Water NSW v Faulkner

[2015] NSWLEC 158

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Water NSW v Faulkner [2015] NSWLEC 158
Hearing dates:	7 October 2015
Date of orders:	08 October 2015
Decision date:	08 October 2015
Jurisdiction:	Class 5
Before:	Moore AJ
Decision:	See orders at [73]
Catchwords:	SUMMONS – applications to amend – each summons referred to a regulation not in effect at the time of the offence charged in the summons – each alleged offence pleaded, except for the nomination of the relevant regulation, in terms that would, relevantly, have applied had the earlier repealed regulation been pleaded – amendments sought to specify correct regulation in each summons – whether proposed amendments are to any “essential factual ingredient” of the relevant charge – whether fresh charges if amendment permitted- if fresh charges, are they time barred – no change to any “essential factual ingredient” of the relevant charge – amended charges do not amount to charging fresh offences – leave granted for amended summonses.
Legislation Cited:	Criminal Procedure Act 1986 ss 11, 16(2), 20(1), 21(1), 247K Environmental Planning and Assessment Act 1979 ss 76A, 76B Justices Act 1902 s 65 Land and Environment Court Act 1979 ss 16(1), 21(a1) Local Government (Planning and Environment) Act 1990 (Qld) s 2.24(3)(e) Protection of the Environment Operations Act 1997 Sydney Water Catchment Management Act 1998 s 69 Water NSW Act 2014 s 101, Sch 2 cll 23, 24 Sydney Catchment Management Regulation 2008 cl 15(1) Sydney Water Catchment Management Regulation 2013 cl 16(1) Water NSW Regulation 2013 cl 35
Cases Cited:	Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 CSR Ltd v Pine Rivers Shire Council & Ors (1993) 82 LGERA 110 Ex parte Lovell; Re Buckley & Anor (1938) 38 SR(NSW) 153 Knaggs v Direction of Public Prosecutions (NSW) & Anor [2007] NSWCA 83; 170 A Crim R 366 Lodhi v R [2006] NSWCCA 121 Marrickville Council v Danias & Ors [2002] NSWLEC 49 Wehbee v Voulgarakis (1991) 9 Petty Sessions Review 4363
Category:	Procedural and other rulings
Parties:	Water NSW (Prosecutor) Craig Stuart Faulkner (Defendant)
Representation:	Counsel: D Jordan SC and A Isaacs (Prosecutor) T Howard SC (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Woolf & Associates (Defendant)
File Number(s):	50200 of 2015, 50201 of 2015, 50202 of 2015, 50204 of 2015
Publication restriction:	No

Contents

Judgment

Introduction

The evidence on the Motions

The Defendant’s s 247K notices

The applications to amend

The Defendant’s response to the amendment proposals

Section 11 of the Criminal Procedure Act

Section 16(2) of the Criminal Procedure Act

Section 21(1) of the Criminal Procedure Act

The issue of the Court’s jurisdiction

Conclusion

Orders

In matter 50200 of 2015:

In matter 50201 of 2015:

In matter 50202 of 2015:

In matter 50204 of 2015:

Judgment

Introduction

1. By summonses filed on 9 March 2015, Water NSW charged the Defendant, Mr Craig Faulkner, with five offences. Four of them were charges that, in the initiating summons, were described as being contrary to a provision of the Sydney Water Catchment Management Regulation 2013 (now known as the Water NSW Regulation 2013) (“the 2013 Regulation”). One of the summonses charged the Defendant with an offence pursuant to the Protection of the Environment Operations Act 1997. This latter summons is not the subject of these proceedings.

