Environment Protection Authority v Waight [No 2] - [1999] NSWLEC 274

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Waight [No 2] [1999] NSWLEC 274

PARTIES

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Michael Jeffrey Waight

NUMBER:

50019, 50020, 50021, and 50022 of 1999

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- notice to produce - criminal proceedings - setting aside - too wide

LEGISLATION CITED:

DATES OF HEARING:

12/10/1999

DATE OF JUDGMENT DELIVERY:

12/14/1999

LEGAL REPRESENTATIVES:

Mr D Buchanan SC
With:
Mr D Galpin (Barrister)
SOLICITORS:
Environment Protection Authority
Mr B Preston SC
With:
Mr D Newhouse (Barrister)
SOLICITORS:
Heidtman & Co

JUDGMENT:

IN THE LAND AND Matter No. 50019-22 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 14 December, 1999

Environment Protection Authority
Prosecutor

v

Michael Jeffrey Waight [No 2]
Defendant

REASONS FOR JUDGMENT

1. By four class 5 summons the defendant is charged with, negligently disposing of waste without lawful authority in contravention of s 5(1) of the Environmental Offences and Penalties Act 1989 (the EOP Act); negligently causing a substance to escape in contravention of s 6(1) of the EOP Act; being the occupier of a controlled waste facility without being the holder of a licence in contravention of s 44 of the Waste Minimisation and Management Act 1995; and that he did pollute waters in contravention of s 16(1) of the Clean Waters Act 1970.
2. The defendant has served a Notice to Produce requiring the prosecutor produce the following documents for the purpose of evidence:

All files of the Environment Protection Authority NSW, together with all file notes, memorandum, correspondence, reports, recommendations, calculations, photographs, video tapes, plans, designs and maps concerning the preparation and issue of proceedings and charges under the Clean Water Act (sic), the Waste Minimisation and Management Act and the Environmental Offences and Penalties Act against Michael Jeffrey Waight of Lot 204, Old Northern Road, Glenorie, NSW, 2157 (“Lot 204”), including all files dealing with the investigation of Lot 204 prior to the issue of proceedings and charges, covering the period from January 1994 to the present.

3. The prosecutor seeks to have the defendant’s Notice to Produce set aside on the grounds that the terms of the Notice are too wide, it effectively requires discovery in criminal proceedings, and is oppressive.

4. Mr Buchanan SC referred the Court to a number of authorities which he says support the prosecutor’s argument.

5. There is no right of discovery in respect of documents in the possession or control of the prosecutor ( Maddsion and Anor v Goldrick and Anor [1976] 1 NSWLR 651 and Khoder Mohammed Sobh (1993) 65 A Crim R 466).

6. Starting with The Commissioner for Railways v Small 38 SR(NSW) 564 as further elucidated in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, a subpoena will be set aside if it is used for the purpose of “fishing” or for the purpose of discovery which requires the person to whom the subpoena is…

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: [1999] NSWLEC 274
Decision Date: 12/14/1999

CaseChat Overview and Summary

In Environment Protection Authority v Waight [No 2], the defendant, Michael Jeffrey Waight, faced four criminal charges related to environmental offences, including negligent disposal of waste, causing a substance to escape, operating a waste facility without a licence, and polluting waters. The Environment Protection Authority (EPA) sought to set aside a Notice to Produce served by Waight, which required the EPA to produce all documents related to the investigation and charges against Waight from January 1994 to the present. The EPA argued that the notice was overly broad, effectively amounting to discovery in criminal proceedings, and was oppressive. The court had to decide whether the notice was too wide and if setting it aside was appropriate.

The court examined the legal principles surrounding the use of notices to produce in criminal proceedings. It noted that there is no right to discovery in criminal cases, and a notice to produce should not be used for fishing expeditions or discovery purposes. The court also considered whether the notice was oppressive, requiring the production of a vast amount of documents that would be time-consuming and costly to compile and review. While acknowledging the importance of full disclosure in criminal cases, the court emphasised that a notice to produce must contain the necessary particularity. In this case, the notice required the production of all documents related to the proceedings without sufficient specificity, making it akin to discovery. Therefore, the court set aside the notice to produce.

The court's final order was that the defendant's Notice to Produce be set aside. This decision highlights the importance of particularity in notices to produce in criminal cases, balancing the need for full disclosure with the rights of the prosecutor.

Orders