Queanbeyan City Council v Environment Protection Authority - [2011] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
Hearing dates: Friday 6 May 2011
Decision date: 06 May 2011
Before: Whealy JA at [1]
Hall J at [45]
McCallum J at [46]
Decision:
(1) The decision below be varied but only to the extent necessary to vacate the order for costs made by Pepper J.
(2) Otherwise leave to appeal should be refused.

Catchwords: CRIMINAL LAW - Appeal against interlocutory decision - prosecution under Protection of the Environment Operations Act 1997 - refusal to grant stay - failure of sewerage pumping station - pollution not permissible under environment protection licence - procedural unfairness - judicial discretion as to factual findings - public interest in prosecution.
Legislation Cited: Criminal Appeal Act 1912 s 5F
Protection of the Environment Operations Act 1997 ss 120, 122
Cases Cited: R v Van Phu Ho (Unreported, NSW Court of Criminal Appeal, 18th July 1994, Gleeson CJ, Mahoney JA, Dunford J)
House v The King (1936) 55 CLR 499 at 504 - 504
R v Steffan (1993) 30 NSWLR 633 at 644 - 645
R v Matovski (1989) 15 NSWLR 720 at 723
R v Dinh [2000] NSWCCA 536 at [34]
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v Ulman-Narumiec [2003) 143 A Crim R 531 at [24] and [70] - [72]
Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, at 76 per Gaudron J
Dupas v R (2010) 241 CLR 237
R v Glennon (1992) 173 CLR 592 at 605 - 606
Category: Principal judgment
Parties: Queanbeyan City Council (Applicant)
Environmental Protection Authority (Respondent)
Representation: Counsel:
R S McIlwaine SC / T To (Applicant)
J L Glissan QC / G Preston (Respondent)
Solicitors:
Herring & Associates Lawyers (Applicant)
Office of Environment and Heritage, Department of Premier and Cabinet (Respondent)

File Number(s): 2011/13689
Decision under appeal

Citation:

[2010] NSWLEC 237

Date of Decision:

2010-12-21 00:00:00

Before:

Pepper J

File Number(s):

2008/50080

Judgment

WHEALY JA: This is an application for leave to appeal under section 5F(3)(a) of the Criminal Appeal Act 1912 from an interlocutory judgment in Class 5 of the Land and Environment Court's jurisdiction. Queanbeyan City Council (the applicant) had been charged with an offence of polluting waters in contravention of section 120(1) of the Protection of the Environment Operations Act 1997 ("the Act"). The Council pleaded not guilty to the charge.

By Notice of Motion filed on 22 nd July 2009, the applicant sought a permanent stay of the prosecution, on the basis that the proceedings were an abuse of process. The foundation for the stay application was an assertion that the conduct of the prosecutor, the Environment Protection Authority ("EPA"), in not issuing an Environment Protection Licence under the Act, had deprived the applicant of the opportunity to avail itself of the only statutory defence to the charge.

The stay application was heard over a number…

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.

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Details

Case: [2011] NSWCCA 108
Decision Date: 06 May 2011

CaseChat Overview and Summary

In the case of Queanbeyan City Council v Environment Protection Authority, the appellant, Queanbeyan City Council, challenged the refusal of the primary judge to grant a stay of proceedings against the respondent, the Environment Protection Authority (EPA). The dispute arose from an incident where the council's sewerage pumping station failed, leading to pollution, which was not permissible under the environment protection licence. The council sought a stay of the prosecution on the basis of alleged procedural unfairness and the assertion that the EPA had acted outside its jurisdiction.

The court was required to determine whether the primary judge's refusal to grant a stay was correct and whether there were any jurisdictional errors in the decision-making process. The primary issues included whether the evidence admitted for a limited purpose was appropriately used and whether the primary judge's findings regarding the cause of the pollution incident went beyond the scope of the limitation. Furthermore, the court had to consider the argument regarding the power to award costs and whether it warranted the grant of leave.

The court found that the primary judge did not err in her use of the evidence admitted for a limited purpose. It was determined that the findings made by the judge were within the scope of the limitation imposed by section 136 of the Evidence Act 1995. The court also noted that the power to award costs was not a matter that warranted the grant of leave. Consequently, the court decided to vacate the costs order, as it had not been brought to the parties' attention before it was made, thereby allowing the court below to reconsider the issue if necessary in the future.