2. The Prosecutor, represented by Mr Dean Jordan SC and Mr Andrew Isaacs, has moved motions in each of the proceedings brought under the Regulations to seek to rely on an amended summons. In each instance, the amendment seeks to do two things:

1. change the name of the regulation to which reference is made from the 2013 Regulation to the Sydney Water Catchment Management Regulation 2008 (“the 2008 Regulation”); and

2. change the reference to the clause number in the regulation relied upon as, although the wording of the regulation in each of the four instances is, relevantly, identical to the original and proposed amended summons relevant to that summons, the number of the clause within which the relevant provision is located has changed between the 2008 Regulation and the 2013 Regulation.

3. To the extent that each of the summonses contains detailed particulars, only two of them require amendments to those detailed particulars (those amendments being to correct, also, the relevant identifying numerical reference to a clause in the 2008 Regulation when that numerical reference had changed from that which was contained in the 2013 Regulation). No other amendments are proposed.

4. To provide a broad understanding of the nature of the charges contained in the summons, I reproduce below the terms of the first order sought in matter 50200 of 2015. It reads:

An order that the Defendant, Craig Stuart Faulkner of 96 Merrigang Street, Bowral, in the State of New South Wales, appear before a Judge of the Court to answer the charge that on or about 14 June 2013 at Kangaloon in the State of New South Wales, the Defendant committed an offence contrary to clause 13(1)(a) of the Sydney Water Catchment Management Regulation 2013 (SWCM Regulation) – now known as the Water NSW Regulation 2013 – in that the Defendant did leave waste on land in an special area.

5. It is clear that, in this summons, the relevant operative details asserted that are not contested as to form are that:

… on or about 14 June 2013 at Kangaloon in the State of New South Wales, the Defendant committed an offence … in that the Defendant did leave waste on land in an special area.

6. In matter 50201 of 2015, the concluding element is in that “the Defendant did drive a vehicle on Schedule 1 land” (as defined in the Regulations).

7. In matter 50202 of 2015, the relevant words are that the Defendant “did damage plants on Schedule 1 land”.

8. Finally, in matter 50204 of 2015, the relevant words are that the Defendant “did enter land in contravention of a sign erected under clause 16(1) of the SWCM Regulation [the 2013 Regulation]”. With respect to this latter charge, I observe that, in the proposed amended summons, the reference to cl 16(1) is proposed to be changed to cl 15(1) of the 2008 Regulation.

The evidence on the Motions

9. Mr Jordan read two affidavits that had been filed in each of these proceedings. The first of them, that of Mr Mark Cottom, was attested on 8 September 2015. Mr Cottom is a solicitor employed by the solicitor for the Prosecutor and he has the day-to-day carriage of these prosecutions.

10. Paragraph 6 of his affidavit reads:

I drafted the relevant summonses and these were settled on instructions from the prosecutor. At the time of drafting I recall intending to charge the defendant for alleged offences under the provisions of the relevant Sydney Water Catchment Regulation that applied at the date of each alleged offence. It was in error that in doing so I referred to specific clauses of the 2013 Regulation rather than the corresponding clauses in the 2008 Regulation. I am instructed and verily believe that to have been the prosecutor’s intention prior to and also at the time of commencing the Proceedings.

11. Mr Jordan also read, on all the motions, four paragraphs from an affidavit attested by Ms Lisa Crambrook, dated 20 February 2015, an affidavit that was filed, relevantly for each charge, in support of each summons (to the extent to which it is necessary to refer to this affidavit). Although these two affidavits were only taken from one file to be read for the purposes of these motions, it was agreed that the relevant material was to be treated as applicable in each of the motions.

