Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd

Link copied
Case Copied 29 min read
Reported Decision: 114 LGERA 426
APPEAL DISMISSED

Land and Environment Court


of New South Wales


CITATION: Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [2001] NSWLEC 136
PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
McConnell Dowell Constructors (Australia) Pty Ltd
FILE NUMBER(S): 50009 of 1999
CORAM: Pearlman J
KEY ISSUES: Practice & Procedure :- summons - application of s 43 - whether defect essential factual ingredient - vicarious liability - application for permanent stay of criminal proceedings - delay
LEGISLATION CITED: Clean Waters Act 1970 s 16(1)
Land and Environment Court Act 1979 s 41, s 43
Land and Environment Court Rules 1996 pt 6 r 2, pt 9 r 1, pt 9 r 2, pt 12 r 1
Supreme Court Rules 1970 pt 75 r 7, sch F form 74A
CASES CITED: Byron Shire Council v Vigden C J & Donna's Beach Pty Ltd [1999] NSWLEC 121;
Carson v Legal Services Commissioner and Anor [2000] NSWCA 308;
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125;
De Romanis v Sibraa and Anor (1977) 2 NSWLR 264;
Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [1999] NSWLEC 111;
Ex p Lovell, re Buckley (1938) 38 SR 153;
Hornsby Shire Council v Winsloe (1998) 101 LGERA 117;
Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23;
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508;
Johnson v Miller (1937) 59 CLR 467;
McDonnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127;
McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308;
R v Nicholson (1998) 102 A Crim R 459;
Taylor v Environment Protection Authority (2000) 50 NSWLR 48;
The Queen v Glennon (1992) 173 CLR 592;
Walton v Gardiner (1993) 177 CLR 378
DATES OF HEARING: 13/03/2001
DATE OF JUDGMENT:
06/29/2001
LEGAL REPRESENTATIVES:


PROSECUTOR
Mr D A Buchanan SC
SOLICITORS
Environment Protection Authority

DEFENDANT
Mr J P Doyle (Solicitor)
SOLICITORS
Doyles Construction Lawyers


JUDGMENT:

IN THE LAND AND 50009 of 1999
ENVIRONMENT COURT

Pearlman J


OF NEW SOUTH WALES 29 June 2001
ENVIRONMENT PROTECTION AUTHORITY
                              Prosecutor
v
McCONNELL DOWELL CONSTRUCTORS (AUSTRALIA) PTY LTD

                              Defendant

JUDGMENT

Introduction

1. The matter presently before the Court is whether a defect in the summons in these class 5 proceedings can be cured by the application of s 43 of the Land and Environment Court Act 1979 (“the Court Act”).

2. The matter arises from the following circumstances. The summons claims an order charging the defendant with polluting waters contrary to s 16(1) of the Clean Waters Act 1970. In answer to a question posed in a stated case, the Court of Criminal Appeal has held that the summons is defective because it omitted an essential ingredient of the offence, namely, reference to the conduct of the defendant said to constitute the act of polluting (McDonnell Dowell Constructors (Aust) Pty Ltd v…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Environment Protection Authority v McConnell Dowell Construc... and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] NSWLEC 136
Decision Date

CaseChat Overview and Summary

The case of Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd involved a legal dispute between the Environment Protection Authority (EPA) and McConnell Dowell Constructors (Australia) Pty Ltd. The EPA initiated proceedings against the defendant for allegedly polluting waters in violation of the Clean Waters Act 1970. The Land and Environment Court of New South Wales was tasked with resolving the dispute. The primary legal issues before the court were whether a defect in the summons in these class 5 proceedings could be cured by the application of s 43 of the Land and Environment Court Act 1979 and whether the proceedings should be permanently stayed due to alleged abuse of process and delay.

The court first examined whether s 43 of the Land and Environment Court Act applied to the summons. The defendant argued that the section applied only to applications or orders and not to summonses. However, the court rejected this argument, stating that the summons serves two purposes: it initiates class 5 proceedings and constitutes an application for an order under s 41. The court held that s 43 applied to the summons in its capacity as an application for an order.

Next, the court considered whether the defect in the summons, which failed to specify the act of polluting, could be cured by s 43. The defendant argued that the omission of the act of polluting constituted an omission of essential legal elements of the offence, which could not be cured by s 43. The court disagreed, stating that the omission related to the essential factual ingredients of the offence, which could be cured by s 43.

The defendant also argued that the proceedings should be permanently stayed due to the alleged abuse of process and delay. The court found that, while there had been a significant delay in furnishing further particulars, the prosecutor had provided an explanation, and no prejudice to the defendant had been shown. The court held that there had been no abuse of process warranting a permanent stay of the proceedings.

In conclusion, the court dismissed the defendant’s notice of motion, held that s 43 applied to cure the defect in the summons, and found that the proceedings should not be permanently stayed. The court reserved the question of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.