McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     McConnell Dowell Constructors (Aust) Pty Limited  v  Environment Protection Authority [2000]  NSWCCA 367

FILE NUMBER(S):
60127/00

HEARING DATE(S):           10 August  2000

JUDGMENT DATE:            13/09/2000

PARTIES:
McConnell Dowell Cosntructors (Aust) Pty Limited
Environment Protection Authority

JUDGMENT OF:      Spigelman CJ Grove J Kirby J   

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S):        50009/99

LOWER COURT JUDICIAL OFFICER:     Pearlman J

COUNSEL:
J L Glissan QC  (McConnell Dowell)
J Kelly  (EPA)

SOLICITORS:
Doyles Construction Lawyers  (McConnell Dowell)
Stephen Garrett  (EPA)

CATCHWORDS:
CRIMINAL LAW
jurisdiction of Court of Criminal Appeal in stated case
"question of law" Criminal Appeal Act 1912, s5AE
CRIMINAL LAW
procedure - summons must disclose essential ingredients of offence
CRIMINAL LAW
coercive orders, Land and Environment Court Act 1979 s41
no requirement for judge to be satisfied of prima facie case against a defendant

LEGISLATION CITED:
Clean Waters Act 1970
Criminal Appeal Act 1912
Environmental Offences and Penalties Act 1989
Land and Environment Court Act 1979
Pesticides Act 1978
Land and Environment Court Rules 1996
Supreme Court Rules 1970

DECISION:
The Court should answer the questions as follows
3(i)  Decline to Answer
3(ii)  Yes
3(iii)  Decline to Answer
3(iv)  Decline to Answer
3(v)  Decline to Answer
3(vi) No with respect to Part 75 rule 9, otherwise, decline to Answer
4(i)  Yes.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60127/00

SPIGELMAN CJ
GROVE J
KIRBY J

Wednesday 13 September 2000

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LIMITED   v   ENVIRONMENT PROTECTION AUTHORITY

Pearlman J stated seven questions for determination by the Court of Criminal Appeal pursuant to s5AE of the Criminal Appeal Act 1912. Her Honour had delivered a judgment dealing with interlocutory matters including whether a summons issued by the prosecutor should be struck out as an abuse of process in proceedings commenced in the Land and Environment Court by the Environment Protection Authority against McConnell Dowell Constructors (Aust) Pty Ltd.

Held:
(Per Spigelman CJ, Grove J and Kirby J agreeing)

  1. Did I err in finding that the decision of the Director General of the Environment Protection Authority is a decision that is not reviewable by a Court?

The Court should decline to answer this question as it is hypothetical.

  1. Did I err in finding that the Summons disclosed properly the essential ingredients of an offence against the Environmental Offences and Penalties Act 1989 and s16(1) of the Clean Waters Act 1970?

Yes. The Summons did not identify an act of polluting which is an essential factual ingredient of the offence.  Stanton v Abernathy (1990) 19 NSWLR 656, Taylor v Environment Protection Authority [2000] NSWCCA 71, Environment Protection Authority  v Bathurst City Council (1995) 89 LGERA 79 applied.

Vicarious liability is not an ingredient of an offence under s16(1) of the Clean Waters Act 1970.

  1. Did I err in finding that the proceedings were properly commenced on 24 February 1999?

The Court should decline to answer this question as no submissions were addressed to it by the Defendant.

  1. Did I err…

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Details
Case
[2000] NSWCCA 367
Decision Date

CaseChat Overview and Summary

In the case of McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority, the dispute was initiated by the Environment Protection Authority (the Prosecutor) against McConnell Dowell Constructors (Aust) Pty Ltd (the Defendant). The Chief Judge of the Land and Environment Court, Pearlman J, was tasked with resolving several interlocutory matters in this case, including whether the summons issued by the Prosecutor against the Defendant should be struck out as an abuse of process. The case was submitted to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912, which allows for questions of law arising in proceedings to be determined by the Court of Criminal Appeal.

The central legal issues that the Court of Criminal Appeal had to decide involved the admissibility of certain affidavits in support of the application made to Talbot J on 24 February 1999, and whether these affidavits supported a finding that a prima facie proof was established. Additionally, the Court needed to determine whether non-compliance with specific procedural rules was cured by provisions in the Land and Environment Court Act 1979, and whether a judge must be satisfied of a prima facie case against the defendant before making an order under section 41(1) of the Land and Environment Court Act 1979.

