Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Natale

Case •

[2023] NSWLEC 142

•

15 December 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Natale [2023] NSWLEC 142
Hearing dates: 4 October 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction:Class 5
Before: Pritchard J
Decision:

The Court orders:

(1) The defendants’ notices of motion filed 25 July 2023 in proceedings 2018/295909 and 2018/295911 are dismissed.

(2) No order as to costs.

(3) The proceedings are listed for directions before the list judge on Friday, 2 February 2024.

Catchwords:

CRIMINAL PROCEDURE – preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) – separate question – charges against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – whether the Court should hear and determine the separate questions – whether summonses allege offences known to law – whether the summonses ought be dismissed – meaning of “waters” – meaning of “water pollution” or “pollution of waters” – whether the separate questions are questions of fact

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57

Clean Waters Act 1970 (NSW) ss 5, 16

Criminal Procedure Act 1986 (NSW) ss 11, 12, 16, 247B, 247G

Land and Environment Court Act 1979 (NSW) s 68(1)

Protection of the Environment Operations Act 1997 (NSW) ss 120, dictionary

Cases Cited:

Ballina Shire Council v Joblin [2022] NSWLEC 90

Burke v Hawkesbury City Council [2001] NSWLEC 222

Doja v R [2009] NSWCCA 303

Environment Protection Authority v Eastern Creek Operations Pty Ltd (No 2) [2021] NSWLEC 39

Environment Protection Authority v Genkem Pty Ltd (1993) 79 LGERA 47

Environmental and Earth Sciences Pty Ltd v Environment Protection Authority (1999) 103 LGERA 434

GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157

Harrison v Perdikaris [2015] NSWLEC 99

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149

Liverpool City Council v Cauchi [2005] NSWLEC 675

Lodhi v Regina [2005] NSWCCA 121

Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659

Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146

Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128

Liverpool City Council v Cauchi [2005] NSWLEC 676

Texts Cited:

Nil

Category:Procedural rulings
Parties: Water NSW (Prosecutor)
Kiangatha Holdings Pty Limited (ABN 12 129 497 856) (Defendant)
Laurence Natale (Defendant)
Representation:

Counsel:
M Wright SC with Z Shahnawaz (Prosecutor)
B Collins KC (Defendants)

Solicitors:
Lindsay Taylor Lawyers (Prosecutor)
Eakin McCaffery Cox (Defendants)
File Number(s): 2018/295909; 2018/295911
Publication restriction: Nil

JUDGMENT

Introduction

Outcome

Procedural background

Relevant statutory provisions

Evidence

First issue: Whether the Court should hear and determine the separate questions

Defendant’s submissions

The defendants’ submission that the determination of the separate questions in favour of the defendants will dispose of the proceedings completely

The defendants’ submissions in relation to costs and time considerations

The defendants’ submissions in relation to psychological and mental impacts

Whether the separate questions are questions of law or fact

The prosecutor’s submissions

The conduct of the defendants in the proceedings

Whether the separate questions are questions of law or fact

Conclusions in relation to the first issue

Second issue: Whether the amended summonses properly allege and disclose offences against s 120(1) of the POEO Act

The defendants’ submissions

Fundamental principles in relation to the identification of “essential elements” in a summons

The prosecutor’s pleadings in relation to “pollution of waters”

Construction of “waters” as defined in the POEO Act

Whether an “ephemeral drainage line” is to be construed as a “drain”

The prosecutor’s submissions

The essential elements

Particulars of “pollution of waters”

Definition of “waters”

Whether it is “too late” for the prosecutor to allege that the ephemeral drainage line is a drain or watercourse

Conclusions in relation to the second issue

Costs

Orders

JUDGMENT

Introduction

  1. These two Class 5 proceedings were commenced by summonses filed on 27 September 2018. The prosecutor was granted leave on 31 January 2022 to file amended summonses in each of the proceedings (the amended summonses). The amended summonses charge Mr Laurence Natale and Kiangatha Holdings Pty Ltd (the defendants) with the following offences against the Protection of the Environment Operations Act 1997 (NSW) (POEO Act):

  1. In proceedings 2018/295911 against Mr Natale:

1. An order, pursuant to s 246(1) of the Criminal Procedure Act 1986, that the Defendant, Laurence Natale, of ... appear before a Judge of the Court to answer to the charge that between 1 May 2017 and 10 October 2017 he committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997, in that Kiangatha Holdings Pty Limited, did commit an offence that attracts special executive liability, in that it did pollute waters and further that the Defendant, being a director or person concerned in the management of Kiangatha Holdings Pty Limited, is taken, pursuant to s 169 of the Protection of the Environment Operations Act 1997, to have committed the same offence against s 120(1) of the Protection of the Environment Operations Act 1997.

Pursuant to s 216(2) of the Protection of the Environment Operations Act 1997, evidence of the alleged offence first came to the attention of an Authorised Officer on 4 October 2017.

