Environment Protection Authority v Eastern Creek Operations Pty Limited

[2022] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97

Hearing dates:

6 October 2021

Date of orders:

13 May 2022

Decision date:

13 May 2022

Before:

Macfarlan JA at [1];
Fullerton J at [81];
Lonergan J at [219].

Decision:

In the s 5F proceedings:

(1) The application for leave to appeal is dismissed.

In the case stated proceedings:

(1) Answer the stated case question in the affirmative.

Catchwords:

CRIMINAL PROCEDURE — prosecution for non-compliance with statutory notice — ruling that notice invalid — classification of ruling as interlocutory or final — whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW)

ENVIRONMENT — validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information — whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production

COURTS AND JUDGES — jurisdiction — whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), s 107

Criminal Appeal Act 1912 (NSW), ss 5AE, 5C, 5F

Criminal Procedure Act 1986 (NSW), ss 139(5), 202, 247A, 247B, 247C, 247G, 247W, 249-252

Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW)

Evidence Act 1995 (NSW), ss 13, 18, 138

Income Tax Assessment Act 1936 (Cth), s 264

Interpretation Act 1987 (NSW), ss 13A, 35

Land and Environment Court Act 1979 (NSW), ss 22, 23

Land and Environment Court Rules 2007 (NSW), r 5

Protection of the Environment Administration Act 1991 (NSW), ss 5, 6, 7, 8, 9, 29, 30

Protection of the Environment Operations Act 1997 (NSW), ss 3, 48, 184, 191, 193, 194, 195, 211, Sch 1

Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cll 91 to 96

Supreme Court Rules 1970 (NSW), r 11B

Supreme Court (Summary Jurisdiction) Act 1967 (NSW)

Trade Practices Act 1974 (Cth), s 155

Cases Cited:

A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244

Attorney General of NSW v Built NSW Pty Ltd [2013] NSWCCA 299

Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156

D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

Doja v R (2009) 198 A Crim R 349; [2009] NSWCCA 303

DPP (NSW) v Ridley [2015] NSWSC 1478

DPP v Elskaf [2012] NSWSC 21

Environmental Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182

Environmental Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67

Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39

Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42

Lethlean v R (1995) 83 A Crim R 197

Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149

Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675

Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94

Munday v Gill (1930) 44 CLR 38; [1930] HCA 20

Nicholson v R [2017] NSWCCA 38

Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 421; [1994] HCA 54

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368

R v Bozatsis (1997) 97 A Crim R 296

R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373

R v Dabhade [1992] All ER 769

R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125

R v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

R v Kanaan [2003] NSWCCA 396

R v Metal Trades Employees’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3

R v RAG [2006] NSWCCA 343

R v Steffan (1993) 30 NSWLR 633

SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357

SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314

Tran v R [2017] NSWCCA 93

Turnbull v R [2016] NSWCCA 109

Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156

Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 179; [1982] HCA 57

WO v DPP [2009] NSWCCA 275

Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10

Texts Cited:

G Spencer Bower, A Turner and K Handley, The Doctrine of Res Judicata (3rd ed, 1996, Butterworths)

Category:

Principal judgment

Parties:

Environment Protection Authority (Applicant)
Eastern Creek Operations Pty Limited (Respondent)

Representation:

Counsel:
N Sharp SC / M Rabsch (Applicant)
S Buchen SC / J Caldwell (Respondent)

Solicitors:
Environment Protection Authority (Applicant)
Ashurst (Respondent)

File Number(s):

2019/335230; 2019/335231

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 5

Citation:

[2020] NSWLEC 182; [2021] NSWLEC 39

Date of Decision:

22 December 2020

Before:

Pain J

File Number(s):

2019/335230; 2019/335231

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 February 2003 the Environment Protection Authority (the “EPA”) issued a licence under the Protection of the Environment Operations Act 1997 (NSW) to Eastern Creek Operations Pty Limited (“Eastern Creek”) authorising it to undertake a range of activities, including waste processing, resource recovery and composting, at its facility in Eastern Creek. Between 2010 and 2018, operations at the facility included the sorting and processing of waste into an organic-based output known as mixed waste organic outputs (“MWOO”).

On 24 May 2018 the EPA received a report which found, inter alia, that MWOO contained chemical contaminants which raised “significant concern” for the environment and human health. On 24 September 2018 the EPA issued a Notice to Eastern Creek, purportedly pursuant to s 191 of the Protection of the Environment Operations Act 1997 (NSW), requiring it to provide specified information and/or records pertaining to MWOO.

The EPA brought two Class 5 proceedings in the Land and Environment Court against Eastern Creek, charging it with offences in connection with the Notice. The EPA alleged that Eastern Creek failed to produce the required material and in purported compliance with the Notice knowingly produced misleading material. The EPA subsequently sought leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a ruling made by Pain J in the course of the proceedings that the Notice is invalid.

The primary issues in the application were:

1. Whether the Notice is valid;

2. Whether the EPA is entitled to seek leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) and whether leave to appeal should be granted;

3. By way of case stated, whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summons after finding invalid a statutory notice which constituted an element of the criminal charge laid by the service of the summons.

The Court (Fullerton and Lonergan JJ; Macfarlan JA dissenting) dismissed the application for leave to appeal and (per Fullerton and Lonergan JJ) answered the stated case question in the affirmative:

In relation to Issue 1 (validity of the Notice):

Macfarlan JA found the Notice to be valid.

Fullerton and Lonergan JJ found it unnecessary to consider the validity of the Notice.

Per Macfarlan JA:

For a notice such as that in the present case to be valid, it must not only identify with sufficient clarity the documents which are required to be produced, it must show to the person to whom it is addressed that any document which he or she is required to produce is one whose production the issuer is entitled to require: [28]. Macfarlan JA found that the Notice in question satisfied these requirements: [51].

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67, applied.

In relation to Issue 2 (leave to appeal under s 5F):

Per Fullerton J, Lonergan J agreeing:

While it can be said that the finding of invalidity on the Notice had, in one sense, the requisite element of finality by resolving an issue in the proceedings in a binding manner, it was not a finding that determined “an identifiable or separate part of the proceedings”. The proper characterisation of the primary judge’s finding that the Notice is invalid is that it, in effect, operated as a final order and that, save for the EPA inviting her Honour not to order that the summonses be dismissed, the finding of invalidity would have had that effect. Although on one view it was a decision made in the proceedings at a preliminary stage and not in a final hearing, in this case that is not a relevant consideration and even less a determining factor in the characterisation of the ruling as “interlocutory”: [133].

Their Honours were not persuaded that the application for leave to appeal pursuant to s 5F(3)(a) is competent. Even if they were in error in that conclusion, they would have refused leave: [136].

R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296, distinguished; Turnbull v R [2016] NSWCCA 109, applied.

Per Macfarlan JA, contra:

The primary judge’s determination that the Notice is invalid was an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act 1912 (NSW) against which the EPA is entitled to seek leave to appeal. The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing: [2], [72].

As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour’s conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not of significance. The determination was well capable of being reflected in the Court records consistently with “ordinary usage”. It was unlike a simple ruling on the admissibility of evidence which is not ordinarily entered in the records of the Court: [72].

In light of the conclusion that the Notice is valid, leave to appeal should be granted. The primary judge’s determination, if it stands, effectively puts an end to the prosecutions which are brought by the EPA in its capacity as a protector of the environment and health of the community: [75].

R v Steffan (1993) 30 NSWLR 633, applied.

In relation to Issue 3 (case stated):

Per Fullerton J, Lonergan J agreeing; Macfarlan JA not deciding:

The question raised by the case stated is a pure question of law and should be answered: [143].

There is nothing in s 247G of the Criminal Procedure Act, when considered in the structure of the Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing: [216]. The construction of s 247G(3) advanced by the respondent provides a source of power available to a superior court to be exercised in those circumstances. That purposive construction is an endorsement of the legislature’s commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense: [217].

Judgment

1. MACFARLAN JA: The Environment Protection Authority (“the EPA”) seeks leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a ruling made by Pain J in the Land and Environment Court (“LEC”) that a Notice issued by the EPA, purportedly pursuant to s 191 of the Protection of the Environment Operations Act 1997 (NSW) (the “POEO Act”), to Eastern Creek Operations Pty Limited (“Eastern Creek”) is invalid. The ruling was made in the course of two Class 5 proceedings brought by the EPA against Eastern Creek charging Eastern Creek with offences in connection with the Notice.

2. Contrary to Eastern Creek’s submissions, I have concluded that the ruling constitutes an “interlocutory judgment or order” against which the EPA is entitled to seek leave to appeal under s 5F(3)(a), that leave to appeal should be granted and that the appeal should be allowed on the basis that the Notice was validly issued. In these circumstances it is unnecessary to deal with a case stated to this Court by the LEC on the application of the EPA concerning the powers of the LEC to summarily dispose of Class 5 proceedings. This question does not arise because, as the Notice is valid, there is no reason to conclude that the proceedings must fail and therefore be summarily dismissed.

THE STATUTORY FRAMEWORK

Protection of the Environment Administration Act 1991 (NSW)

3. The EPA is constituted by s 5 of the Protection of the Environment Administration Act 1991 (NSW) (the “POEA Act”) as a statutory body representing the Crown. By reason of s 13A of the Interpretation Act 1987 (NSW) the EPA thus has the status, privileges and immunities of the Crown.

