of a trial report to the EPA in relation to the use of recovered fines as ADC at the Landfill which was false or misleading in a material respect (Charge 3).

4. Section 144AAB of that Act provides that:

144AAB   Re-use and recycling of asbestos waste prohibited

A person must not cause or permit asbestos waste in any form to be re-used or recycled.

Maximum penalty—

(a)     for a corporation—$4,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)     for an individual—$1,000,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

5. And s 144AA(1) of the POEOA states as follows:

144AA   False or misleading information about waste

(1)   A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence.

It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect.

Maximum penalty—

(a)     for a corporation—$1,000,000 and, for a continuing offence, a further penalty of $240,000 for each day the offence continues, or

(b)     for an individual—$500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

6. The alleged facts giving rise to the three charges are set out in the EPA’s Statement of Facts forming part of its notice requirements pursuant to s 247E of the Criminal Procedure Act 1986 (“CPA”), which was filed and served on Blacktown on 4 December 2024. In the interests of brevity, the EPA’s s 247E notice and the Statement of Facts are appended to this judgment at annexure ‘A’ and ‘B’ respectively.

The Defendant Seeks Separate s 247J Notices to be Filed in Respect of Each Charge

7. By notices of motion filed on 7 March 2025 in three sets of proceedings, Blacktown seeks the following further disclosure from the EPA:

1 The prosecutor is to file and serve notices under s 247J of the Criminal Procedure Act 1986 (NSW) (CP Act) with respect to each of the charges by 4pm on 21 March 2025. A separate s 247J notice is to be filed and served for each charge. Each notice must be genuinely directed to the charge to which it relates and not directed to all charges globally.

2 In respect of each record of interview that the Prosecutor relies upon as a “statement” pursuant to s 247T of the CP Act, the Prosecutor must identify the particular questions and answers the Prosecutor puts forward as a “statement” for the purpose of the particular charge to which the notice under s 247J of the CP Act relates.

8. Section 247J of the CPA mandates that:

247J   Prosecution notice—court-ordered preliminary disclosure

For the purposes of section 247I(1)(a), the prosecution’s notice is to contain the following—

(a) the matters required to be included in the notice of the prosecution case under section 247E,

(b)     a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant,

(c)     a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor.

Note.

The prosecutor is not required to include in a notice anything that has already been included in a brief of evidence in relation to the matter served on the defendant or that has otherwise been provided or disclosed to the defendant (see section 247U (1)).

9. Section 247E(1) of the CPA provides that:

247E   Notice of prosecution case to be given to defendant

(1)     The prosecutor is to give to the defendant notice of the prosecution case that includes the following—

(a)     a copy of the application for any appearance order relating to the defendant,

(b)     a statement of facts,

(c)     a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings,

(c1)     in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings,

(d)     a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings,

(e)     if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,

(f)     a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings,

(g)     a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings,

(h)     if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case,

(i)     a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant,

(j)     a list identifying—

(i)     any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor’s possession and is not in the defendant’s possession, and

(ii)     the place at which the prosecutor believes the information, document or other thing is situated,

(k)     a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness.

Order 1 – Has the EPA Filed and Served Separate s 247J Notices?

10. The EPA submits that it has complied with order 1 by complying with a similar order made by Duggan J on 7 February 2025. In the latter order her Honour directed that the EPA was to file and serve “notices under s 247J of the Criminal Procedure Act 1986 (NSW) with respect to each of the charges by 4pm on 21 February 2025. A separate s 247J notice is to be filed and served for each charge” (emphasis added). The parties consented to the making of the order in this form.

11. Initially, the EPA filed a single s 247J notice on 21 February 2025, which, on any view, was contrary to Duggan J’s order. Subsequently, a separate but identical s 247J notice was filed in each proceeding on 27 February 2025.

12. Suffice it to say, that Blacktown takes issue with whether or not there has been compliance with her Honour’s order. It submits that compliance with Duggan J’s order required each s 247J notice to be specifically tailored to each charge.

13. The EPA disagrees, asserting that because the entirety of the body of evidence is relied upon with respect to all three charges, it is not required to descend to the level of detail sought by Blacktown in the s 247J notices.