12. Ms Crambook’s affidavit was read with respect to [1], [15], [16] and [17]. The first of these paragraphs is one that provides her formal identification as an employee of the Prosecutor. The three further paragraphs were read as vehicles to provide the appropriate link to three documents that had been annexed to her affidavit. The first of them, an undated letter to the Defendant (clearly from its contextual information, sent to him on 16 October 2013), contains the following:

The SCA [Sydney Catchment Authority] has formed a view that Highlands Tip Trips may have committed the following alleged offences relating to the unlawful disposal of domestic and commercial waste located off Rowland’s Road, Kangaloon within the Metropolitan Special Area:

1   Section 12(1)(a) Sydney Water Catchment Management Regulation 2008 – bring onto or leave on land in a special area or a controlled area any waste;

2 Section 15(2) Sydney Water Catchment Management Regulation 2008 – enter or remain on any land in contravention of a sign;

3 Section 23(1)(a) Sydney Water Catchment Management Regulation 2008 – drive, ride or be a passenger in or on any vehicle;

4   Section 23(1)(f) Sydney Water Catchment Management Regulation 2008 – damage or remove any plant or part of a plant.

13. The second document is the cover sheet to the transcript of an electronically recorded record of interview between Ms Crambrook and the Defendant held at Bowral Police Station on 17 October 2013. The transcript was appended to the cover sheet but Mr Jordan simply relies on the cover sheet itself, a cover sheet which records:

Investigation In Relation to alleged offences under the Sydney Water Catchment Management Regulation 2008:

Section 12(1)(a) – bring into or leave on land in a special area or a controlled area any waste;

Section 15(2) – enter or remain on any land in contravention of a sign or notice;

Section 23(1)(a) – drive, ride or be a passenger in or on any vehicle;

Section 23(1)(f) – damage or remove any plant or part of a plant.

14. The final documents annexed to Ms Crambrook’s affidavit which are relied upon on the motion is a letter from the Prosecutor (in its then identity as the Sydney Catchment Authority) to the Defendant dated 12 November 2013 providing the Defendant with a copy of the transcript of the record of interview to which reference has just been made.

The Defendant’s s 247K notices

15. On 21 August 2015, the Defendant’s legal representatives filed Notices of Defence Response under s 247K of the Criminal Procedure Act 1986. This provision requires, in s 247K(k), the Defendant to:

247K   Defence response-court-ordered preliminary disclosure

For the purposes of section 247I(1)(b), the notice of the defence response is to contain the following:

…

(k)   notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges,

…

16. In response to this requirement, the Defendant drew the attention of the Prosecutor to the defects in these four summonses in the following terms:

(k)   Notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trial or sentencing proceedings for the charges.

The defendant hereby gives notice that he proposes to ask the Court to dismiss the Summons on the grounds that the Summons is incurably defective by reason of it not disclosing an offence known to the law. The Summons purports to charge an offence against the Sydney Water Catchment Management Regulation 2013 (Regulation) alleged to have been committed on or about 14 June 2013. The Regulation was not in force as at the date of the alleged offence.

17. In his affidavit, Mr Cottom candidly acknowledges, at [7], that the errors in each summons were brought to the attention of the Prosecutor and its solicitors by the Notices of Defence filed for the Defendant pursuant to s 247K of the Criminal Procedure Act.

ThE applications to amend

18. As a consequence, the Prosecutor has moved, with respect to each of the four summonses originally said to be based on the 2013 Regulation, to amend them to refer to the relevant provisions of the 2008 Regulation (although, as later discussed, Mr Jordan has submitted that it is not necessary for the summonses to be amended but that they are, in fact, in effect, being sought to be amended for abundant caution rather than necessity).

19. In essence, the Prosecutor’s position, as I understood Mr Jordan’s submissions, were to cascading effect (although in order rearranged by me) in reliance on ss 11, 16(2) and 21(1) of the Criminal Procedure Act. The heading to s 11 is “Description of offences” and the provision is in the following terms:

The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

20. The heading to s 16 is “Certain defects do not affect indictment” and the provision is in the following terms:

No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a)   any alleged defect in it in substance or in form, or

(b)   any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

21. The Court was vested with jurisdiction to deal with such matters as at the date of the alleged offence in June 2013 by virtue of the provisions of s 69 of the Sydney Water Catchment Management Act 1998 as in force at that date and continuing to be in force, in unamended terms, until that Act ceased to be in force at the expiry of 31 December 2014 when it was replaced by the Water NSW Act 2014. The terms of s 69 were replicated, unamended, in the 2014 Act as s 101.