4. Under s 6 of the POEA Act the objectives of the EPA are stated to include the following:

6 Objectives of the Authority

(1) The objectives of the Authority are:

(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, and

(b)   to reduce the risks to human health and prevent the degradation of the environment, by means such as the following—

•    promoting pollution prevention,

•   adopting the principle of reducing to harmless levels the discharge into the air, water or land of substances likely to cause harm to the environment,

•   minimising the creation of waste by the use of appropriate technology,

•   regulating the transportation, collection, treatment, storage and disposal of waste,

…

5. Section 7(2) states that the general responsibilities of the EPA include:

(a)   ensuring that the best practicable measures are taken for environment protection in accordance with the environment protection legislation and other legislation,

…

(c)   inquiring into and reporting on the efficacy of those measures,

(d)   reviewing the regulatory framework for environment protection and advising on its rationalisation and simplification,

(e)   investigating and reporting on alleged non-compliance with environment protection legislation for the purposes of prosecutions or other regulatory action

…

6. Section 8 states that the general powers of the EPA include powers to:

(a)   formulate and promote plans for environment protection, and

(b)   publish reports and information on any aspect of environment protection, and

(c)   carry out or commission research into environment protection, and

(d)   co-ordinate the collection of information on environment protection which is published or supplied by public or other authorities…

…

7. Section 9(1) is in the following terms:

9   Powers of Authority relating to environmental quality

(1)  The Authority is required to:

(a)   develop environmental quality objectives, guidelines and policies to ensure environment protection, and

(b)   monitor the state of the environment for the purpose of assessing trends and the achievement of environmental quality objectives, guidelines, policies and standards.

8. Under ss 29 and 30 the EPA is empowered to establish advisory committees to advise it on such matters as it determines.

Protection of the Environment Operations Act1997 (NSW)

9. Section 3 of the POEO Act states that its objects include:

...

(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

(b)   to provide increased opportunities for public involvement and participation in environment protection,

(c)   to ensure that the community has access to relevant and meaningful information about pollution,

(d)   to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i)   pollution prevention and cleaner production,

(ii)   the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia)   the elimination of harmful wastes,

(iii)   the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv)   the making of progressive environmental improvements, including the reduction of pollution at source,

(v)   the monitoring and reporting of environmental quality on a regular basis,

…

10. Chapter 3 of the Act is concerned with environment protection licences. It includes s 48 which requires licences to be held for the carrying on of certain activities identified in Schedule 1 to the Act, the effect being to require the activities of Eastern Creek, to which reference is made below, to have been the subject of a licence or licences.

11. Chapter 7 of the Act is entitled “Investigation” and includes the following provisions:

184 Purposes for which powers under Chapter may be exercised

Powers may be exercised under this Chapter for the following purposes:

(a)   for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b)   for obtaining information or records for purposes connected with the administration of this Act,

(c)   generally for administering this Act and protecting the environment.

…

191   Requirement to provide information and records (EPA)

(1)   The EPA may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities or functions under this Act.

(2)   This section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

…

193 Requirement to provide information and records (authorised officers)

(1)   An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.

(2)   In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

194   Manner, time etc for compliance

A notice under this Part must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

195   Provisions relating to records

(1)   A notice under this Part may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(2)   The body or person to whom any record is furnished under this Part may take copies of it.

(3)   If any record required to be furnished under this Part is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

12. Section 211 creates offences in relation to non-compliance with requirements under Chapter 7 and in relation to the provision of false and misleading information.

Protection of the Environment Operations (Waste) Regulation 2014

13. Part 9 of this Regulation (the “PEOW Regulation”), in which cll 91 to 96 are contained, empowers the EPA to issue exemptions in relation to resource recovery and to issue orders in relation to the supply of resource recovery waste.

FACTUAL BACKGROUND

14. On 14 February 2003 the EPA issued a licence under the POEO Act to Eastern Creek authorising it to undertake a range of activities, including waste processing, resource recovery and composting, at its facility in the suburb of Eastern Creek. Between 2010 and 2018, operations at the facility included the sorting and processing of waste into an organic-based output known as mixed waste organic outputs (“MWOO”).

15. Commencing in March 2010 the EPA issued orders and exemptions to Eastern Creek, and to certain consumers, permitting MWOO to be used as a soil amendment for agricultural purposes, forestry and mine site rehabilitation. The last relevant statutory instruments, both revoked on 26 October 2018, were entitled “The organic outputs derived from mixed waste order 2014” (“the Order”) and “The organic outputs derived from mixed waste exemption 2014” (“the Exemption”).

16. In September 2017 the EPA formed a Technical Advisory Committee (“TAC”) under s 29 of the POEA Act (see [8] above) to advise it on various technical topics. On 24 May 2018 the TAC delivered its final report to the EPA which found, inter alia, that MWOO contained chemical contaminants which raised “significant concern” for the environment and human health.

17. In August and September 2018 there were a number of communications between representatives of the EPA and Eastern Creek. For the purposes of disposition of the present appeal proceedings, it is sufficient to refer to the following.

18. By email of 17 August 2018 the EPA’s Chief Executive Officer, Ms Anissa Levy, invited various industry representatives to a meeting to be held at the offices of the EPA on 22 August 2018. Mr Nathan Lopez, Eastern Creek’s Chief Executive Officer, was identified in the invitation as a “required attendee”. The email indicated that the purpose of the meeting was to “continue the discussion around the Alternative Waste Technologies (AWT) research findings” and requested the intended participants to “prepare some information for this meeting regarding your stakeholders as well as details of the land application of your mixed waste organic outputs”. Details of what was required in this respect were given including identification of the land to which MWOO had been applied.

19. On 11 September 2018 Mr Lopez and Eastern Creek’s Chairman, Mr David Singh, wrote a letter to the EPA entitled “Response to TAC recommendations concerning Mixed Waste Organic Output (MWOO)”. The letter included the following:

“…We have supported the need for ongoing research to inform regulation. We were aware the EPA had commenced research 8 years ago, although we understood the studies were planned to be completed after 4 years.

…

TAC recommendations

Based on the high level information provided by the EPA so far, we are concerned that the recommendation to discontinue MWOO use on agricultural land is an extreme and unnecessary position because:

Information provided by Department of Primary Industries demonstrates that there are farming productivity benefits achieved from MWOO at application rates between 10 and 60 t/ha;

Published NSW Environmental Trust Annual Reports from 2012-16 demonstrate that there is no evidence of increased soil toxicity at the 60 t/ha application rate;

The research has not included any systematic consultation with farmers using MWOO; and

The industry has not been afforded the opportunity to review the research in detail.

Impact of regulatory change

The TAC recommendations regarding MWOO, and any EPA decision to revoke or rescind the current orders which permit MWOO, is a serious risk to industry viability and the jobs of workers and contractors. Equally, it denies farmers’ access to a product they clearly see as beneficial and would result in an additional 75,000 tonnes of waste going to landfill every year from GRL alone contrary to the WARR targets.

…

Access to research

The industry has asked the EPA a number of times to provide the detailed research assumptions, analysis and data that underpin the TAC recommendations. We remain concerned that the EPA refuses to provide industry with this information…”

20. On 24 September 2018 the Notice referred to at [1] above was issued by the EPA to Eastern Creek.

21. On 26 October 2018 the EPA revoked the Order and the Exemption.

THE NOTICE TO PROVIDE INFORMATION AND/OR RECORDS

22. The subject Notice was dated 24 September 2018 and stated that it was issued under s 191 of the POEO Act. It required a response by 28 September 2018 and relevantly stated:

“…Why is the EPA writing to you

The Environment Protection Authority (EPA) has been undertaking an investigation into the potential risk to the environment and human health of land applying mixed waste organic outputs (MWOO).

At a meeting with you on 22 August 2018, the EPA’s Anissa Levy, A/Chair and Chief Executive Officer advised you that the EPA would be formally requesting records and information as part of this investigation.

Please read this notice carefully and answer each of the questions outlined in the ‘Requirement to Provide Information and/or Records’ section below.

…

BACKGROUND

A. EASTERN CREEK OPERATIONS PTY LIMITED (the licensee) is the holder of Environment Protection Licence No. 11798 (the licence) issued under the Protection of the Environment Operations Act 1997 (the Act). The licence authorises the carrying out of activities at WALLGROVE ROAD, EASTERN CREEK, NSW, 2766 (The Premises).

B. The licensee receives and processes mixed putrescible waste at the Premises to produce an output that is applied to land. The received wastes are processed and an output produced to the specifications and requirements of the EPA’s resource recovery order the organic outputs derived from mixed waste order 2014.

C. The EPA is investigating the potential risk to the environment and human health of land applying MWOO.

PURPOSE(S) FOR WHICH THIS NOTICE IS ISSUED

D. The NSW EPA is responsible for the administration and enforcement of the Act and the Protection of the Environment Operations (Waste) Regulation 2014 (the Regulation).

E. Under Section 191 of the Act, the EPA may, by notice given to the person in writing, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter/s relating to the EPA’s responsibilities or functions under the Act and Regulation. The power to issue the notice is not limited to matters in respect of which the EPA is the Authorised Regulatory Authority (ARA).

MATTER/S TO WHICH THIS NOTICE RELATES

F. The EPA is investigating the potential risk to the environment and human health of land applying mixed waste organic outputs under the Act and Regulation from the Premises.

REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS

1. The EPA requires you to provide the following information and/or records for the time period between 1 January 2010 to 30 July 2018 (inclusive):

a) The exact locations of each MWOO land application site – property names and addresses, paddock locations and plot identification.

b) Dates that MWOO was delivered to each application site.

c) Dates that MWOO was applied to land at each application site.

d) Total tonnages of MWOO delivered to each application site.

e) Application rates of MWOO applied on every individual paddock at each application site.

f) Description of land use for each application site to which MWOO was applied to.

g) Contact details for land owner and/or land manager for each MWOO application site, including their full name, address, telephone number(s) and email.

h) Where a secondary supplier was involved, provide the name, address, telephone number(s), email for each company or person.

i) Provide full contact details of all companies or persons that apply MWOO to land at each application site.

j) All test data of MWOO produced at the Premises, including characterisation and any other additional sampling and testing.

k) Copy of the sampling plan required by the organic outputs derived from mixed waste order 2014.

l) Copy of the statement of compliance required to be provided by the processor (licensee) to the consumer under the organic outputs derived from mixed waste order 2014.

m) Copy of the statement of compliance required to be provided to the processor by the consumer under section 7.18 of the organic outputs derived from mixed waste exemption 2014.

n) Test data on each application site as required by section 7.13, 7.14 and 7.15 or the organic outputs derived from mixed waste exemption 2014.

o) all information and records required in paragraphs 1a) to 1j) in relation to organic outputs from the premises held prior to the commencement of the EPA’s resource recover exemption in 2010.

2. You do not have to furnish any record specified above unless that record is in your possession or it is in your power to obtain it lawfully.

3. The information and/or records must be provided in writing with all data presented in electronic spreadsheets, unless otherwise stated. …”

THE PRIMARY JUDGMENT

23. By notices of motion filed in the LEC on 29 May 2020 Eastern Creek sought orders for the dismissal, prior to trial, of the EPA’s two summonses charging it with offences arising out of EPA’s service of the Notice. The basis for the dismissal sought was said to be invalidity of the Notice.

24. By judgment of 22 December 2020, Pain J determined that the Notice was deficient in failing “to indicate the matter in connection with which it was necessary or appropriate to require production of the information and records sought” ([2020] NSWLEC 182 at [92]). Her Honour concluded that “the EPA has not discharged its onus of proof of demonstrating that the Notice is valid” but did not make any formal orders pending further submissions by the parties.

25. Her Honour reviewed a number of authorities, including D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374, Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 and Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39, and observed at [82]:

“Ultimately each case must be decided on its own facts. The Notice is unlike those in D’Anastasi, Zhang and Hardie Holdings in which potential contraventions of an Act were being investigated, and the findings relied on were addressing that context. The Notice is to aid in an investigation of potential risks to human health and the environment of land applying MWOO. Essentially that is all the Notice says.”

26. Her Honour said that she did not consider that evidence of surrounding circumstances relied upon by the EPA elucidated the terms of the Notice. She expressed the following further views about the Notice:

“[84] If the EPA’s contextual evidence is put to one side, the Notice must be construed on its face. The background and matter are stated in very broad terms and do no more than set out the EPA’s wide responsibilities under the POEO Act, identify the Order and Exemption and state the EPA is investigating the potential human health and environmental risks of that application of MWOO to land. I agree with Eastern Creek that it does not specify in any meaningful way the matter the subject of the Notice for the purposes of s 191. The phrase ‘land applying’ is unclear, as submitted at [37]-[38], amounting to more than a ‘precious or hypercritical’ criticism of the Notice.

…

[89] These cases confirm that a broad inquiry is unlikely to be sufficient to render a notice seeking information and records in this kind of statutory regime to be valid. I agree with Eastern Creek that the Notice here is impermissibly wide in scope and does not state in any useful way the nature of the matter to be investigated.”

27. As the parties did not agree what formal orders should be made by her Honour to give effect to her judgment of 22 December 2020, her Honour received further submissions and delivered a further judgment, on 30 April 2021 ([2021] NSWLEC 39). Her Honour acknowledged in that judgment that the effect of her earlier finding that the Notice is invalid meant that both of the EPA’s charges against Eastern Creek must fail (at [28]) and indicated that, if she had the power to do so, she would make orders for summary dismissal of both charges (at [47]). As the existence of that power was in issue, her Honour stated a case to this Court on that question without making any formal orders in relation to the charges.

CONSIDERATION OF THE VALIDITY OF THE NOTICE

The principles to be applied

28. In Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67 the High Court was concerned with a notice purportedly issued under s 264 of the Income Tax Assessment Act 1936 (Cth) requiring information to be furnished and documents to be produced. Gibbs ACJ said at 525 that, for validity, such a notice must not only “identify with sufficient clarity the documents which are required to be produced… it must show to the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require”. His Honour said that in some cases “the very description of the documents… may be enough to show that the notice is within the power conferred by the section”.

29. Gibbs ACJ’s observations were applied by the Full Federal Court in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368; [1982] FCA 17 at 374. The Court continued at 375:

“The requirement that a notice under s 155(1) [of the Trade Practices Act 1974 (Cth)] show the person to whom it is addressed that the Commissioner is entitled to require that he furnish the information or produce the documents which the notice specifies will not be satisfied unless it appears from the notice that the information or documents sought are information or documents ‘relating’ to one or more ‘matters’ of a kind described in the subsection…”

30. The “matters” in s 155(1) to which the Court referred included “matter[s] that [constitute], or may constitute, a contravention of this Act [the Trade Practices Act 1974 (Cth)]”.

31. These principles were again applied by the Full Federal Court in SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, which was another case concerned with a notice purportedly issued under s 155(1) of the Trade Practices Act 1974 (Cth). In that case, Fisher and French JJ added the following at 370:

“It is clear from what follows in that judgment [Pyneboard] that the description of the relevant ‘matter’ must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the ‘matter’ to enable the relationship to be discerned.”

32. These principles were adopted and applied by this Court in D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374 which was concerned with a notice purportedly issued by an authorised officer under s 193 of the POEO Act (see [11] above). The notice referred to a report of dead native birds in the vicinity of the addressee’s premises and to an inspection of the premises in an immediately succeeding period of about five days in which baits and numerous dead birds were located. The notice stated that the EPA’s authorised officer was “further investigating the suspected misuse of pesticides at the premises and requires details of the persons who visited, worked and/or used pesticide(s) at the premises” (at [35]). The notice then indicated that details of this type were required in relation to much broader periods of time than encompassed by the report of dead birds and subsequent inspection.

33. Young JA noted that the notice dealt with “misuse of pesticides on the premises generally” and did not specify what pesticide was the subject of the investigation or specify the substance of the suspected misuse, quoting at [52] the following interchange with counsel that occurred during the course of the hearing:

“Sackville AJA put to Mr Jordan: ‘Can it be a proper identification of a matter simply to say the department is investigating the suspected misuse of pesticides at the premises? When? By whom? Which pesticides? Which possible offence? None of these are referred to. It could mean anything.’”

34. His Honour found that the notice was invalid “as it failed to indicate to the addressee the matter with which it was concerned” (at [55]). Sackville AJA (with whom Campbell JA agreed) agreed generally with Young JA’s reasons, stating at [105]:

“I agree with Young JA that the notice does not comply with s 193(1) of the POEO Act because it does not identify a matter of the kind contemplated by s 193(1). The notice does not identify a matter within the responsibilities and functions of the regulatory authority, in connection with which the information is required.”

35. Sackville AJA emphasised the “wide range of information” sought in relation to extended periods, including for “a period of up to eight months before the apparent poisoning of the birds”. His Honour asked rhetorically what was the “matter” to which information concerning any measures taken “to eradicate, manage or otherwise mitigate the effect of pests without using any pesticides” during that extended period related.

36. Finally, I refer to Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94 at 175 where the Full Federal Court stated that “[n]otices are to be reasonably, not preciously, construed and the terms used in notices will ordinarily take their meaning from the commercial circumstances in which the notices are given” (see also Pyneboard at 375).

The validity of the Notice

37. The Notice indicated near its outset that it sought the provision of records and information for the purpose of an investigation (see the words “as part of this investigation” in the second paragraph). In the first paragraph it identified that investigation as one “into the potential risk to the environment and human health of land applying… MWOO”.

38. As was acknowledged by the EPA in the course of the hearing in this Court, the grammar of the last few words of this statement leaves much to be desired. In its context nevertheless the phrase clearly conveys the meaning that the investigation is into the risks of “applying” MWOO to land. The word “applying” (and the other variants of it used in the Notice such as in the expressions “applied to land” and “application site”) clearly conveys the meaning of use of MWOO in some fashion in relation to land. This is the sense in which it is used in the Order referred to at [15] (which employs the expressions “application to land” and “land application”) and in Eastern Creek’s letter of 11 September 2018 (see [19] above), although it is not necessary to rely on such extrinsic material to ascertain the meaning of the Notice. Its meaning is apparent on its face.

39. Eastern Creek did not contend, nor could it reasonably have done so, that the investigation so described was not within the powers of the EPA, bearing in mind the EPA’s objectives, responsibilities and powers under the POEA Act (see [4]-[8] above) and its objects and powers under the POEO Act (see [9]-[12] above) and the PEOW Regulation (see [13] above).

40. Moreover the Notice made clear that the investigation was continuing, by stating that the records and information were required “as part of this investigation” and using the expression “[t]he EPA is investigating” under the headings “Background” and “Matter/s to which this notice relates”.

37. The description of the investigation as “an investigation into the potential risk to the environment and human health” of the use of MWOO to land (at three places in the Notice) indicated that the investigation was a broad one insofar as potential risks were concerned. The EPA did not need to list the gamut of ways in which the environment or human health might be affected, or have been affected, by the use of MWOO in relation to land as that was the very matter it was investigating.

38. Equally the EPA was justified in seeking information and records relating to a period of years during which Eastern Creek had undoubtedly been involved in operations that led to the application of MWOO to land. Eastern Creek’s licence, referred to in the Notice, assumed the existence of such operations. In any event these were well known to both the issuer and recipient of the Notice and thus able to be taken into account in considering the sufficiency of the terms of the Notice.

