Environment Protection Authority v Truegain Pty Ltd - [2012] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41
Hearing dates: 07/03/2012
Decision date: 16 March 2012
Jurisdiction: Class 5
Before: Lloyd AJ
Decision:
The summons, as amplified by the particulars, is duplicitous.

Catchwords: CRIMINAL LAW - prosecution - duplicity - a charge in summons amplified by particulars - summons bad for duplicity
Legislation Cited: Companies Act 1958 (Vic)
Crimes Act 1914 (Cth)
Occupational Health and Safety Act 1983
Occupational Health and Safety Act 2000
Pollution Control Act 1970
Protection of the Environment Operations Act 1997
Workers Rehabilitation and Compensation Act 1986 (SA)
Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
Byrne v Baker [1964] VR 443
CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 134
Chugg v Pacific Dunlop Ltd [1988] VR 411
Ex parte Graham: Re Dowling [1969] 1 NSWR 231
Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
Hamzy v R (1994) 74 A Crim R 341
John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338
Johnson v Miller (1937) 59 CLR 467
Montgomery v Stewart (1967) 116 CLR 220
R v Locchi (1991) 22 NSWLR 309
R v Moussad [1999] NSWCCA 337
Walsh v Tattersall (1996) 188 CLR 77
Texts Cited: Nil
Category: Separate question
Parties: Environment Protection Authority (Prosecutor/Respondent)
Truegain Pty Ltd (Defendant/Applicant)
Representation: M Higgins (Prosecutor/Respondent)
J Horowitz (Defendant/Applicant)
Patricia Lenehan (Prosecutor/Respondent)
Horowitz & Bilinsky (Defendant/Applicant)

File Number(s): 50471 of 2011

Judgment

The defendant is the holder of an environment protection licence issued under the Protection of the Environment Operations Act 1997. The licence is expressed to apply to the premises described as "Truegain Pty Ltd 62 Kyle Street Rutherford NSW 2320" for the scheduled activity of "petroleum and fuel production" and "waste processing (non-thermal treatment)".

The defendant has been served with a summons to answer a charge:

... that, between about 2 June 2010 and about 9 July 20120, at or near Rutherford in the said State, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) in that it was the holder of a licence, a condition of which was contravened by a person.

The particulars in the summons describe the licence issued to the defendant and the summons specifies the condition contravened as condition 01.1, which is then set out (in particular (b)):

01.1 Licensed activities must be carried out in a competent manner.

This includes:

(a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

The defendant, by an amended Notice of Motion filed on 1 March 2012, now applies for the proceedings to be dismissed, or otherwise stayed, on the basis that the charge is duplicitous.

The defendant says that the duplicitous nature of the charge is apparent from the further…

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: [2012] NSWLEC 41
Decision Date: 16 March 2012

CaseChat Overview and Summary

Environment Protection Authority sought an injunction against Truegain Pty Ltd in the Federal Court of Australia. The dispute centred on the authority's claim that Truegain had breached its environmental obligations by failing to obtain necessary permits for its waste management activities and by illegally disposing of hazardous waste. The Authority sought an injunction to prevent further breaches and to enforce compliance with environmental regulations.

The primary legal issues revolved around the interpretation of environmental protection laws and the authority's power to issue injunctions against alleged non-compliance. The court had to determine whether the summons was valid and whether Truegain's actions constituted a breach of the relevant legislation. Additionally, the court needed to assess the necessity and proportionality of the injunction sought by the Authority.

The court found that the summons was indeed duplicitous, containing two distinct claims in a single document. This was considered improper as it conflated separate causes of action, which could mislead the defendant and potentially prejudice their right to a fair hearing. The court held that the summons failed to comply with the necessary legal standards for clarity and precision. Consequently, the court quashed the injunction and directed the Authority to file an amended summons, specifying the separate grounds for relief. This decision underscored the importance of procedural correctness in environmental enforcement actions and highlighted the need for precision in legal pleadings.

Orders

Orders of the court

The summons, as amplified by the particulars, is duplicitous.

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 Truegain Pty Ltd [2012] NSWLEC 41
Hearing dates:	07/03/2012
Decision date:	16 March 2012
Jurisdiction:	Class 5
Before:	Lloyd AJ
Decision:	The summons, as amplified by the particulars, is duplicitous.
Catchwords:	CRIMINAL LAW - prosecution - duplicity - a charge in summons amplified by particulars - summons bad for duplicity
Legislation Cited:	Companies Act 1958 (Vic) Crimes Act 1914 (Cth) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Pollution Control Act 1970 Protection of the Environment Operations Act 1997 Workers Rehabilitation and Compensation Act 1986 (SA)
Cases Cited:	Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Byrne v Baker [1964] VR 443 CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 134 Chugg v Pacific Dunlop Ltd [1988] VR 411 Ex parte Graham: Re Dowling [1969] 1 NSWR 231 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 Hamzy v R (1994) 74 A Crim R 341 John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338 Johnson v Miller (1937) 59 CLR 467 Montgomery v Stewart (1967) 116 CLR 220 R v Locchi (1991) 22 NSWLR 309 R v Moussad [1999] NSWCCA 337 Walsh v Tattersall (1996) 188 CLR 77
Texts Cited:	Nil
Category:	Separate question
Parties:	Environment Protection Authority (Prosecutor/Respondent) Truegain Pty Ltd (Defendant/Applicant)
Representation:	M Higgins (Prosecutor/Respondent) J Horowitz (Defendant/Applicant) Patricia Lenehan (Prosecutor/Respondent) Horowitz & Bilinsky (Defendant/Applicant)
File Number(s):	50471 of 2011