The final orders of the court included vacating the costs order made by the primary judge, without expressing an opinion on the availability of the power to order costs in the present situation. The appeal against the refusal to grant a stay was dismissed, upholding the primary judge's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Fourthly, the evidence which was admitted for a limited purpose, was relied upon by the primary judge in an appropriate manner. Mr McIlwaine argued that certain evidence had been admitted on a limited basis under section 136 of the Evidence Act 1995 but that, despite this limitation, her Honour had in fact made factual findings beyond that permitted by the limitation. The evidence in question, including in particular that concerning the circumstances leading to the second overflow on the evening of 4 th November 2007, was said to have been admitted only on the basis that it was evidence of matters that the EPA had were entitled to have regard to in exercising its prosecutorial discretion in deciding whether to charge the council in respect of the second pollution incident. I do not, with all due respect, consider that there is any validity in this complaint made by Mr McIlwaine. There is no dispute that the evidence referred to in the written submissions filed on behalf of the applicant, and about which complaint is made, was admitted for the purpose stated. I do not consider that the findings made contravene this limitation. Particular attention was drawn to paragraph [155] of the judgment in which her Honour referred to the fact that the pollution was caused not by a failure of the structures but by the failure of the pump at the Morisset Street pumping station, combined with the failure of the council to provide a timely response to the stoppage. When considered in context, however, it is clear that her Honour was doing no more than evaluating the material available to the prosecutor which, on the assumption that the evidence were accepted, indicated that the cause of the failure in the system was as stated by her Honour. That was a significant matter underpinning the decision to prosecute. I do not consider that the finding made in this respect was one that went beyond the scope of the limitation under section 136. It is necessary to read the primary judge's decision fairly, and when read in that way, this seems to me to be the inevitable consequence. Fifthly, the argument concerning the power to award costs is of itself not sufficient to warrant the grant of leave. It can have no real connection to the corrections or otherwise of the decision on the stay application. However, Mr Glissan QC has indicated his instructions are that, on this limited point, this Court may, if it thinks appropriate, vacate the costs order particularly as it was not the subject of any submissions or debate in the court below. I consider that the order should be vacated because it was not a matter brought to either partiy's attention before it was made. As a consequence, neither party had an opportunity to make any submissions concerning the order. The vacation of the order for costs will enable the court below to consider that issue at some future point of time if it becomes necessary. I prefer not to express any opinion on the availability of the power to order costs in the present situation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
Hearing dates:	Friday 6 May 2011
Decision date:	06 May 2011
Before:	Whealy JA at [1] Hall J at [45] McCallum J at [46]
Decision:	(1) The decision below be varied but only to the extent necessary to vacate the order for costs made by Pepper J. (2) Otherwise leave to appeal should be refused.
Catchwords:	CRIMINAL LAW - Appeal against interlocutory decision - prosecution under Protection of the Environment Operations Act 1997 - refusal to grant stay - failure of sewerage pumping station - pollution not permissible under environment protection licence - procedural unfairness - judicial discretion as to factual findings - public interest in prosecution.
Legislation Cited:	Criminal Appeal Act 1912 s 5F Protection of the Environment Operations Act 1997 ss 120, 122
Cases Cited:	R v Van Phu Ho (Unreported, NSW Court of Criminal Appeal, 18th July 1994, Gleeson CJ, Mahoney JA, Dunford J) House v The King (1936) 55 CLR 499 at 504 - 504 R v Steffan (1993) 30 NSWLR 633 at 644 - 645 R v Matovski (1989) 15 NSWLR 720 at 723 R v Dinh [2000] NSWCCA 536 at [34] R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 R v Ulman-Narumiec [2003) 143 A Crim R 531 at [24] and [70] - [72] Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, at 76 per Gaudron J Dupas v R (2010) 241 CLR 237 R v Glennon (1992) 173 CLR 592 at 605 - 606
Category:	Principal judgment
Parties:	Queanbeyan City Council (Applicant) Environmental Protection Authority (Respondent)
Representation:	Counsel: R S McIlwaine SC / T To (Applicant) J L Glissan QC / G Preston (Respondent) Solicitors: Herring & Associates Lawyers (Applicant) Office of Environment and Heritage, Department of Premier and Cabinet (Respondent)
File Number(s):	2011/13689
Decision under appeal	Citation: [2010] NSWLEC 237 Date of Decision: 2010-12-21 00:00:00 Before: Pepper J File Number(s): 2008/50080