14. I agree with the EPA. It follows that the notices of motion should be dismissed, with the costs of the application reserved.

Division 2A of the Criminal Procedure Act

15. Division 2A of the CPA applies to summary proceedings such as these in the Court (s 247A of the CPA). Section 247B sets out the purpose of the Division:

247B   Purpose

(1)     The purpose of this Division is to reduce delays in proceedings by—

(a)     requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and

(b)     enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.

(2)     Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

16. The Division governs the case management of criminal matters in Class 5 of the Court’s jurisdiction. It is entitled, “Case management provisions and other provisions to reduce delays in proceedings”. As Biscoe J opined in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121, the aim of Div 2A is to the narrow the issues that are genuinely in dispute (at [5]). His Honour went on to observe with respect to the two rounds of disclosure under the Division that (at [5]-[7]):

5 The purpose and aims of Division 2A inform understanding of how its provisions should be interpreted and applied. An aim of Division 2A, in my view, is to narrow the issues to those that are genuinely in dispute. I think that is clear but, if it is not, then reference may be made to the Attorney General's Agreement in Principle speech when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 incorporating Division 2A, which confirms that that is so (emphasis added):

Used properly, the provisions of this Bill provide an opportunity to reduce hardship to parties and to witnesses, to prevent unnecessary costs and to allow parties and the court to spend their time and money on what really matters - that is, on those issues that are genuinely in dispute. The bill represents the Government's commitment to a form of justice in which the real issues in dispute are determined without undue delay or expense.

6 To a large extent, the purpose and aims of Division 2A are comparable with the overriding purpose of civil procedure to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56 Civil Procedure Act 2005. There is, however, the important difference that the starting point with our system of criminal justice is that it is accusatorial. The underlying principle of the accusatorial system “is that it is for the prosecution to put its case both fully and fairly before the jury, before the accused is called on to announce the course that will be followed at trial”: R v Soma [2003] HCA 13, (2003) 212 CLR 299 at [27] per Gleeson CJ, Gummow, Kirby and Hayne JJ. This accusatorial characterisation of our system of criminal justice explains the accused's right to silence. Absent a clear legislative statement that the accusatorial system is to be abrogated, a statutory power should be read as not authorising steps to compel an accused to provide information for the purposes of the proceedings: NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252, (2008) 72 NSWLR 456 at [148]-[151], [159] per Spigelman CJ (Hidden and Latham JJ agreeing). Division 2A abrogates the defendant's right to silence to a substantial extent under ss 247F, 247K, 247O and 247V (discussed below). For example, the defendant is required under s 247K to state its objections to the prosecutor's proposed evidence and to serve a copy of any report of an expert witness whom the defendant proposes to call at the hearing.

7 Division 2A contains a prescriptive disclosure regime. It contemplates two rounds of discretionary disclosure orders, which in this case the Court made by consent, for disclosure of prescribed matters by notices between the parties:

(a)   the first round is under s 247D for "directions with respect to the future conduct of the proceedings";

(b) the second round is under s 247I for "preliminary disclosure".

17. The observations of Biscoe J were subsequently endorsed by the Court in Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39 (at [7]-[11] per Craig J) and Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 3) [2018] NSWLEC 197 (at [18]). With great respect to his Honour, there is nothing to cast doubt upon their correctness over a decade later.

18. In relation to the second round of disclosure, Biscoe J relevantly remarked in Benedict Industries that (at [11]-[13]):

11 The second round of disclosure orders under s 247I is for the prosecutor to give the defendant a "prosecution's notice" in accordance with s 247J, the defendant to give the prosecutor a "notice of the defence response" to the prosecution's notice in accordance with s 247K - a substantial abridgment of the defendant's right to silence - and the prosecutor to give a "notice of the prosecution response to the defence response" in accordance with s 247L.

12   It can be seen that the first round disclosure notices and the second round disclosure notices have confusingly similar names.

