Environment Protection Authority v Eastern Creek Operations Pty Limited (No 2)

[2021] NSWLEC 39

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

17 March 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Class 5

Before:

Pain J

Decision:

In accordance with s 5AE(1) of the Criminal Appeal Act 1912 (NSW), the Court submits the question of law as contained in the draft stated case, as amended, which is at annexure A to the affidavit of Elizabeth Emily Spain dated 4 February 2021 to the Court of Criminal Appeal for determination

Catchwords:

CRIMINAL – practice and procedure – following determination of essential element of two offences in preliminary hearing summonses can be summarily dismissed – case stated at request of prosecutor

Legislation Cited:

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

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

Criminal Procedure Act 1986 (NSW) Ch 4 Pt 2 Div 3 (s 202), Ch 4 Pt 5 Div 2A (ss 247A, 247B, 247C, 247G, 247W), Ch 4 Pt 5 Div 3 (s 252)

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

Criminal Procedure Amendment (Summary Proceedings Case Management Bill) 2011 (NSW)

Environmental Planning and Assessment Act 1997 (NSW) former s 121B

Interpretation Act 1987 (NSW) s 33

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

Local Government Act 1993 (NSW) ss 124, 132, 628

Protection of the Environment Operations Act 1997 (NSW) ss 91, 191, 211

Cases Cited:

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

GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256

Gray v Woollahra Municipal Council [2004] NSWSC 112

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

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

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

Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26

National Parks and Wildlife v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

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

R v Steffan (1993) 30 NSWLR 633

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

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

Texts Cited:

Second Reading Speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 13 March 2012

Category:

Procedural rulings

Parties:

Environment Protection Authority (Prosecutor)
Eastern Creek Operations Pty Limited (Defendant)

Representation:

COUNSEL:
N Sharp SC and P English (Prosecutor)
S Buchen SC and J Caldwell (Defendant)

SOLICITORS:
Environment Protection Authority (Prosecutor)
Ashurst (Defendant)

File Number(s):

2019/335230 and 2019/335231

Judgment

1. In Environment Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182 (Eastern Creek No 1) I determined a preliminary issue as provided by s 247G of the Criminal Procedure Act 1986 (NSW) (CP Act). The issue concerned the validity of a Notice to Provide Information and/or Records (the Notice) issued to the Defendant on 24 September 2018 by the Environment Protection Authority (EPA), and varied on 28 September 2018, pursuant to s 191(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The Defendant was charged with two offences under s 211(1) and (2) of the POEO Act of failing to comply with the Notice, including as amended.

2. In order to progress a preliminary hearing under s 247G the Defendant filed a notice of motion dated 29 May 2020 which sought orders that the summonses in both proceedings filed on 25 October 2019 be dismissed as the Notice, including as amended, was invalid. Costs were also sought. This course was agreed by the parties. In Eastern Creek No 1 I gave reasons for why the Notice as amended was invalid. I stated that I would not make final orders as the parties disagreed about what these should be at [97]. That question is the subject of this judgment.

3. Since the hearing of the Defendant’s notice of motion, the subject of Eastern Creek No 1, the EPA filed a notice of motion dated 4 February 2021 seeking certain matters. The EPA filed an amended notice of motion dated 17 March 2021 in court with leave seeking the following:

1.   Pursuant to her Honour's reasons in Environment Protection Authority v Eastern Creek Operations Pty Ltd [2020] NSWLEC 182, that the Honourable Justice Pain make the following determination or finding pursuant to s 247G(2) of the Criminal Procedure Act 1986 (NSW):

That the Notice to Provide Information and/or Records issued by the Environment Protection Authority on 24 September 2018 (No 1570268), as varied by the Variation of Notice to Provide Information and/or Records issued by the Environment Protection Authority on 28 September 2018 (No 1570525), is invalid by reason of it being ultra vires s 191(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. In accordance with s 5AE(1) of the Criminal Appeal Act 1912, that the Honourable Justice Pain submit the question of law as contained in the draft stated case which is at annexure A to the affidavit of Elizabeth Emily Spain dated 4 February 2021 to the Court of Criminal Appeal for determination.

