McFadden v Environment Protection Authority (No 2)

Case •

[2025] NSWLEC 123

•

27 October 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: McFadden v Environment Protection Authority (No 2) [2025] NSWLEC 123
Hearing dates: 24 October 2025
Date of orders: 24 October 2025
Decision date: 27 October 2025
Jurisdiction:Class 6
Before: Pepper J
Decision:

See orders at [27].

Catchwords:

APPEAL: appeal against conviction and sentence – orders for the preparation of the appeal not complied with by appellant – appellant under misapprehension as to the nature of the appeal – appellant under misapprehension that appeal could be bifurcated – significant prejudice to appellant if vacation not granted – prejudice to respondent if vacation not granted – vacation granted – costs reserved.

Legislation Cited:

Crimes (Appeal and Review) Act 2001, ss 35(1), 37

Cases Cited:

Cmunt v Commissioner of Police NSW [2019] NSWLEC 33

Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108

McFadden v NSW Environment Protection Authority [2025] NSWLEC 112

Category:Procedural rulings
Parties: John McFadden (Appellant)
Environment Protection Authority (Respondent)
Representation:

Counsel:
A Hill (Appellant)
N Evans (Respondent)

Solicitors:
Pearl Beaumont (Appellant)
Environment Protection Authority (Respondent)
File Number(s): 2025/85301
Publication restriction: Nil

JUDGMENT

The Appellant Seeks to Vacate His Class 6 Appeal

  1. The appellant, John McFadden, sought, albeit extremely reluctantly, to vacate the final hearing of his Class 6 appeal against conviction and sentence listed on 29 October 2025.

  2. The Court granted the vacation and delivered brief ex tempore reasons on 24 October 2025, with the stated intention to publish the reasons in written form on 27 October 2025. McFadden foreshadowed an application to the duty judge for a “suppression order” to restrict the publication of any written reasons on the basis that they would identify him. As a consequence, the Court delayed publishing the judgment until the afternoon of 27 October 2025 (to afford him the opportunity of making an appropriate application in this regard). No such application had been made as at 4:00 pm. I note, in any event, that Pain J already recently published a judgment in this matter with no restriction in McFadden v NSW Environment Protection Authority [2025] NSWLEC 112.

  3. The prosecutor, the NSW Environment Protection Authority (“EPA”), neither consents nor opposes the application to vacate, but concedes that if the appeal were to proceed it would be prejudiced given that, by his own admission, McFadden has failed to comply with orders 6 and 8 made by Pain J on 24 September 2025 for the filing and serving of particulars of the evidence admitted into evidence in the court below that ought to have been excluded, and, importantly, McFadden’s written submissions. The date for compliance with orders 6 and 8 was 9 and 11 October 2025, respectively. In the absence of the particulars and the appellant’s written submissions the EPA is unable to file its submissions (order 9).

  4. The summons commencing the appeal was filed on 4 March 2025. Alex Hill of counsel represents McFadden. He was not, however, retained until late July 2025. The appeal was listed for final hearing on 12 June 2025.

Reasons for the Vacation Application

  1. The application was made orally by Hill, with no supporting evidence. The Court nevertheless dispensed with the need for a notice of motion and entertained the application given the immediacy of the final appeal hearing.

  2. From the bar table, the bases that McFadden proffered for the vacation were as follows:

  1. first, non-compliance with s 35(1)(c) of the Crimes (Appeal and Review) Act 2001 (“CARA”);

  2. second, default by McFadden in the finalisation of his appeal and the filing of his submissions contrary to the orders of Pain J;

  3. third, prejudice to both parties if the vacation was not granted; and

  4. fourth, the need to obtain further instructions with respect to a potential apprehended bias application against myself as the allocated appeal judge, on the basis that in 2008, prior to my appointment to the Court, I was briefed to appear for a party who had engaged McFadden to provide expert evidence for the respondent (Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 at [35] per Pain J). Hill received preliminary instruction about the possible application this week.