13 In addition to any material the prosecutor has that is adverse to the defendant's credibility, the second round prosecution's notice under s 247J must include, and in this case did include, "the matters required to be included in the notice of the prosecution case" under s 247E and "a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor". Those s 247J requirements are, in my view, not merely confirmatory of matters included in the s 247E notice, but require updating of those matters, including updating of evidence. This is, I think, clear enough, but, if it is not, then it is permissible to refer to the Agreement in Principle speech of the Attorney General when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 which incorporated Division 2A, on 24 November 2011, which confirms that that is so (emphasis added): "Under clause 247J, the preliminary disclosure requirements for the prosecutor include the matters they were required to disclose at the initial exchange of notices, which may need to be updated, any material they have that is adverse to the defendant's credibility, and a list identifying the evidence of the prosecution witnesses."

19. As alluded to above, this case concerns the second round of disclosure by the EPA, namely, the disclosure made by it pursuant to s 247J of the CPA. No complaint is made by Blacktown in relation to the first round of disclosure.

20. Blacktown submits that because the factual substratum of each charge is different, as evidenced by the Statement of Facts, each of the s 247J notices must be directed to the particular charge to which it relates. This is not achieved by filing identical notices in each set of proceedings.

21. By way of illustration, Blacktown relied upon the record of interview (“ROI”) between Zane McPherson and the EPA conducted on 8 December 2023. McPherson is an operator at Blacktown. The ROI is one of the transcripts of ROIs of eight proposed witnesses relied under s 247T of the CPA. Blacktown complains that the s 247J notices failed to identify which statement was intended to be adduced in respect of which charge and which questions and answers were said to constitute the statement of the witness for the purpose of each charge. This failure prejudiced the capacity of Blacktown to properly assess what, if any, objections it may take to the admission of each ROI, or parts thereof, in each proceeding. This will in turn prejudice Blacktown’s ability to comply with the requirements of s 247K, especially s 247K(d) of the CPA, which requires Blacktown to provide notice of whether it intends to dispute the admissibility of any proposed evidence disclosed by the EPA and the basis of the objection.

22. Blacktown further contends that the failure of the EPA to provide proper notice under s 247J of the CPA in respect of each charge in advance of the hearing creates a real risk that the hearing time allocated for the trial will be wastefully consumed by the determination of objections to evidence, or procedural disputes concerning the alleged factual basis of the EPA’s case, in respect of the particular charges.

The EPA Has Complied with Duggan J’s Order

23. As the EPA noted, Blacktown’s submissions are premised upon the assumption that the prosecution case in respect of each of the three charges relies upon a body of evidence that is different as between each charge, and therefore, this gives rise to an obligation under s 247J of the CPA to provide a tailored notice for each charge.

24. There are several reasons why this assumption and Blacktown’s submissions cannot be accepted. First, it is not what the text of s 247J requires. The provision explicitly states that in addition to the matters required to be included in the prosecution case under s 247E of the CPA (s 247J(a)), a copy of any information or document in the EPA’s possession that may reasonably be regarded as adverse to Blacktown must be provided (s 247J(b)) and a list identifying the affidavits or statements (including any ROIs) of the witnesses proposed to be called by the EPA at the proceedings (s 247J(c)).

25. Blacktown did not suggest that there had been inadequate disclosure pursuant to the s 247E notice (s 247J(a)).

26. Having regard to the language of the provision, s 247J(b) and (c) have been complied with by the EPA. There is nothing in either the language or context of s 247J of the CPA that demands the detailed level of disclosure for which Blacktown contends. No authority was identified by Blacktown supporting such a construction of the section.

27. Instead, Blacktown relied upon the remarks of Pain J in Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29, where her Honour observed that (at [9]):

9   …The Division [Div 2A] provides for an ordered approach to the distillation of issues leading up to a criminal trial in what is likely to be a contested hearing on a plea of not guilty. The regime does not purport to water down the prosecutor's up front obligation to identify the evidence on which it relies to establish a charge.

28. While her Honour reinforced that the purpose of Div 2A is to promote the efficient conduct of summary criminal proceedings in the Court by, among other things, narrowing the issues in dispute prior to any final hearing, the case does not stand as authority for the proposition that in addition to disclosure of the material specified therein, the prosecutor must identify the particular parts of any information or document relied upon. No such obligation exists under the CPA and, as explained below, no such obligation exists at common law.

