McGerty v Dairy Farmers' Co-Operative Limited

[1989] NSWLEC 193

Land and Environment Court

of New South Wales

CITATION:	McGerty v Dairy Farmers' Co-Operative Limited [1989] NSWLEC 193
PARTIES:	APPLICANT J. McGerty RESPONDENT Dairy Farmers' Co-Operative Limited
FILE NUMBER(S):	50043 of 1989
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Clean Waters Act Land and Environment Court Act Supreme Court (Summary Justification) Act 1967
CASES CITED:	Fairfield City Council v. Colorpak Products (NSW) Pty Ltd, Land and Environment Court, 2nd December, 1988 (unreported); Baker v. Macleod, Land and Environment Court No.50013 of 1986, Cripps J., 1st August, 1986 (unreported).
DATES OF HEARING:
DATE OF JUDGMENT:	05/19/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: In this matter on 18th April, 1989 a summons was filed in the Registry of the Land and Environment Court for orders that the defendant appear before a Judge of this Court to answer a charge alleging a breach of the provisions of s.16 of the Clean Waters Act 1970. The Registrar thereupon ordered the defendant to appear before the Court on 19th May, 1989. It appears that no application was made for such order to be made by a Judge in accordance with s.41 of the Land and Environment Court Act ("the L.& E. Court Act").

By application in Chambers on 12th May, I was asked to make such order returnable at the same date as the Registrar's order. The application form that I was asked to sign on 12th May bore the same date as the original summons filed on 18th April, 1989.

I declined to sign the application and was informed by the prosecutor that a mistake had been made. It is the practice of this Court that application be made in Chambers for a Judge's order before filing the charge. The prosecutor hoped to cure the fault by making the late application prior to the return of the original order.

I made further enquiry as to whether there was any problem in relation to the original proceedings under the Clean Waters Act, and I was informed that the time prescribed for the institution of proceedings had expired. I believe I then informed the solicitor for the prosecutor that as the original matter was to come before me on 19th May, if it was thought I was wrong and had jurisdiction to make the order sought, then a Motion could be made returnable at the same time the original charge was called. I also advised the solicitor that if he wished to approach the Court of Appeal, I would be prepared to give reasons for declining to make orders on 12th May.

The claimant on the Motion today relies upon the provisions of s.41 of the L.& E. Court Act which provides, inter alia, that upon application being made by a person in accordance with the rules, a Judge shall make an order that the person alleged to have committed the offence appear at a time and place specified. In effect the claimant submits that it was entitled to institute proceedings under the Clean Waters Act by filing a summons in the Registry of this Court on 18th April, and that at all times thereafter I have a mandatory duty pursuant to s.41 to make an order that the person referred to in that summons appear before the Court, notwithstanding the fact that the time for institution of the proceedings has now expired. The defendant has appeared by Counsel and challenges jurisdiction to make the orders sought.

Pursuant to s.41, an application in Class 5 must be made in accordance with the Rules, but no Rules have been made with respect to the commencement of such proceedings. The language of s.41 is similar to the corresponding s.4 of the Supreme Court (Summary Jurisdiction) Act, 1967. The provisions of Division 2 of Part 75 of the Supreme Court Rules are deemed to form part of the Rules of this Court, and apply to proceedings in Class 5 |CF2.|PSI"with such adaptations as are necessary"|CF1.|PSO (Part VI cl.2). Part 75 r.7 and Part 7 r.6 of the Supreme Court Rules provide for the commencement of proceedings in its summary criminal jurisdiction by the filing of originating process.

I am unpersuaded that I have jurisdiction to make the orders in the Motion. I am completely satisfied that the document filed on 18th April was itself a summons and was not an application for orders pursuant to s.41, i.e. an order which can only be made by a Judge. In my opinion, proceedings in this matter are instituted by an application to a Judge pursuant to s.41 and not by summons. In my judgment, the summons was ultra vires and had no substance or legal effect. There was not, therefore, the commencement of proceedings pursuant to s.41, in my opinion, within the meaning of the Clean Waters Act; cf. Fairfield City Council v. Colorpak Products (NSW) Pty Ltd, Land and Environment Court, 2nd December, 1988 (unreported). The application now made to me for orders to bring the defendant to the Court is out of time and, in my opinion, I am not compelled by s.41 to give the summons any retrospective validity. In any event, on receipt of an application pursuant to s.41, a Judge has a discretion and is not compelled

to order a person to attend and answer a charge which is patently defective; see Baker v. Macleod, Land and Environment Court No.50013 of 1986, Cripps J., 1st August, 1986 (unreported).

For the above reasons, I dismiss the original application and I dismiss the Motion for orders pursuant to s.41.

I order the applicant prosecutor to pay the costs of the application and the costs of this Motion.