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Environment Protection Authority v Truegrain Pty Ltd

Environment Protection Authority v Truegrain Pty Ltd

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Case Copied 30 August 2013 64 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204
Hearing dates: 8 August 2013
Decision date: 30 August 2013
Before: Leeming JA [1];
RA Hulme J [104];
Button J [105]
Decision:
1. Leave to appeal be granted and appeal allowed in part.

2. Set aside the order for costs, being order 2, made on 18 April 2012.
3. Otherwise dismiss the appeal.
Catchwords:
COURTS AND JUDGES - powers of Land and Environment Court to order costs - whether power to order amendments on terms as to costs a separate power to order costs - whether power to order costs in summary jurisdiction confined by circumstances stated in Criminal Procedure Act 1986

CRIMINAL LAW - procedure - summary jurisdiction - summons containing a single charge - whether bad for duplicity - summons particularised separate acts of storing and treating waste, contrary to condition on licence

CRIMINAL LAW - procedure - costs - whether power to order costs against prosecutor, before determination of the trial, following amendment of duplicitous summons - no power to order costs

ENVIRONMENTAL PROTECTION - offence of contravening condition of environmental protection licence - licence required scheduled activities to be carried out competently - whether allegations of carrying out storage and treatment of waste on different occasions could proceed as a single charge
STATUTORY INTERPRETATION - separate provisions conferring power on Land and Environment Court to order costs in civil and summary jurisdiction - whether power to order amendment on terms as to costs was a free-standing power, authorising interlocutory costs orders in summary jurisdiction.
Legislation Cited: Civil Procedure Act 2005
Costs in Criminal Cases Act 1967
Courts Legislation Amendment Act 2007
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Crown Lands Act 1889
Crown Lands (Amending and Declaratory) Act 1912
Justices Act 1902
Land and Environment Court Act 1979
Land and Valuation Court Act 1921
Protection of the Environment Operations Act 1997
Summary Jurisdiction Act 1848 (Eng)
Supreme Court Act 1970
Supreme Court (Summary Jurisdiction) Act 1967
Cases Cited: Attorney-General of Queensland v Holland (1912) 15 CLR 46
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
Barton v Berman [1980] 1 NSWLR 63
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
Calleija v R [2012] NSWCCA 37.
Cha v R [2012] NSWCCA 142
Chapman v R [2013] NSWCCA 91
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Chugg v Pacific Dunlop Ltd [1988] VR 411
CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
Davis v R [2006] NSWCCA 392
De Romanis v Sibraa [1977] 2 NSWLR 264
Director-General, NSW Department of Industry & Investment v Coomes [2012] NSWLEC…

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: [2013] NSWCCA 204
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the case of Environment Protection Authority v Truegrain Pty Ltd, the dispute centred on the enforcement of an environmental protection licence. The Environment Protection Authority (EPA) brought proceedings against Truegrain Pty Ltd for alleged breaches of the conditions set out in its environmental protection licence. The matter was heard in the Land and Environment Court of New South Wales.

The court was tasked with determining several legal issues, including whether the power to order amendments on terms as to costs was a separate power to order costs in summary jurisdiction. Additionally, the court considered whether the power to order costs in summary jurisdiction was confined by the circumstances stated in the Criminal Procedure Act 1986. The court also examined whether a summons containing a single charge that particularised separate acts of storing and treating waste could be considered bad for duplicity.

The Land and Environment Court concluded that the power to order amendments on terms as to costs was not a free-standing power that authorised interlocutory costs orders in summary jurisdiction. It found that the power to order costs in summary jurisdiction was not confined by the circumstances stated in the Criminal Procedure Act 1986. Furthermore, the court held that the summons particularising separate acts of storing and treating waste was not bad for duplicity. The summons was deemed to properly allege distinct acts, and therefore, the charges could proceed as a single charge.

The court ultimately determined that the summons was not defective and the charges could proceed as a single charge. Consequently, the court ruled in favour of the Environment Protection Authority and allowed the proceedings against Truegrain Pty Ltd to continue. The court did not order costs against the prosecutor before the determination of the trial, following the amendment of the duplicitous summons, as it found no power to do so under the circumstances.

Orders