29. Second, and allied to the first reason, the statutory regime of disclosure which includes ss 247E, 247I and 247J of the CPA is, to a “significant degree”, coextensive with the common law duty of disclosure which applies to all prosecutors (Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48; (2020) 102 NSWLR 72 at [141] per Bathurst CJ, Fullerton and Beech-Jones JJ and Arcadia Investment Holdings Pty Ltd v Environment Protection Authority [2022] NSWLEC 2 at [15] per Duggan J). This duty is a duty to disclose documents (R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 at [54] per Hodgson JA and R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 at [20] per Simpson J). It is not a duty that imposes a further obligation to make disclosure by identifying particular paragraphs of affidavits or witness statements that the prosecutor may rely upon at trial.

30. Third, it follows that in the absence of a power deriving from statute or the general common law prosecutorial duty of disclosure, the Court’s ability to make the order sought by Blacktown is limited to discretionary powers that the Court possesses to control its own processes to prevent injustice (Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at [2] per Mason CJ). The Court would not, however, exercise its discretion to make the order.

31. This is because there is nothing inadmissible about a single body of evidence across multiple charges being heard together. As the High Court of Australia stated in McNamara v The King [2023] HCA 36; (2023) 415 ALR 223 (at [67]-[69] per Gageler CJ, Gleeson and Jagot JJ) (footnotes omitted):

67    Sections 55(1) and 56(1) combine to produce the result that evidence probative of the existence of one fact in issue in a proceeding is admissible in the totality of the proceeding. The evidence, if admitted, is then available to be used in the totality of the proceeding in the assessment of the probability of the existence of any other fact in issue in the proceeding, including any fact in issue between parties to the proceeding other than the party adducing it, unless and to the extent that its admission is excluded, or its use is limited, by or under another provision of the Evidence Act.

68   The combined operation of ss 55(1) and 56(1) in their application to a multi-party civil proceeding was explained by Austin J in Australian Securities and Investments Commission v Vines. His Honour said:

“It is notable that both ss 55 and 56 address the question whether evidence is admissible in a proceeding. Where a plaintiff seeks to make out separate cases against several defendants in a single proceeding, the question to which the Evidence Act provides an answer is whether evidence is admissible in the proceeding, not whether evidence is admissible to prove the plaintiff's case against a particular defendant. The answer it gives is that if the evidence is relevant, it is admissible. Once it is admitted, it is evidence in the proceeding, and therefore available to be used for any purpose, unless one of the exclusionary rules of the Act or any surviving general law exclusionary rule applies, or the Court makes use of its statutory discretions to exclude admissible evidence or limit its use.”

69   The combined operation of ss 55(1) and 56(1) can be no different in their application to a multi-party criminal proceeding. For the purposes of s 55(1), the facts in issue in a criminal proceeding are the ultimate facts which establish the elements of the offence or offences charged together with such other facts the existence of which may be probative of the existence of those ultimate facts. Applied to a criminal proceeding constituted by a joint trial on a joint indictment, ss 55(1) and 56(1) produce the result that any evidence adduced on the basis that it is probative of the existence of a fact in issue between the Crown and a co-accused is available to be used by the jury in assessing the probability of the existence of any other fact in issue between the Crown and that co-accused or between the Crown and any other co-accused, unless and to the extent that the admission of the evidence is excluded, or the use of the evidence is limited, by or under some other section. That is so for all evidence adduced in the joint trial, whether by the Crown or any co-accused and whether in examination in chief or in cross-examination.

32. It should be recalled in this context, that s 29(1)(b) of the CPA provides that proceedings relating to two or more offences alleged to have been committed by the same person, in this instance, Blacktown, may be heard and determined together where the offences arise out of the same factual matrix.

33. The admissibility of a single body of evidence across multiple charges heard together has been confirmed on numerous occasions in this Court (Environment Protection Authority v O’Brien [2023] NSWLEC 118 at [110] per Robson J and Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51 at [38] per Pritchard J).

34. In the present case, the offences are alleged to arise out of the same set of circumstances, and the evidence disclosed by the EPA in the s 247J notices is common to all three charges. As the EPA therefore asserts, the material listed in the s 247J notices is prima facie relevant and admissible in each of the three proceedings. At this stage of the proceedings this must be accepted.