22. The terms of s 16(2) of the Criminal Procedure Act are, functionally, the replication in that Act of the powers that were given in s 65 of the now repealed Justices Act 1902.

The Defendant’s response to the amendment proposals

23. On the other hand, the position put by Mr Tom Howard SC, on behalf of the Defendant, is that, for two separate and distinct reasons, each summons is incapable of providing a basis for conviction of the Defendant in this Court. First, Mr Howard says that:

1. the nomination of the 2013 Regulation as the foundation for each of the summonses is a fundamental element of the charge;

2. to permit amendment in the fashion proposed would constitute a new charge rather than a variation of the existing charge;

3. that the relevant date effecting the laying of that new charge (if I were to permit it) would be more than two years after the date of the alleged offence in June 2013;

4. the limitation period for offences under the 2008 Regulation was two years from the date of the offence being in the period within which proceedings were required to be commenced; and

5. to allow a new charge to be laid after the expiry of the limitation period is impermissible.

Section 11 of the Criminal Procedure Act

24. I turn, first, to the proposition that there is no need to specify, in the summons, the precise element of an enactment or statutory instrument providing the foundation for the offence is unnecessary. In Ex parte Lovell; Re Buckley & Anor (1938) 38 SR(NSW) 153, Jordan CJ said, at 173:

Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of the offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons …

25. In this instance, it seems to me that if the words in proposed Order 1 of each summons containing the reference to the clause in the Regulations transgressed were deleted so that, in each instance, the relevant portion of the order read, “the Defendant committed an offence in that the Defendant did”, would have constituted an effective charge. I have so concluded because, in my assessment, a summons framed in those terms would have satisfied what was written by McClellan CJ at CL, in Lodhi v R [2006] NSWCCA 121, where he wrote, at [104]:

More recent decisions of this Court have considered the validity of an indictment by determining whether it identifies the “essential factual ingredients” of the offence. This may be contrasted with the particulars required by an accused merely to ensure that he or she can prepare a defence, the latter not being considered to be essential particulars [citations omitted].

26. However, in this instance, the amendment to each summons sought by the Prosecutor does not simply seek to delete the reference to the statutory instrument and rely on the bare essential factual ingredients of the offence but does seek to amend to correct the reference, relevantly in each summons, to the appropriate provision in the 2008 Regulation giving rise to the charge laid in each instance. As a consequence, reliance on s 11 of the Criminal Procedure Act is not sufficient.

Section 16(2) of the Criminal Procedure Act

27. The question that then arises is what role, if any, s 16(2) of the Criminal Procedure Act should play in these interlocutory proceedings.

28. It seems to me that there is no basis, in the applications to amend with which I am dealing, for this provision to play any role. This arises because of the point at which the proceedings currently find themselves, namely, a Notice of Motion in each of the four proceedings being considered seeking to amend the summons.

29. That with which I am dealing is not an objection to the form of the summons in the fashion foreshadowed in the notice given by the Defence pursuant to s 247K of the Criminal Procedure Act. As earlier set out, that notice foreshadowed that the Defendant proposed to ask the Court to dismiss each of the summonses on the grounds that each summons is incurably defective by reason of it not disclosing an offence known to law.

30. Such an objection and the role that s 16(2) of the Criminal Procedure Act might play with respect to it does not arise at this interlocutory stage but would have arisen at trial had I not concluded that it would be appropriate to grant the Prosecutor leave to amend in the fashion sought in each of the four proceedings. As a consequence, s 16(2) need not detain me further.

Section 21(1) of the Criminal Procedure Act

31. I now turn to s 21(1) of the Criminal Procedure Act and the exercise of the power contained therein. I have earlier noted that this provision is a carrying forward of the powers that had existed under s 65 of the Justices Act.