3.   Such further or other orders as the Court deems fit to make.

4. An affidavit of Ms Elizabeth Emily Spain solicitor dated 4 February 2021 read by the EPA annexed a copy of the proposed stated case which is sought as an alternative to prayer 1 in the event that I consider the two summonses should be dismissed. The Defendant accepts that if I determine that the appropriate orders are that the two charges be summarily dismissed the EPA has the ability to require me to state a case to the Court of Criminal Appeal as provided by s 5AE(1) of the Criminal Appeal Act 1912 (NSW) (CA Act).

Legislation

5. The following legislation was referred to in the course of argument.

Criminal Appeal Act 1912 (NSW)

6. Relevant provisions of the CA Act provide:

Part 3 Right of appeal and determination of appeals

…

5AE   Point of law stated during summary proceedings

(1)   At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

…

5F   Appeal against interlocutory judgment or order

…

(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.

…

Crimes (Appeal and Review) Act 2001 (NSW)

7. Section 107 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) provides:

Part 8 Acquittals

…

Division 3 Appeals on questions of law

107   Directed jury acquittals or acquittals in trials without juries

(1)   This section applies to the acquittal of a person—

(a)   by a jury at the direction of the trial Judge, or

(b)   by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or

(c)   by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party.

(2)   The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone.

(3)   An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period.

…

Criminal Procedure Act 1986 (NSW)

8. Relevant sections of the CP Act provide:

Chapter 4 Summary procedure

…

Part 2 Trial procedures in lower courts

…

Division 3 Hearings

…

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.

(3)   In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.

...

Part 5 Summary jurisdiction of Supreme Court and other higher courts

…

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

247A   Application

This Division applies to proceedings before the Supreme Court, or the Land and Environment Court, in its summary jurisdiction.

247B   Purpose

(1)   The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction 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–

…

preliminary hearing means a hearing held under section 247G.

…

247G   Preliminary hearings

(1)   At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court.

(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—

(a)   hear and determine an objection to any application for an appearance order prior to the commencement of a trial,

(b)   order the holding of a preliminary conference under section 247H,

(c)   order preliminary disclosure by the prosecutor or the defendant under section 247I,

(d)   give a direction under section 247M (3),

(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced,

(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.

(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.

(6)   Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and—

(a)   the matter was not raised at the preliminary hearing, or

(b)   the matter was dealt with at the preliminary hearing.

(7)   A relevant preliminary hearing matter means—

(a)   an objection to an application for an appearance order, or

(b)   a question that was the subject of a ruling or finding under subsection (3) (e).

(8)   Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3) (g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing.

(9)   Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.

…

247W   Preliminary orders and other orders bind presiding Judge

(1)   A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding.

(2)   If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless—

(a)   in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or

(b)   that order is inconsistent with an order made on appeal.

(3)   If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding.

(4)   In this section—

preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.

…

Division 3 Trial procedure

…

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.

Land and Environment Court Act 1979 (NSW)

9. Relevant sections of the Land and Environment Court Act 1979 (NSW) (LEC Act) provide:

Part 3 Jurisdiction of the Court

Division 1 General

…

22   Determination of matter completely and finally

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

23   Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

10. Chapter 4 Pt 5 Div 2A (Case management provisions and other provisions to reduce delays in proceedings) of the CP Act was introduced by the Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW) and came into effect on 30 April 2012.

Eastern Creek No 1

11. In Eastern Creek No1 at [93] I found that “the EPA has not discharged its onus of proof of demonstrating that the Notice is valid”.