  1. In proceedings 2018/295909 against Kiangatha Holdings Pty Limited (Kiangatha):

1. An order, pursuant to s 246(1) of the Criminal Procedure Act 1986, that the Defendant; Kiangatha Holdings Pty Limited, having its registered office at ... appear before a Judge of the Court to answer to the charge that between 1 May 2017 and 10 October 2017 it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters.

Pursuant to s 216(2) of the Protection of the Environment Operations Act 1997, evidence of the alleged offence first came to the attention of an Authorised Officer on 4 October 2017.

  1. Each of the amended summonses particularises the offences as charged as follows (emphasis added):

Waters: The ephemeral drainage lines leading to Murdering Creek, [a]s shown on the attached map and photographs for “Site C” [/“Site D”].

Pollutant: Soil and sediment from the earthworks.

Manner of breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which Kiangatha Holdings Pty Limited, its servants or agents, undertook earthworks involved in the construction of roads by the use of heavy plant and machinery. The works created significant areas of disturbed soil and involved the placing of soil and sediment on the Land.

The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.

The Defendant thereby placed the Pollutant in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters.

  1. By notices of motion filed 25 July 2023, the defendants seek the following orders in each of the two Class 5 proceedings (the motions):

1. An order pursuant to section 247G(3) of the Criminal Procedure Act 1986 and in accordance with paragraph 41 of the Chief Judge’s Practice Direction of 10 December 2020, that the Court hear and determine separately the following questions of law, namely:

Whether each or any, and if so which, of the Amended Summonses in the present proceedings properly allege and disclose offences against the provisions of section 120(1) of the Protection of the Environment Operations Act 1997 (NSW).

2. An order that the determination of the above questions of law be made upon the basis of the allegations pleaded in the body of each of the above Amended Summonses including the allegations made in the Particulars in the body of each of the above Amended Summonses and excluding the evidentiary material which consist of maps, legends and narrative thereon and photographs and narratives which are referred to in the above Amended Summonses.

3. An order that each of Amended Summonses numbered 295909 of 2018 and [295911 of 2018] be dismissed.

4. An order that the Prosecutor pay the Defendant’s costs.

  1. The motions were before me on 4 October 2023. In opening, Mr Collins KC for the defendants provided the following outline of issues for determination:

  1. a first issue as to whether the Court should hear and determine the separate questions at a preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) (CPA), being “[w]hether each or any, and if so which, of the [a]mended [s]ummonses in the present proceedings properly allege and disclose offences against the provisions of section 120(1) of the [POEO Act]” (the separate questions); and

  2. a second issue if the Court proceeds to determine the separate questions, whether each of the amended summonses is defective and should be quashed for the reason that the amended summonses do not disclose an offence known to the law, namely because “the ephemeral drainage lines leading into Murdering Creek” as particularised in the amended summonses are not “waters” as defined in the POEO Act.

  1. A further issue that arose in the parties’ written submissions and at the hearing on 4 October 2023 was whether the separate questions as to whether the amended summonses are defective and ought be dismissed, are questions of fact which should be resolved by reference to evidentiary material. The defendants contended that the separate questions are questions “purely” of statutory construction. The prosecutor contended that evidentiary material was required in relation to the construction of the expression “ephemeral drainage line” as it appears in the amended summonses. If I find that the separate questions are questions of fact, they will not fall within the scope of s 247G(3)(g) of the CPA which allows a court in a preliminary hearing to “give a ruling on any question of law that might arise at the trial or sentencing hearing”. Accordingly, I will deal with the issue of whether the separate questions raise questions of fact by reference to the first issue above.

Outcome

  1. In relation to the first issue, that is whether I should exercise the Court’s discretion to hear and determine the separate questions at a preliminary hearing pursuant to s 247G of the CPA, I have determined to decline to exercise that discretion. I have accepted the prosecutor’s submission that the defendants’ conduct in bringing these notices of motion is inconsistent with the overriding purpose of the case management provisions in the CPA to “reduce delays in proceedings”, which was submitted to be analogous to the overriding purpose of civil procedure to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The motions have not been brought in a timely manner. I have also accepted the prosecutor’s submission that the question whether the “ephemeral drainage lines leading to Murdering Creek” falls within the statutory definition of “[w]aters” in the dictionary to the POEO Act is a question of fact for the trial judge.

  2. The second issue only arises if I be wrong as to whether the Court should hear and determine the second questions. If it be necessary, I do not find the amended summonses to be defective for failing to disclose an offence known to the law.

  3. Accordingly, I will make orders dismissing the defendants’ notices of motion filed 25 July 2023.

Procedural background

  1. On 27 September 2018, the prosecutor commenced these Class 5 proceedings. The prosecutor filed four summonses charging the defendants with four offences against s 120(1) of the POEO Act.