35. It follows that because the EPA has already complied with the first order sought in the motion, it would be inutile to make it.

36. Fourth, there is nothing about the conclusion arrived at above that is either expressly or inherently prejudicial to Blacktown. No evidence was proffered by it to establish this contention. In presently asking the Court to order the EPA to identify precisely the evidence that it will rely upon at the hearing is to usurp the role of the trial judge insofar as it requires a current formation of an opinion as to the relevance and admissibility of the material. Blacktown is essentially asking the Court not to accept the submission of the EPA that all of the evidence referred to in the s 247J notices is relevant to each of the charges.

37. Blacktown argued that it was merely asking the Court to assess whether the position of the EPA was “tenable” (T16:01). But as the following exchange revealed, this amounts to a request that the Court form an opinion as to the relevance of the material sought to be relied upon by the EPA (T16:14-23):

HER HONOUR: What do you mean by “tenable”, in that case?

HOWARD: That’s a fair question, with respect. What I mean by “tenable” is, your Honour, I’m not asking your Honour to look broadly at the issue of relevance, but I say your Honour can look at the sort of factors I’ve raised, like, how can the Waste Contribution Monthly Reports be relevant to--

HER HONOUR: There you go, you just mentioned the R-word.

HOWARD: Yeah, well.

38. To the extent that Blacktown does not accept that the corpus of evidence relied upon by the EPA is relevant to each of the three charges, there are avenues open to it to agitate this issue prior to the commencement of the hearing (see, for example, the procedure contained in s 247G of the CPA). Otherwise, the use to which evidence can be put is a matter for the trial judge. At this juncture, all that is required from Blacktown to comply with its obligations under s 247K of the CPA is to indicate whether it objects to any of the material disclosed to it by the EPA.

39. Ultimately the evidence is likely to be refined, whether by negotiation or by the taking of objections by Blacktown, and therefore, distilled. But at this stage in the preparation of the proceedings, all that is required is for the EPA to genuinely give notice of its case and it has fulfilled its obligation in this regard.

40. Fifth, I agree with the EPA that it would suffer prejudice if the order sought by Blacktown was made. In relation to case management, fairness and justice require the Court to take into account the interests of both parties to the proceedings (Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88; (2024) 259 LGERA 388 at [86] per Sweeney J). If the EPA was required to, in effect, treat each proceeding as if it was to be heard separately and to dissect the ROIs listed in the s 247J notices in the manner proposed by Blacktown, it would risk prematurely and unjustly circumscribing the EPA’s case at trial. As the EPA submitted, while it may endeavour to anticipate the issues that will arise at the hearing of the charges, and therefore, the evidence required to meet those issues, it is not difficult to envisage a scenario where particular portions of the evidence (for example, specific questions and answers contained in the ROIs) become relevant during the course of the trial in a manner that was not apparent prior to its commencement.

41. Sixth, the making of the order would arguably not assist in the expeditious disposal of the proceedings, or necessarily narrow the issues in dispute, given the additional resources required to be expended by the EPA to parse the evidence in the manner demanded by Blacktown at this preliminary stage of the proceedings. Moreover, as the issues crystallise, further interlocutory applications would in all likelihood be required by the EPA to rely upon evidence (already disclosed) at the hearing that had not been previously identified by it.

Order 2 – Must the EPA Identify Each Question and Answer Relied Upon by It in Each ROI?

42. Section 247T of the CPA states:

247T   Requirements as to statements of witnesses

(1)     A statement of a witness that is included in a notice under this Division may be in the form of questions and answers.

(2)     If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.

43. It was not in dispute that each of the ROIs relied upon by the EPA as disclosed in its s 247J notice were “statements” for the purpose of the provision.

44. The reasons provided above for rejecting the making of order 1 apply all the more cogently and compellingly with respect to order 2. Neither as a matter of statutory power under the CPA nor common law, or in the exercise of the Court’s discretion, is such an order justified.

The Notice of Motion Must be Dismissed

45. It follows that Blacktown’s application must fail.

46. The formal orders of the Court are therefore:

1. the notice of motion filed on 7 March 2025 is dismissed; and

2. costs of the motion are reserved.

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Annexure A

Annexure B

Decision last updated: 04 April 2025