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

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

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…

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: [2001] NSWLEC 136
Decision Date: 06/29/2001

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