CITATION: Sydney Catchment Authority v Bailey [2006] NSWLEC 616

PARTIES:
PROSECUTOR:
Sydney Catchment Authority
DEFENDANT:
Barry Waldon Bailey

FILE NUMBER(S): 50066 of 2005

CORAM: Biscoe J

KEY ISSUES: Prosecution :- whether a statutory corporation has a right to institute a prosecution – whether the Sydney Catchment Authority has power to institute this prosecution for an offence against the Environmental Planning and Assessment Act 1979 (NSW)

LEGISLATION CITED: Corporations Act 2001 (Cth), s 124(1)
Crimes Act 1914 (Cth), s 13
Criminal Procedure Act 1986 (NSW), s 14
Environmental Planning and Assessment Act 1979 (NSW), ss 5(a), 30, 76A, 79B(8), 123, 125, 126, 127
Fines and Penalties Act 1901 (NSW), s 4
Interpretation Act 1897 (NSW), s 38(1)(c)
Interpretation Act 1987 (NSW), ss 6, 21, 33, 50(1)(c), 50(1)(e)
Protection of the Environment Operations Act 1997 (NSW), ss 6, 218, Part 8.2 Div 2
Sydney Water Act 1994 (NSW), ss 5, 12
Sydney Water Catchment Management Act 1998 (NSW), ss 3, 6, 13, 14, 15, 16, 17, 18, 19, 22, 25, 44, Sch 6 cl 8
Sydney Water Catchment Management (Environment Protection) Regulation 2001
Trade Practices Act 1974 (Cth), s 80(1)
Wollondilly Local Environmental Plan 1991, cll 10, 17

CASES CITED: Attorney General v Walker (1849) 3 Ex 242;
Australian Securities and Investments Commission v Vis (2000) 158 FLR 56;
Bedingfeld v Keogh (1912) 13 CLR 601;
Bond v The Queen (2000) 201 CLR 213;
Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453;
Brebner v Bruce (1950) 82 CLR 161;
Burton v Honan (1952) 86 CLR 169;
Byrnes v The Queen (1999) 199 CLR 1 and Bond v The Queen (2000) 201 CLR 213;
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384;
Commonwealth v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457;
Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588;
Ex parte Dyer; Re Johns (1935) 52 WN (NSW) 185;
Ex parte MacFarlane (1926) 26 SR (NSW) 473 ;
Gilmour v Bastian (1918) 34 WN (NSW) 239;
Grant v Thompson (1895) 72 LT 264;
Grassby v The Queen (1989) 168 CLR 1;
Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117;
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672;
MacLaurin v Hall (1913) 13 SR (NSW) 114;
Mensinga v DPP [2003] ACTCA 1;
Owners, Metro Inn Apartments Strata Plan 11880 v Transmetro Corporation Ltd [No 1] (2000) 36 ACSR 48; 24 WAR 1;
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435;
Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 at 333-334; 20 ALR 183;
Proprietors of Strata Plan No 6522 v Furney (1976) 1 NSWLR 412;
Proprietors Unit Plan No 52 v Gold (1993) 44 FCR 123 at 126;
R v Norris (1825) Keny…

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 Sydney Catchment Authority v Bailey

Details

AGLC: Sydney Catchment Authority v Bailey [2006] NSWLEC 616
Case: [2006] NSWLEC 616
Decision Date: 29/09/2006

CaseChat Overview and Summary

The Sydney Catchment Authority (Authority) instituted a prosecution against Barry Waldon Bailey for an offence against the Environmental Planning and Assessment Act 1979 (NSW) of carrying out a development without a development consent. Bailey applied for the proceedings to be dismissed. The primary issues were whether the Authority had the right and power to institute a prosecution for an offence against the EPA Act. The Court held that the Authority had the right to institute a prosecution because it was a statutory corporation and the term “person” in the Criminal Procedure Act 1986 (NSW) included a corporation. The Court further held that the Authority had the power to institute the prosecution because the prosecution was necessary or incidental to the exercise of its functions under the Sydney Water Catchment Management Act 1998 (NSW) and the Wollondilly Local Environmental Plan 1991. The Court dismissed Bailey’s application and ordered that he pay the prosecutor’s costs of the application as agreed or assessed.

Orders