39. The possibility of MWOO’s application to land giving rise to risks to the environment and to human health cannot be doubted, especially in light of the TAC report’s findings (see [16] above). Those risks and their consequences were therefore a proper subject of investigation in relation to use of MWOO throughout the period identified in the Notice bearing in mind the EPA’s statutory responsibilities and powers.

40. The present case is distinguishable from D’Anastasi where, as Young JA put it, there was a “suspected misuse” of pesticides or, as Sackville AJA put it, an “apparent poisoning of the birds” (at [7] and [108]). In those circumstances, the recipient was entitled to be told in the notice, inter alia, what pesticide was the subject of the investigation and why information and documents related to any more than the dead birds that were discovered were required. Pesticides have a commonly accepted utilitarian value, when used properly. That an unidentified type of pesticide may have been misused on one, or a limited number of occasions, did not of itself suggest the likelihood of misuses on other occasions.

41. In the present case, it is not however a question of misuse of MWOO (because there is no suggestion to this Court that its use did not occur in accordance with the statutory Order and Exemption) but a concern that authorised use may have given rise to risks to the environment and to human health. In that circumstance, a report finding that MWOO raises “significant concern” for the environment and human health would necessarily give rise to a concern justifying investigation that it may have caused such harm on all or at least many occasions on which it was used. It may be that the investigation will reveal that MWOO can be used in particular ways that do not give rise to harm but, whether that is or is not so, that is a proper subject for investigation.

42. Furthermore, the gathering by the EPA of information as to how MWOO had been used in the past was a proper part of the investigation described in the Notice because, if the investigation revealed that use of MWOO was, and had been, harmful to the environment or to human health, it was well within the EPA’s remit to identify, and attempt to deal with, the consequences of its use in the community, including by advising stakeholders who had used MWOO of the outcome of its investigation and assisting those stakeholders to eliminate or lessen the harm that might have occurred. The information and records it sought by the Notice were plainly conducive to that occurring. As Gibbs ACJ observed in Federal Commissioner of Taxation v ANZ, the nature of information or documents sought in the Notice may elucidate the purpose of them being sought (see [28] above).

43. In this Court Eastern Creek submitted that the omission of the following from the Notice “strongly militates in favour of the conclusion that the Notice is invalid”:

“…the Applicant was investigating the risks to the environment and human health identified in the TAC Report, such as the risk of PBDEs, phenol, phthalates, cadmium, copper and zinc in MWOO impacting upon plant and animal health and reproduction, affecting soil function and contaminating the food chain and water supplies; the risk of glass, metal and plastic in MWOO contaminating crops and forage, impacting upon soil quality and affecting the aesthetic quality of soils; and the risks associated with glass, PBDEs and metals in MWOO persisting in soils.”

48. That detail was however unnecessary where many of the risks described were obvious ones to be investigated and the list is not one that Eastern Creek in any event suggests could, or should, have been exhaustive.

49. In addition to relying on D’Anastasi, with which I have dealt above, Eastern Creek relied on appeal on Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 where, in the context of subsisting criminal proceedings against the applicant concerning excavations to his land, the applicant was given a notice by the prosecutor to attend to answer questions “about the over excavation”. Preston CJ of the LEC found that the matter in relation to which questions were to be answered was not sufficiently described by this expression. Unlike this case, that case was concerned with a specific occurrence which could, and should have been, identified with precision to afford the applicant procedural fairness by giving him notice of the matter about which he was to be asked questions. Zhang does not assist in resolving the present case which, as I have described, is concerned with a Notice issued for the purposes of a necessarily generalised investigation.

50. Eastern Creek further submitted that the Notice was deficient because it did not equate the matter with which it was concerned to one “relating to [the EPA’s] responsibilities or functions under [the POEO Act]” (see the terms of s 191(1) of the Act). As I have indicated, the Notice however stated that Eastern Creek was required to provide identified information and records for the purposes of an ongoing investigation into the potential risk “to the environment and human health” of applying MWOO to land. Such an investigation clearly relates to the EPA’s responsibilities and functions under the Act. Section 184 sets out the various purposes for which the power to issue a notice under s 191 may be exercised, including to “protect the environment” and to “obtain information or records for purposes connected with the administration” of the Act. The objects of the Act, including to “protect… the environment” and to “reduce risks to human health”, further fortify this finding (see s 3). As well, these provisions must be considered against the background of the POEA Act (see [3]-[8] above) which constituted the EPA and was enacted prior to the POEO Act.

51. For these reasons, I do not, with respect, agree with the primary judge’s conclusion that the Notice is invalid. Her Honour’s essential reason for her conclusion, stated in [84] of her judgment (see [26] above), was that the Notice “does not specify in any meaningful way the matter the subject of the Notice for the purposes of s 191”. For the reasons I have given, I consider that it does. I note that her Honour referred in [89] of her judgment also to the Notice being “impermissibly wide in scope” but I further note that, as acknowledged by Eastern Creek in both its written and oral submissions on appeal, it does not challenge the Notice on the ground of oppression, that is, that it was oppressively wide in its scope or required compliance within an unreasonably short time.

52. Finally, I note that both parties appeared to be in agreement on appeal that paragraph 1(o) of the Notice was defective but could be severed from it.

PROCEDURAL CONSIDERATIONS

53. As indicated earlier, the EPA seeks to bring the issue of the validity of the Notice before this Court on appeal, by leave, under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Potentially relevant parts of that section are as follows:

5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

(b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and

(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal, or

(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

…

(3A)  The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.

…

54. I note that the EPA seeks leave to appeal under subsection (3)(a). Whilst the EPA represents the Crown and has the rights of the Crown (see [3] above), no appeal is brought under subsection (2) by the Attorney-General or the Director of Public Prosecutions. The only difference between the rights conferred by subsections (2) and (3) is, relevantly for present purposes, that leave to appeal is not required under subsection (2). As I have in any event concluded that the present case is a suitable one for the grant of leave, the absence of an appeal under subsection (2) is not of any significance.

Whether “an interlocutory judgment or order”

55. As noted above, the issue of validity of the Notice was brought before the LEC by way of formal notices of motion filed by Eastern Creek. After the Court received substantial written and oral submissions, the primary judge addressed the issue in a careful and detailed fashion in her 45-page judgment. Her Honour concluded that the Notice is invalid but stopped short of making any consequential order, to enable the parties to first address her on “appropriate relief and costs”.

56. In this Court, Eastern Creek contended that in these circumstances the primary judge had not given or made any “judgment or order” in relation to which the EPA would be granted leave to appeal under s 5F(3). If her Honour’s determination was a “judgment or order”, it was clearly interlocutory as it did not dispose of the prosecutions.

57. There have been many cases in which the meaning of “interlocutory judgment or order” has been considered. It is convenient to first undertake a brief survey of the more important of them.

58. In R v Steffan (1993) 30 NSWLR 633 the applicant had been charged with offences of bribing a Commonwealth officer. Relevant conversations had been recorded, according to the applicant, illegally. The conversations were the bases of two of the charges against the applicant but it does not appear from the judgment that they were the only evidence then available to the prosecutor such that the prosecutions would fail if the recordings were ruled inadmissible. The trial judge ruled that they were prima facie admissible. The applicant sought to challenge that decision by seeking leave to appeal under s 5F. This Court however ruled that the determination below did not constitute “an interlocutory judgment or order”. The Court observed at 636:

“A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a ‘judgment’, but that is an altogether different usage of the word ‘judgment’ and denotes the reasons which have been expressed rather than the formal act of the court.”

59. Three points should be made about Steffan. First, it was concerned with a ruling on the admissibility of evidence which was, at least on the basis of s 5F in its present terms, arguably distinct from an “interlocutory judgment or order” on other questions. A ruling on the admissibility of evidence is dealt with separately in s 5F(3A) (see [53] above). In the present case the determination in question is only, in a limited sense, concerned with the admissibility of evidence. More fundamentally, the existence of a (valid) notice is an element of the charges, as it is non-compliance with it and false or misleading conduct in relation to it that are the gravamen of the alleged offences.

60. Secondly, the incongruity, perceived by the Court in Steffan, of entering a ruling on the admissibility of evidence in the records of the Court (see [58] above) is not present in the current case where the finding of invalidity of the Notice can readily and sensibly be reflected in a declaration or injunctive order.

61. Thirdly, the Court in Steffan recognised that “some procedural matters (such as an application for a change of venue or for a separate trial) would usually produce an interlocutory order…” (at 636D).

62. In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 the trial judge had made an order under s 138 of the Evidence Act 1995 (NSW) excluding all of the prosecution evidence on the basis that it resulted from illegal or improper conduct of the police. In addition to making an order that the evidence be excluded, the trial judge made a consequential order that further proceedings be stayed. The Crown argued that even without the order staying proceedings, the trial judge’s ruling constituted an “interlocutory judgment or order” within the meaning of s 5F. Gleeson CJ (with whom Meagher JA and Bruce J agreed) stated that in a number of cases, including Steffan, there were judicial statements to the effect that “generally speaking, a ruling on the admissibility of evidence, before or during a trial, is not a judgment or order within the meaning of s 5F”. However, his Honour further noted at 303 that in Steffan the Court of Criminal Appeal “said that there may well be a ‘rare case’ where a ruling on evidence, because it formed the basis of a stay of proceedings, could be the principal legal issue to be determined [on] a s 5F appeal”. Having referred to authorities seeking to distinguish between different types of judicial rulings, his Honour said that “[i]t is the character of the question, and the effect of the decision, that makes the difference” and continued at 303:

“One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.