  2. On 4 December 2018, following a request by the defendants for further and better particulars of the alleged offences, the prosecutor provided the defendants the geographic co-ordinates of 35 “Red Dot Locations”, being the locations where the likely or actual water pollution offences were alleged to have occurred (the red dot locations),

  3. On 19 December 2018, the defendants filed notices of motion seeking to have the summonses dismissed on the ground that each of them is duplicitous (first notices of motion).

  4. On 6 December 2019, in Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185, Robson J dismissed the first notices of motion (Kiangatha (No 1)).

  5. On 19 October 2020, in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (Kiangatha (No 2)), the Court of Criminal Appeal (Hoeben CJ at CL, Rothman and Fagan JJ) determined that the summonses were duplicitous and stayed the proceedings until the prosecutor particularised single offences against s 120 of the POEO Act in relation to each of the summonses.

  6. On 7 May 2021, the prosecutor filed two notices of motion seeking leave to rely on amended summonses in each of the four proceedings, alleging offences against s 120(1) of the POEO Act at the following “site” locations:

  1. proceeding no 2018/295909 - Site C (site C);

  2. proceeding no 2018/295910 - Site A (site A);

  3. proceeding no 2018/295911 - Site D (site D); and

  4. proceeding no 2018/295912 - Site B (site B).

  1. On 31 January 2022, in Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2022] NSWLEC 6 (Kiangatha (No 3)), Robson J granted the prosecutor leave to rely on the amended summonses. Each of the amended summonses attached an aerial map of sites A, B, C and D, being the locations at which actual and likely water pollution offences against s 120(1) of the POEO Act were alleged to have occurred.

  2. Pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), the defendants sought leave to appeal the decision of Robson J in Kiangatha (No 3) on the ground that the amended summonses brought “fresh charges” due to the “material” change in geographic coordinates of the alleged offences, being to the red dot locations for sites A, B, C and D.

  3. On 15 December 2022 in Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW [2022] NSWCCA 280 (Kiangatha (No 4)), the Court of Criminal Appeal (Ward P, Davies and Button JJ) refused the defendants leave to appeal, finding that the locations of sites A, B, C and D sufficiently correlated with the red dot locations identified in the summonses.

  4. On 28 February 2023, Deputy Registrar Orr relisted the proceedings for directions on 3 March 2023. On 3 March 2023, Pain J stood the proceedings over to 31 March 2023 for directions and the entry of pleas.

  5. On 31 March 2023, the defendants entered pleas of not guilty in relation to each of the alleged offences, and Duggan J made orders, by consent, for the progress of the proceedings, including in relation to the filing and service of the prosecutor’s case under s 247E of the CPA (notice of prosecution case) and the defendants’ responses under s 247F of the CPA (defence response).

  6. On 26 May 2023, the prosecutor provided to the defendants the notice of prosecution case. Included in the notice of the prosecution case was an affidavit of Mr Andrew Macleod, environmental scientist specialising in erosion and sediment control and soil science, dated 25 May 2023, to which was annexed a report of Mr Macleod dated 25 May 2023 (Macleod report).

  7. As at 25 July 2023 (the date of the filing of the motions), the prosecutor had not complied with Duggan J’s direction of 31 March 2023 requiring the provision to the defendants of a notice pursuant to s 247J of the CPA. Likewise, the defendants had not complied with Duggan J’s direction of 31 March 2023 requiring the provision to the prosecutor of a defence response pursuant to s 247K of the CPA.

  8. On 4 August 2023, the prosecutor withdrew the following amended summonses:

  1. proceeding no 2018/295910 – site A; and

  2. proceeding no 2018/295912 – site B,

which were said to allege “actual” pollution of waters contrary to s 120(1) of the POEO Act.

  1. Accordingly, the amended summonses the subject of the motions before me are as follows:

  1. proceeding no 2018/295909 – site C; and

  2. proceeding no 2018/295911 – site D,

which allege “likely” pollution of waters contrary to s 120(1) of the POEO Act.

Relevant statutory provisions

  1. Section 120 of the POEO Act provides:

120   Prohibition of pollution of waters

(1)  A person who pollutes any waters is guilty of an offence.

Note—

An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2)  In this section—

pollute waters includes cause or permit any waters to be polluted.

  1. The “[w]aters” is defined in the dictionary to the POEO Act as follows:

waters means the whole or any part of—

(a)  any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b)  any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

  1. The expressions “water pollution” or “pollution of waters” are defined in the POEO Act as follows (emphasis added):

water pollution or pollution of waters means—

…

(c)  placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes—

(d)  placing any matter (whether solid, liquid or gaseous) in a position where—

(i)  it falls, descends, is washed, is blown or percolates, or

(ii)  it is likely to fall, descend, be washed, be blown or percolate,

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

(e)  placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

  1. Section 11 of the CPA provides in relation to the description of offences:

11 Description of offences

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.

  1. Section 12(1) of the CPA provides in relation to the short description of certain offences:

12 Short description of certain offences

(1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.

