M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd

[2024] NSWCA 17

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17

Hearing dates:

14 December 2023

Date of orders:

7 February 2024

Decision date:

07 February 2024

Before:

Ward P at [1]; Mitchelmore JA at [37]; Preston CJ of LEC at [38]

Decision:

(1)   Dismiss the fourth respondent’s applications to dismiss the appellant’s applications for leave to appeal against the decisions of Pepper J and Pain J.

(2)   Give leave to the appellant to adduce the additional evidence identified in the affidavit of Mr Zipkis of 29 June 2023.

(3)   Give leave to the appellant to appeal against the decision of Pepper J of 16 June 2023.

(4)   Uphold the appeal against the decision of Pepper J.

(5)   Dismiss the summons for judicial review of the decision of Pepper J as being unnecessary having regard to the Court's decision to uphold the appeal against the decision of Pepper J.

(6)   Refuse leave to appeal against the decision of Pain J of 28 April 2023.

(7)   Dismiss the summons for judicial review of the decision of Pain J.

(8)   Order the respondents to pay the appellant's costs of the two proceedings to appeal and review the decision of Pepper J.

(9)   Order the appellant to pay the fourth respondent's costs of the two proceedings to appeal and review the decision of Pain J.

Catchwords:

ENVIRONMENT AND PLANNING – offences - waste disposal – pollution of land – time for commencement of proceedings – when evidence first came to attention of authorised officer – whether individuals appointed as authorised officers – proceedings dismissed as time-barred – appeal – misconstruction of applicable statute for appointment of authorised officers

APPEAL – dismissal of proceedings for offences as time-barred – when evidence first came to attention of relevant authorised officer – whether individuals appointed as authorised officers – instrument of delegation of functions to individuals – delegation of functions not appointment as authorised officer – misconstruction of applicable statute for appointment of authorised officer - misdirection by consideration of non-applicable statute delegating functions – conflation of different statutory powers

LIMITATION OF ACTIONS – limitation period for commencement of proceedings for offences – when evidence of offence first came to attention of authorised officer – appointment of authorised officer – delegation of functions not appointment as authorised officer

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5F

Criminal Procedure Act 1999 (NSW), s 227(1)

Land and Environment Court Act 1979 (NSW), s 68

Land and Environment Court Rules 2007 (NSW), r 5.2(1)

Local Government Act 1993 (NSW), s 378

Protection of the Environment Operations Act 1997 (NSW), ss 191, 15, 142A, 143, 144, 144AAA, 184, 187, 188, 216, 219, Pt 7.2, Dictionary

Supreme Court Act 1970 (NSW), ss 65, 69

Supreme Court Rules (NSW) 1970, Pt 75. r 3(1)(g)

Uniform Civil Procedure Rules (NSW) 2005, r 33.4

Cases Cited:

Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; [2001] NSWLEC 41

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303

M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2) [2023] NSWLEC 87

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125

R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399

Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107

Sydney Refractive Surgery Centre Pty Ltd v Beaumont [2003] NSWSC 688

Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Category:

Principal judgment

Parties:

M. & S. Investments (NSW) Pty Ltd (Appellant)
Affordable Demolitions & Excavations Pty Ltd (First Respondent)
Chalita Boutros (Second Respondent)
Angela Carbone (Third Respondent)
Domenic Carbone (Fourth Respondent)
Rimon Boutros (Fifth Respondent)

Representation:

Counsel:
R Tripodi (Appellant)
No appearance (First, Second and Fifth Respondents)
R Coffey (Third Respondent)
P Boncardo (Fourth Respondent)

Solicitors:
Watson Stafford Zipkis Solicitors (Appellant)
Boutros & Associates (First, Second and Fifth Respondents)
Sparke Helmore (Fourth Respondent)

File Number(s):

2023/244352
2023/250768

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 5

Citation:

[2023] NSWLEC 65

Date of Decision:

16 June 2023

Before:

Pepper J

File Number(s):

2021/261150; 2021/261151; 2021/261152; 2021/261153; 2021/261154; 2021/261155; 2021/261156; 2021/261157; 2021/261163;
2021/261164; 2021/261165; 2021/261166 2021/261167; 2021/261168; 2021/261169; 2021/261170; 2021/261171; 2021/261172;
2021/261173; 2021/261174; 2021/261175; 2021/261176

HEADNOTE

[This headnote is not to be read as part of the judgment]

M. & S. Investments (NSW) Pty Ltd (M&S) was granted leave in September 2021 to institute proceedings in the Land and Environment Court for the prosecution of alleged offences by numerous defendants. The proceedings related to alleged unlawful dumping of asbestos waste at a property in south western Sydney, which was jointly owned by M&S and an entity now in liquidation.

The respondents sought dismissal of the proceedings and/or for the summonses to be struck out on the basis that the summonses were time-barred under s 216(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The issue turned on whether two persons, each Senior Land Development Engineers employed by the relevant council, were appointed as authorised officers under s 187(2) of the POEO Act for the purpose of s 216 of the POEO Act regarding the time limit to commence proceedings. The respondents argued that the individuals were authorised officers, relying on an instrument of delegation which identified s 378 of the Local Government Act 1993 (NSW) (LG Act) as the authority to delegate. The first primary judge made orders striking out the summonses and dismissing the proceedings, finding that the persons were relevant authorised officers and therefore M&S was time-barred from bringing the proceedings.

While the first primary judge’s judgment was reserved, M&S issued a subpoena to Optus Mobile Pty Ltd, seeking call and phone related records for two identified numbers which M&S asserted were relevant to obtain various evidence. Two motions were filed in response, seeking to set aside the subpoena. The second primary judge set aside the subpoena on two grounds: first, that the subpoena was premature and secondly, because of the broad nature of the subpoena.

M&S sought leave to appeal, and filed summonses seeking judicial review of, the decisions of the two primary judges. The grounds of appeal against the first decision are threefold: first, misconstruction of the provisions of the POEO Act concerning the appointment of two persons as authorised officers for the purposes of the POEO Act; secondly, failing to draw various Jones v Dunkel inferences from the failure of the defendants to call the two individuals to give evidence, and thirdly, wrongly finding that the offences against ss 142A(1) and 144(1) of the POEO Act charged in the summonses were not continuing offences.

Mr Domenic Carbone, one of the respondents, applied to the Court to dismiss both of M&S’s applications for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) as incompetent or inutile. Mr Carbone’s submissions were adopted by Ms Angela Carbone, another respondent. M&S applied to the Court under s 5F(4) of the Criminal Appeal Act for leave to adduce additional evidence, being an affidavit of M&S’s solicitor annexing documents produced by Liverpool City Council.

Held, per Preston CJ of LEC, Ward P and Mitchelmore JA agreeing:

In relation to M&S’s appeal of the first primary judge’s decision to strike out summonses commencing proceedings and dismissing the proceedings – upholding the appeal

1. The first primary judge constructively failed to deal with the question of whether the two individuals were authorised officers and misdirected herself regarding ss 187 and 216 of the POEO Act and s 378 of the LG Act: [103] (Preston CJ of LEC).

2. The statutory powers in s 378 of the LG Act and s 187(2) of the POEO Act, being different powers under different statutes, are mutually exclusive. An exercise of one power cannot constitute, by itself, an exercise of the other power: [88] (Preston CJ of LEC).