32. It is, first, appropriate to note, as set out by Jordan CJ in Ex parte Lovell what s 65 of the Justices Act did not permit. His honour said at 178:

Section 65 of the Justices Act, 1902, does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information.

33. In Knaggs v The Director of Public Prosecutions(NSW)& Anor [2007] NSWCA 83; 170 A Crim R 366 at [77], Campbell JA (with Mason P and Tobias JA concurring) cited, with approval, a passage from the judgment of Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, as follows:

It allows proceedings to continue where the defect is such that it may be cured in other ways. Thus, if the defect consists of insufficient particulars to allow the defendant to know the case to be met, those particulars may be supplied. If the defect be one as to details of time, place or perhaps name of the defendant, the correct details may be provided in evidence and the variance between what is in the information and what is in the evidence can be ignored: see s 65(3).

But on a literal approach, s 65 would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement …

34. In this instance, I am satisfied that the words proposed to be changed fall within the characterisation of the defects identified by Mahoney JA in the first paragraph set out above, being those that are capable of being corrected as they do not constitute matters that are of the essential nature discussed in Lodhi as earlier quoted.

35. I was also taken to the decision of Studdert J in Wehbee v Voulgarakis (1991) 9 Petty Sessions Review 4363 where his Honour dealt with circumstances where a Local Court magistrate had, in effect on his own motion, held that, as the charge had been laid pursuant to a statutory provision which had been repealed and replaced at the time of the alleged offence, this defect in the charge was fatal and the charge was dismissed.

36. The proceedings were sought to be removed to the Supreme Court on the basis that the magistrate erred and that, effectively, s 65 the Justices Act (being then applicable) permitted the defect to be ignored. His Honour said at 4367:

Section 65 does not permit a magistrate to convict of an offence if the information discloses no offence or to convict of an offence if the evidence does not support the offence, nor does the section allow a magistrate to proceed to convict a defendant of an offence established by the evidence if it is a different offence from that charged in the information. See Ex parte Lovell; re Buckley (1938) 38 SR 153 and in particular the judgment of Jordon CJ at 173.

Whilst instancing the above application of s 65 and whilst drawing attention to the above limitations on its scope, I certainly do not propose to attempt any exhaustive definition of the circumstances attracting its application. Suffice it to say that I consider it applies in this case. The offence the subject of the information was the offer of a bribe to a member of the police force for the purpose of inducing him to neglect his duty. Depending of course upon the view of the facts taken by the learned magistrate the evidence adduced by the prosecution was capable of supporting that offence. There were no additional or different elements in the offence by reference to the 1990 statute.

In fact no objection was taken by the defendant to the information in this case and there appears to me to be no good reason why the learned magistrate should not have proceeded to deal with the matter of the offering of a bribe albeit that the conduct charged constituted an offence against s 99 of the Police Service Act 1990.

37. In particular, relevant for these four summonses, were the observations that his Honour made immediately following the above quoted passage, observations in the following terms:

It was not suggested before the magistrate, or before this Court, that the defendant had been relying in his conduct of the proceedings before the magistrate upon the nomination of the earlier statute in the information, and there is no indication that the defendant had been deceived or misled because of this defect in the information. Even had he been prejudiced in some way the interests of justice could have been met by the granting of an adjournment for some appropriate period.

38. The identification of the errors proposed to be rectified were, as earlier noted, set out in the Defendant’s s 257K notice. There is, therefore, no reliance on the charges as laid or any question of ambush arising.

39. I am therefore satisfied that, subject to consideration of whether or not this broad position should be set aside as a consequence of the effluxion of time since the events giving rise to the alleged offence, the amendments affecting new charges all having now passed the statutory time limitation in the 2008 Regulation, the amendments are permissible and appropriate.

40. On the question of “fresh charges” point, his Honour continued in Wehbee to say:

I note that under s 99(3) of the Police Services Act 1990 proceedings for an offence against s 99 may be taken within two years after the act or omission alleged to have constituted the offence and this limitation period would not expire until 1992.

