Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King

[2018] NSWLEC 182

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King [2018] NSWLEC 182
Hearing dates:	9 November 2018
Date of orders:	09 November 2018
Decision date:	12 November 2018
Jurisdiction:	Class 5
Before:	Molesworth AJ
Decision:	See [23]-[24] of judgment
Catchwords:	PRACTICE AND PROCEDURE – whether leave granted to Roads and Maritime Services (RMS) to institute a prosecution with respect to offences under the Protection of the Environment Operations Act 1997 (POEO Act) – RMS “an appropriate regulatory authority” to bring proceedings for the offence – leave granted pursuant to s 219(1A) of the POEO Act
Legislation Cited:	Marine Safety Act 1998 Pt 6 Div 3 Protection of the Environment Operations (General) Regulation 2009 cl 86 Protection of the Environment Operations Act 1997 ss 115, 143, 144, 169, 217, 219, Sch 1 Transport Administration Act 1988 Pt 6
Cases Cited:	Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425
Category:	Procedural and other rulings
Parties:	Proceedings Nos 18/344508, 18/344550, 18/344551 Roads and Maritime Services (Prosecutor) East Coast Wharf Constructions Pty Ltd (Defendant)   Proceedings Nos 18/344555, 18/344556, 18/344557 Roads and Maritime Services (Prosecutor) Benjamin Peter King (Defendant)
Representation:	COUNSEL: Dr Nick Brunton, Solicitor, Norton Rose Fulbright Australia (Prosecutor) N/A (Defendants)   SOLICITORS: Norton Rose Fulbright Australia (Prosecutor) N/A (Defendants)
File Number(s):	2018/344508, 18/344550, 18/344551, 18/344555, 18/344556, 18/344557

Judgment

Notices of motion

1. Order 1 in each proceeding seeks the Court's leave under s 219(1A), or alternatively, under s 219(1), of the Protection of the Environment Operations Act 1997 (POEO Act), for Roads and Maritime Services (RMS) to institute criminal proceedings in the Land and Environment Court (Court) against:

1. East Coast Wharf Constructions Pty Ltd (ECWC) for offences under ss 143(1), 144(1) and 115(1) of the POEO Act; and

2. Benjamin Peter King (Mr King) for the above offences, by reason of s 169(1) of the POEO Act,

as set out in the copies of the proposed summonses attached to each notice of motion (the Alleged Offences).

2. RMS was represented at the hearing by Dr Nicholas Brunton. The Court was greatly assisted by Dr Brunton’s written and oral submissions, which, after due consideration and review of the relevant statutory and regulatory provisions, the Court has largely adopted and so incorporated into this judgment.

3. There was no appearance on behalf of either of the defendants. Mr King is the sole director of ECWC. On the assurance of Dr Brunton, the Court is satisfied that the notices of motion and the supporting affidavits were duly served on ECWC and Mr King on 2 November 2018 via their solicitor, Ms Katherine Hawes of Aquarius Lawyers.

Evidence

4. The notices of motion were supported by an affidavit of Dr Brunton, which was affirmed on 1 November 2018. This affidavit was read into evidence. Appended to Dr Brunton’s affidavit were 15 other affidavits, at Tabs C-Q, which were submitted by way of prima facie evidence of the commission of the Alleged Offences. For the purposes of considering the motions seeking leave, as the Court need only be satisfied of a prima facie case, these affidavits were simply examined by the Court but were not read into evidence.

Section 219(1A)

5. Section 219(1A) of the POEO Act allows “an appropriate regulatory authority (other than the EPA)” to bring proceedings for an offence, with the Court's leave. Section 6(3) of the POEO Act defines “appropriate regulatory authority” to include public authorities declared to be so by regulations.

6. Clause 86 of the Protection of the Environment Operations (General) Regulation 2009 (General Regulation) declares that RMS is the appropriate regulatory authority for non-scheduled activities involving a non-pilotage vessel in navigable waters except in certain situations. The regulation provides:

“86 Roads and Maritime Services

(1)   Roads and Maritime Services is declared, under s 6(3) of the Act, to be the appropriate regulatory authority for non-scheduled activities involving a non-pilotage vessel in navigable waters, except in relation to the following:

(a)   the exercise of functions under Chapter 3 of the Act,

(b)   premises defined in an environment protection licence as the premises to which the licence applies and all activities carried on at those premises,

(c)   activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise,

(d)   a matter for which a public authority (other than a local authority or Roads and Maritime Services) is declared under section 6 (3) of the Act to be the appropriate regulatory authority,

(e)   non-scheduled activities in a marine park.