  1. Section 16(2) of the CPA provides in relation to certain defects which do not affect any indictment:

16   Certain defects do not affect indictment

...

(2)  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.

  1. Section 247B of the CPA provides as follows in relation to the purpose of Division 2A “Case management provisions and other provisions to reduce delays in proceedings” in Part 5 of the CPA (emphasis added):

247B   Purpose

(1)  The purpose of this Division is to reduce delays in proceedings by—

(a)  requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and

(b)  enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.

(2)  Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

  1. In relation to preliminary hearings, s 247G of the CPA provides (emphasis added):

247G   Preliminary hearings

(1)  At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court.

(2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.

(3)  Without limiting subsection (2), the court may take any or all of the following action under that subsection—

(a)  hear and determine an objection to any application for an appearance order prior to the commencement of a trial,

(b)  order the holding of a preliminary conference under section 247H,

(c)  order preliminary disclosure by the prosecutor or the defendant under section 247I,

(d)  give a direction under section 247M (3),

(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced,

(f)  hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial,

(g)  give a ruling on any question of law that might arise at the trial or sentencing hearing.

(4)  Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative…

Evidence

  1. At the hearing on 4 October 2023, the defendants read an affidavit of Linda Maria Holland, solicitor for the defendants, affirmed 25 July 2023. Ms Holland gave evidence in relation to the procedural background, including that upon reviewing the evidence in the notice of prosecution case, it became apparent to the defendants that the amended summonses did “not allege and disclose offences” against s 120(1) of the POEO Act. Ms Holland said that it would be “in the interests of justice that the [motions] be heard prior to the further preparations necessary for the conduct of the [d]efendants’ defence of the proceedings and to potentially avoid the very significant costs that will be required of the [d]efendants as well as the very significant further impact on the health of Mr Laurence Natale”. Ms Holland estimated that the cost of a separate question hearing to the defendants would be approximately $32,000, in comparison to the cost of proceeding to trial which she estimated to be in the amount of $470,000. Ms Holland said that she was “instructed by Mr Natale that the [p]roceedings, commenced in 2018, including the intervening motion hearings and appeals, have subjected him, personally and as the managing director of Kiangatha, to several years of psychological and mental stress”, such stress “contributing to him suffering a stroke in July 2022”.

  2. Mr Collins for the defendants said that Ms Holland’s affidavit was relied on by the defendants “in support of the wisdom, as we see it, of the Court hearing and determining the separate issue”, but not in relation to the separate questions themselves. Otherwise, Mr Collins contended that evidentiary material had no bearing on the separate questions, and accordingly the defendants objected to any evidence relied on by the prosecutor for the purpose of the separate questions.

  3. The prosecutor read an affidavit of Mr Liam Neale Mulligan, solicitor for the prosecutor, affirmed 8 September 2023. Mr Mulligan gave evidence in relation to the procedural background, and as to the “significant legal costs” in the amount of $93,252.39 estimated to have been incurred by the prosecutor in relation to the preparation of its evidence since the date that the defendants entered a plea of not guilty on 31 March 2023.

  4. In relation to the separate questions, the prosecutor relied on the following evidence in the notice of prosecution case:

  1. affidavit of Mr Andrew Macleod affirmed 25 May 2023 annexing the Macleod report and also annexing a report of Mr Mark Passfield, engineering geology and geotechnics expert engaged by the prosecutor, dated 9 January 2018;

  2. affidavit of Mr Peter Hancock, aquatic ecologist, affirmed 26 May 2023, attaching his report dated 25 May 2023; and

  3. affidavit of Ms Amelia Stein, compliance officer employed by the prosecutor, sworn 26 May 2023 in which Ms Stein refers to sites C and D and annexes a number of photographs of the sites.

First issue: Whether the Court should hear and determine the separate questions

  1. It first arises to determine whether I should exercise the Court’s discretion to hear and determine the separate questions at a preliminary hearing pursuant to s 247G of the CPA.

Defendant’s submissions

  1. Mr Collins for the defendants raised a “threshold question” as to whether the Court should hear and determine the separate questions in a preliminary hearing. At the hearing on 4 October 2023, I allowed the parties to make submissions in relation to both the “threshold question” and, in the event that I allow the threshold questions to be determined, the separate questions as to whether the amended summonses are defective and ought be dismissed.

  2. The defendants submitted that Division 2A of Part 5 of Chapter 4 of the CPA includes a range of case management provisions and other provisions to reduce delays in criminal proceedings, including s 247G. Section 247G(1) enables the Court to order the prosecutor and the defendants to attend one or more preliminary hearings. At a preliminary hearing, the Court is empowered to make findings or give directions that are appropriate for the efficient management and conduct of the proceedings: s 247G(2). Section 247G(3)(g) includes the power to give a ruling on any question of law that may arise at trial. Further, there is nothing in s 247G to deprive a superior court of “the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing”. [1]

    1. Citing Environment Protection Authority v Eastern Creek Operations Ply Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97 at [216] (Fullerton J, Lonergan J agreeing).