EPA’s submissions

12. For a right of appeal to crystallise there must be a judgment which can be entered in the Court record. Reasons are separate to orders. In R v Steffan (1993) 30 NSWLR 633 the Court of Criminal Appeal (Hunt CJ at CL, Grove and Sharp JJ) at 635-6 gave the following guidance on the factors inherent in an interlocutory judgment or order:

The phrase “interlocutory judgment or order” is not defined in the Criminal Appeal Act, but it has been considered by this Court on a number of occasions since s 5F was inserted in 1987. Orders made refusing a stay of proceedings upon the ground of a claimed abuse of process because of delay or prejudice are, as we have said, conceded to be interlocutory orders from which an appeal may be brought by leave pursuant to s 5F. Indeed, it was the stated intention of the legislature that s 5F would transfer proceedings in relation to such matters from the Court of Appeal to the Court of Criminal Appeal. It is unnecessary to refer to those cases. Applications for leave to appeal in other situations give a better appreciation as to what does and what does not amount to an “interlocutory judgment or order”.

Before turning to some of those cases, however, it is instructive to consider first how the phrase and its component parts are ordinarily used. 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.

13. A formal order is necessary that is capable of entry into the records of the Court and in respect of which the EPA can apply for leave to appeal pursuant to s 5F(3)(a) of the CA Act. The determination sought in the EPA’s amended notice of motion achieves this.

14. This is an unusual case where a collateral attack on the validity of the Notice as amended has occurred under the preliminary hearing process enabled by s 247G of the CP Act. When the appropriate finding as sought in prayer 1 of the EPA’s amended notice of motion has been entered into the Court’s record, the EPA can exercise its right of appeal under s 5F(3)(a) of the CA Act.

15. The Court has no power to make a summary dismissal order in these circumstances. Summarily dismissing a summons before trial can occur only in very limited circumstances, such as an error on the face of the summons, namely a technical defect in the charge. An example of such a failure is found in Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 (Maritime) where the appellants had been charged for the wrong offence. Summary dismissal because the charge was defective was acceptable in that case. Here there is no defect in the charge alleged.

16. In the cases where a summary dismissal order has been made in this Court, the issue now before the Court has not arisen for determination: Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149 (Ihalainen) at [49] where charges were summarily dismissed because they relied on an invalid notice; and Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156 (Furlonger) at [21] where the charge was summarily dismissed because the Court was satisfied the defendant had a sufficient defence. In the Supreme Court in Gray v Woollahra Municipal Council [2004] NSWSC 112 (Gray) which was decided before the introduction of s 247G of the CP Act, Whealy J at [160] summarily dismissed proceedings where the parties accepted that it was appropriate to do so.

13. Section 247A of the CP Act clearly provides for a preliminary hearing for the purposes specified in s 247B(1)(b). The Division enables matters to be considered for the purposes of case management. Section 247G(2) does not enable the Court to make summary dismissal orders, being directed to orders, determinations or findings as are appropriate for the efficient conduct of the proceedings. Subsection (3) provides examples of orders that can be made. It does not include an order for summary dismissal. Similarly subs (3)(f) concerning a submission seeking that a trial not commence would give rise to an order to stay proceedings. The scope of s 247G is identified in subs (5) whereby any order, determination or finding made under the section is binding on the presiding judge in the proceedings unless it would not be in the interests of justice to do so in the opinion of that judge. If a matter is summarily dismissed it cannot proceed to the trial judge.

14. Section 247W of the CP Act confirms the role of preliminary orders in providing that a preliminary order is binding on the presiding judge unless not in the interests of justice to do so in the opinion of the presiding judge. “Preliminary order” is defined in subs (4).

15. No alternative appeal right exists for the EPA under s 107 of the CAR Act, which applies to acquittals. There is none here. An appeal under this section must be made by the Attorney-General or Department of Public Prosecutions (DPP). An appeal is only on a question of law, here the issue is one of mixed fact and law.

Defendant’s submissions

20. The proper course is to make orders dismissing the summonses. The Court has power to do so by virtue of ss 22 and 23 of the LEC Act. These provisions apply to all matters in which the Court has jurisdiction. The powers to grant relief are broad and should be construed as confined by the jurisdiction being exercised and the powers conferred under any other Act: GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at 668; National Parks and Wildlife v Stables Perisher Pty Ltd (1990) 20 NSWLR 573. Section 22 confers a wide power to grant remedies. Section 23 confers broad power to make orders as the Court considers appropriate.