3. The nature of each statutory power is fundamentally different. Whereas the power in s 378 of the LG Act is to delegate authority, the power in s 187(2) of the POEO Act is to grant authority. The delegation of a function to a person under s 378 of the LG Act cannot constitute the appointment of a person as an authorised officer under s 187(2) of the POEO Act and the grant of the corresponding functions to that person: [89], [92] (Preston CJ of LEC).

4. The instrument of delegation did not purport to appoint people who were Senior Land Development Engineers as authorised officers for the purposes of the POEO Act. The instrument of delegation was clearly an exercise of power under s 378 of the LG Act, not an exercise of power under s 187(2) of the POEO Act: [93] (Preston CJ of LEC).

5. Even if the instrument of delegation could be construed as delegating the functions of the CEO of the Council (being the general manager for the purpose of s 378 of the LG Act) to an authorised officer for the purpose of the POEO Act, proof that the CEO of the Council had been appointed as an authorised officer would be required. There was no such evidence: [94] (Preston CJ of LEC).

6. The functions of an authorised officer for the purpose of the POEO Act are non-delegable and can only be exercised by a person appointed as an authorised officer under s 187 of the POEO Act. Therefore, even if the CEO of the Council had been appointed as an authorised officer, which was not proven, the CEO of the Council did not have authority to delegate the functions as an authorised officer: [95]-[96] (Preston CJ of LEC).

In relation to M&S’s appeal against the second primary judge’s decision to set aside the subpoena – refusing leave and dismissing the appeal

1. The two grounds on which the second primary judge set aside the subpoena were reasonable on the facts and the decision involved a reasonable exercise of judicial discretion: [116] (Preston CJ of LEC).

2. There was no obligation on the second primary judge to re-draw the subpoena if it was too broad: [34] (Ward P).

3. There is no House v The King (1936) 55 CLR 499; [1936] HCA 40 error established in relation to the second primary judge’s decision: [35] (Ward P).

In relation to the application for judicial review of both primary judges’ decisions

1. Assuming both primary judges’ decisions are judicially reviewable, the Court’s determination of the appeals makes it unnecessary to determine the applications: [108], [117] (Preston CJ of LEC).

In relation to Mr Carbone’s application to dismiss M&S’s applications – dismissing the application

1. The decisions of the two primary judges were interlocutory: [46]-[48] (Preston CJ of LEC).

In relation to M&S’s application to adduce additional evidence – leave granted

1. M&S articulated a sufficient basis of relevance and explanation for why the evidence was not tendered in the Court below for leave to be granted: [58] (Preston CJ of LEC).

JUDGMENT

1. WARD P: The nature of the various applications now before this Court and the issues raised on those applications have been outlined by Preston CJ of LEC, with whose reasons I agree.

2. Simply by way of brief introduction to his Honour’s reasons, I would add the following.

3. The applicant, M. & S. Investments (NSW) Pty Ltd (M&S) was granted leave by Moore J on 11 September 2021 (under s 219(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act)) to institute proceedings in the Land and Environment Court for the prosecution of alleged offences by a number of defendants (including the respondents to the present proceedings). The prosecution related to the alleged unlawful dumping of asbestos waste in landfill at a property at Edmonson Park in South Western Sydney (the Property).

4. The Property is jointly owned by M&S and an entity now in liquidation, Futurepower Developments Pty Ltd (Futurepower), which became the third defendant in the Land and Environment Court proceedings.

5. The offences in question (the precise nature of which varied as between the respective defendants) included offences contrary to ss 115, 142A(1)(b), 143(1)(b) and 144(1)(b) of the POEO Act. Relevantly for some of the contentions raised by M&S on the present applications, M&S contends that the alleged s 142A (pollution of land) offences and the s 144AAA (unlawful disposal of asbestos waste) offences are continuing offences to which the statutory limitation period under s 216(2)(a) of the POEO Act does not apply.

6. It is alleged by M&S that six parties were involved in a joint criminal enterprise in connection with the transport and unlawful dumping of asbestos waste on the Property. M&S issued some 27 summonses against the various defendants (17 of which are the subject of the applications in the present proceedings).

7. Relevantly, the first defendant in the Land and Environment Court proceedings (and first respondent to the present proceedings), Affordable Demolitions and Excavations Pty Ltd, is alleged to have acted as the agent, contractor or sub-contractor of the fifth defendant in the Land and Environment Court proceedings (the fourth respondent to the present proceedings), Mr Domenic Carbone.

8. The third respondent in the present proceedings (the fourth defendant in the Land and Environment Court proceedings) is Mr Carbone’s wife, Ms Angela Carbone. Ms Carbone is the sole director and shareholder of Futurepower (the co-owner of the Property). Ms Carbone is also the sole owner of the site which is alleged to be the source of the asbestos waste dumped at the Property (another property at Edmonson Park).

9. The second and sixth defendants in the Land and Environment Court proceedings (the second and fifth respondents to the present proceedings), Mr Chalita (Charlie) Boutros and Mr Rimon Boutros, are alleged to have been part of the joint criminal enterprise. They have taken no part in the present proceedings.

10. It appears, from email communications not in evidence in the Land and Environment Court proceedings but the subject of an application to adduce additional evidence in the present proceedings, that issues as to what was assumed to be contaminated landfill on the Property having entered Cabramatta Creek near the Property, had been raised by a Senior Land Development Engineer employed by Liverpool City Council (the Council), Mr Stephen Monte in late July 2017 (see email dated 25 July 2017 from Mr Monte to Mr Aaron Hawke, a registered surveyor apparently then engaged by Mr Carbone).

11. The email communications that M&S now seeks to rely on include a response on 3 December 2017 from Mr Carbone, referring to works on the Property related to the removal of soils said to have been illegally dumped on the site by unknown persons or contractors (Mr Carbone there effectively disclaiming responsibility for the dumping, referring to the cost incurred by the owners in removing the material).

12. On 12 September 2018, an Assistant Environmental Health Officer – Community Standards employed by the Council, Mr Cameron Theys, attended the Property. According to an email sent by Mr Theys on 28 November 2018 to Mr Monte, Mr Theys observed a large stockpile of soil and waste on the Property. Letters were drafted by Mr Theys to the joint owners of the Property, together with draft Clean-Up Notices pursuant to s 91 of the POEO Act (copies of these documents having been obtained pursuant to a subpoena issued by Mr Carbone to the Council in the Land and Environment Court proceedings). These communications are also the subject of the additional evidence application by M&S in the present proceedings.

13. The letters from Mr Theys, which are referred to by Pepper J in her reasons at [38], referred to the enclosed Draft Clean-Up Notice, advised that an authorised officer of the Council had attended the Property on 12 September 2018 and directed that the clean-up action specified in the Notice be taken within the period there specified in relation to the pollution incident that had occurred.

14. The 28 November 2018 email from Mr Theys to Mr Monte suggests that it was considered not necessary for enforceable Clean-Up Notices to be issued by the Council Environmental Health Section as the matter should be investigated by the Council’s Complaints Section to determine whether site works were being undertaken in accordance with the conditions of the development consent.

15. I note that in the Land and Environment Court decision of Pepper J that is here impugned (M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 (the dismissal judgment)), her Honour considered that an inference might readily be drawn that the fill material imported to the Property “as at 2017” was the same material that was inspected by Mr Theys on 12 September 2018. M&S emphasises that there was, however, no finding by her Honour that the contaminated landfill had been imported onto the Property in 2017 (referring to her Honour’s reasons at [123]).