  3. The defendants submitted that the “aims” of ss 247G to 247V are consistent with the overriding purpose of civil procedure to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” under s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). [2] The defendants contended that the Court's discretion to order a preliminary hearing should be exercised here so as to give effect to the overriding purpose, having regard by analogy to the objects of case management in s 57 of the Civil Procedure Act, namely the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties.

    2. Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree;

  4. The defendants submitted that a preliminary hearing should be ordered where there is “a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy”. [3] It is less appropriate to order a preliminary hearing where the factual matters proposed to be determined separately overlap with those remaining to be determined in the trial. [4] Further, the defendants submitted that the Court should be satisfied that the utility, economy and fairness to the parties in hearing and determining separately the separate questions is “beyond question” for the following two reasons.

The defendants’ submission that the determination of the separate questions in favour of the defendants will dispose of the proceedings completely

3. CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 605 (Kirby P).

4. Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168] (Kirby and Callinan JJ, McHugh J agreeing).

  1. First, the defendants submitted that the determination of the separate questions will dispose of the remaining proceedings completely if it is found that the amended summonses do not properly allege and disclose offences against s 120(1) of the POEO Act. In circumstances where the separate questions are “so fundamental to the success of the remaining prosecutions” so that the charges in the amended summonses cannot succeed if they were to proceed to trial, it is appropriate for these proceedings to be dismissed at the preliminary hearing pursuant to s 247G of the CPA.

  2. The defendants referred to cases in which the Court has heard and determined applications for the summary dismissal of proceedings at a preliminary hearing. In Liverpool City Council v Cauchi (Cauchi)[5] and Lismore City Council v Ihalainen (Ihalainen),[6] the charges the subject of the proceedings alleged a failure to comply with a clean-up notice. The Court found in both cases that procedural fairness had not been afforded to the defendants, and that the circumstances were appropriate for summary dismissal of the charges. [7] In Environment Protection Authority v Eastern Creek Operations Pty Ltd (No 2) (Eastern Creek)[8] , the defendant was charged with two offences against s 211(1) and (2) of the POEO Act for failing to comply with a notice to provide information. The defendant filed a notice of motion seeking orders that the summonses be dismissed on the basis that the notice was invalid. Pain J held (at [43]) that it was both “lawful and appropriate” to make summary dismissal orders in the circumstances.

    5. (2005) 145 LGERA 1; [2005] NSWLEC 675 (McClellan CJ of LEC).

    6. (2013) 198 LGERA 47; [2013] NSWLEC 149 (Pain J).

    7. Cauchi at [53]-[54] (McClellan CJ); Ihalainen at [65] (Pain J).

    8. [2021] NSWLEC 39 (Pain J).

  3. In Ballina Shire Council v Joblin (Joblin),[9] council commenced proceedings by summons charging the defendants with an offence against s 9.37 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for failing to comply with a development control order issued by council for the demolition of a swimming pool. In a s 247G preliminary hearing, Robson J dismissed the proceedings in circumstances where “an essential element of the alleged offence [wa]s found to be lacking”. [10]

    9. [2022] NSWLEC 90 (Robson J).

    10. Joblin at [78] (Robson J).

  4. In the present case, the defendants submitted that the circumstances are such that it is similarly appropriate for the proceedings to be dismissed at the preliminary hearing pursuant to s 247G of the CPA. Where it is determined that the amended summonses do not properly allege and disclose offences against s 120(1) of the POEO Act, the amended summonses cannot succeed if the proceedings proceed to trial.

The defendants’ submissions in relation to costs and time considerations

  1. Secondly, the defendants submitted that the utility, economy and fairness to the parties of hearing the separate questions is “beyond question” in that it would save the parties and the Court time and money should it lead to the final resolution of the remaining proceedings.

  2. The defendants submitted that the prosecution case is “voluminous”: consisting of a detailed statement of facts, 11 affidavits comprising 9 lay witnesses and 2 expert witnesses attaching expert reports, and two detailed records of interview of lay witnesses.

  3. The defendants relied upon Ms Holland’s affidavit which breaks down the estimated time and costs of the parties in preparing for and conducting a hearing to determine the separate questions (in the amount of $32,000) and the overall costs estimated to be incurred by the parties for a hearing encompassing all the issues of the proceedings for the defendants only (in the amount of $470,000). The defendants submitted that significant costs would be incurred in preparing and serving extensive evidence in the defence response pursuant to s 247K of the CPA, including evidence of lay and expert witnesses, and “[n]o doubt significant further costs will also be incurred by the prosecutor in dealing with the [d]efence [r]esponse”.

