Environment Protection Authority v Central Coast Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Central Coast Council [2020] NSWLEC 157

Hearing dates:

17 and 18 November 2020

Date of orders:

18 November 2020

Decision date:

19 November 2020

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See rulings at [14]

Catchwords:

EVIDENCE - admissibility - exceptions to the hearsay rule provided by s 87(1)(b) of the Evidence Act 1995 (NSW) (the Evidence Act) - alleged admission - whether alleged admission was made with authority for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made with authority - whether alleged admission was made within the scope of the maker’s employment for the purposes of s 87(1)(b) of the Evidence Act - alleged admission not made within the scope of the maker’s employment - alleged admission not an admission able to be relied upon because neither limb of s 87(1)(b) of the Evidence Act satisfied - evidence rejected - consequential rejection of further evidence that was contingent on acceptance of rejected “admission"

Legislation Cited:

Evidence Act 1995, s 87(1)(b) and Dictionary

Pesticides Act 1999, ss 10(1)(a) and 111(1)

Cases Cited:

Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37

Environment Protection Authority v Warwick Ronald McInnes (No 2) [2020] NSWLEC 147

Texts Cited:

Land and Environment Court’s COVID-19 Pandemic Arrangements Policy

Category:

Procedural and other rulings

Parties:

Environment Protection Authority (Prosecutor)
Central Coast Council (Defendant)

Representation:

Counsel:
Dr S Pritchard SC/Ms G Lewer and Mr D Bhutani, barristers (Prosecutor)
Mr T Howard SC/Mr J Lee, barrister (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Moray & Agnew (Defendant)

File Number(s):

274640 of 2018

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The need for a voir dire hearing

The voir dire hearing

The relevant statutory provisions

The legal representatives

My ruling on the contested evidence of Inspector Folitarik

The contested evidence of Inspector Folitarik

Introduction

The Council’s objection to par 11 of the Inspector’s affidavit

The Prosecutor's submissions on admissibility of the challenged paragraph

The Prosecutor’s written submissions

The Prosecutor’s oral submissions

The Council’s submissions in reply

Consideration

The challenged paragraph of Mrs Terry's affidavit.

Introduction

The parties’ common position on par 16 of Mrs Terry’s affidavit

Conclusion

JUDGMENT

Introduction

1. On 10 August 2017, Mr Damien Terry, a developmentally disabled young man, drank herbicide from a Coca-Cola bottle which had been stored in the disabled toilet at Bloodtree Oval (the Oval) at Mangrove Mountain. Mr Wayne McInnes, the person who performed the role of honorary groundsman at the Oval, was prosecuted by the Environment Protection Authority (the Prosecutor) for a breach of s 10(1)(a) of the Pesticides Act 1999 (the Pesticides Act). For present purposes, it is unnecessary to reproduce the terms of that provision.

2. On 24 April 2020, Mr McInnes was convicted by Duggan J of this offence (Environment Protection Authority v Warwick Ronald McInnes [2020] NSWLEC 37) and, on 30 October 2020, her Honour sentenced Mr McInnes for his offending conduct (