16. Turning then to the institution of the criminal proceedings in the Land and Environment Court, by letter dated 26 March 2021, the solicitor acting for M&S requested that the Council investigate the alleged environmental offences to assist in the prosecution of the parties responsible therefor. Enclosed with that letter were various documents, including an affidavit attested by a director of M&S, Mr Marko Bilaver, as to the facts supporting the alleged prosecution case, including his observation of dumping of landfill on the Property. The Council was requested to advise as to the identity of the authorised officer who first obtained evidence of the alleged offences (for the purposes of s 216(2)(a) of the POEO Act) and the date such evidence was first obtained.

17. By letter dated 16 July 2021 the Council’s solicitors responded, in a rather qualified way, to the effect that the Council’s records seemed to confirm that Mr Theys (who by then was no longer employed by the Council) was the first authorised officer who carried out an inspection of the land and that the first inspection of the land seemed to have taken place on 12 September 2018. The Council apparently declined to institute a prosecution in respect of the alleged offences.

18. An application was then made by M&S for leave to institute a private prosecution of the alleged offences and, as noted above, leave was granted on 11 September 2018 by Moore J for this. In the respective summonses, the date on which the offences came to the attention of a relevant authorised officer was specified as 12 September 2018, the officer so identified being Mr Theys.

19. The respondents each filed motions in the Land and Environment Court, in December 2021 and January 2022, variously seeking relief by way of a permanent stay of the proceedings, the dismissal of the proceedings and/or the striking out of the summonses issued against them, relevantly on the basis that the summonses were statute barred under s 216(2) of the POEO Act. (There was also a notice of motion by Mr Carbone for dismissal of the proceedings on the basis that the prosecution was an abuse of process but that motion was left to be determined in the event that the limitations defence failed).

1. As to the statutory limitation period, s 216(2)(a) of the POEO Act permits proceedings for prescribed offences (which term encompasses alleged breaches of ss 115, 142A(1)(b), 143(1)(b) and 144(1)(b) of the POEO Act) to be commenced not later than three years from the date on which evidence of the alleged offence first came to the attention of any relevant officer. The respondents contended that evidence of the alleged offences had come to the attention of both Mr Guy Vo and Mr Monte (both Senior Land Development Engineers employed by the Council) in either 2016 or 2017.

2. The respondents’ respective stay, dismissal and strike-out motions were heard by Pepper J on 7 February 2022 and 7 March 2022, her Honour reserving judgment on that latter date. The dismissal judgment was handed down on 16 June 2023. While judgment was reserved, in light of its concern that evidence comprising certain telephone call records might not be retained in the interim, M&S issued a subpoena for those records, which led to the second judgment here sought to be impugned – that of Pain J setting aside the subpoena (see below).

3. Pepper J dismissed the respective proceedings (in respect of most but not all of the charges) on the basis that the proceedings had not been commenced within time. Final orders were made disposing of the proceedings in relation to the statute barred charges on 6 July 2023.

4. As adverted to above, on 14 March 2023, M&S issued a subpoena for production to Optus Mobile Pty Ltd (Optus), seeking call and phone related records for two identified telephone numbers (those pertaining to Mr Charlie Boutros and Mr Carbone) in the period between 1 September 2016 to 17 November 2016. The asserted relevance of those telephone records (as explained in the present applications) is to obtain corroborative evidence relating to Mr Bilaver’s account of events and admissions allegedly made by various of the defendants (i.e., as I understand it, to place Mr Charlie Boutros and Mr Carbone at or near the location where Mr Bilaver deposes to having had certain conversations with one or both of them; and further to refine and identify the period when the first offending occurred). M&S also submits that location records or call charge and billing records would arguably yield evidence in connection with the planning and organisation of the transport and deposit of waste from the asbestos waste source site onto the Property; and provide circumstantial evidence as to the capacities in which the defendants acted in the alleged joint criminal enterprise.

5. The first respondent filed a motion on 4 April 2023 seeking to set aside the subpoena, contending that the subpoena was premature (as Pepper J’s judgment on the stay/dismissal/strike-out motions was still reserved) and that it lacked a legitimate forensic purpose and was overly broad in scope. The first respondent also referred, in the context of its argument as to the prematurity of the subpoena, to the motion before Pepper J contending that the proceedings were an abuse of process (which had not yet been heard or determined). Mr Carbone filed a similar motion seeking to set aside the subpoena.

6. I note that complaint is made by M&S that the subpoena motion by Mr Carbone was brought under s 227(1) of the Criminal Procedure Act 1999 (NSW) not r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); and that there was no order made for amendment of that motion in accordance with the provisions of s 68 of the Land and Environment Court Act 1979 (NSW) (LEC Act). It is here submitted by M&S that the subpoena notice of motion was itself an abuse of process and “beyond saving”. In response, Mr Carbone says that he sought, at the commencement of the hearing of the motion, to amend the motion to record that the power he sought to invoke was that conferred by r 33.4 of the UCPR; and that her Honour acceded to the application and amended the motion without demurrer by the applicant and the hearing was conducted on the premise that r 33.4 afforded power to set aside the subpoena. Hence, M&S’ complaint is said to be based on an erroneous premise. Pausing here, there appears to have been no formal amendment made to the motion but it is submitted by Mr Carbone that it was not necessary for there to be a formal order amending the motion under s 68 of the LEC Act; that this was not something raised by M&S when the matter was before her Honour; and that in any event there was power to set the subpoena aside under r 33.4 of the UCPR (referring to r 5.2(1) of the Land and Environment Court Rules 2007 (NSW), Pt 75 and r 3(1)(g) of the Supreme Court Rules 1970 (NSW), which incorporated r 33.4 of the UCPR).

7. On the application before Pain J, her Honour was informed by M&S that enquiries had been made of Optus (see transcript of the hearing of that application at T 15.45-16); and that Optus’ response was to the effect that by law it was required to keep records for two years but it kept records for six years. As noted above, M&S indicated its concern was that Optus records might be lost to the prosecution if it was not able to access them at that stage. (On that basis, even by the time the application was heard by Pain J, call records relating back to the last quarter of 2016 may well no longer have been retained; hence any prejudice arising from delay would already have been suffered.)

8. Pain J heard the subpoena motions on 28 April 2023 and made orders pursuant to r 33.4 of the UCPR setting aside the subpoena, giving some brief ex tempore reasons on that day. Costs of the motion were reserved.

9. Pain J published reasons for judgment on 22 August 2023 (M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2) [2023] NSWLEC 87 (the subpoena judgment)). Pain J considered that the subpoena was premature, given that Pepper J was still dealing with a number of preliminary issues; and her Honour said that on that basis alone she would dismiss the subpoena. Her Honour also considered that the subpoena was too broad and that the issues (to which the subpoena was directed) had not been adequately identified; and that on that basis the subpoena should also be set aside. M&S here challenges those conclusions, complaining (among other things) that Pain J did not consider its evidence and submissions so as to form a view as to whether Mr Carbone’s abuse of process motion was sustainable on a prima facie basis (this being related to the prematurity finding); and complaining that, if the subpoena was considered to be too broad, then her Honour should have intervened in order to read it down.