  4. The defendants relied on Cauchi where in a costs judgment[11] McClellan CJ of LEC observed as follows (emphasis added):

1. The defendants seek an order for costs. I do not believe that to be appropriate. When this matter was fixed for hearing the parties indicated that it was likely to take seven days. Various defences, some of which I have already referred to, were identified. As it happens, none of those defences related to the difficulties with respect to procedural fairness which have ultimately informed the reasons for my decision that the summons should be dismissed.

2.  It seems to me that the issues which were to be litigated may well have occupied the court for many more days than has ultimately proved to be necessary. If the defendants themselves had identified the issue of procedural fairness, it could have been isolated at an early stage of these proceedings, which commenced in 2004, and litigated without the expense which all of the parties have now incurred.

11. Liverpool City Council v Cauchi [2005] NSWLEC 676 at [1] to [2] (McClellan CJ of LEC).

  1. Here, the defendants submitted that summary dismissal orders “will bring the remaining proceedings to a close, thereby avoiding a costly trial and associated preparations”. In relation to the time required for the determination of the separate questions, the defendants relied upon Ms Holland’s evidence which sought to contrast the timing required for the hearing of the separate questions with the length of the proceedings were they to proceed to contested trial. Ms Holland deposed that the hearing of all the issues at trial would require the defendants to prepare and serve “extensive further and expert evidence” which would be likely to require several months to finalise, and a hearing of no less than two weeks and possibly up to three weeks with extensive cross-examination of factual and expert witnesses.

  2. The defendants referred to the decision of Pepper J in Port Macquarie-Hastings Council v Waite,[12] where her Honour considered whether a record of interview (ROI) was inadmissible as a preliminary evidentiary matter in the trial. Her Honour at [36] to [37] was critical of the failure of the parties to apply to have the admissibility of the ROI heard as a preliminary matter under s 247G of the CPA (emphasis added):

36. Such an approach is unsatisfactory and, in my view, contrary to the efficient administration of justice having regard to the desire to have criminal proceedings determined expeditiously and the proper utilisation of scarce Court resources.

37. Section 247G of the Criminal Procedure Act was enacted for precisely these types of applications (see especially, s 247G(2), 3(e) and (7)). Given the length and complexity of the argument on the voir dire, as soon as the issue had crystalised by the serving of the s 247K notice, it was incumbent upon the parties to apply to have the question of the admissibility of the ROI determined in advance of the commencement of the hearing. While there may be situations where it is forensically disadvantageous to make such an application, this was not one of them.

12. [2019] NSWLEC 146 (Pepper J).

  1. The defendants submitted that since receiving and reviewing the prosecution case, they had formed the view that the amended summonses do not allege and disclose offences against s 120(1) of the POEO Act and that “the defendants have now timeously applied for the [s]eparate [q]uestions to be determined by way of a preliminary hearing”.

The defendants’ submissions in relation to psychological and mental impacts

  1. The defendants further submitted that the “psychological and mental impacts of the proceedings on Mr Natale are reasons beyond utility, economy and fairness that support determining the [s]eparate [q]uestions separately”.

  2. In her affidavit, Ms Holland says that the proceedings which commenced in 2018 and have included intervening motion hearings and appeals have subjected Mr Natale personally and as the managing director of Kiangatha to many years of psychological and mental stress in conducting defences to the charges. Ms Holland's instructions are that “psychological and mental stress contributed to Mr Natale suffering a stroke in July 2022, the debilitating physical effects of which continue and which have rendered him incapable of working in his chosen profession as a qualified practising architect”.

  3. The defendants submitted that “Mr Natale's physical injury and ill health is likely to be exacerbated by the pursuit of the remaining proceedings to trial, and accordingly, it is appropriate for the Court to exercise its discretion for the hearing of the [s]eparate [q]uestions, if resulting in a resolution in favour of the defendants, will entirely dispose of the proceedings”.

Whether the separate questions are questions of law or fact

  1. The defendants further submitted that the orders sought in the motions are for the separate questions to be determined separately upon the basis of the allegations pleaded in each of the two amended summonses, including the particulars, but excluding the evidentiary material comprising maps, legends and narratives, and photographs and narratives referred to in the amended summonses.

  2. Ms Holland deposed that as the orders sought in the motions “involve only questions of law”, there would be no need for the parties to adduce any expert evidence or lay evidence with respect to the separate questions. Accordingly, the defendants submitted, none of the factual matters addressed by witnesses and experts in the prosecution case are relevant in determining the separate questions. There was “no danger of the Court being asked to revisit findings made when determining the [s]eparate [q]uestions”, and “no unnecessary inconvenience to witnesses by the preliminary hearing”.

  3. The defendants submitted that the separate questions are questions of law and not of fact, and “none of the factual matters addressed by witnesses and experts in the [p]rosecution [c]ase are relevant” to the determination of the separate questions.

