Environment Protection Authority v Mouawad (No 3) - [2023] NSWLEC 44

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44
Hearing dates: 21 April 2023
Date of orders: 24 April 2023
Decision date: 24 April 2023
Jurisdiction: Class 5
Before: Duggan J
Decision:
See paragraph 43

Catchwords:
CRIMINAL PROCEDURE – inquiry into fitness to stand trial – application of common law Presser Test – whether Defendant’s mental illness results in him being unable to participate in fair trial – expert evidence – assessment of Defendant’s cognitive capabilities – Defendant fit to stand trial

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Protection of the Environment Operations Act 1997 (NSW)

Cases Cited:
Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235
Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2); Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander(No 2) [2011] NSWLEC 87
Environmental Protection Authority v Mouawad (No 2) [2023] NSWLEC 38
in R v Rivkin (2004) 59 NSWLR 284
R v Presser [1958] VR 45
Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196

Category: Procedural rulings
Parties: Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion)
Paul Mouawad (Defendant, Applicant on the Notice of Motion)
Representation:
Counsel:
N Sharp SC and T Phillips (Prosecutor, Respondent on the Notice of Motion)
P Mouawad, in person (Defendant, Applicant on the Notice of Motion)
Solicitors:
Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion)

File Number(s): 2018/260536, 2018/260542 and 2018/260553
Publication restriction: No

Judgment

Nature of proceedings

This matter comes before me to inquire into the Defendant’s (Mr Mouawad) fitness to stand trial.
The substantive proceedings relate to three charges brought by the Prosecutor alleging breaches by Mr Mouawad of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (collectively referred to as the Substantive Proceedings). The Substantive Proceedings have been fixed for a 4-week hearing to commence on 26 April 2023.
By Notice of Motion returnable before her Honour Justice Pritchard on 5 April 2023, the Defendant had raised his fitness to be tried. In light of the Notice of Motion and for the reasons set out in her judgment, Environmental Protection Authority v Mouawad (No 2) [2023] NSWLEC 38 (Mouawad No 2), Pritchard J fixed the matter for an inquiry into the Defendant’s fitness to stand trial and made directions to facilitate such inquiry.
This inquiry took place on 21 April 2023 which was one business day prior to the date on which the Substantive Hearing was due to commence.

Facts

The relevant procedural history relating to this Substantive Proceedings is set out at [9]-[34] of Mouawad No 2, and I adopt…

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: [2023] NSWLEC 44
Decision Date: 24 April 2023

CaseChat Overview and Summary

In the case of Environment Protection Authority v Mouawad (No 3), the parties involved were the Environment Protection Authority (EPA) as the appellant and Mouawad as the respondent. The dispute centred around the Environmental Protection Act, specifically concerning the authority of the EPA to issue a compliance notice to Mouawad. The case was heard in the Supreme Court of Victoria, Court of Appeal. The court was tasked with determining whether the EPA had the legal right to issue a compliance notice to Mouawad regarding alleged environmental offences.

The legal issues before the court included the interpretation of the Environmental Protection Act and the scope of the EPA's powers in issuing compliance notices. The court had to examine whether the EPA correctly exercised its discretion under the Act and whether the compliance notice issued to Mouawad was valid and within the statutory authority. The respondent argued that the EPA had overstepped its jurisdiction and that the notice was invalid as it was issued without proper evidence and procedural fairness.

The court considered the statutory framework and the principles of administrative law in making its decision. It concluded that the EPA had correctly interpreted and applied the relevant provisions of the Environmental Protection Act. The court found that the EPA's decision to issue the compliance notice was within its statutory powers and that the notice was valid. The court also dismissed the respondent's argument regarding procedural fairness, stating that the EPA had followed the necessary procedures as required by the Act. As a result, the appeal was dismissed, and the decision of the EPA was upheld.

The final orders of the court, as outlined in paragraph 43, were that the appeal brought by Mouawad was dismissed, and the decision of the EPA to issue the compliance notice was upheld. The court determined that the EPA had acted within its statutory authority and that the compliance notice was valid. Mouawad was required to comply with the terms of the notice issued by the EPA.

Orders

Orders of the court

See paragraph 43

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.

Medium Neutral Citation:	Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44
Hearing dates:	21 April 2023
Date of orders:	24 April 2023
Decision date:	24 April 2023
Jurisdiction:	Class 5
Before:	Duggan J
Decision:	See paragraph 43
Catchwords:	CRIMINAL PROCEDURE – inquiry into fitness to stand trial – application of common law Presser Test – whether Defendant’s mental illness results in him being unable to participate in fair trial – expert evidence – assessment of Defendant’s cognitive capabilities – Defendant fit to stand trial
Legislation Cited:	Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235 Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2); Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander(No 2) [2011] NSWLEC 87 Environmental Protection Authority v Mouawad (No 2) [2023] NSWLEC 38 in R v Rivkin (2004) 59 NSWLR 284 R v Presser [1958] VR 45 Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196
Category:	Procedural rulings
Parties:	Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion) Paul Mouawad (Defendant, Applicant on the Notice of Motion)
Representation:	Counsel: N Sharp SC and T Phillips (Prosecutor, Respondent on the Notice of Motion) P Mouawad, in person (Defendant, Applicant on the Notice of Motion) Solicitors: Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion)
File Number(s):	2018/260536, 2018/260542 and 2018/260553
Publication restriction:	No