  1. It is convenient to deal with each in turn.

Failure to Notify the DPP of the Appeal

  1. Section 37(1) and (2) of the CARA describes the nature of the appeal against the conviction and sentence in the Local Court of NSW:

37   Appeals to be by way of rehearing on the evidence

(1)   An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38.

(2)   Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

  1. Prior to this, however, notification of the appeal must be made to the entities specified in the legislation. Section 35 of the CARA states in mandatory terms the following (emphasis added):

35   Documents to be forwarded to prosecutor and relevant court registrars

(1)   The person with whom a notice of appeal or application for leave to appeal is lodged must immediately forward a copy of it to—

(a)   the prosecutor in the original Local Court proceedings, and

(b)   the relevant registrar of the Local Court, if the person is not that registrar, and

(c)   the Director of Public Prosecutions.

(2)   As soon as practicable after receiving a notice of appeal or application for leave to appeal, the relevant registrar of the Local Court must send the relevant papers (including a copy of any relevant order or conviction made by the Local Court) to the registrar of the Land and Environment Court.

  1. On 23 October 2025 the solicitor for McFadden wrote to the Registry to ascertain if s 35(1) of the CARA had been complied with. The response from the Registry later that day indicated that it had not insofar as the Director of Public Prosecutions (“DPP”) had not been notified of the appeal.

  2. This oversight by the Registry does not, however, give rise to the need to vacate the appeal. It was cured by the Court directing the Registrar to notify the DPP by 4:00 pm on 24 October 2025 of the notice of the appeal, and to provide a copy of that notification to the solicitors for the parties by the same time and date.

Default With the Orders of Pain J

  1. More fundamental is the acknowledged default by McFadden in finalising his appeal preparation and in complying with Pain J’s orders for the filing and serving of particulars and written submissions. Apart from the obvious importance of complying with the Court orders, their adherence is all the more imperative in the present appeal due to the complex manner in which McFadden seeks to argue his appeal, wherein he submits that much of the evidence in the court below was impermissibly admitted and he makes allegations of apprehended bias.

  2. The reasons given by Hill for McFadden’s delinquency were:

  1. his client’s failure to provide instruction in a timely manner;

  2. his client’s inability to fund the litigation;

  3. the appeal raised complex questions of fact and law, including the nature of the appeal itself and the fact that McFadden had provided expert evidence in the Court in the case referred to above and in other cases;

  4. Hill had been managing some difficult personal circumstances; and

  5. Hill had commitments in other courts in other jurisdictions.

  1. Plainly the matters raised at [13](a) and (b) are matters within the appellant’s control and would not warrant the vacation of his hearing.

  2. The reasons given at [13](d) and (e), while beyond the appellant’s control, nevertheless provide no reasonable basis for the vacation of the appeal.

  3. In respect of the submission at [13](c), during the course of argument it became apparent that Hill misunderstood the nature of an appeal pursuant to s 37 of the CARA. Contrary to the submission of Hill, the appellant on a rehearing is not required to demonstrate error on the part of the trial judge (see the principles set out in Cmunt v Commissioner of Police NSW [2019] NSWLEC 33 at [15]-[22]). In saying this, McFadden will not be precluded from raising various evidential challenges to the material that the EPA may seek to rely upon either for the purposes of conviction or sentence. It is accepted that this may give rise to a degree of complexity in determining the admissibility of certain expert evidence, and in particular, lay evidence obtained by the EPA by compulsory process. However, Hill was retained in July 2025 and he has had ample time to become familiar with the issues raised by the appeal and to prepare accordingly.

  4. In respect of the foreshadowed apprehended bias claim, it is sufficient to note that this has not been made and can, therefore, afford no basis for the vacation of the appeal. While not relevant having regard to the applicable legal principles for determining apprehended bias, it should be noted that I have no recollection whatsoever of the matter to which McFadden refers.