…

Bellear DCJ [the trial judge]… dealt with para 2 of the Notice of Motion [which sought the exclusion of the evidence] by saying that he was making an order excluding ‘all prosecution evidence’ against the respondents. What is important is not his Honour’s use of the word ‘order’, but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order.

The jurisdictional issue should be resolved in favour of the Crown.”

63. The present case is in my view analogous. As I have said earlier, Pain J’s ruling was not on a question of evidence as such. Although it would have the consequence of excluding evidence, it related to the fundamental basis of the prosecutions. As in Bozatsis, the primary judge “was, in substance, refusing to permit the Crown to seek to make a case against the appellants”. In Bozatsis, Gleeson CJ noted at 302 that it was not in dispute that an order granting a permanent stay of proceedings is generally an interlocutory order within the meaning of s 5F. However, the trial judge’s stay order was not regarded as critical to this Court’s finding as it was merely the consequence of the ruling made under s 138. His following discussion and conclusion were directed therefore at the matter that was in dispute, namely, whether the exclusion of the evidence constituted such judgment or order, irrespective of the grant of the stay.

64. In the present case, Eastern Creek placed particular reliance on this Court’s decisions in R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 and R v Kanaan [2003] NSWCCA 396. In Cheng the Court found that the trial judge’s ruling that the accused had no case to answer was not an “interlocutory judgment or order” within the meaning of s 5F. Spigelman CJ (with whom Dunford and Kirby JJ agreed) distinguished Bozatsis on the basis that the effect of the trial judge’s ruling in that case was to refuse to permit the Crown “to seek to make a case” at all whereas in Cheng the Crown made a case but it was found to be deficient (at [14] and [15]). His Honour considered that there was a close relationship between the trial judge’s no case to answer decision and a verdict of acquittal and that the principle that the Crown (subject to any statutory exceptions) cannot appeal from a verdict of acquittal is fundamental and longstanding. As a result, his Honour held at [32] to [34] that, in the absence of any clear contrary indication by parliament, s 5F(2) should not be construed so as to interfere with that fundamental principle. Cheng does not therefore assist Eastern Creek in the present case because Pain J’s determination that the Notice is invalid occurred at a preliminary hearing, prior to any trial, and consequently the EPA was unable “to seek to make its case” at a trial. Moreover, it cannot be said that there is a “close relationship” between a preliminary determination concerning the invalidity of a notice and a verdict of acquittal.

65. In Kanaan the trial judge heard submissions from counsel as to whether the evidence that the Crown proposed to lead at trial was capable of proving the offence charged. His Honour concluded that it was not and added “and I am mindful to empanel a jury and to order an acquittal” (sic). Instead, at the request of the Crown, he adjourned the case to allow the Crown to seek leave to appeal under s 5F. Hodgson JA (with whom Hulme and Hidden JJ agreed) referred to Bozatsis and said that in that case “Gleeson CJ stated that, in order to constitute a judgment or order, even an interlocutory judgment or order, there must be a measure of finality so that it requires a decision of an appellate Court to reverse it” (at [7]). His Honour found that there was “nothing of that nature” in the case before him and that, as a result, there was no relevant judgment or order.

66. It is arguable that this approach failed to reflect the substance of the trial judge’s conclusion which was in effect a ruling fatal to the Crown’s case. In any event, the legislation under which Pain J’s conclusion of the Notice’s invalidity was given gives a greater measure of finality to that conclusion. Her Honour was conducting a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW) (rendered applicable to the present proceedings by s 247A of the Act). Section 247G(5) provides:

… (5)  Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. …

67. In R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 the Court found that a determination concerning the joinder or severance of counts was an “interlocutory judgment or order” for the purposes of s 5F. Wood CJ at CL (with whom Meagher JA and Bell J agreed) referred to the distinction between determinations falling within the ambit of that expression and those not doing so:

“[11] The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the court: Steffan (at 636; 509-510); or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324 and 361 and Steffan (at 636; 509-510). In Steffan it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally, it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial.”

68. Support for the EPA’s application under s 5F in the present case is to be found in R v RAG [2006] NSWCCA 343 in which the Crown was held to be entitled to seek leave to appeal against the trial judge’s ruling that a child complainant was not competent to give unsworn evidence (see s 13(2) of the Evidence Act1995 (NSW)). Latham J (with whom McClellan CJ at CL and Johnson J agreed) concluded at [15]:

“The trial judge's decision in the instant case was a judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant: see Steffan at 636A; Bozatsis & Spanakakis at 303. The finding that the complainant was not competent to give unsworn evidence was final, in the sense that it was not subject to review in the course of those proceedings, unlike rulings on the admissibility of evidence: Bozatsis & Spanakakis at 303. The decision may have had the consequence that the complainant’s evidence was not admitted, but the substance of the decision was of an altogether different character. It was a judgment and it was also interlocutory, in the sense that it did not finally determine the proceedings between the Director and the respondent: [R v Pavia (1993) 67 A Crim R 364] at 368.”

69. In Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 the accused pleaded guilty to two offences involving the supply of a large commercial quantity of a prohibited drug. For the purposes of his sentencing hearing, he issued a subpoena to the Commissioner of Police. The sentencing judge ordered production of the documents, rejecting a claim of public interest immunity. On a s 5F appeal brought by the Attorney General to this Court, Basten JA (with whom Hoeben JA and McCallum J agreed) found that there was an “interlocutory judgment or order” from which the Attorney General was entitled to appeal. His Honour said at [25]:

“An objection to evidence based on public interest immunity will frequently give rise to an evidential ruling as to admissibility in the course of proceedings. However, such objections may also arise in respect of production of documents in answer to a subpoena or other form of court process or court order. Rulings on such objections have uniformly been treated as falling within the scope of s 5F [his Honour then referred to a number of earlier decisions].”

70. In Tran v The Queen [2017] NSWCCA 93 this Court found that a ruling of the trial judge declining to uphold an objection by the accused’s father giving evidence as a witness for the prosecution (see s 18(2) of the Evidence Act) was an interlocutory “judgment or order” for the purposes of s 5F. The Court followed the decision in RAG which was regarded as applicable.

71. RAG was also followed in SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314 in which the trial judge declined to revoke the appointment of a speech pathologist as a witness intermediary in respect of a child complainant in criminal proceedings. This Court held that the practical legal effect of the appointment was that the evidence of the witness could not be taken in the absence of the intermediary. The Court at [40] accepted that “whether a decision or determination by a trial judge amounts to an interlocutory ‘order’ capable of grounding an appeal under s 5F(2) or (3) requires a consideration of the ‘character and [legal] effect of the decision’ rather than the precise words used by the judicial officer”. The Court referred to R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 304 and Nicholson v R [2017] NSWCCA 38 at [49]. The Court also referred to the passage from R v F (2002) 129 A Crim R 126; [2020] NSWCCA 125 at [11] quoted in [67] above which included the reference to a “judgment” being a ruling that determines the proceedings “or at least an identifiable part of them, and [is] capable of entry in the records of the Court”.

Conclusion

72. In light of these authorities, I consider that Pain J’s determination that the Notice is invalid was an “interlocutory judgment or order” for the purposes of s 5F(3). The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing. As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour’s conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not in my view of significance. The determination was well capable of being reflected in the Court records consistently with “ordinary usage” (Steffan at 636), just as the outcome of a dispute concerning a subpoena may be a notation such as “subpoena set aside” or “access to documents produced under subpoena granted”. It was unlike a simple ruling on the admissibility of evidence which is not, as Steffan at 636 points out, ordinarily entered in the records of the Court. Not only was the determination capable of being translated into a formal order, but for the EPA’s request that she state a case concerning her power to enter summary judgment (see [27] above), her Honour would have entered summary judgment. Whether summary judgment or some other order, such as an acquittal after trial, was appropriate was beside the present point. To preclude a challenge under s 5F(3)(a) to her Honour’s determination that the Notice is invalid would in my view be impermissibly to prefer form over substance.

73. Further, as I have earlier pointed out, the determination that the Notice is invalid was not as such a ruling on the admissibility of evidence, although it would undoubtedly have evidentiary consequences. Essentially it was a determination that the purported legal command (that is, the Notice) upon which the prosecutions were founded is invalid. It had sufficient finality because it would stand unless the prosecutions proceeded to trial and the trial judge formed a different view.

74. Whilst acknowledging, as was pointed out in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [92], that orders are different from reasons for judgment, substance and not mere form is to prevail in this context (see for example DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [4] and [6] per Spigelman CJ).

Whether leave to appeal should be granted

75. In light of my conclusion that, contrary to the view of the primary judge, the Notice is valid, leave to appeal should be granted. The primary judge’s determination, if it stands, effectively puts an end to the prosecutions which are brought by the EPA in its capacity as a protector of the environment and health of the community.

Whether the appeal should be allowed

76. For the reasons I have given, the Notice is valid. As a result, the appeal should be allowed.

CONCLUSION AND ORDERS

77. In light of my conclusion that the Notice is valid, it is unnecessary to determine the question submitted to this Court, on EPA’s application, by way of case stated. That concerns the powers of the LEC to summarily dismiss proceedings. As there would not, on my view, be any basis for summary judgment, the issue raised by the case stated would better be determined when they would be dispositive of proceedings in this Court.

78. As no conclusion has been reached about the merits of the stated case and as it was arguably unnecessary for the EPA to seek to have it submitted for determination by this Court, I consider that no order be made for the costs of the stated case proceedings.

79. So far as first instance costs in both proceedings are concerned, it appears that no orders have yet been made. Such costs orders should be left for the primary judge to make, taking into account the terms of this judgment, if the parties cannot agree on the appropriate orders.