21. Section 247G of the CP Act also confers power on the Court to dismiss a summons following a preliminary hearing. No basis for limiting the section in the manner contended for by the EPA is identified. Subsection (2) is very wide. Subsection (3) states that it is not limiting subs (2). Subsection (3)(f) expressly provides that the Court may hear and determine a submission that a case should not proceed to trial prior to commencement. It is irrelevant that no reference to summary dismissal is made expressly in the section. Construing s 247G to include a power to dismiss summonses is consistent with the purpose of Ch 4 Pt 5 Div 2A of the CP Act which is to reduce delays in summary proceedings before the Court.

22. Chapter 4 Pt 5 Div 3 (Trial procedure) of the CP Act does not exclude power to dismiss a summons after the commencement of the trial or hearing. In contrast, in Ch 4 Pt 2 Div 3 (Hearings) s 202 provides expressly for determination of summary proceedings in lower courts. No comparable provision exists in Ch 4 Pt 5 Div 3. Section 252 does not specify a procedure which precludes dismissing proceedings before trial.

23. No common law principles apply to prevent dismissal of summonses following a preliminary hearing.

24. Orders dismissing proceedings have been made in Furlonger, Ihalainen and Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 (Cauchi). In Cauchi at [53], the Court accepted that notice was required to be given to the defendants and a reasonable opportunity afforded to them to make submissions before clean-up notices were issued pursuant to s 91 of the POEO Act. The clean-up notices were found to be of no effect and the Court dismissed the summonses before the defendants had gone into evidence.

25. The EPA seeks to have an interlocutory judgment or order in relation to which the EPA can apply for leave to appeal under s 5F(3) of the CA Act. The ability afforded to a prosecutor to appeal is limited to s 107 of the CAR Act. That right is limited but clearly applies to the Court given s 107(1)(c). The EPA could approach the Attorney-General or the DPP to order them to lodge an appeal as provided by subs (2).

26. If the Court were minded to make the determination sought it should not be in the terms sought by the EPA.

27. The Defendant’s notice of motion dated 29 May 2020 referred to costs in the proceedings. It accepts that any entitlement to these in the main proceedings has not yet arisen.

Consideration

28. While provision for the determination of preliminary issues under s 247G in Ch 4 Pt 5 Div 2A has existed in the CP Act since 30 April 2012 there appears to be little caselaw in relation to practice and procedure issues that may arise. Certainly the issues that have been raised before me do not seem to be the subject of any judgment. At its core the issue is what should happen when the preliminary question determined pursuant to s 247G concerns a matter that is fundamental to the success of a prosecution so that a charge cannot succeed if the matter were to proceed to trial (assuming no appeal occurs as provided for in s 5F(3)(a) of the CA Act). My reasons in Eastern Creek No 1 that the Notice (as amended) the subject of the two charges had not been proved to be valid means that both charges must fail were the matter to proceed to trial.

29. Because of the dispute between the parties as to what the appropriate outcome should be, I did not provide a finalised outcome in Eastern Creek No 1 as I identified at [97]. I did give reasons, culminating in [93] extracted above. At issue is whether a determination as sought in prayer 1 of the EPA’s amended notice of motion or orders dismissing proceedings as sought in the Defendant’s notice of motion should be made.

30. The EPA seeks a determination to enable it to appeal against an interlocutory order under s 5F(3)(a) of the CA Act. It submits that it should have the ability to appeal my judgment as it would have had in Class 4 proceedings if the Defendant had commenced a collateral attack in that manner. I agree with the EPA that my judgment, while containing reasons, does not have a finding which enables the outcome to be recorded as a formal act of the Court, to draw on the extract of R v Steffan set out in [12] above in the EPA’s submissions . An outcome of a judgment is different to reasons. At issue is what that outcome should be.