(2)   In this clause:

Roads and Maritime Services means Roads and Maritime Services constituted under the Transport Administration Act 1988.”

7. Clause 86 applies to the facts of this matter for the following reasons. The actions constituting the Alleged Offences are “non-scheduled activities” as they do not have any of the characteristics nor meet any relevant thresholds in the descriptions of “scheduled activities” in Sch 1 to the POEO Act.

8. The Alleged Offences involve the transport, storage and disposal of waste by the defendants using “non-pilotage vessels” as defined in cl 84 of the General Regulation. The vessels alleged to have been used are “non-pilotage vessels” because under the Marine Safety Act 1998, the relevant vessels are under 30 m in length. This makes those vessels exempt from pilotage under Div 3 of Pt 6 of the Marine Safety Act in any port.

9. The actions constituting the Alleged Offences are alleged to have taken place in navigable waters, as defined under the Marine Safety Act, namely the waters of Pittwater in the area between and approximate to Berowra Waters Marina and Scotland Island.

10. None of the exclusions in cl 86(1)(a) to (e) of the Regulation apply to the facts of this matter.

Section 219(1)

11. Section 219(1) of the POEO Act also allows “any person” to bring proceedings for an offence, with the Court's leave. RMS is a corporation constituted under Pt 6 of the Transport Administration Act 1988.

Section 217(2)

12. Section 217(2) of the POEO Act allows proceedings for an offence under that Act to be “instituted by the appropriate regulatory authority, if it is not the Environment Protection Authority (EPA), in connection with a matter for which it is the appropriate regulatory authority”. However, s 219(1B) states that “nothing in section 217…limits the operation of this section”.

13. Thus s 217(2) does not overcome the need to obtain the Court's leave before instituting proceedings for the Alleged Offences.

Preconditions to grant of leave – s 219(2)

14. Section 219(2) requires the Court to be satisfied of the four matters set out in s 219(2)(a) to (d) as a precondition to granting leave under either s 219(1A) or s 219(1).

EPA has decided not to take any relevant action – s 219(2)(a)

15. In relation to s 219(2)(a), the affidavit of Dr Brunton, attaches correspondence from the Chief Environmental Regulator of the EPA to RMS dated 31 October 2018 stating that the EPA has decided not to take any relevant action in respect of the acts constituting the Alleged Offences [Brunton affidavit, Tab B].

EPA has been notified of the proceedings – s 219(2)(b)

16. In relation to s 219(2)(b), the affidavit of Dr Nicholas Brunton attaches:

1. correspondence from RMS to the EPA dated 26 October 2018 notifying the EPA of the proposed proceedings for the Alleged Offences [Brunton affidavit, Tab A]; and

2. correspondence of 31 October 2018 from the EPA to RMS referred to above acknowledging that the EPA has been notified of the proposed proceedings for the Alleged Offences [Brunton affidavit, Tab B].

Proceedings are not an abuse of the process of the Court – s 219(2)(c)

17. In relation to s 219(2)(c), the proceedings are not an abuse of the process of the Court as they do not disclose any illegitimate purpose, unjustifiable oppression, nor bring the administration of justice into disrepute: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425.