80. For the reasons I have given, I propose the following orders:

In the s 5F proceedings

1. Grant leave under s 5F(3)(a) of the Criminal Appeal Act to appeal against the Land and Environment Court’s determination by judgment or order of 22 December 2020 that the Notice dated 24 September 2018 issued by the Environment Protection Authority to Eastern Creek Operations Pty Limited is invalid.

2. Allow the appeal.

3. Declare that the Notice is valid.

4. Notices of motion filed by Eastern Creek Operations Pty Limited in the Land and Environment Court on 29 May 2020 dismissed.

5. Order Eastern Creek Operations Pty Limited to pay the Environmental Protection Authority’s costs of the proceedings in this Court.

In the case stated proceedings

6. Decline to answer the question of law submitted by case stated filed on 13 May 2021.

7. Make no orders as to the costs of the case stated proceedings in the Court of Criminal Appeal.

81. FULLERTON J: This Court’s jurisdiction to determine the Environment Protection Authority’s (“the EPA”) application for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) depends upon whether the decisions identified by the EPA in its notice of appeal constitute an “interlocutory judgment or order”.

82. That issue was the subject of competing submissions in this Court on the EPA’s application for leave to appeal under s 5F(3)(a). Having considered those submissions at length, I have come to a different conclusion to that of Macfarlan JA.

83. The order I propose in dealing with the application for leave under s 5F(3)(a) is:

1. The application is dismissed.

84. In those circumstances, it is necessary to address the question of law submitted by the primary judge pursuant to s 5AE(1) of the Criminal Appeal Act. I will return to consider that question after setting out my reasons for dismissing the application for leave to appeal the primary judge’s decision under s 5F(3)(a).

Background

85. The factual background to the EPA commencing summary criminal proceedings in the Land and Environment Court (“the LEC”) for offences committed contrary to ss 211(1) and 211(2) of the Protection of the Environment Operations Act 1997 (NSW) (“the POEO Act”), each alleging non-compliance with a statutory notice issued under s 191 of the POEO Act (“the Notice”), has been summarised by Macfarlan JA and does not require repetition by me.

86. However, in resolving the question whether the EPA’s application for leave to appeal under s 5F(3) is competent, and even if it is competent whether leave should be granted to permit the EPA to agitate the grounds of appeal which challenge the primary judge’s decision as to the validity of the Notice, I have found it necessary to review the circumstances in which the primary judge was invited to determine that question, including the power she exercised in doing so and the attitude of the parties when she embarked upon that exercise. It is also necessary to consider what the parties submitted at various times in the court below were the legal consequences of either a finding of invalidity, as contended for by the respondent, or a finding of validity, as contended for by the EPA, and how the primary judge dealt with those submissions.

The procedural history of the proceedings

87. On 25 October 2019, by the service of two summonses the EPA commenced proceedings in the Class 5 jurisdiction of the LEC permitting the Court to hear and dispose of proceedings brought under Parts 8.2 and 8.3 of the POEO Act.

88. The first summons alleged an offence contrary to s 211(1) of the POEO Act constituted by the respondent failing, without reasonable excuse, to comply with a Notice issued by the EPA on 24 September 2018 (as varied by the service of a variation notice on 28 September 2018) to provide specified information and/or records. The requirement the respondent allegedly failed to comply with was particularised as failing to provide all test data of mixed waste organic output (MWOO) produced at the premises in a specified period, [1] including any additional sampling and testing as specified in paragraph 1(j) of the Notice.

    1. The respondent was authorised under an Environment Protection Licence issued pursuant to the POEO Act to undertake a range of activities, including waste processing and composting, at its alternative waste treatment facility (AWT) at Wall Grove Road Eastern Creek being “the premises” to which the Notice referred. One of the products produced at the premises was an organic based output known as mixed waste organic output (MWOO).

89. The second summons alleged an offence contrary to s 211(2) of the POEO Act constituted by the respondent furnishing information in purported compliance with the Notice knowing that the information was misleading in a material respect. That information was particularised as information it had provided in response to paragraph 1(j) of the Notice, namely an incomplete set of test data and an incomplete set of test reports for MWOO produced at the premises in the specified period.

90. On 29 May 2020, the respondent filed a notice of motion in both proceedings relevantly seeking an order that the summonses be dismissed. The sole basis upon which that order was sought was that the Notice (as varied by the variation notice) was invalid. [2]

    2. In the alternative the respondent sought an order that the proceedings be temporarily stayed until the EPA elects on which of the summonses it will proceed with an order that the remaining summons be dismissed on the ground of double jeopardy. Since the primary judge determined the Notice was invalid the alternative relief did not arise.

91. The notice of motion was listed for a two-day hearing before Pain J on 26 and 27 November 2020, and convened as a preliminary hearing pursuant to Div 2A of the Criminal Procedure Act 1986 (NSW).

92. Both parties filed detailed written submissions addressing the issues raised by the respondent’s notice of motion. Extensive affidavit evidence was tendered. [3]

    3. That evidence was included in the appeal book in this Court (AB tabs 11, 12, 13 and 14).

93. On the afternoon of 25 November 2020, the EPA advised the respondent by letter that it was of the preliminary view that the summonses could not be dismissed at a preliminary hearing and could only be dismissed after a trial had been convened and concluded. [4] The following day the EPA’s counsel made the following submission:

“[W]e submit that the appropriate course is for your Honour to give judgment and then list the matter for further directions for the parties to indicate what course they would take in light of your Honour’s judgment. For example, if your Honour were to rule in your judgment that the notice was invalid, then obviously a key plan[k] of both charges would fall away and in any ordinary world the prosecutor would withdraw the charges and that’s what would happen. It’s our submission that it’s, and recognising there are some authorities to the contrary in this court, which I will take you to, but it’s not an order made in the criminal law to summarily dismiss a summary prosecution, and in fact what needs to happen is that the matter needs to be withdrawn by the prosecutor or proceed to hearing and there be an acquittal. So they’re the two things that ought happen and they preserve appeal rights over the way.” [5]

4. The question whether a judge of the LEC has the power to summarily dismiss a summons (that is prior to the commencement of any trial or substantive hearing under Ch 4 Pt 5 Div 3 of the Criminal Procedure Act) was the subject of the stated case, which was the alternative relief sought by the EPA in the proceedings in this Court.

5. AB Tab 9, p 153.

94. Precisely what the EPA’s senior counsel intended by the words “they are” (the binary options to which she had earlier referred) and “preserve appeal rights” is not clear. However, given the context in which counsel made that submission, she could not conceivably be taken to have been referring to “preserving” the opportunity for the EPA to make an application for leave to appeal her Honour’s finding on invalidity as an “interlocutory judgment or order” pursuant to s 5F(3)(a) of the Criminal Appeal Act.

95. Further, by that submission, the EPA must be taken to have accepted that the respondent’s notice of motion raised an issue capable of being determined as a preliminary matter in the proceedings pursuant to s 247G(2) and ss 247G(3)(f) and (g) under Division 2A of Criminal Procedure Act. That Division relevantly provides as follows:

Division 2A Case management provisions and other provisions to reduce delays in proceedings

247A   Application

This Division applies to proceedings before—

(a)  the Supreme Court in its summary jurisdiction, or

(b)  the Land and Environment Court in its summary jurisdiction, or

(c) the District Court in matters brought under section 229B(1)(b) of the Work Health and Safety Act 2011.

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.

247C   Definitions

(1)  In this Division—

appearance order means an order for the appearance or apprehension of a person made under section 246.

court means—

(a)  the Supreme Court, or

(b)  the Land and Environment Court, or

(c)  the District Court.

preliminary conference means a conference held under section 247H.

preliminary hearing means a hearing held under section 247G.

presiding Judge means the judge presiding at the hearing of the proceedings.

(2)  In this Division, a reference to the defendant is to be read as including a reference to the Australian legal practitioner representing the defendant.

…

247G   Preliminary hearings

…

(2)  During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.

(3)  Without limiting subsection (2), the court may take any or all of the following action under that subsection—

…

(f)  hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial,

(g)  give a ruling on any question of law that might arise at the trial or sentencing hearing.

(4)  Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative.

174. The respondent submitted that the same analysis applies to the EPA’s third contextual feature or consideration, with the definition of a preliminary order in s 247W(4) not carrying with it the implication that only procedural matters may be determined in a preliminary hearing. In the respondent’s submission, there is no warrant for confining the breadth of the power in s 247G(2) in that way.

175. In addressing the second contextual feature or consideration advanced by the EPA, the respondent submitted that rather than ss 247G(5) and 247W operating to make it clear that “orders, determinations or findings made or rulings given in a preliminary hearing are “provisional” (a construction which the EPA submitted is further emphasised by the operation of ss 247G(7)-(9)), an alternate construction is more persuasive. Rather than those sections underscoring the provisional or tentative nature of “orders, determinations, findings and rulings” made under s 247G(2), such that, irrespective of the actions taken at a preliminary hearing, every matter must proceed to be listed for a final hearing (even where the prosecution will inevitably fail), when construed together, ss 247G(5), 247W and 247G(7)-(9) operate to make it clear that such actions taken at a preliminary hearing are, in the ordinary course, binding on the presiding judge in order to avoid the expense and delay involved in relitigating matters susceptible to resolution pre-trial.

176. The respondent addressed the EPA’s fourth contextual feature or consideration at some length. That submission concerned the operation of s 247G(3)(f) of the Criminal Procedure Act and, more broadly, whether it should be construed as excluding the power to summarily dismiss proceedings prosecuted by summons.

