McGerty v Borg [1991] NSWLEC 41 (11 April 1991) - [1991] NSWLEC 41

Land and Environment Court

of New South Wales

CITATION: McGerty v Borg [1991] NSWLEC 41 (11 April 1991) [1991] NSWLEC 2

PARTIES: McGerty v Borg

FILE NUMBER(S): 50028 of 1990

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Clean Waters Act 1970
Land and Environment Court Act) 1979
Clean Waters Regulations, 1972

CASES CITED: John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508;
Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667;
generally Mathews v. Goulburn Wool Processors Proprietary Ltd. (1987) 10 N.S.W.L.R. 419

DATES OF HEARING:

DATE OF JUDGMENT:
04/11/1991

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Defendant is charged with an offence against s.16 of the Clean Waters Act 1970 in that it is alleged that on 10th August, 1989 he did pollute waters. The charge has been defended.

When the hearing commenced Counsel for the Defendant submitted that the summons was defective because it failed to specify "the waters" alleged to be polluted or to adopt the familiar words of the common law the summons was defective because it "did not specify the time, place and manner of the Defendant's acts or omissions: see John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508.

It is not denied that before the trial the Defendant's solicitors had sought and obtained from the Prosecutor particulars of the offence and those particulars included reference to the waters said to be polluted.

In these circumstances I held that the summons (and the related order under s.41 of the Land and Environment Court Act ) 1979 were not incurably defective and that s.43 of the Land and Environment Court Act operated to avoid any defect in substance in the process - cf. John L. Proprietary Ltd. at pp.529/530 (per Brennan J.) and Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667 et seq, there being no suggestion of any denial of natural justice in the defective process.

However to avoid all doubt and possible unfairness to the Defendant I ordered the Prosecutor to provide further particulars of the charge, particularly in relation to the nature of the alleged "pollutant" and the nature of the alleged "act of pollution". The Prosecutor thereupon provided these further particulars - the pollutant was said to be "piggery effluent" and the act of pollution was said to be placing that piggery effluent on the Defendant's property (situate at Burley Road, Horsely Park) in a position where the effluent was observed on the day of the alleged offence to leave the property at its north western corner and flow down the hillside of an adjoining paddock towards and into an unnamed tributary of Reedy Creek. It is to be noted that in furnishing these particulars the Prosecution has elected to rely upon the offence of "deemed pollution" provided by s.16(2) of the Clean Waters Act 1970 which relevantly provides:

"Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if -

(a) he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McGerty v Borg [1991] NSWLEC 41 (11 April 1991)

Details

AGLC: McGerty v Borg [1991] Nswlec 41 (11 April 1991) [1991] NSWLEC 2
Case: [1991] NSWLEC 41
Decision Date: 04/11/1991

CaseChat Overview and Summary

McGerty v Borg [1991] NSWLEC 41 (11 April 1991) is a decision of the Land and Environment Court of New South Wales where the defendant, Borg, was charged with an offence under s.16 of the Clean Waters Act 1970 for allegedly polluting waters on 10 August 1989. The defendant contested the charge and raised procedural objections to the summons, arguing it was defective for not specifying the waters alleged to be polluted or the time, place, and manner of the alleged offence. Despite these objections, the court found that the summons was not incurably defective and allowed further particulars to be provided by the prosecutor, including the nature of the alleged pollutant and the act of pollution. The prosecutor relied on the offence of 'deemed pollution' under s.16(2) of the Clean Waters Act, which deems a person to have polluted waters if they place any matter in a position where it falls, descends, is washed, is blown, or percolates into any waters or causes or permits such matter to be placed in a position where it would have polluted or been likely to pollute those waters.

The legal issues the court had to decide were whether the summons was defective and, if not, whether the defendant was guilty of the offence charged based on the evidence presented. The court examined the evidence, including the observations of the Council officers, the chemical analysis of the effluent, and the expert evidence provided by the defendant. The court found that the defendant was guilty of the offence as charged, as the evidence established that the defendant had placed the piggery effluent, which was a pollutant, in a position on his property where it descended or fell into the waters of Reedy Creek. The court rejected the defendant's arguments that there were other possible sources of the effluent or that the defendant was unaware of the pollution incident until receiving the summons.

The court's reasoning was based on the inference drawn from the primary facts established by the prosecution evidence. The defendant's expert evidence supported the prosecution's case by confirming that there was no other source of the effluent other than the defendant's piggery and that the flow of effluent from the defendant's property took a specific pathway that excluded other possible sources. The court concluded that the proven facts of the case excluded any reasonable hypothesis consistent with the defendant's innocence. The defendant was found guilty as charged, and the court's final orders were not specified in the text.

Orders