41. On the following page his Honour also noted that the penalties had also changed (although it is not necessary to quote this further notation).

42. It seems to me that the observation by Studdert J could not be taken to express the conclusion that, had the amendment been out of time, it would have been rejected. The flow of his Honour's decision is simply to make the two observations but not to draw any conclusion with respect to them.

43. However, for caution, I finally proceed, on this aspect of the matters raised by Mr Howard, to consider the decision of Pain J in Marrickville Council v Danias & Ors [2002] NSWLEC 49, a case where her Honour was dealing with a notice of motion from a prosecutor in a number of proceedings where, in each of the summonses, the prosecutor sought to substitute references to s 76B of the Environmental Planning and Assessment Act 1979 with references to s 76A of that Act.

44. In that case, unlike the present case where there is simply a clerical preparation error in the document (as evidenced from Mr Cottom’s affidavit), the Council had undertaken further research in the matters before her Honour and established that the factual basis did not support the original reference (being a foundation that the prosecuted development activities were prohibited) but that, in fact, the prosecuted development activities were ones for which development consent was required and for which such consent had not been obtained.

45. In those circumstances, her Honour dealt with the lateness of the proposed amendments (a matter not here presently relevant) and then the question of whether or not that which was sought to do would amount to the creation of new offences.

46. As her Honour found that the changes there sought to be made did not constitute new offences (for reasons not needing to be explored in these proceedings), she held that the question of the impact of the time limitation did not arise. However, she observed at [14]:

If I had accepted the Third Defendant's argument that a new charge was being created then the time limit of 12 months to commence the proceedings stated in s 127(6) clearly would have applied.

47. It therefore follows that I need to consider, in light of this decision, whether that which is proposed constitutes the charging of a new offence. For the reasons earlier enunciated, I remain of the view that it does not. The extent of the latitude permitted by her Honour is wider than the latitude here sought by the Prosecutor with respect to each of these summonses.

48. The change in each instance here is one of correction of clerical error, as it were, rather than needing to research what is the proper operative statutory nature providing a foundation for each summons. The position taken by her Honour involves a more permissive approach than that which I am proposing to take in these proceedings of permitting the amendments sought.

49. Permitting these amendments is, in my assessment, entirely consistent with the powers contained in s 20(1) of the Criminal Procedure Act, a power that I am exercising on a much more limited and narrow basis than the power exercised by her Honour.

50. As I am satisfied that exercising the power does not give rise to the laying of a new charge, her Honour's statement concerning time limits does not arise to be considered, nor does the observation of Studdert J in Wehbee.

The issue of the Court’s jurisdiction

51. The second basis upon which Mr Howard says that the amendments should not be permitted (and, presumably, if the matter were to proceed to trial on the basis put by the Prosecutor that, strictly speaking, amendment is unnecessary) is that following the coming into effect of the Water NSW Act on 1 January 2015, the Court no longer has jurisdiction to deal with prosecutions for offences under the 2008 Regulation (it being unnecessary, in his submission, to determine whether there would be any other residual jurisdiction potentially vested with jurisdiction to deal with such offences as, in the current instance, the effluxion of time means that no further proceedings could be commenced with respect to the alleged factual circumstances giving rise to these four summonses against the Defendant).

52. There are two provisions of the Land and Environment Court Act 1979 (“the Court Act”) that arise as the commencing point for the proposition advanced by Mr Howard that the Court has no jurisdiction to deal with charges that might be proposed to be dealt with under the 2008 Regulation. The provisions are ss 16(1) and 21(a1) of the Court Act.