177. The respondent submitted that the EPA’s construction of s 247G(3)(f) as having only a limited operation has no textual foundation and should not be limited by reference to particular circumstances which are not encompassed by the express words of the section. In support of that construction, the respondent cited Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 421; [1994] HCA 54 where, at 421, the High Court stated in a unanimous judgment (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ):

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

181. The respondent was also critical of the EPA offering no rationale as to why s 247G(3)(f) should be interpreted as a source of power to make a broad range of orders, including (on the EPA’s preferred analysis) both a temporary and permanent stay of proceedings; an order dismissing a summons on account of a fatal defect in the charge to which the savings provisions and powers of amendment under the Act do not apply; and where a summons was not laid before a court of competent jurisdiction or by a properly authorised person or in a particular form, but not an order for summary dismissal where a condition of criminal liability cannot be established.

182. The respondent submitted that even were a limitation on the breadth of power in s 247G(3)(f) to be implied, the summonses in the present case suffer from a specie of fundamental defect since the Notice with which the respondent is alleged to have failed to comply has been found to be invalid. On that analysis, the respondent submitted that both summonses are fundamentally and fatally defective, there being no offence of failing to comply with a defective notice and a summons alleging a failure to comply with a void or defective statutory notice is incapable of invoking the Court’s summary jurisdiction.

183. Finally, the respondent submitted that the authorities upon which the EPA relied in support of a confined or limited construction of s 247G(3)(f) do not, on a proper analysis, support the proposition for which the EPA contended. The respondent submitted that in none of the cases to which the EPA referred was the Court concerned to articulate the boundaries of a statutory power to dismiss a summary prosecution prior to trial.

184. The EPA cited John L Pty Ltd v Attorney-General (NSW) as authority for the proposition that the power to dismiss summary proceedings “exists only where the information laid before the Court is insufficient to properly invoke the jurisdiction of the Court”. [37] The respondent submitted that John L is not authority for that broad proposition.

     37. Applicant’s s 5AE submissions, par 48.

185. In that case, the High Court heard an appeal from a decision of this Court allowing an appeal against final orders made by Yeldham J in a summary prosecution which had not proceeded to a hearing on the merits. His Honour had held that the failure of the information charging the offence to identify a material particular invalidated the information. His Honour made orders that the information be dismissed, the summons be struck out and the proceedings be dismissed. A preliminary question arose as to whether the appeal to this Court under s 5C of the Criminal Appeal Act was competent. That section provides:

5C   Appeal against quashing of an indictment

Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court or District Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary.

186. Mason CJ, Deane and Dawson JJ concluded that the reference to an information being “quashed” in the first limb of s 5C should be construed as comprehending a decision to dismiss an information on the ground that it was insufficient to invoke the jurisdiction of the court. [38] Their Honours were also satisfied that the failure of the information to identify a material particular was a fundamental defect and, as such, was insufficient to found proceedings against the appellant unless it was cured or overcome by statutory provision. [39] Their Honours concluded that s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) (the equivalent provision to s 16(2) of the Criminal Procedure Act) did not preclude objection being taken to the insufficiency of the information, as the relevant information was under and for the purposes of a different and subsequent statute. It followed that Yeldham J was correct to make the orders he did.

     38. At 516-517.

     39. At 520-521.

187. The respondent submitted the High Court in John L did not set out to confine or limit the circumstances where summary proceedings may be dismissed prior to trial whether by reference to statute or at common law. The Court was addressing the particular question raised before it. The majority concluded that an information will be “quashed” within the meaning of s 5C of the Criminal Appeal Act where it was dismissed because it failed to invoke the jurisdiction of the Court. That conclusion does not carry with it an implication that summary proceedings may only be dismissed where the initiating process failed to invoke the Court’s jurisdiction.

188. The respondent also submitted that there is no common law principle precluding or preventing the dismissal of a summons prior to a hearing convened under Ch 4 Div 3 of the Criminal Procedure Act. In that regard, the respondent emphasised the following passage in Munday v Gill (1930) 44 CLR 38; [1930] HCA 20 at 86 which distinguishes between summary proceedings and a trial on indictment:

“There is … a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the bar of the Court ‘in his own proper person and being demanded concerning the premises in the indictment specified and charged upon him how he will acquit himself thereof he saith that he is not guilty thereof and thereof for good and evil he puts himself upon the Country and he who prosecutes for our Lord the King doth the like.’ In the other the defendant is given a sufficient opportunity to appear which (unless he be in custody because it is considered that he will abscond) he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is dealt with by those assigned to keep the peace, who judge both law and fact. ‘There is,’ says Blackstone, ‘no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice’”. (Emphasis added.)

189. The EPA’s submissions in reply took issue with the respondent’s citation of Munday v Gill to the extent that the respondent intended to submit that the extract it cited is authority for the proposition that summary proceedings may be dismissed at any time to achieve “speedy justice” or “expedience”. I do not understand the respondent to have advanced that submission. Rather, I understand the respondent’s submission to be that Munday v Gill is consistent with the extrinsic materials to which reference has been made, where the operation of Div 2A was intended, in part, to ensure the court’s time and the resources of the parties are committed to resolving matters genuinely in dispute.

190. The respondent addressed the EPA’s reliance on Island Maritime in the following way. The respondent emphasised that in that case the question was whether the appellants were entitled to a permanent stay of a second summons on the basis of a plea in bar (autrefois acquit) or because of an abuse of process where the primary judge hearing the first summons was satisfied the appellants had no case to answer in circumstances where the relevant part of the statute under which the charge was laid did not apply to the offending conduct. [40]

     40. Maritime Pollution Act 1987.

191. In the course of finding against the appellants, Gleeson CJ, Heydon and Crennan JJ cited the passage extracted by the respondent at [163] ante. The respondent submitted that the EPA’s interpretation of that passage as limited to those cases where a deficiency of evidence amounts to a “fundamental defect” is not justified.

192. The respondent went further and submitted that even if the passage cited is interpreted in the manner contended for by the EPA, it does not support the conclusion that Pain J has no power to dismiss the summonses in the present case where, as a matter of law, the evidence available to the EPA as prosecutor cannot support a conviction due to a “fundamental defect” in the summonses where, due to the invalidity of the Notice, there is no evidence of a failure to “comply with a requirement” made of the respondent under Ch 7 of the POEO Act within the terms of s 211(1) of the Act and no evidence of a “requirement made” of the respondent under Ch 7 of the POEO Act in purported compliance with which the respondent furnished information knowing it was false or misleading within the terms of s 211(2). Accordingly, it was submitted by that analysis, “as a matter of law the evidence available to the prosecution cannot support a conviction”. [41]

     41. Island Maritime at [14]; par 28 of the submissions as emphasised.

193. In Island Maritime, Gleeson CJ, Heydon and Crennan JJ observed that there were three points of view from which it could be seen that the appellants “could have taken a fatal exception” to the summonses such that they were “not lawfully liable to suffer judgment for the offences charged”. First, the first set of summonses were defective on their face, because a charge under s 27(1) of the Marine Pollution Act required an allegation that the discharge of oil from the ship was “in or in connection with a transfer operation”, which was not particularised. Secondly, even if that problem were not seen as fatal, it was plain on the face of the first set of summonses that no conviction for a contravention of s 27(1) could result, because the allegation that there was discharge of oil in State waters brought the circumstances within s 8(1) which, due to another provision, meant that s 27(1) did not apply. [42] Their Honours described the third point of view as follows:

“Thirdly, although the trial before Talbot J began as proceedings in which the prosecution was seeking to place the defendants in jeopardy by obtaining factual findings adverse to them, by the time the prosecution evidence had been tendered and the no case submission had been argued, it was plain that the only possible view of the evidence was that, as a matter of law, it negated any possibility of a conviction under s 27(1) because Pt 2 applied and Pt 4 did not. The question is whether the appellants ‘could have taken a fatal exception’ to the summonses, not whether they did, or when they did; they were served before the trial with the affidavits on which the prosecution relied at the trial; and even if, contrary to the fact, the form of the summonses did not reveal that the point which eventually succeeded after the prosecution case ended could have been taken before it began, the evidence contained ample material on which it could have been taken.” [43]

42. Island Maritime at [20]-[22].

43. Island Maritime at [23].

194. There is force in the respondent’s submission that in the present case, even if the “form” in which the charge in the summons served did not “reveal” the invalidity of the Notice, by the time that issue had been comprehensively litigated before Pain J in a preliminary hearing, and with the consent of the EPA, and decided by her Honour adverse to the EPA, the only available view of the evidence upon which the EPA as prosecutor relied was that it “negated any possibility of a conviction”. [44]

     44. Island Maritime at [23].

195. I also regard the respondent’s submissions which gave critical focus to the EPA’s fifth contextual consideration as persuasive.

196. In countering the EPA’s assertion that the mandatory rules of trial procedure in ss 249-252 in Div 3 of the Criminal Procedure Act and Pt 75 r 11B of the Supreme Court Rules 1970 provide an overwhelming inference for the proposition that a summary prosecution must always proceed to trial, the respondent advanced the following analysis.

197. Section 252 provides:

252   Procedure where both parties appear

If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter.

198. Properly understood, s 252 requires a superior court to determine proceedings for a summary offence if the matter proceeds to trial and both the prosecutor and the accused person are present. It does not carry with it a mandate that there must always be a trial, nor place any limitation on a superior court’s power to dismiss proceedings for a summary offence prior to trial.

199. Part 75 r 11B(1) of the Supreme Court Rules, as applied to proceedings in Class 5 of the LEC’s jurisdiction by rr 5.1 and 5.2(1) of the Land and Environment Court Rules 2007, relevantly provides:

11B   Defendant to plead

(1) Where the defendant appears at the hearing and has been provided with a written copy of the charges against him, the substance of the order under section 246 (1) of the [Criminal Procedure] Act shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him.

