Environment Protection Authority v Gilmour - [2000] NSWLEC 144

Reported Decision: 109 LGERA 228

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Gilmour; Tablelands Topdressing Pty Ltd [2000] NSWLEC 144

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Gilmour
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Tablelands Topdressing Pty Ltd

FILE NUMBER(S): 50006; 50007 of 2000

CORAM: Bignold J

KEY ISSUES: Practice & Procedure :- Extending time for service of Prosecution evidence in defended criminal proceedings

LEGISLATION CITED: Clean Waters Act 1970, s 16(1)
Environmental Offences and Penalties Act 1989
Land and Environment Court Rules 1996, Pt 6 r 2

CASES CITED: Barton v The Queen (1980) 147 CLR 75;
McConnell Dowell Constructions (Australia) Pty Ltd ([1999] NSWLEC 111);
State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487

DATES OF HEARING: 22/06/00

DATE OF JUDGMENT:
06/30/2000

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T Howard, Barrister
SOLICITORS:
Solicitor for Environment Protection Authority
DEFENDANTS:
Mr M A Bradford, Barrister
SOLICITORS:
Mr S Rugendyke

JUDGMENT:

IN THE LAND AND Matter No . 50006 and 50007 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 30 June 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

G.R. GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

TABLELANDS TOPDRESSING PTY LTD

Defendant

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its Notice of Motion filed 14 June 2000 in these two related class 5 proceedings, the Prosecutor seeks the leave of the Court that it be permitted at the trial to rely upon five affidavits which it filed in the proceedings on 2 June 2000.

2. With the concurrence of Counsel appearing for the Defendant, the Notice of Motion has been presented on the basis that the relief claimed is for a direction extending the time for the filing of Prosecution affidavits to 2 June 2000, it being noted that the direction given by the List Judge (Talbot J) on 25 March 2000 was for the Prosecutor to file “further affidavits by 5 April 2000”.

3. There is a very sound reason of practice for so regarding the relief sought in the Notice of Motion because otherwise, the determination of the Motion in terms of the relief sought in advance of the trial of both charges that has been fixed for 7 and 8 August 2000 might have involved an unwitting intrusion into the proper province and function of the trial judge.

4. However, this very consideration demonstrates the utility, if not necessity for the present Motion, because without an adjudication before the trial, the Prosecutor will be exposed to the real risk of not being allowed to rely upon the evidence at the trial. That this might be the outcome of the trial process is aptly demonstrated by the decision of the Court of Criminal Appeal in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 where the Court said at 492 - 493:

Failure to comply with directions of the kind with which we are concerned gives the trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 144
Decision Date: 06/30/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) sought to extend the time for filing and serving prosecution evidence against Gilmour and Tablelands Topdressing Pty Ltd, who were charged with environmental offences under the Clean Waters Act 1970 and the Environmental Offences and Penalties Act 1989. The EPA had originally been directed to file and serve its evidence by 5 April 2000, but subsequently sought an extension until 2 June 2000. The defendants opposed the extension, arguing that they had already entered pleas of not guilty based on the evidence available to them as of 26 April 2000. The court considered whether extending the time for filing additional evidence would be just and efficient, taking into account the principles of fairness and the need for both parties to have adequate notice of the case against them.

Bignold J held that it was both just and efficient to extend the time for the filing and service of additional affidavits by the EPA. The court emphasised the importance of ensuring that defendants have fair notice of the prosecution's case but also recognised the need for the prosecution to be able to rely on admissible evidence, provided that the defendants have had reasonable notice. The court found that the defendants had not been prejudiced by the delay, as they had been in possession of the additional affidavits for over two months before the trial date. The court granted the EPA's application for an extension and ordered the EPA to pay the defendants' costs of the motion.

Orders