  4. At the hearing on 4 October 2023, I raised whether the Court requires evidence in order to understand what an ephemeral drainage line is. Mr Collins submitted that evidence is not required for the following reasons:

One, is we can work it out by the language that is being used. Secondly, we can logically compare it with the list of things which, together, define exhaustively waters. Thirdly, because whatever an ephemeral drainage line is, it’s a drain and the only kind of drain which falls within the definition of waters is one which under subparagraph (d)(ii) is one which is used or designed to receive or pass rainwater.

...

So it’s not a question of fact; it’s a question of looking at what the prosecution has decided to select as one of the essential elements of the offence. We’ve got to engage with the word “waters”.

  1. The defendants submitted that whether something is or is not a question of fact for the trial judge at the adjudication stage is “entirely separate and distinct from the question whether the summons discloses a recognisable offence known to the law”. One does not get to the question of fact unless and until it can be seen that the summons discloses an offence known to the law. To accept the prosecutor’s argument would mean that a challenge to a summons upon the grounds taken by the defendants “could simply be waved away by referring to a question of fact”. The prosecutor’s contention that an “ephemeral drainage line” is a natural watercourses was “an admission which is fatal to the [p]rosecutor having regard to its considered decision when drafting the [a]mended [s]ummonses not to rely upon one of the statutory elements defining ‘[w]aters’ but to advance an entirely different physical description which lies outside the statutory definition”.

  1. The defendants also submitted that the prosecutor’s “need to consider the [a]mended [s]ummonses in the light of a considerable amount of additional evidence which refers to ‘watercourses’...demonstrate[d] that the [a]mended [s]ummonses are defective”.

The prosecutor’s submissions

The conduct of the defendants in the proceedings

  1. The prosecutor submitted that the defendants’ conduct in bringing the motions is inconsistent with the overriding purpose of the CPA (by analogy to s 56 of the CPA) to achieve the just, quick and cheap resolution of the real issues in the proceedings, and the case management provisions designed to facilitate that purpose.

  2. On 27 September 2018, Molesworth AJ made orders pursuant to s 246(1) of the CPA requiring the defendants to appear before a judge of the Court in respect of the charges. The prosecutor submitted that “[t]here is not now before the Court nor has there ever been any challenge to the validity of the orders made by Molesworth AJ”. The prosecutor said that the first opportunity that the defendants had to articulate this challenge was when the defendants' first notices of motion were heard in 2019 in Kiangatha (No 1). There was no challenge at that time alleging that there is no offence known to law or to the wording of “ephemeral drainage lines leading to Murdering Creek”, either in the Land and Environment Court or in the Court of Criminal Appeal.

  3. The defendant was served with the amended summonses “in [their] present form” in May 2021. The prosecutor submitted that “[o]n that basis alone this Court would reject that this application has been brought in a timely manner”. The prosecutor noted that the defendants had already contested the amended summonses once before in this Court, arguing that the offences were fresh charges brought outside the limitation period: Kiangatha (No 3). Being unsuccessful at first instance, the defendants appealed the decision and were unsuccessful on appeal: Kiangatha (No 4). It was not raised as an issue in those proceedings that the summonses were invalid. In Kiangatha (No 3), Robson J said at [93]:

93. ...It is uncontentious between the parties that the defendants have been charged with offences known to law, being water pollution pursuant to s 120(1) of the POEO Act...

And at [130] to [131]:

130. ...First, it is clear that the defendants do not seek to argue that the original summonses were a nullity and thus incapable of amendment...

131. Secondly, the defendants do not dispute that the original summonses charge the defendants with offences that are known to law...

  1. This position was “not abandoned” by the defendants in the Court of Criminal Appeal in Kiangatha (No 4). At [30], the Court of Criminal Appeal said:

30. Having set out the parties' submissions, the primary judge noted two important matters not in issue. First, the applicants did not seek to argue that the original summonses were a nullity and thus incapable of amendment. Secondly, the applicants did not dispute that the original summonses charged them with offences that were known to the law.

  1. Accordingly, the prosecutor submitted that “in 2021, having analysed the summonses at length, the defendants, who were represented by experienced counsel and solicitors throughout, expressly conceded the summonses charged an offence known to law”.

  2. On 3 March 2023, instead of being set down for hearing, the proceedings were adjourned with the consent of the prosecutor for 4 weeks due to the defendants having recently briefed new counsel. On 31 March 2023, when represented by new solicitors and counsel, the defendants entered pleas of not guilty to the charges. On 31 March 2023, further orders were made by consent for the prosecutor to serve its notice of prosecution case. In his affidavit dated 8 September 2023, Mr Mulligan deposed to the expenses that the prosecutor has incurred in relation to the preparation of its evidence “since the date that the [d]efendants entered pleas of not guilty”.

  3. On 23 June 2023, the proceedings were listed for further directions. On that occasion, there was no indication from the defendants as to any challenge to the form of the amended summonses. The prosecutor proposed orders for a conference pursuant to s 247H of the CPA, to which the defendants agreed.