10. This brings me to the various applications brought in this Court, which are outlined in more detail by Preston CJ of LEC. Broadly speaking, M&S brought applications for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from the orders made in the two impugned decisions (those applications filed on 29 June 2023 and 11 May 2023 respectively) and then, when faced with Mr Carbone’s application for the dismissal of those applications as incompetent, M&S filed summonses seeking judicial review of the respective decisions under ss 65 and 69 of the Supreme Court Act 1970 (NSW). Mr Carbone further argued that the application for leave to appeal in relation to the subpoena judgment was inutile as the substantive proceedings to which it related (the criminal prosecution) had now been dismissed. (There was a further application by Mr Carbone, in the alternative, that the leave application in relation to the subpoena judgment be referred to a single judge to consider the question of leave in relation to that appeal. In the interests of efficiency, that application for referral was hardly an attractive course of action.)

11. The leave to appeal applications and judicial review applications raise essentially the same challenges to the respective judgments (although of course jurisdictional error need not be established on the applications for leave to appeal); and certain of the grounds were only articulated in submissions (until M&S was directed to formulate the grounds during the course of the hearing in this Court). The upshot of this is that there has been a plethora of submissions and reply submissions by the respective parties in this Court, with an unsatisfactory degree of overlap and repetition. There was also much emphasis by M&S on the serious nature of the charges and the public interest in the prosecution of offences of this kind.

12. As indicated above, I have had the benefit of reading in draft the reasons of Preston CJ of LEC and I agree with the conclusions that his Honour has reached for the reasons his Honour has given.

13. In that regard, while I agree that it is not necessary in the context of the challenge to the dismissal judgment to consider the complaint made as to error in Pepper J failing to find that the s 142A and s 144AAA offences were continuing offences and hence not statute barred, I note that this issue was raised again in the context of the challenge to the subpoena judgment. In that context, it is contended that Pain J failed to take into account a relevant consideration, namely that the fact that Pepper J was reserved on a time limitation question in relation to a continuing offence in the proceeding concerning s142A(1) of the POEO Act “could provide no justification for setting aside the Subpoena to Produce as such a question did not arise at law” as the commission of the offence had not ceased (M&S here citing Environment Protection Authority v CSR Ltd t/as SR Woodpanels (2001) 114 LGERA 217 at 226 – 229; [2001] NSWLEC 41 per Pearlman J).

14. M&S argues, in effect, that Pain J should have determined, in the context of the challenge to the subpoena that had been issued to Optus, the very limitation point which (among others) had been raised before Pepper J and on which Pepper J had reserved judgment. Such a contention cannot be accepted. It raises the potential for conflicting judgments in the one proceeding. Pain J, quite rightly, rejected the suggestion that she should “second guess” Pepper J on an issue that was squarely before Pepper J but in any event it cannot be said to have been an irrelevant consideration that Pepper J was reserved on that issue. Moreover, the fact that there was an extant abuse of process motion (to be determined if the limitation point failed) reinforces the concern as to the prematurity of the subpoena that was issued.

15. As to the submission that it was incumbent on Pain J, if the subpoena was too broad, to have taken it upon herself to re-draw the subpoena, there was no obligation for her Honour to do so (and any such suggestion is inconsistent with authorities that have cautioned against applying a “blue pen” to re-write subpoena categories) (see for example Sydney Refractive Surgery Centre Pty Ltd v Beaumont [2003] NSWSC 688 at [32] (Simpson J); Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at 325; [2015] NSWCA 303 (Basten JA), as I noted in Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [41]).

16. No House v The King ((1936) 55 CLR 499; [1936] HCA 40) error is here established in relation to the subpoena judgment. Moreover, the utility of such a challenge is moot. Apart from the fact that, on the basis of the earlier enquiries, it seems likely that any records would no longer have been kept by the time of the initial application to set aside the subpoena, further time has elapsed since then. In any event, given the conclusion reached as to the dismissal judgment, any further application for such documents can still be made (so the only relevance now of the complaint as to the subpoena judgment could be as to costs; and those were reserved by Pain J at the time and can be the subject of further argument in the Land and Environment Court at an appropriate time if necessary).

17. I agree with the orders that Preston CJ of LEC has proposed.

18. MITCHELMORE JA: I agree with the orders and reasons of Preston CJ of LEC and with the additional reasons of Ward P.

19. PRESTON CJ OF LEC:

Nature of proceedings and outcomes

39. M. & S. Investments (NSW) Pty Ltd (M&S) seeks to appeal and review decisions of two judges of the Land and Environment Court. One decision of Pepper J, on 16 June 2023, struck out summonses commencing proceedings, and dismissed the proceedings, brought by M&S prosecuting one company, Affordable Development and Excavations Pty Ltd, and four people, Mr Chalita Boutros, Ms Angela Carbone, Mr Domenic Carbone and Mr Rimon Boutros, for different offences against ss 115, 142A, 143 and 144AAA of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). An earlier decision of Pain J, on 28 April 2023, set aside a subpoena issued at the request of M&S to Optus Mobile Pty Ltd.

40. M&S sought to challenge both Pepper J’s decision and Pain J’s decision in two ways: first, by seeking leave to appeal against the decision, under s 5F(3) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), and second, by a summons seeking judicial review under ss 65 and 69 of the Supreme Court Act 1970 (NSW).

41. One of the respondents, Mr Domenic Carbone, applied for the Court to dismiss both of M&S’s applications for leave to appeal under s 5F(3) of the Criminal Appeal Act as incompetent or inutile. Mr Carbone contended that Pepper J’s decision was not an interlocutory judgment or order, but rather was a final decision disposing of the proceedings, so that any appeal under s 5F(3) would be incompetent. Mr Carbone contended that the application for leave to appeal against the decision of Pain J, although interlocutory, was inutile as the proceedings in which the subpoena was issued had subsequently been dismissed by Pepper J. Another of the respondents, Ms Angela Carbone, adopted the submissions of Mr Carbone but had not herself filed any application for appeal or judicial review of the impugned decisions.

42. M&S applied to this Court under s 5F(4) of the Criminal Appeal Act for leave to adduce additional evidence. This evidence was an affidavit of M&S’s solicitor, Mr Zipkis, of 29 June 2023 annexing certain documents produced by Liverpool City Council (the Council).

43. This Court heard concurrently Mr Carbone’s applications to dismiss M&S’s applications for leave to appeal, M&S’s application for leave to adduce additional evidence, M&S’s applications for leave to appeal and, if leave be granted, the appeals, and M&S’s summonses for judicial review.

44. For reasons to be given shortly, these various applications should be determined as follows:

1. dismiss Mr Carbone’s applications to dismiss M&S’s applications for leave to appeal against the decisions of Pepper J and Pain J;

2. give leave to M&S to adduce the additional evidence identified in the affidavit of Mr Zipkis of 29 June 2023;

3. give leave to M&S to appeal against the decision of Pepper J of 16 June 2023;

4. uphold the appeal against the decision of Pepper J;

5. dismiss the summons for judicial review of the decision of Pepper J as being unnecessary having regard to the Court’s decision to uphold the appeal against the decision of Pepper J;

6. refuse leave to appeal against the decision of Pain J of 28 April 2023;

7. dismiss the summons for judicial review of the decision of Pain J;

8. order the respondents to pay M&S’s costs of the two proceedings to appeal and review the decision of Pepper J; and

9. order M&S to pay Mr Carbone’s costs of the two proceedings to appeal and review the decision of Pain J.

Mr Carbone’s applications to dismiss the s 5F(3) leave applications

45. Mr Carbone applied for this Court to dismiss M&S’s applications for leave to appeal under s 5F(3) of the Criminal Appeal Act against the decisions of Pepper J and Pain J. The bases differed for the two decisions. The basis for dismissal of the application for leave to appeal against Pepper J’s decision was that it was a final, and not an interlocutory, judgment or order. The basis for dismissal of the application for leave to appeal against Pain J’s decision was that it was inutile, as the proceedings in which the subpoena had been issued had been dismissed by Pepper J. Both of Mr Carbone’s applications for dismissal should be rejected.