The Court of Criminal Appeal found that the questions posed were not properly framed as questions of law and therefore declined to answer them. The Court reasoned that the distinction between questions of fact and questions of law is a critical one, and that it was not appropriate to reformulate the questions to fit within the definition of a question of law. The Court also noted that the Land and Environment Court has the authority to cure procedural irregularities under section 68(2) of the Land and Environment Court Act 1979, and that there is no requirement for a judge to be satisfied of a prima facie case against a defendant before making an order under section 41(1). Consequently, the Court declined to answer the questions posed by the Prosecutor and the Defendant, finding that they did not present a question of law within the Court's jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion question 4(i) should be answered “Yes”.Affidavit Evidence Before Talbot J The Defendant submitted that questions 3(iii), (iv) and (vi) raised the same issues and could be dealt with together. However, it makes no submissions on question 3(iii) and it is not appropriate to answer it. Question 3(iv) poses the question of whether the prosecutor “could rely upon” certain affidavits in support of the application to Talbot J. Question 3(v), which the Defendant dealt with separately, asks whether the affidavits supported a finding that “prima facie proof was established”. The jurisdiction of this Court is limited by s5AE to a “question of law”. (See generally Endicott “Questions of Law” (1998) 114 LQR 292). In Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389 at 394, the High Court said in a joint judgment:“The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurors to formulate tests for finding the line between the two questions, no satisfactory test of universal application has as yet been formulated.” In terms, the questions posed in 3(iv) and 3(v) are directed to the admissibility of evidence and whether or not the evidence constitutes “prima facie proof”. The questions are not formulated as questions of law. The Defendant sought to identify a question of law under the rubric of the questions actually posed. Specifically, the submission was made that there was no evidence supporting what was alleged to be an essential matter to be proved, namely vicarious liability of the Defendant for the acts of others. It is not desirable for this Court to reformulate the question actually posed so that it answers the description “question of law”. In any event, by reason of the answer I propose to question 4(i), questions 3(iv) and 3(v) do not need to be addressed. In my opinion each question should be answered “Decline to answer”. Question 3(vi) raises an issue as to validity of service. Part 75 r 9(1) of the Supreme Court Rules is applicable to the proceedings in the Land and Environment Court. That rule provides:“9(1) The summons and any affidavit in support of an application under section 4 of the subject Act shall not, unless the court so directs, be served before the making of the order but shall be served on the defendant when the minute or order is served on him.” Section 68 of the Land and Environment Court Act provides:“68(1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.(2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and(b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.(3) The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.”

Decision

Reasons for decision

SPIGELMAN CJ GROVE J
Did I err in finding that the decision of the Director General of the Environment Protection Authority is a decision that is not reviewable by a Court? Did I err in finding that the Summons disclosed properly the essential ingredients of an offence against the Environmental Offences and Penalties Act 1989 and s16(1) of the Clean Waters Act 1970? Did I err in finding that the proceedings were properly commenced on 24 February 1999? Did I err in finding that the EPA could rely upon the affidavits of Mr David Blair sworn 9 September 1998, Mr Andrew Hawkins sworn 17 February 1999 and Mr Mark Callaghan sworn 23 February 1999 in support of its application to Talbot J on 24 February 1999? Did I err in finding that a prima facie proof was established on the basis of the affidavits properly relied on for the application before Talbot J on 24 February 1999? Did I err in finding that non-compliance with the requirements of Rule 75(8) and (9) of the Supreme Court Rules 1970 was cured by s68(2) of the Land and Environment Court Act 1979? Did I err in finding that before making an order under s41(1) of the Land and Environment Court Act 1979, a judge must be satisfied that there is a prima facie case against the Defendant?” SPIGELMAN CJ: On 20 May 1999 the Chief Judge of the Land and Environment Court, Pearlman J, handed down a judgment dealing with certain interlocutory matters that had arisen in the context of Class 5 proceedings commenced by the Environment Protection Authority (“the Prosecutor”) against McConnell Dowell Constructors (Aust) Pty Ltd (“the Defendant”). One of the issues that arose before her Honour was whether the summons issued by the Prosecutor against the Defendant should be struck out as an abuse of process. Section 5AE of the Criminal Appeal Act 1912 provides that a Judge of the Land and Environment Court may “submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination”. Subsection 5AE(2) provides:”The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.” By a document entitled a Stated Case, Justice Pearlman submitted six questions “asked by the Defendant” and one question “asked by the Prosecutor”. The seven questions were as follows, using the denotation in the Stated Case:“3(i) Did I err in finding that the decision of the Director General of the Environment Protection Authority is a decision that is not reviewable by a Court?3(ii) Did I err in finding that the Summons disclosed properly the essential ingredients of an offence against the Environmental Offences and Penalties Act 1989 and s16(1) of the Clean Waters Act 1970?3(iii) Did I err in finding that the proceedings were properly commenced on 24 February 1999?3(iv) Did I err in finding that the EPA could rely upon the affidavits of Mr David Blair sworn 9 September 1998, Mr Andrew Hawkins sworn 17 February 1999 and Mr Mark Callaghan sworn 23 February 1999 in support of its application to Talbot J on 24 February 1999?3(v) Did I err in finding that a prima facie proof was established on the basis of the affidavits properly relied on for the application before Talbot J on 24 February 1999?3(vi) Did I err in finding that non-compliance with the requirements of Rule 75(8) and (9) of the Supreme Court Rules 1970 was cured by s68(2) of the Land and Environment Court Act 1979?4(i) Did I err in finding that before making an order under s41(1) of the Land and Environment Court Act 1979, a judge must be satisfied that there is a prima facie case against the Defendant?”

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ GROVE J

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