Natural Resources Access Regulator v Budvalt Pty Ltd

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Budvalt Pty Ltd; Harris; Harris; Timmins [2019] NSWLEC 169

Hearing dates:

28 October 2019

Date of orders:

08 November 2019

Decision date:

08 November 2019

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraphs 29 and 30

Catchwords:

ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - Class 5 - Criminal Procedure Act 1986 (NSW) s 29 - discretionary powers - joint trial - the meaning of ‘series of offences’

Legislation Cited:

Criminal Procedure Act 1986
Water Management Act 2000

Cases Cited:

R v Annakin (1988) 17 NSWLR 202
R v Jones (No 1) [2007] NSWSC 769
De Jesus v The Queen (1986) 68 ALR 1

Category:

Procedural and other rulings

Parties:

Natural Resources Access Regulator (Prosecutor)

 

Matter Nos 2018/231598, 231599, 231621
Budvalt Pty Ltd (Defendant)

 

Matter No 2018/231608
Jack Harris (Defendant)

 

Matter Nos 2018/238837, 238838, 238839
Peter Harris (Defendant)

  Matter Nos 2018/238877, 238878, 238879
Justin Timmins (Defendant)

Representation:

Counsel:
Ms G Wright (Prosecutor)
Ms G Lewer (Defendant)

  Solicitors:
Crown Solicitors (Prosecutor)
Horton Rhodes (Defendant)

File Number(s):

2018/231598, 2018/231599, 2018/231608, 2018/231621, 2018/238837, 2018/238838, 2018/238839, 2018/238877, 2018/238878, 2018/238879

Publication restriction:

No

Judgment

Background

1. By four Notices of Motion (one in respect of each Defendant) the Prosecutor seeks an order pursuant to s 29 of the Criminal Procedure Act 1986 (CP Act) that the ten Summons issued against the four Defendants be heard together, or in the alternative, that the seven charges relating to what are described below as the “metering offences” be heard together with a separate trial for what is described below as the “channel offences”. The Defendants consent to the proceedings being heard in three groups but oppose either all ten of the proceedings being heard together, or the two trials as proposed by the Prosecutor.

2. The Prosecutor indicated that it did not consent to the grouping as proposed by the Defendants but made no submissions that such an order should not be made in the event that the Prosecutor’s Notices of Motion were dismissed. The Defendants indicated that they consented to the grouping proposed by them in the event the Notices of Motion were dismissed.

3. For the reasons that follow I have determined that with respect to the Notices of Motion the relevant circumstances required to engage the discretion in s 29(2) are not present. I have further determined that the Court should make the orders permitting the hearing together of the proceedings as consented to by the Defendants.

Nature of Proceedings

4. All ten of the proceedings relate to charges made under the Water Management Act 2000 (WM Act). Seven of the proceedings relate to alleged breaches of s 91I(2) of the WM Act (the “metering offences”) which provides:

91I   Taking water when metering equipment not working

(2)   A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not…