46. The decision of Pepper J determined notices of motion by the defendants in the proceedings brought against them. The Boutros defendants (the first, second and fifth defendants) sought an order that the proceedings against them should be permanently stayed. Ms Angela Carbone (the third defendant) sought an order that the summons commencing the proceedings against her, but not the proceedings, be dismissed. Only Mr Carbone (the fourth defendant) sought an order that the proceedings against him be dismissed: at [160] of Pepper J’s judgment. The applications by the defendants, although different, were all interlocutory in nature.

47. In R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [22], the Court of Criminal Appeal held that the grant or refusal of an application for a permanent stay of proceedings is an interlocutory judgment or order under s 5F of the Criminal Appeal Act. An application that the summons commencing criminal proceedings, but not the proceedings themselves, be dismissed is interlocutory in nature. Whilst the originating process might be struck out, the prosecutor may file an amended summons, continuing the proceedings. An application that proceedings be dismissed for being commenced out of time is also interlocutory in nature. A court’s upholding of that application does not determine the substance of the proceedings, which in a prosecution is that the offence charged in the summons is proven to the criminal standard.

48. The fact that the primary judge’s decision and orders to strike out the affected summonses and to dismiss the proceedings did dispose of the proceedings, is not dispositive of whether the decision and orders were final in nature. Regard needs to be had to the nature of each application, which was interlocutory, as the decision and orders involve an adjudication of that application and take on its interlocutory nature.

49. In these circumstances, Mr Carbone’s application to dismiss M&S’s application for leave to appeal against Pepper J’s decision as incompetent should be dismissed.

50. Mr Carbone’s application to dismiss M&S’s application for leave to appeal against Pain J’s decision to dismiss the subpoena should also be dismissed for a different reason. Mr Carbone submitted that M&S’s application for leave to appeal against Pain J’s decision was inutile whilesoever Pepper J’s decision to dismiss the proceedings in which the subpoena was issued stood. For the reasons given below, Pepper J’s decision should be set aside as involving material error. This removes the only ground for Mr Carbone’s application to dismiss M&S’s application for leave to appeal against Pain J’s decision. Mr Carbone’s application should therefore be dismissed.

51. Nevertheless, as also explained later, M&S’s application for leave to appeal against Pain J’s decision should be dismissed. M&S has not established any material error justifying appellate intervention in an interlocutory decision involving a matter of practice and procedure.

M&S’s application for leave to adduce additional evidence

52. M&S applied under s 5F(4) of the Criminal Appeal Act for leave to adduce additional evidence. The additional evidence was an affidavit of M&S’s solicitor, Mr Zipkis, of 29 June 2023 annexing certain documents of the Council.

53. These documents were in the possession of the defendants, and produced to M&S at the hearing before Pepper J, but were not included as part of the bundle of documents tendered by the defendants. M&S stated it did not notice that the documents had not been included in the bundle and hence did not seek to tender the documents itself. M&S applied for leave to tender the documentation in this Court.

54. The defendants only opposed leave being granted on the ground of relevance. They were content for leave to be granted and the evidence admitted subject to relevance.

52. M&S submitted the evidence was relevant in establishing that Messrs Monte and Vo had not been appointed as authorised officers for the purposes of the POEO Act. M&S submitted that, had Messrs Monte and Vo been appointed as authorised officers, this fact would have been expected to be disclosed in these documents.

53. Although the probative value of the additional evidence is low, M&S has articulated a sufficient basis of relevance to justify leave being granted and the evidence being admitted. M&S has also explained why the evidence was not tendered in the court below. That said, ultimately, the additional evidence does not assist M&S, which in essence seeks to rely on a negative drawn from that documentation to establish the positive contention that Messrs Monte and Vo had not been appointed as authorised officers.

M&S’s application for leave to appeal, and the appeal, against Pepper J’s decision

57. M&S’s application for leave to appeal under s 5F(3) of the Criminal Appeal Act was not opposed, otherwise than on the ground rejected earlier that it was incompetent as Pepper J’s decision was not an interlocutory judgment or order. Whilst the decision was an interlocutory judgment or order, it disposed of the proceedings and would bar M&S from prosecuting the respondents. Leave to appeal the decision should therefore be granted.

58. The grounds of appeal under s 5F against Pepper J’s decision are coterminous with the grounds of review of the decision in the summons for judicial review. They fall into three categories:

1. misconstruction of the provisions of the POEO Act concerning the appointment of two persons, Messrs Monte and Vo, as authorised officers for the purposes of the POEO Act (grounds 1(a) and (b)) (the misconstruction grounds);

2. failing to draw various Jones v Dunkel inferences from the failure of the defendants to call Messrs Monte and Vo to give evidence (ground 1(c)) (the Jones v Dunkel inference ground); and

3. wrongly finding that the offences against s 142A(1) and 144(1) of the POEO Act charged in the summonses were not continuing offences (ground 1(d)) (the continuing offence ground).

59. These grounds were put in the alternative. If M&S were to succeed on the misconstruction grounds, it would be unnecessary to determine the Jones v Dunkel inference ground or the continuing offence ground – the decision of Pepper J would be set aside on the misconstruction grounds alone. It is therefore appropriate to commence with the misconstruction grounds.

Misconstruction grounds

60. The misconstruction grounds concern Pepper J’s finding that two employees of the Council, Messrs Monte and Vo, were “relevant authorised officers” for the purposes of s 216 of the POEO Act. This finding was critical to the primary judge’s decision that the proceedings had been commenced later than 3 years after the date on which evidence of the alleged offences charged in the summonses first came to the attention of any relevant authorised officer, under s 216(2)(a) of the POEO Act.

61. Dealing with the misconstruction grounds requires an explanation of the statutory time limitation provision and how the primary judge interpreted and applied it in order to find that Messrs Monte and Vo were relevant authorised officers.

62. The time limitation provision is s 216(2)(a):

“(2) Proceedings for an offence under this Act or the regulations may also be commenced—

(a) in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer”.

63. By s 216(3), if s 216(2) is relied on for the purpose of commencing proceedings for an offence, the summons commencing the proceedings for the offence needs to “contain …. particulars of the date on which evidence of the offence first came to the attention of the relevant authorised officer and need not contain particulars of the date on which the offence was committed”.

64. Each summons commencing the proceedings brought by M&S contained such particulars, stating:

“Evidence of the alleged offence in paragraph 1 first came to the attention of a relevant authorised officer, namely Cameron Theys, of Liverpool City Council, on 2 September 2018, for the purposes of s 216(2)(a) and (3) of the Act.”

65. The facts asserted in this paragraph of each summons were not contested by the defendants. Mr Theys was a relevant authorised officer for the purposes of the POEO Act and evidence of the alleged offences charged in the summons first came to the attention of Mr Theys on 12 September 2018.

66. Each summons commencing the proceedings was filed on 8 September 2021, which was within 3 years of this date of 12 September 2018. As the primary judge found, if 12 September 2018 was the relevant date for the time period in s 216(2)(a) to commence to run, then the summonses were all filed within time: at [17] of the judgment.

