Environment Protection Authority v Midcoast County Council t/as Midcoast Water
[2003] NSWLEC 233
•09/04/2003
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Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Midcoast County Council t/as Midcoast Water [2003] NSWLEC 233 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
Midcoast County Council t/as Midcoast WaterFILE NUMBER(S): 50128 of 2003 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- refusal of late application by prosecutor to inspect defendant's premises LEGISLATION CITED: Supreme Court Rules 1970 Pt 75 CASES CITED: DATES OF HEARING: 04/09/2003 EX TEMPORE
JUDGMENT DATE :
09/04/2003LEGAL REPRESENTATIVES: DEFENDANT
PROSECUTOR
Mr D Galpin (Barrister)
SOLICITORS
Environment Protection Authority
Ms K J Eggleton-Ozen (Solicitor)
SOLICITORS
Deacons
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50128 of 2003
4 September 2003Talbot J
- Prosecutor
- Defendant
Introduction
1 The prosecutor commenced these proceedings in April 2003. The charge is in respect of an event that occurred almost 12 months before in April 2002. The first return date was on 30 May 2003. Having been told that the evidence was on so far as the prosecution is concerned, the defendant entered a plea of guilty on 10 July 2003. Since that date the defendant was required to file expert evidence upon which it relies and subsequently, the prosecutor was directed to provide further evidence upon which it relies in relation to mitigation of penalty.
2 The prosecutor asks the Court to make orders in a notice of motion filed in Court by leave this morning and dated 3 September 2003. In effect the orders are that there be an inspection of the defendant’s plant by an expert who is an environmental engineer, whatever that is. I do not mean that disrespectfully, it is just that I am not too sure what an environmental engineer does. The inspection proposed is by that expert, together with an employee of the prosecutor who is an authorised officer under the Protection of the Environment Operations Act 1997 (“the PEO Act”) and that access be granted accordingly. I am satisfied that Pt 75 of the Supreme Court Rules 1970 does not apply where a plea of guilty has already been entered so that any question of power pursuant to that rule does not arise. However, I will accept for the moment the Court does have the power to make the orders.
3 The defendant resists the making of the order.
4 Ms Eggleton-Ozen, who appears on behalf of the defendant, has raised a number of issues. Firstly, that the defendant has already pleaded guilty on 10 July 2003. Secondly, that the prosecutor has been aware of the circumstances for over 12 months and further that powers were available under the PEO Act to cause an inspection to be carried out prior to the commencement of proceedings as well as the cost involved, not only of the defendant causing persons to be available to protect the defendant’s interests but costs of the prosecutor that will be further incurred in relation to the attendance on the site. Ms Eggleton-Ozen raises these matters to submit that it is not just or reasonable for the prosecutor to be given this late opportunity to inspect the premises, particularly given the extraordinary length of time that it has been open to the authority to do what it had to do to gain a proper understanding of the position.
5 Mr Galpin, on the other hand, seeks to place the prosecutor in a position where proper assistance can be given to the Court by the prosecutor’s evidence. He points out that if there are unreasonable costs involved then that is a matter that can dealt with at another time when the question of costs is to be assessed.
6 There has been no move at this stage for the parties to settle on a Statement of Agreed Facts (“SOAF”). It will be the case, as a consequence of the plea of guilty being entered, that a direction will be made for the parties to proceed with the preparation of a SOAF.
7 I am not persuaded that there is anything so critical about the evidence of Geunter Hauber-Davidson, the environmental engineer, which would persuade the Court to make an order, particularly at this stage of the proceedings. It is entirely unsatisfactory for a prosecutor to leave these matters until the last moment. It must be assumed that the expert was not retained until recently. It may well be that he was not available or was not instructed but nevertheless the Environment Protection Authority has had any amount of time to place its house in order in relation to not only the proof of liability but also to properly advise itself as to what the environmental harm is and about any other issues that arise in relation to the matter.
8 I am not prepared to exercise the Court’s discretion in the circumstances. Accordingly, it is appropriate for the matter to be set down for hearing and I propose to do that now. I set the matter down for one day plus. I make the usual directions in relation to the SOAF extending the timeframe to 14 days, 14 days and 14 days to accommodate any difficulties that might arise as a consequence of my refusal to make the order.
9 GALPIN: That just leaves the fact that Ms Eggleton-Ozen took no objection to Dr Ashbolt’s affidavit or to Mr Hauber-Davidson’s report in its present form -
10 HIS HONOUR: That will just proceed in the normal way.
11 EGGLETON-OZEN: Your Honour, at the moment we have received that report in draft form so we seek a direction that it be filed as soon as possible.
12 HIS HONOUR: That’s why I made it fourteen, it’s available now, isn’t it?
13 EGGLETON-OZEN: In final form.
14 HIS HONOUR: Forthwith.
15 GALPIN: It will just need to be slightly amended to take out some things.
16 HIS HONOUR: Can you file it by 4:00pm on Monday?
17 GALPIN: I’m instructed, yes.
18 HIS HONOUR: I direct that you complete your evidence by 4:00pm on Monday. I make the usual directions in relation to the SOAF. I will make it 21 days, 21 days and 21 days so no one can argue about the constraints. I direct the parties approach the Registrar this morning for the purpose of obtaining the hearing date of a day plus.
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