18. The notices of motion, proposed summons and s 246 orders have been prepared following detailed investigations and inquiries by authorised officers of RMS. The evidence that has been compiled in support of the proposed summons and orders in respect of the Alleged Offences is considerable and includes:

1. affidavits of evidence from the following officers of the NSW Police Marine Area Command:

1. Leading Senior Constable Stephen Wye;

2. Senior Constable Kye Scott; and

3. Sergeant Joshua Lisle;

2. affidavits of evidence from the following officers of RMS:

1. Nayland Aldridge (Senior Marine Investigations Officer);

2. Matthew Davis (Senior Marine Investigations Officer);

3. Karl Hamilton (Boating Safety Officer);

4. Stephen Nugent (retired Boating Safety Officer);

5. Scott Kenny (Hydrographic Surveyor); and

6. Stephen Brown (Manager Operations, Projects); and

3. affidavits of evidence from:

1. David Pollock, of Northern Beaches Commercial Divers;

2. Paul Atkinson, former owner of Sydney Lifting Equipment Pty Ltd;

3. Richard Bazzard, of The Marina Doctor Pty Ltd;

4. Michael Conradi, former Manager of Berowra Waters Marina;

5. Scott MacDiarmid, former Senior Marina Attendant at Berowra Waters Marina; and

6. Christopher James Muir, Manager, Passive Properties with Cameron Brae Properties Pty Ltd.

Prima facie case of the commission of the offences – s 219(2)(d)

19. Section 219(2)(d) requires the Court, before granting leave, to be satisfied that “the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence.” The proposed summons attached to the notices of motion provide particulars of:

1. the transportation of waste to a place that could not lawfully be used as a waste facility for that waste between the dates of 5 December 2015 and 24 December 2015 by ECWC in alleged contravention of s 143(1) of the POEO Act;

2. the use of a place as a waste facility without lawful authority between 24 December 2015 and 23 March 2016 by ECWC in alleged contravention of s 144(1) of the POEO Act; and

3. the negligent disposal of waste in a manner that harms or is likely to harm the environment between 14 November 2015 and 6 April 2016 by ECWC in alleged contravention of s 115(1) of the POEO Act.

Decision

20. After a discussion in the course of the hearing as to the merits or otherwise of proceeding to grant leave under either or both of s 219(1A) or s 219(1), the Court concluded that there seemed to be little point in granting leave under s 219(1) in circumstances where it was satisfied that the RMS was an “appropriate regulatory authority”. The Court concluded that there was clear power to grant leave under s 219(1A) and that it was appropriate to do so.

21. The Court is satisfied on the basis of the written and oral submissions of Dr Brunton, together with the detailed affidavits listed above in [18], and the documentary evidence exhibited to those affidavits which had been prepared in support of the proposed summons and orders, that there is a sufficient basis to support a finding that there is a prima facie case to be answered by the defendants in respect of the Alleged Offences. The Court therefor concluded it was appropriate to make Order 1 set out in each notice of motion.

22. Having made the first order in each notice of motion to grant leave, the Court adjourned into chambers to make the usual commencement of prosecution orders, there being three in each proceeding, being proposed Orders 2, 3 and 4 set out in each notice of motion. Order 5 in each proceeding, in the ordinary course in the commencement of Class 5 proceedings, follows from the orders made in chambers.

Orders

23. The Court makes the following orders in proceedings 2018/344508, 2018/344550 and 2018/344551 (East Coast Wharf Constructions proceedings) as follows:

1. Leave be granted to Roads and Maritime Services under s 219(1A) of the Protection of the Environment Operations Act 1997 (the Act) to institute proceedings in this Court against East Coast Wharf Constructions Pty Ltd (ACN 113 385 443) for:

1. an offence against s 143(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure A to the notice of motion relating to East Coast Wharf Constructions;

2. an offence against s 144(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure B to the notice of motion relating to East Coast Wharf Constructions;

3. an offence against s 115(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure C to the notice of motion relating to East Coast Wharf Constructions.

24. The Court makes the following orders in proceedings 2018/344555, (Mr King proceedings) as follows:

1. Leave be granted to Roads and Maritime Services under s 219(1A) of the Protection of the Environment Operations Act 1997 (the Act) to institute proceedings in this Court against Benjamin Peter King for:

1. an offence against s 143(1) of the Act, by reason of s 169(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure A to the notice of motion relating to Benjamin Peter King;

2. an offence against s 144(1) of the Act, by reason of s 169(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure B to the notice of motion relating to Benjamin Peter King;

3. an offence against s 115(1) of the Act, by reason of s 169(1) of the Act, being the offence described in paragraph 1 of the form of summons attached as Annexure C to the notice of motion relating to Benjamin Peter King.

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Decision last updated: 13 November 2018