Liverpool City Council v Cauchi - [2005] NSWLEC 675

Land and Environment Court

of New South Wales

CITATION:
Liverpool City Council v L Cauchi Liverpool City Council v M A Farrugia t/as D&M Farrugia Excavating Liverpool City Council v D Farrugia t/as D&M Farrugia Excavating Liverpool City Council v J&L Cauchi Pty Ltd Liverpool City Council v J Cauchi [2005] NSWLEC 675

PARTIES:
Liverpool City Council
Louise Cauchi (Def)
Joseph Cauchi (Def)
J & L Cauchi (Def)
M A Farrugia (Def)
D Farrugia (Def)

FILE NUMBER(S):
50115; 50116; 50117; 50118; 50119 of 2003

CORAM:
McClellan CJ

KEY ISSUES:
Prosecution :- Not guilty plea
Failure to comply with clean up notice
Defence of reasonable excuse
Procedural fairness

LEGISLATION CITED:
Environmental Planning & Assessment Act 1979
Protection of the Environment Operations Act 1997
Local Government Act 1919

CASES CITED:
Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83;
Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 [143 ER 414];
Cox & Hazell Pty Ltd v Gidney (1981) 1 NSWLR 468;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Calvin v Carr [1980] AC 574;
Ousley v R (1997) 192 CLR 69;
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476;
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171;
Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106

DATES OF HEARING: 1-3 August 2005

EX TEMPORE JUDGMENT DATE:
08/03/2005

LEGAL REPRESENTATIVES:
I J Hemmings (Prosecutor)
Matthews Folbigg (Sol - Prosecutor)
M S Henry (Counsel - Cauchi)
P S Barham ((Counsel - Farrugia)
Balmain Lawyers (Sol - Cauchi)
Stoikovich Macri (Sols - Farrugia)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN CJ

WEDNESDAY 3 AUGUST 2005

50115/03 LIVERPOOL CITY COUNCIL v L CAUCHI
50116/03 LIVERPOOL CITY COUNCIL v M A FARRUGIA (trading as D&M Farrugia Excavating)
50117/03 LIVERPOOL CITY COUNCIL v D FARRUGIA (trading as D&M Farrugia Excavating)
50118/03 LIVERPOOL CITY COUNCIL v J&L CAUCHI PTY LTD
50119/03 LIVERPOOL CITY COUNCIL v J CAUCHI
JUDGMENT – On motion for dismissal of proceedings; see p 246 of transcript

1 HIS HONOUR: The defendants in these proceedings bring a motion for their dismissal. There are five separate proceedings and accordingly five different defendants. Two of the defendants are Mrs L Cauchi and Mr J Cauchi, a husband and wife, who are the directors and shareholders of the company, J&L Cauchi Pty Ltd, which is another defendant.

2 The other two defendants are Mrs MA Farrugia and Mr D Farrugia, who are also husband and wife, who have carried on the business of D&M Farrugia and who, after the alleged offences occurred, were the shareholders and directors of Farrugia Excavating Pty Ltd.

3 The proceedings arise from events which occurred on land known as 81 Greendale Road, Greendale. That property is owned by Mr and Mrs Galea. It is a property of some 11 hectares in area and, when purchased by the Galeas…

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: [2005] NSWLEC 675
Decision Date: 08/03/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide if a local council could prosecute individuals for not complying with a clean-up notice in Liverpool City Council v Cauchi. The case involved multiple defendants who were allegedly involved in depositing fill, potentially contaminated with asbestos, on a property. The council issued clean-up notices under the Protection of the Environment Operations Act 1997, requiring the defendants to remove the fill and dispose of it properly. The defendants argued that the notices were invalid because they were not given procedural fairness before being issued. The key legal issues were whether the defendants were entitled to be heard before the notices were issued and if the failure to provide procedural fairness rendered the notices ineffective. The court found that the common law obligation to provide procedural fairness must be met unless the legislation clearly displaces it. The court held that the potential significant impact of the clean-up notices on the defendants' rights and obligations meant that they were entitled to be informed of the council's consideration to issue the notices and to make submissions on whether they should be issued and their terms. Since the defendants were not given this opportunity, the notices were ineffective, and the proceedings against them should be dismissed.

Orders