53. The first provision is a general one giving the Court jurisdiction to deal with matters vested in it by or under this or any other Act. It is unnecessary, in my view, to deal with that provision further as, in substance, it is merely functionally preambular to the provisions of s 21(a1) relevantly in my determination of these motions. This latter provision reads:

(a1) proceedings under section 67, 70, 71, 73, 74, 77, 80, 81, 84, 92, 93 or 94 of the Water NSW Act2014or offences under regulations made under that Act

54. Consideration of this line of argument commences with consideration of the provisions of Division 6 – Miscellaneous, of Part 2 to Schedule 2 of the Water NSW Act. Schedule 2 contains the savings, transitional and other provisions consequent on the enactment of this Act. Clause 24 of Schedule 2 is entitled “Updating of references to repealed Acts and former corporations”.

55. As Mr Howard pointed out, there is nothing in this provision that carries forward any element of the 2008 Regulation and, thus, he submits, the provisions of s 21(a1) of the Court Act can only apply to proceedings under the Water NSW Act or carried-forward provisions in repealed Acts that are saved by the provisions of cl 24 of the savings and transitional provisions or offences under the regulations made pursuant to the Water NSW Act but do not contain any transitional provision that preserves prosecutions that might have been commenced, but not yet determined, under the 2008 Regulation.

56. This has the effect, he submitted, that from 1 January 2015, this Court has had no jurisdiction to deal with any undetermined offences under the 2008 Regulations which might have been commenced in this Court. The consequence of this, he says, is that the present summonses (having been filed, as earlier noted, on 9 March 2015), if I were to amend them to refer to the 2008 Regulation, would purportedly create an offence unable to be dealt with by this Court.

57. As a consequence of the effluxion of time, although there may be some residual jurisdiction lying in the Local Court unaffected by the bar in this Court, as put by Mr Howard, there would be no jurisdiction for this Court to proceed to hear and determine such amended summonses.

58. I am unpersuaded by this submission.

59. It is certainly clear that this Court is a statutory court and has no inherent jurisdiction. It can only exercise those jurisdictions with which it is specifically vested by virtue of the provisions of the Court Act. There are, however, two relevant provisions that cause me to be satisfied that an amendment to replace the 2013 Regulation with the 2008 Regulation in each relevant summons does not have the effect of ousting the Court's jurisdiction to deal with them.

60. The first relevant provision is that which is contained in cl 23 of the savings and transitional provisions to which I have earlier referred. Clause 23 is in the following terms:

23 Sydney Water Catchment Management Regulation 2013

On and from the relevant day, the Sydney Water Catchment Management Regulation 2013 (as in force immediately before that day) is taken to be a regulation under this Act, and may be amended and repealed accordingly.

61. Although not forming part of the schedule, immediately after cl 23 appears the following note:

Note. Schedule 3, as originally enacted, renamed the Sydney Water Catchment Management Regulation 2013 as the Water NSW Regulation 2013 and made various other amendments consequential on it becoming a regulation under this Act.

62. It is, therefore, necessary to turn to the provisions of the 2013 Regulation to see if there is any relevant provision in it. I am satisfied that there is. The 2013 Regulation contains a savings provision in cl 35. That savings provision is in the following terms:

Any act, matter or thing that had effect under the Sydney Water Catchment Management Regulation 2008 immediately before the repeal of that Regulation continues to have effect under this Regulation.

63. The meaning of the words, “Any act, matter or thing”, only arose as a consequence of the consideration of statutory validity of the proceedings during the course of submissions. As a consequence, neither Mr Howard nor Mr Jordan has had the opportunity to consider and research what these words might be.

64. I have only, in the intervening time, been able to find one decision where such a phrase has been considered. It is a decision of the Full Court of the Supreme Court of Queensland in CSR Limited v Pine Rivers Shire Council & Ors (1993) 82 LGERA 110. The matter considered the meaning of various provisions of the Local Government (Planning and Environment) Act 1990 (Qld). The joint decision of Macrossan CJ and Fitzgerald P considered, amongst other things, the meaning of s 2.24(3)(b) of the Local Government (Planning and Environment) Act, a provision that read:

Any act, matter or thing to be undertaken in respect of the planning scheme or the use of the land.

