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

The case of M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd concerned an appeal to the Court of Appeal of New South Wales from decisions of Pain J. The primary dispute involved summonses issued against several defendants for the unlawful disposal of asbestos waste. The summonses had stated a date for the commission of the offence that preceded the actual commencement date of the offending conduct. Pain J had dismissed these summonses, finding they did not disclose an offence known to law, and had also dismissed the appellant's notice of motion seeking to amend the summonses.

The legal issues before the Court of Appeal were whether Pain J had correctly construed and applied the relevant statutes, specifically the *Criminal Procedure Act 1986* (NSW), in dismissing the summonses and refusing to allow their amendment. The court was required to determine if the stated date in the summonses, being prior to the commencement of the offence, rendered them fundamentally flawed and incapable of amendment, and whether the prosecutor's arguments regarding the nature of the offence had been misunderstood.

The Court of Appeal found that Pain J had misconstrued and misapplied the *Criminal Procedure Act 1986* (NSW), particularly concerning the power to amend summonses. The court held that the summonses, despite the incorrect date, did disclose an offence known to law, and that the power to amend was available to correct such an error. The court reasoned that the prosecutor's argument, which suggested the offence was a continuing one or that the stated date was merely an approximation within a broader period of offending, had not been properly understood.

Consequently, the Court of Appeal set aside the orders of Pain J dismissing the summonses and ordering the appellant to pay the defendants' costs. The court also set aside the dismissal of the appellant's notice of motion and remitted the matter of that notice of motion to be determined according to law and the court's reasons. No order was made as to the costs of the judicial review proceedings or the appeal.