67. The defendants contended, however, that an earlier date was the relevant date. They contended that evidence of the alleged offences first came to the attention of other persons, who were also relevant authorised officers, on various dates in 2017, which would cause the proceedings commenced on 8 September 2021 to be commenced later than the 3 year period in s 216(2)(a). These persons were Messrs Monte and Vo. The critical question was whether they were “relevant authorised persons” for the purposes of the POEO Act.

68. A “relevant authorised officer” is defined in s 216(6):

“relevant authorised officer means—

(a) in relation to proceedings for an offence instituted by or with the consent of the EPA or a member of the staff of the EPA—any authorised officer who is a member of the staff of the EPA, or

(b) in relation to proceedings for an offence instituted by or with the consent of a local authority or an officer or employee of such an authority—any authorised officer who is an officer or employee of that authority, or

(c) in relation to proceedings for an offence instituted by any other person—any authorised officer.”

69. An “authorised officer” is defined in s 216(6) to mean “any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned”.

70. In order for a person to be “an authorised officer for the purposes of this Act”, in the first phrase in this definition, the person needs to be appointed as an authorised officer under s 187 of the POEO Act. For a regulatory authority other than the Environment Protection Authority (EPA), such as a local council like Liverpool City Council, the regulatory authority appoints an officer or employee of the authority as an authorised officer. Section 187(2) provides:

“(2) Any other regulatory authority may appoint any officer or employee of the authority (including a class of such officers or employees) as an authorised officer for the purposes of this Act.”

71. An “employee” of a regulatory authority is defined in s 187(3):

“employee of an authority includes a person whose services are used by the authority and who is, in respect of those services, subject to the direction and control of the authority.”

72. The appointment of a person as an authorised officer under s 187 can be subject to conditions, limitations or restrictions. Section 188 provides:

“188 Scope of authority

(1) An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes.

(2) If such authorisation is given subject to conditions, limitations or restrictions or only for limited purposes, nothing in this Act authorises or requires the authorised officer to act in contravention of the conditions, limitations or restrictions or for other purposes.

(3) The authorisation of an authorised officer appointed by a regulatory authority other than the EPA is limited to matters concerning the functions of the regulatory authority under this Act.

(4) Despite subsection (3) and any other provision of this Chapter, an authorised officer of a regulatory authority may exercise powers under this Chapter (other than under Part 7.6) for the purpose of determining whether a matter concerns the functions of the regulatory authority.”

73. The definition of “authorised officer” for the purposes of s 216 in s 216(6) is consistent with the definition of “authorised officer” for the purposes of the POEO Act in the Dictionary to the POEO Act. The Dictionary definition is:

“authorised officer means a person appointed under Part 7.2 by an appropriate regulatory authority.”

74. The provision in Pt 7.2 of the POEO Act pursuant to which a person is appointed by a regulatory authority as an authorised officer, is s 187. If the regulatory authority is the EPA, the relevant provision is s 187(1) and if another regulatory authority is the regulatory authority, such as a local council, the relevant provision is s 187(2) or (2A).

75. As earlier noted, the defendants contended that two employees of the Council, Messrs Monte and Vo, were authorised officers for the purposes of the POEO Act. The defendants adduced no evidence directly establishing that either person had been appointed under s 187(2) of the POEO Act as an authorised officer. Instead, they sought for the court below to draw an inference that those persons had been appointed under s 187(2) as authorised officers from an instrument of delegation by the Chief Executive Officer (CEO) of the Council, dated 12 September 2016.

76. The instrument of delegation identified that the authority to delegate was s 378 of the Local Government Act 1993 (NSW) (LG Act). Section 378 provides:

“378 Delegations by the general manager

(1) The general manager may delegate any of the functions of the general manager, other than this power of delegation.

(2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).

(3) Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377(2).”

77. The CEO of the Council is the general manager for the purposes of s 378 of the LG Act.

78. The instrument of delegation stated that:

“The Chief Executive Officer hereby delegates the following powers, functions, responsibilities and duties to the person occupying, from time to time, the position of 1653 SENIOR LAND DEVELOPMENT ENGINEER”

79. The instrument of delegation identified the particular “powers, functions, responsibilities and duties” that were delegated by the CEO to a person occupying the position of Senior Land Development Engineer. However, the instrument of delegation did not identify, in terms, whether these powers, functions, responsibilities or duties were functions of the general manager (referred to in s 187(1)) or functions delegated to the general manager by the council (referred to in s 187(2) or (2A)).

80. The functions delegated under the instrument of delegation were grouped under a number of general headings, including G1 Administration, G6 Power of entry, R11 Administration and R12 Certificates. One or more specific functions were identified under these general headings.

81. The defendants contended, and the primary judge accepted, that the relevant functions delegated by the CEO to a person in the position of Senior Land Development Engineer were those falling within the general headings of G6 Power of Entry and R11 Administration:

“G6 Power of Entry

G6.1 To give an owner or occupier of land or premises written notice of the Council’s intention to enter their land for the purpose of inspection, investigation, sampling, seizures and any other functions as authorised under the provisions of the following Acts and regulations made under them:

•   Boarding Houses Act 2012

•   Companion Animals Act 1998

•   Environmental Planning and Assessment Act 1979

•   Food Act 2003

•   Impounding Act 1993

•   Local Government Act 1993

•   Plumbing and Drainage Act 2011

•   Protection of the Environment Operations Act 1997

•   Public Health Act 2010

•   Road Transport Act 2013

•   Strata Schemes (Freehold Development) Act 1973

•   Strata Schemes (Leasehold Development) Act 1986

•   Swimming Pools Act 1992

•   Any other legislation and regulations by which an authorised officer or person authorised by Council has the power to enter the premise.

R11 Administration

To exercise and perform the powers, authorities, duties and functions of an authorised officer or authorised person or council investigation officer (subject to any limitations determined by the Chief Executive Officer from time to time) in respect of all matters arising from the administration of any of the following Acts and their associated regulations:

Local Government Act 1993

NSW regulations associated with building public health, safety and convenience, abatement of nuisances and waste removal

Boarding Houses Act 2012

Building Code of Australia

Community Land Development Act 1989

Companion Animals Act 1998

Contaminated Land Management Act 1997

Conveyancing Act 1919

Criminal Procedure Act 1982

Environmental Planning and Assessment Act 1979

Fines Act 1996

Fire Brigades Act 1989

Food Act 2003

Graffiti Control Act 2008

Heritage Act 1977

Impounding Act 1993

Library Act 1939

Liquor Act 2007

Local Courts Act 2007

Noxious Weeds Act 1988

Plumbing and Drainage Act 2011

Protection of the Environment Operations Act 1997

Public Health Act 2010

Recreation Vehicles Act 1983

Road Transport Act 2013

Roads Act 1993

State Emergency and Rescue Management Act 1989

Strata Schemes (Freehold Development) Act 1973

Strata Schemes (Leasehold Development) Act 1986

Swimming Pools Act 1992

Sydney Water Act 1994

Transport Administration Act 1988

Valuation of Land Act 1916

Waste Avoidance and Resource Recovery Act 2001

Local orders

Council’s Enforcement Policy”

82. The primary judge found (at [75]) that Messrs Monte and Vo, at all relevant times, held the position of Senior Land Development Engineer. There was no direct evidence of that fact. The statement of agreed facts recorded that Mr Monte had sent an email to certain surveyors on 25 July 2017, copying in Mr Vo (paragraph 5). In recording that fact, both Mr Monte and Mr Vo were stated to be a “Senior Land Development Engineer”. That did not prove that they held the particular position specified in the instrument of delegation of “1653 SENIOR LAND DEVELOPMENT ENGINEER”, only that their qualifications or occupation were asserted to be “Senior Land Development Engineer”. But M&S does not seem to have contested in the court below that Messrs Monte and Vo held that specified position.