65. At [22] their Honours held:

However, it is reasonably clear that the act, matter or thing referred to is an act, matter or thing different from the planning scheme (or the use of land).

66. Except to show that the term where used in cl 35 of the 2013 Regulation does not merely confine itself to the terms of the 2008 Regulation but may be inferred to be wider than that, this decision is of interest but little assistance.

67. It seems to me, however, that the words are of sufficient breadth to encompass the retention of the ability to commence proceedings for a breach of the 2008 Regulation.

68. If I be correct in this conclusion, cl 35 of the 2013 Regulation has the effect of preserving the jurisdiction of this Court with respect to proceedings for breaches of the 2008 Regulation despite the interpretation proposed by Mr Howard of s 21(a1) of the Court Act.

69. This is sufficient, in my view, for me to conclude (at this stage in the proceedings) that permitting the amendments to each of the four summonses would not have the effect of bringing into being summonses for which there was no jurisdictional basis for proceedings to continue.

70. However, as this conclusion is based on the comparatively limited enquiry able to be made between the point first arising during the course of the hearing of the motions and the giving of this decision, I am comforted by the fact that, as these are interlocutory proceedings, the Defendant will not be precluded from agitating this issue further if additional research by the Defendant's legal representatives between now and the hearing uncovers authority contrary to the position that I have adopted.

Conclusion

71. I have concluded that, in the case of each summons:

1. The “essential factual ingredients” of the offence charged are disclosed in each Order 1 sought by the Prosecutor;

2. The identification of the statutory instrument under which the offence is charged is not an “essential factual ingredient” of the offence;

3. Amending each summons, relevantly, to reflect the provisions of the 2008 Regulation rather than the 2013 Regulation would not be charging the Defendant with a new offence which, at the date of charging (being the date of this decision) would be statute barred;

4. If it is necessary to amend in this fashion, s 21(1) of the Criminal Procedure Act permits the making of those amendments as to do so would not be to cause injustice to the Defendant; and

5. The Prosecutor should be permitted to rely upon an amended summons in each of the four matters for which leave to amend has been sought.

72. Second, with respect to the question of whether or not the Court has, at this time, jurisdiction to hear and determine a charge laid under the 2008 Regulation, I am satisfied that the savings provision in cl 35 of the 2013 Regulation provides a proper statutory foundation for doing so.

Orders

73. The orders of the Court, therefore, are:

In matter 50200 of 2015:

1. The Prosecutor is granted leave to rely on an amended summons;

2. The amended summons in the form attached to the affidavit of Mark Cottom dated 8 September 2015 is to be filed and served by 4.30 pm on 23 October 2015; and

3. The matter is set down for further directions before the List Judge on 6 November 2015.

In matter 50201 of 2015:

1. The Prosecutor is granted leave to rely on an amended summons;

2. The amended summons in the form attached to the affidavit of Mark Cottom dated 8 September 2015 is to be filed and served by 4.30 pm on 23 October 2015; and

3. The matter is set down for further directions before the List Judge on 6 November 2015.

In matter 50202 of 2015:

1. The Prosecutor is granted leave to rely on an amended summons;

2. The amended summons in the form attached to the affidavit of Mark Cottom dated 8 September 2015 is to be filed and served by 4.30 pm on 23 October 2015; and

3. The matter is set down for further directions before the List Judge on 6 November 2015.

In matter 50204 of 2015:

1. The Prosecutor is granted leave to rely on an amended summons;

2. The amended summons in the form attached to the affidavit of Mark Cottom dated 8 September 2015 is to be filed and served by 4.30 pm on 23 October 2015; and

3. The matter is set down for further directions before the List Judge on 6 November 2015.

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Amendments

08 October 2015 - Paragraph 22: s 22(1) should read s 16(2)

Paragraph 36: "cured" should read "ignored"

Decision last updated: 08 October 2015