31. It is desirable in the interests of efficiency, including not using limited judicial and personal resources, that preliminary matters be considered which reduce issues in dispute. Indeed that is a large part of the rationale for introducing Ch 4 Pt 5 Div 2A into the CP Act in relation to summary offences according to the Second Reading Speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 13 March 2012 at 9361-4) when the Criminal Procedure Amendment (Summary Proceedings Case Management Bill) 2011 (NSW) was introduced. Division 2A largely mirrors earlier changes made in relation to indictable offence proceedings. Here the preliminary matter determined is fundamental to the success of the charges. The outcome being adverse to the EPA’s case, it wishes to have the opportunity to seek leave to appeal under s 5F(3)(a) of the CA Act against an interlocutory judgment, hence the determination it seeks. That course will obviously take more time and resources than if summary dismissal orders are made which immediately bring both matters to an end.

32. In submitting that the Court does not have power to dismiss proceedings following a preliminary hearing conducted pursuant to s 247G of the CP Act, the EPA relies on cases where summary dismissal has been ordered, such as Maritime where there was a technical defect in a summons. The EPA sought to emphasise that summary dismissal orders before a final hearing of a charge are made in very limited circumstances. While that submission can be accepted and occurs as a matter of criminal procedure and practice, no case provided expressly supports the EPA’s broadly stated position. In oral submissions the EPA referred to Gray. In Gray the plaintiff was charged with an offence of failing to comply with an order under former s 121B of the Environmental Planning and Assessment Act 1997 (NSW) to remove a barbed wire fence from her property. The magistrate decided that he had no jurisdiction to consider the validity of the order. The plaintiff was convicted for failure to comply with the order. On appeal, the Supreme Court found that the magistrate did have jurisdiction to review the order, but it was nonetheless valid. Whealy J summarily dismissed the summons commencing appeal. That case does not assist in determining the matter before me given the quite different facts, namely an appeal following a concluded trial in the Local Court.

33. The Defendant’s submission that no common law principle prevents the making of summary dismissal orders appears correct.

34. It is necessary to construe the CP Act, Ch 4 in particular, which deals with summary procedures in criminal matters. Well-established principles of statutory construction require that a provision of an act be considered in its context, mindful of the purpose being served: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-2 (McHugh, Gummow, Kirby and Hayne JJ) cited by Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 at [61]. More recently these principles have been described in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 by Kiefel CJ, Nettle and Gordon JJ at [14] (footnotes omitted) as follows:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

35. Section 33 of the Interpretation Act 1987 (NSW) provides that a construction which promotes the purpose or object of an Act should be preferred over one which would not. Section 247G must be considered in the context of the CP Act as a whole.

36. Considering Ch 4 Pt 5 Div 2A (Case management provisions and other provisions to reduce delays in proceedings), the purposes of Pt 5 Div 2A are identified in s 247B as being reduction in delays in summary proceedings by enabling preliminary disclosure by the prosecutor and defence and case management as necessary.

37. The EPA submitted that the terms of s 247G when read in conjunction with s 247W confirm that a summary dismissal order is not permitted when determining a preliminary hearing. The focus of s 247G is the resolution of preliminary matters which aid in the efficient dispatch of a matter at trial. A summary dismissal order is not expressly provided for in s 247G. Underscoring the preliminary nature of any orders, determination or finding made, s 247G(5) and s 247W (Preliminary orders and other orders bind presiding Judge) are in broadly similar terms.

38. Section 247G(1) provides that a court can order a prosecutor and defendant to attend a preliminary hearing. As the Defendant identified, s 247G(2) is widely drafted in providing that a court may make such orders, determinations or findings, or give such directions or rulings, appropriate for the efficient management and conduct of proceedings. Subsection (3) states that it does not limit subs (2) in specifying actions that a court can take under subs (2). Subsection (3)(g) includes giving a ruling on any question of law that may arise at trial inter alia. Subsection (4) is also wide, providing that a court can make any order, determination, finding or ruling under the section despite any other provisions of the CSP Act. Section s 247G does not expressly prohibit the making of summary dismissal orders before trial and I do not consider that construction arises by inference, given the wide provisions in subss (2) and (4).