83. The primary judge then found that Messrs Monte and Vo were appointed as authorised officers under s 187(2) of the POEO Act pursuant to the instrument of delegation. That finding was made, not by way of construction of s 187(2) of the POEO Act and s 378 of the LG Act and of the instrument of delegation, but on the assumption that there was “no challenge” by M&S to those persons having been appointed as authorised officers under s 187(2) of the POEO Act. The primary judge stated at [75]:

“It is important to note in this context that there is no challenge to the appointment by the Council of Monte and Vo as authorised officers under s 187(2) of the POEOA in their roles as Senior Land Development Engineers.”

84. The “context” referred to in this statement was the argument of M&S, which the primary judge summarised in the preceding paragraph [74]:

“M&S advanced an argument for the first time in oral submissions that Vo and Monte were required to be appointed as authorised officers specifically under Pt 7.2 of the POEOA (see s 187) and because the instrument of delegation only referred to s 378 of the Local Government Act, neither engineer was a “relevant authorised officer” for the purpose of s 216(2) of the POEOA.”

85. This argument of M&S squarely raised that the delegation of functions to Messrs Monte and Vo by the instrument of delegation under s 378 of the LG Act could not constitute the appointment of those persons as authorised officers under s 187 (in Part 7.2) of the POEO Act.

86. The primary judge’s statement in [75] that there was “no challenge to the appointment of Monte and Vo as authorised officers under s 187(2) of the POEO Act” was incorrect. The argument summarised in [74] was the challenge. In failing to address and determine that argument, the primary judge constructively failed to exercise jurisdiction.

87. The argument advanced by M&S, and summarised by the primary judge in [74], was correct for five reasons.

88. First, the statutory powers in s 378 of the LG Act and s 187(2) of the POEO Act are mutually exclusive. An exercise of the power under s 378 of the LG Act by a general manager of a local council to delegate functions of the general manager to an employee of the council, by itself, cannot constitute an exercise of the power under s 187(2) of the POEO Act by a regulatory authority that is a local council to appoint any officer or employee of the authority as an authorised officer for the purposes of the POEO Act, and vice versa. They are different powers under different statutes.

89. Second, the nature of each statutory power is fundamentally different. The power in s 378 of the LG Act is to delegate authority while the power in s 187(2) of the POEO Act is to grant authority.

90. The exercise of the power in s 378 of the LG Act necessitates the general manager of the local council first having the functions which are to be delegated. As s 378 provides, those functions may be functions of the general manager or functions delegated to the general manager by the council. But howsoever the general manager might come to have the functions, the important point is that the general manager must have the functions before they are able to be delegated or sub-delegated under s 378 of the LG Act.

91. The delegation of a function of the general manager under s 378 of the LG Act to a person authorises that person to exercise that delegated function. However, that delegation of a function to a person is to be distinguished from the grant of that function to a person. The appointment of a person as an authorised officer under s 187(2) of the POEO Act authorises that person to exercise the functions of an authorised officer for the purposes of the POEO Act. That is a grant of authority, not a delegation of authority.

92. In these circumstances, the delegation of a function of the general manager to a person under s 378 of the LG Act cannot constitute the appointment of the person as an authorised officer under s 187(2) of the POEO Act and the grant of the functions of an authorised officer to that person.

93. Third, in its terms, the instrument of delegation did not purport to appoint any person holding the position of Senior Land Development Engineer as an authorised officer for the purposes of the POEO Act. The instrument of delegation clearly stated that it was an exercise of the power under s 378 of the LG Act, not the exercise of the power under s 187(2) of the POEO Act. That is evident in the instrument of delegation by:

1. the express statement of the CEO’s “authority to delegate” as being s 378 of the LG Act;

2. the express statement that the CEO “delegates” functions of the CEO to a person holding the specified position of Senior Land Development Engineer in the Council;

3. the nature and descriptions of the particular functions delegated;

4. insofar as reference is made to an “authorised officer” in R11 Administration, the delegation was to a person already appointed as an authorised officer for the purposes of the POEO Act and was not an appointment as an authorised officer.

94. Fourth, if the instrument of delegation could be construed as purporting to delegate the functions of the CEO of the Council as an authorised officer for the purposes of the POEO Act (which for the reasons given below it cannot), there would need to be proof that the CEO of the Council had been appointed as an authorised officer, in order for the CEO to be able to delegate the functions of an authorised officer. There was no evidence in the court below that the CEO of the Council had been appointed as an authorised officer and hence had the functions of an authorised officer to delegate.

94. Fifth, in any event, the functions of an authorised officer for the purposes of the POEO Act are non-delegable. The functions of an authorised officer can only be exercised by a person appointed as an authorised officer under s 187 in Pt 7.2 of the POEO Act. A person who has not been appointed as an authorised officer under s 187 is not authorised under the POEO Act to exercise the functions of an authorised officer.

95. Accordingly, even if the CEO of the Council had been appointed as an authorised officer for the purposes of the POEO Act, which was not proven, the CEO had no authority to delegate the functions of the CEO as an authorised officer to a person who has not been appointed as an authorised officer for the purposes of the POEO Act.

96. As earlier noted, the primary judge failed in [75] to address M&S’s central argument summarised in [74] that the delegation under s 378 of the LG Act of the functions of the CEO of the Council under the instrument of delegation to Messrs Monte and Vo, assuming they held the position of Senior Land Development Engineer, did not appoint them as authorised officers under s 187(2) of the POEO Act.

97. The primary judge did, however, seek to respond to other arguments of M&S (in [76]-[81]). But none of these responses grappled with the problems identified above that an exercise of the power to delegate under s 378 of the LG Act cannot, and did not on the facts, constitute an exercise of the power to appoint a person as an authorised officer under s 187(2) of the POEO Act.

98. The primary judge’s second response in [76], that the appointment of a person as an authorised officer under s 187(2) of the POEO Act does not necessitate the person having the functions of an authorised officer in connection with the particular offence concerned, might have correctly noted the qualification in the definition of “authorised officer” in s 216(6), but it was beside the point. The person first has to be appointed under s 187(2) of the POEO Act as an authorised officer. That was the central argument of M&S – neither of Messrs Monte or Vo had been appointed as authorised officers. Hence, the question of whether, in any appointment of a person as an authorised officer, the person had the functions of an authorised officer in connection with the offence concerned, never arose if the person was never appointed as an authorised officer.

99. The primary judge’s third response in [77] was similarly beside the point :

“Third, and in any event, although Pt 7.2 of the POEOA was not expressly referenced in the delegation, that Act was and the description of the administrative remit of a Senior Land Development Engineer contained in G6 and R11 is, in my opinion, sufficiently broad to encompass the enforcement and compliance powers contained in Pts 7.1 and 7.2 of the Act.”

101. The functions contained in G6 Power of Entry and R11 Administration delegated by the CEO to a person in the position of Senior Land Development Engineer might include exercising “the enforcement and compliance powers contained in Pts 7.1 and 7.2” of the POEO Act, but the delegation of those functions to a person in the specified position did not constitute the appointment of such a person under Pt 7.2 of the POEO Act as an authorised officer for the purposes of the POEO Act.