…

(3)  If he does not admit the truth of the charges, the Judge shall proceed to hear the prosecutor and the witnesses whom he examines and such other evidence as he adduces in support of the charges and to hear the defendant and the witnesses whom he examines and such other evidence as he adduces in his defence.

200. The Rules are equally as clear in that they only apply where a defendant “appears at the hearing”; has been provided with a written copy of the charges; is read the substance of the relevant s 246(1) order and is asked to enter a plea. The operation of the Rule has no bearing on the question whether a superior court has power to dismiss a summons prior to trial.

201. The respondent submitted that it is an established rule of statutory construction that legislation should not be construed so as to take away the jurisdiction of a superior court except by express words or necessary implication. [45] This is a corollary of the seminal rule that legislation which purports to deny a court’s authority to decide matters within its jurisdiction should be clear and express. [46]

     45. Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 179; [1982] HCA 57 at [46] (Gibbs CJ).

     46. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [72] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

202. The respondent submitted there is no provision in Ch 4 Pt 5 Div 3 of the Criminal Procedure Act – or any other Act – which expressly provides, or from which it can be necessarily implied, that a superior court only has power to dismiss a summons after the commencement of a hearing.

203. The respondent submitted this contrasts with the position with respect to inferior courts. Section 202 of the Criminal Procedure Act, which is contained in Ch 4 Pt 2 Div 3 of that Act (which provides for trial procedures in lower courts), relevantly provides:

202   Determination by court

(1)  The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.

(2)  The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.

...

204. The respondent submitted that the absence of an equivalent provision to s 202 of the Criminal Procedure Act in Ch 4 Pt 5 Div 3 is significant. As Pain J observed in the present proceedings, at [39]: [47]

“The absence of a provision similar to s 202 in Pt 2 Div 3 in Pt 5 Div 3 supports the Defendant’s construction of the [Criminal Procedure] Act that the making of a summary dismissal order in these circumstances is permissible, it not being expressly prohibited and not specified as an order which a higher court must make at the conclusion of a trial at which all parties appear.”

47. Environmental Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39.

205. The respondent submitted, and I accept, that it is unsurprising that the legislature has drawn a distinction between the summary jurisdiction exercised by superior and by inferior courts in this context in the structure of the Criminal Procedure Act. The jurisdiction and processes of inferior courts exercising criminal jurisdiction are confined by statute. In contrast, superior courts, which have a range of different attributes “relating mainly, though not exclusively, to the actual exercise of the jurisdiction which is vested in the particular court”, [48] are in a position to control their processes.

     48. R v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 at 384 (Deane J) and 393 (Dawson J). See also R v Metal Trades Employees’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3 at 240-242 (Latham CJ).

205. In my view, the EPA’s reliance on two authorities in this Court to support the construction of the Criminal Procedure Act for which it contends, namely that a superior court is required to proceed to trial due to the mandatory rules of trial procedure specified in Ch 4 Pt 5 Div 3 of the Criminal Procedure Act, neither of which dealt with the operation of Ch 4 Pt 5 Div 3 of the Criminal Procedure Act or procedural requirements in superior courts, should be distinguished for that reason. In DPP v Ridley [2015] NSWSC 1478, Adamson J allowed an appeal against a decision of a magistrate dismissing a summary charge on a number of grounds, including that the magistrate had failed to comply with s 202(1) of the Criminal Procedure Act (at [64]). In DPP v Elskaf [2012] NSWSC 21, Garling J set out the principles and procedures which apply where there has been a no case submission before a magistrate (at [47]-[48]).

206. In my view, neither case provides support for the EPA’s submission that Ch 4 Pt 5 Div 3 of the Criminal Procedure Act requires a superior court to list summary proceedings for trial despite the court having made a finding following a preliminary hearing which negates any possibility of a conviction.

207. The EPA submitted that the procedural steps involved in a final hearing, including the hearing of evidence, the closing of the prosecution case and ruling on any no case submission, are all important procedural steps to be taken before a final determination of the charges laid by summons can occur. The EPA submitted that if Pain J were to dismiss the summonses in the present case at a preliminary hearing, she would commit an error of law by denying the EPA as prosecutor procedural fairness.

208. In my view, that submission ignores what occurred in these proceedings. Pain J conducted a preliminary hearing on the question of whether the EPA could establish the validity of the statutory Notice, a condition of liability with respect to the charges laid by separate summonses. The EPA filed detailed written submissions on that question and adduced affidavit evidence in support of its claim that the Notice was valid. There was a comprehensive hearing on the merits concerning that question. The submission in this Court that the EPA would be denied procedural fairness if Pain J were to dismiss the summonses prior to a final hearing cannot be sensibly sustained. The EPA had every opportunity to put its case on the validity of the Notice. The fact that the EPA did not have an opportunity to make its case on the other elements of the charges is immaterial in circumstances where the consequence of Pain J’s finding that the Notice was invalid is that both charges must fail.

209. Despite the fact that only two of three authorities in the LEC where a summons was dismissed (where a statutory notice order upon which the relevant charge had been found to be invalid) were decided after the Amending Act, and although none of the decisions address the source of power to make the order, I am unable to conclude, as urged by the EPA, that each case was wrongly decided.

210. In Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 the respondents were charged with the failure to comply with clean-up notices issued pursuant to s 91 of the POEO Act in a summary prosecution in the LEC. Before going into evidence, the respondents filed a notice of motion seeking an order for the proceedings to be dismissed on the basis identified by McClellan CJ as trial judge that a precondition to the issue of the notices had not been satisfied and that the respondents were denied procedural fairness by the Council’s failure to discharge that obligation. The notices were dismissed. His Honour made the following observation in his costs judgment:

“[Had the respondent identified the issue], it could have been isolated at an early stage of these proceedings, which commenced in 2004, and litigated without the expense which all of the parties have now incurred.” [49]

49. Liverpool City Council v Cauchi [2005] NSWLEC 676 at [2].

212. In Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149 Pain J was satisfied that the LEC could hear and determine a notice of motion for the dismissal of summary proceeding at a preliminary hearing under s 247G(2) of the Criminal Procedure Act. As with Cauchi the charges alleged a failure to comply with a clean-up notice and again as with Cauchi no notice had been provided to the defendant. In that case her Honour stated:

“The Council submitted that it was premature to determine whether procedural fairness had been afforded in advance of a final hearing where all the relevant facts could be considered. The Defendant submitted the matter could and should be determined as a discrete and preliminary matter which appropriately deals with the question decisively. As the Defendant submitted that was the approach embraced in Cauchi, as can be seen from the costs judgment Liverpool City Council v Cauchi [2005] NSWLEC 676 and means that the Defendant if successful avoids the considerable expense of a more protracted criminal trial. This approach is supported by Div 2A Pt 5 Ch 4 s 247G of the Criminal Procedure Act 1986. The Court has the power to make the orders sought, the Council has read the affidavits of the Council officers Mr Lacey and Mr Bailey and these can be taken at their highest. The officers were not subject to cross-examination and their evidence to the extent it was read was uncontested. It is appropriate in these circumstances that I consider the Defendant's motion for summary dismissal on the basis pressed.” [50]

50. Lismore City Council at [49].

213. In Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156 the defendant, who had been charged with a statutory order issued under the Local Government Act, sought to have the proceedings dismissed prior to entering a plea on the basis of no notice of the order. Although Biscoe J did not refer to Div 2 of the Criminal Procedure Act he was satisfied the order should be made. He stated as follows, at [21]:

The prosecutor submits that it is premature to uphold the statutory defence at this time because the defendant has not yet entered a plea and that it should be left for determination at the trial. I do not accept the submission. The defendant's unchallenged evidence that she was unaware of the s 124 order lay at the heart of her dismissal motion. In the circumstances of this case, I do not see any point in the parties continuing to incur the costs and burden of a criminal proceeding when the defendant has satisfied the Court that there is a sufficient defence as expressly provided for in the statute.

Conclusion

214. The EPA accepted that Pain J proposes to make orders that each summons be dismissed based on what it described as “a consideration of evidence and the merits of the case”. [51]

     51. EPA submissions, par 61.

215. While it is true that the EPA’s ultimate position was that Pain J should have simply made “a finding or determination” of invalidity under s 247G(2) which would take effect, on the EPA’s analysis, as an interlocutory judgment attracting the leave provisions in s 5F(3) of the Criminal Appeal Act (an approach which I have found was not open to the EPA in the particular circumstances of this case), the EPA did not advance the submission on the stated case that the notices of motion upon which the respondent moved for orders for dismissal were incompetent, or that the primary judge should have refused to hear and determine the issue of invalidity as a pre-trial issue and to have listed the matter for a final hearing. Perhaps the EPA determined it could not be heard to make that submission in this Court having consented to a preliminary hearing before the primary judge on the basis of its clear acceptance that an invalid notice would be fatal to its case against the respondent and, it might be inferred, that it also accepted the determination of that issue at an early stage in the proceedings would avoid the costs and the burden of listing the summonses for a final hearing which would be inutile if the finding of invalidity was adverse to it as prosecutor.

216. In my view, there is nothing in the construction of s 247G, within the structure of the Criminal Procedure Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing.

217. The construction of s 247G(3) advanced by the respondent (in particular s 247G(3)(f) although not only that sub-provision) provides, in my view, a source of power available to a superior court to be exercised in those circumstances. That purposive construction [52] is an endorsement of the legislature’s commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense. [53]

     52. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

     53. See [171] above.

218. I would answer the stated case in the affirmative.

219. LONERGAN J: I agree with Fullerton J.

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Endnotes

Decision last updated: 05 July 2022