39. Looking beyond Pt 5 Div 2A, as the Defendant highlighted, under s 202 (Determination by court) subs (1) in Pt 2 (Trial procedures in lower courts) Div 3 (Hearings), a lower court must determine summary proceedings after hearing an accused person, prosecutor and any witnesses and evidence in accordance with the CP Act. Under subs (2) a court can dismiss a matter inter alia. The comparable provision in Pt 5 (Summary jurisdiction of Supreme Court and other higher courts) Div 3 (Trial procedure) is s 252. This provides that where both parties appear, the court must proceed to hear and determine the matter. 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 CP 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.

40. A summary dismissal order will bring the proceedings to a close, avoiding a costly trial. Such an order has been made before trial in three matters in this Court (Furlonger, Ihalainen and Cauchi). One of these cases (Cauchi) was determined before the introduction of Div 2A. The two cases decided after Div 2A was introduced are Furlonger and Ihalainen. In Furlonger the defendant applied for a charge to be dismissed before a plea had been entered. The charge concerned an order issued under s 124 of the Local Government Act 1993 (NSW) (LG Act) requiring work to be done. The defendant argued that she was unaware of the s 132 notice of the proposed order and the s 124 order until the summons was received. The Court was satisfied that the defendant was unaware of the order, a defence provided under s 628(5) of the LG Act. The Court did not agree with the prosecutor that this was an issue that should be determined later at trial and dismissed the summons. Whether the appropriate order was that the summons should be summarily dismissed was not apparently identified as an issue.

41. In Ihalainen I dismissed before trial a summons for an offence of failing to comply with a clean-up notice issued under the POEO Act on the basis that necessary procedural fairness obligations had not been complied with before the notice was issued. I found that issue was appropriate to consider by way of a preliminary hearing, referring to s 247G of the CP Act at [49]. The question of whether an order for summary dismissal could be made at all was not raised by the parties and not considered by me.

42. In Cauchi the defendants were issued with clean-up notices pursuant to s 91 of the POEO Act. The defendants brought a motion for the dismissal of the proceedings. The defendants submitted that before the s 91 notices could be issued, the council was required to afford the defendants procedural fairness. That obligation not having been fulfilled had the consequence that the notices were of no effect. McClellan CJ accepted that procedural fairness had not been afforded and made an order that the summonses be dismissed.

43. These three cases, whether decided before or after the introduction of s 247G, suggest that making summary dismissal orders is lawful and appropriate in the circumstances before me.

44. In addition, the Defendant relies on the wide powers conferred on the Court under ss 22 and 23 of the LEC Act. Given the reasoning above, it is strictly unnecessary to consider these sections. I note that these sections do not limit the making of orders by the Court, indeed s 23 provides wide power to the Court to make orders. The extent to which these sections should be applied to the Court exercising its summary criminal jurisdiction, for which the CP Act specifies procedural requirements, was not fully explored in argument and I will not consider them further.

45. As the Court does have power to summarily dismiss before trial in the circumstances before me, it appears that I have a choice about whether I should make such orders or make the determination sought by the EPA, thereby enabling an application for an appeal under s 5F(3)(a) of the CA Act. While the EPA sought to draw an analogy with a collateral attack on the Notice which could be brought in Class 4 judicial review proceedings, these are criminal proceedings.

46. Considering appeal rights more generally, the ability to appeal under s 107 of the CAR Act is deliberately limited to where there is an acquittal. The section expressly applies to the Court. The EPA would need to approach the Attorney-General or the DPP to have them commence an appeal against acquittal.

47. Weighing up the various matters considered above, I would make orders for summary dismissal in relation to both charges. As a result of that conclusion, before I make the orders, the EPA has identified that it wishes to state a case as provided for by s 5AE(1) of the CA Act. The stated case is attached to the affidavit of Ms Spain. Prayer 2 in the EPA’s amended notice of motion will be made. I note that this approach means that the Defendant’s notice of motion dated 29 May 2020 is not yet able to be finalised.

Order

1. In accordance with s 5AE(1) of the Criminal Appeal Act 1912 (NSW), the Court submits the question of law as contained in the draft stated case, as amended, which is at annexure A to the affidavit of Elizabeth Emily Spain dated 4 February 2021 to the Court of Criminal Appeal for determination.

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Decision last updated: 03 May 2021