  5. As for the submission that there may be some sort of curial institutional bias in respect of McFadden because he gives expert evidence in this Court, again, no formal application in this regard has been made. As for any professional embarrassment that he may suffer as a result of the proceedings, McFadden is in no different position to many of the defendants who come before the Court in criminal proceedings. This is a factor to which the Court may have regard in the appeal against sentence if the appeal against conviction is unsuccessful. As observed above, the foreshadowed application for a “suppression order” in respect of this judgment has not eventuated.

  6. In addition to the prejudice to McFadden, if the hearing of the appeal is not vacated this would, as the EPA submitted, cause it real prejudice because, as it candidly admitted, it does not understand the case that the appellant is likely to put on appeal. Having read the transcript of the proceedings before Pain J, and in light of the arguments put by Hill during the present application, I understand the EPA’s position. Indeed, as a matter of fairness to the EPA, and in order to ensure the efficient utilisation of Court resources, it may be appropriate not to set the matter down for final hearing until McFadden has complied with any subsequent Court orders for the preparation of his appeal, including the filing of his written submissions.

  7. For all of these reasons, I would have otherwise declined to vacate the hearing of the appeal.

The Appeal Must be Vacated

  1. But the appeal must nevertheless be vacated because it is not ready and to force McFadden on will cause him likely fatal prejudice. This is particularly so inasmuch as if he is unsuccessful in his appeal against conviction, there is presently no evidence in mitigation filed by McFadden that is relevant to his sentence appeal. In my opinion, he ought to be afforded the opportunity of rectifying his default and filing evidence in support of his appeal.

  2. Of particular relevance is the fact that Hill was under the misapprehension that the appeal against conviction and sentence would be conducted separately. This belief appeared to be the product of a lengthy application to adduce fresh evidence that took place before Pain J (McFadden), during which McFadden sought to limit the matters that he would raise in his appeal against conviction. But, as explained above, this was premised upon a misunderstanding as to the nature of an appeal under s 37 of the CARA.

  3. I do not accept that it is either permissible, or in this instance appropriate, to confine McFadden’s appeal on conviction other than in the manner described in the CARA. While not a hearing de novo, to reiterate the appeal is a rehearing – not an appeal in the more orthodox sense – in the manner described in Cmunt. There is no basis for bifurcating the appeal against conviction in the manner envisaged by Hill.

  4. There is also no basis for bifurcating the appeal against conviction and sentence. There is only one appeal, which is why it is important that there is compliance with the directions to file and serve evidence and submissions on all aspects of the appeal, including sentence. This has not been done by McFadden.

  5. This is not to say that McFadden will be afforded multiple opportunities to file and serve his evidence and submissions. This is, after all, his appeal. But in the unusual circumstances of this case, where his legal representatives were labouring under the mistaken belief that error on the part of the lower court had to be demonstrated and that his case could be split in the manner proposed, fairness to McFadden justifies the vacation of the hearing of the appeal.

Costs

  1. The vacation of the appeal gives rise to the question of whether McFadden ought to pay the EPA’s costs thrown away by the vacation. In the absence of full argument from the parties, the prudent course is to reserve costs.

Orders of the Court

  1. The Court orders that:

  1. pursuant to s 35(1)(c) of the Crimes (Appeal and Review) Act 2001 the Registrar of this Court is to forward a copy of the notice of appeal to the Director of Public Prosecutions by no later than 4:00 pm on 24 October 2025;

  2. the Registrar of this Court is to serve a copy of that notification on the solicitor on the record of the respondent and the appellant by no later than 4:00 pm on 24 October 2025;

  3. the appeal against conviction and sentence listed for hearing on 29 October 2025 is vacated;

  4. costs of today and costs occasioned by the vacation are reserved; and

  5. the matter is stood over to the List Judge on 28 November 2025.

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Decision last updated: 27 October 2025

Cases Citing This Decision

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