102. The primary judge’s fourth response in [78]-[81] addressed, but rejected, M&S’s argument that any powers delegated by the instrument of delegation may only be exercised for the purposes in s 184(b) and (c), but not (a), of the POEO Act. It would appear that M&S referred to s 184 in support of its argument that the functions delegated by the instrument of delegation were of the nature of and exercisable for the purposes of paragraphs (b) and (c) but not paragraph (a). As a consequence, the instrument of delegation should not be construed as appointing Messrs Monte and Vo as authorised officers who could exercise functions of the nature of and for the purposes of paragraph (a) of s 184. The primary judge correctly rejected that argument. But the argument, and its rejection, did not address M&S’s central argument that the instrument of delegation did not appoint Messrs Monte and Vo as authorised officers for the purposes of the POEO Act.

103. For these reasons, the primary judge misconstrued and misdirected herself concerning the provisions of s 187 and s 216 of the POEO Act and s 378 of the LG Act and constructively failed to exercise jurisdiction to determine M&S’s central argument that the delegation under s 378 of the LG Act of the CEO’s functions to a person holding the position of Senior Land Development Engineer did not constitute the appointment under s 187(2) of the POEO Act of such a person as an authorised officer for the purposes of the POEO Act.

104. These errors of law vitiate the decision of the primary judge that Messrs Monte and Vo were authorised officers for the purposes of the POEO Act. The instrument of delegation did not, and could not, appoint them as authorised officers. As there was no other evidence of their appointment as authorised officers, Messrs Monte and Vo could not be “relevant authorised officers” for the purposes of the time limitation provision of s 216(2) of the POEO Act. Time therefore did not commence to run on the date on which evidence of the alleged offence first came to the attention of those persons. The primary judge erred in finding otherwise.

105. In these circumstances, the time limitation period in s 216(2)(a) commenced to run, not from when evidence of the alleged offence first came to the attention of Messrs Monte and Vo, but instead from when evidence of the alleged offence first came to the attention of Mr Theys, who it was agreed was a relevant authorised officer for the purposes of the POEO Act. This date was 12 September 2018. The summonses were all filed on 8 September 2021, within the 3 year period required by s 216(2)(a).

106. Accordingly, the primary judge’s decision dismissing the proceedings as being time barred should be set aside.

The other grounds of appeal are unnecessary to decide

107. Having held that the misconstruction grounds have been established, it is unnecessary to determine the Jones v Dunkel inference ground or the continuing offence ground. Upholding of the misconstruction grounds is sufficient to set aside the primary judge’s decision dismissing the proceedings.

Judicial review of Pepper J’s decision

108. The upholding of the appeal against the primary judge’s decision under s 5F of the Criminal Appeal Act also makes it unnecessary to determine M&S’s summons for judicial review of the primary judge’s decision, resolution of which would raise, as a preliminary issue, whether the decision was judicially reviewable. The grounds of review in the s 5F appeal and the judicial review summons were identical. As a formality, the judicial review summons should be dismissed, not because the challenge to the primary judge’s decision on these grounds was unsuccessful, but because it duplicated the successful challenge in the s 5F appeal.

M&S’s application for leave to appeal against Pain J’s decision

109. In the court below, M&S had requested the issue of a subpoena to Optus Mobile Pty Ltd seeking location records for calls made and received by two mobile numbers. One of the mobile numbers was Mr Carbone’s. Mr Carbone, by notice of motion, sought an order under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside the subpoena.

110. Pain J upheld the motion and set aside the subpoena on two grounds. The first was that the subpoena was premature: at [5]. The proceedings in which the subpoena was issued were the subject of the applications by the defendants for dismissal. Pepper J had heard those applications and reserved judgment on 7 March 2022. Judgment had not been delivered by the time Pain J determined the notice of motion to set aside the subpoena on 28 April 2023. Pain J observed that the utility of the subpoena will depend on what Pepper J decided. If the applications to dismiss the proceedings were to be successful, “there will be no prosecutions available to proceed”: at [5].

111. The second ground for Pain J setting aside the subpoena was “the broad nature of the subpoena”. Pain J found at [6]:

“As is clear, it has the capacity to seek a vast number of telephone records from people who could have no role to play whatsoever in this proceeding…. There was still a complete lack of clarity, by the end of the argument, as to precisely what records the subpoena would cover. That is a concern to me.”

112. M&S disagreed with Pain J’s decision, but failed to establish any error justifying appellate intervention in an interlocutory decision relating to a matter of practice and procedure.

113. Appeals from decisions relating to matters of practice and procedure attract the same principles as those that apply to any appeal against a judicial discretion. Pain J’s decision to set aside the subpoena involved a matter of practice and procedure. Ordinarily, in order to overturn such a decision on appeal, the applicant should demonstrate that the primary judge made an error of legal principle, made a material error of fact, took into account some irrelevant matter, failed to take into account or gave insufficient weight to some relevant matter, or arrived at a decision so unreasonable or unjust as to suggest that one of these categories of error has occurred, even though the error in question does not explicitly appear on the face of the reasoning: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] and House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

114. As Pain J’s decision is also an interlocutory order, leave to appeal is required. Leave to appeal an interlocutory order involving a matter of practice and procedure ordinarily will not be granted unless the decision involves a material error of fact or law and substantial injustice would result if leave were to be refused, supposing the decision to be erroneous: Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [19]; Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 at [14].

115. In this case, M&S has established neither any of the categories of error necessary to overturn Pain J’s decision involving a matter of practice and procedure nor that any error of fact or law, if there be one, is material and would result in substantial injustice if leave to appeal the interlocutory order were to be refused.

116. The two grounds on which Pain J set aside the subpoena, prematurity and excessive breadth of coverage, were reasonably open on the facts. If Pepper J were to dismiss the proceedings, as her Honour later did, there would no longer be proceedings in which the subpoena could be issued and met. The scope of the subpoena was very broad, seeking production by Optus Mobile of numerous records of people unconnected to the litigation. In these circumstances, her decision involved a reasonable exercise of the judicial discretion. Giving leave to appeal the decision is not justified.

Judicial review of Pain J’s decision

117. The grounds of appeal sought to be raised by M&S against Pain J’s decision under s 5F of the Criminal Appeal Act, if leave be granted, and in the judicial review summons were the same. The basis articulated above for refusing leave to appeal under s 5F is that those grounds lack merit. There is no utility in granting leave to appeal on grounds that could not be established. Equally, assuming for present purposes that the decision of Pain J is judicially reviewable, the summons for judicial review should be dismissed as the grounds are not established.

Orders

118. I propose the Court make the following orders:

1. dismiss the fourth respondent’s applications to dismiss the appellant’s applications for leave to appeal against the decisions of Pepper J and Pain J;

2. give leave to the appellant to adduce the additional evidence identified in the affidavit of Mr Zipkis of 29 June 2023;

3. give leave to the appellant to appeal against the decision of Pepper J of 16 June 2023;

4. uphold the appeal against the decision of Pepper J;

5. dismiss the summons for judicial review of the decision of Pepper J as being unnecessary having regard to the Court's decision to uphold the appeal against the decision of Pepper J;

6. refuse leave to appeal against the decision of Pain J of 28 April 2023;

7. dismiss the summons for judicial review of the decision of Pain J;

8. order the respondents to pay the appellant's costs of the two proceedings to appeal and review the decision of Pepper J; and

9. order the appellant to pay the fourth respondent's costs of the two proceedings to appeal and review the decision of Pain J.

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Amendments

07 February 2024 - Amendment to Representation on coversheet

Decision last updated: 07 February 2024