  4. The prosecutor submitted that despite now contending that the summonses are invalid on their face and do not disclose offences known to law, the defendants did not bring this motion until after the prosecutor had served its notice of prosecution case and all its evidence. At no stage did the defendants seek further particulars from the prosecutor about its case in relation to the particularisation of waters.

  5. The prosecutor relied on s 247G(6) of the CPA which provides:

(6) Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and-

(a) the matter was not raised at the preliminary hearing, or

(b) the matter was dealt with at the preliminary hearing.

  1. The prosecutor submitted that notwithstanding the defendants’ pleas of not guilty, they “now bring their third attempt” to challenge the validity of the charges. The previous motions of the defendants were not brought pursuant to s 247G. However, the prosecutor said that “bringing repeated applications of an interlocutory nature is plainly contrary to the overriding purpose and to the case management provisions” and “is wasteful of court resources.” Given the “extraordinary delay” in these proceedings, which were first filed in 2018 and then amended in 2022, the prosecutor submitted that it was “especially important that all haste be made to have these proceedings finally determined”.

Whether the separate questions are questions of law or fact

  1. The prosecutor submitted that the question whether the “ephemeral drainage lines leading to Murdering Creek” fall within the statutory definition of “waters” in the dictionary to the POEO Act is a question of fact for the trial judge. Consistent with the evidence commencing the Class 5 proceedings, the prosecutor said that it “expects that the evidence will show that the ephemeral drainage lines leading to Murdering Creek are natural watercourses and are accordingly within the definition of waters in the POEO Act”.

  2. In relation to the relevance of evidentiary material, the prosecutor submitted that the defendants’ approach was inconsistent with their own submissions (relying on the evidence of Ms Holland) that upon a review of the evidence in the notice of prosecution case (which included the Macleod report), it became apparent to the defendants that the amended summonses did not allege, nor disclose offences against the provisions of s 120(1) of the POEO Act. The prosecutor also submitted that the defendants’ approach is contrary to authority. In NSW, the law has dispensed with the distinction between a failure to plead “essential legal elements” and “essential factual elements” as being determinative of the validity of a charge. The test is one of procedural fairness, and when making this assessment, the Court may refer to the evidence in the case. The prosecutor relied on the decision of the Court of Appeal in Rockdale Beef Pty Limited v Industrial Relations Commission of NSW (Rockdale Beef)[13] where Basten JA (Mason P agreeing) said at [122] to [123]:

122. At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between “essential legal elements” and “essential factual particulars” ...

123. These remarks [of the Bench in Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261] are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of "amendment" itself may be inconsistent with such a conclusion.

13. [2007] NSWCA 128 (Spigelman CJ, Mason P and Basten JA).

  1. Basten JA went on to say at [130] to [133] that:

130. ... it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b) [of the CPA].

...

132. More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least “the nature of” that offence, in some material respect, the defect might be outside the scope of the remedial provision...

133. Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2)...

  1. The prosecutor submitted that Rockdale Beef makes clear that when considering procedural fairness, the prosecutor is entitled to rely on the evidence filed in support of the application for an order under s 246 of the CPA. [14]

    14. Rockdale Beef at [126] (Basten JA).

  2. In GPI (General) Pty Ltd v Industrial Court of New South Wales (GPI General),[15] Hodgson JA said at [32] to [34] that while the decision of Kirk v Industrial Court of New South Wales (Kirk)[16] “establish[ed] that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence”, it “did not decide that this requirement displaced ss 11 and 16(2) of the [CPA], which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of ‘indictment’ given by s 15 of the [CPA]”. Basten JA (at [80]) affirmed the primary importance of procedural fairness when considering the power to amend:

The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law.

15. [2011] NSWCA 157 (Allsop P, Hodgson and Basten JJA).

16. (2010) 239 CLR 531; [2010] HCA 1 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

  1. In support of the order sought in the summonses in commencing these Class 5 proceedings pursuant to s 246 of the CPA, the prosecutor relied on the affidavits of Water NSW Compliance Officers Ivan Draper (21 September 2018), Amelia Stein (22 September 2018), and Paul Crossan (21 September 2018). The affidavit of Mr Crossan annexed two expert reports, those of surface water management expert Mr Passfield and aquatic ecologist Mr Hancock.

  2. The prosecutor submitted that “it has been made clear in the prosecutor's case from the outset, that the ephemeral drainage lines leading to Murdering Creek constitute watercourses”. The prosecutor referred to the following examples:

  1. the report of surface water management expert Mr Passfield who says “[m]ost of the plates show the sediment in first or second order watercourses”;

  2. the report of aquatic ecologist Mr Hancock who says “[w]atercourses near the newly constructed roads were first or second order streams, or were gullies unmapped as streams by NSW DPI Fisheries (Derived from the DPI State Hydroline dataset)”; and

  3. the affidavit of Ms Stein who describes new roads being cut and sediment being placed into natural watercourse crossings, sediment deposits being placed in dry watercourses, and sediment dispersing downslope into gullies and dry watercourses.

  1. The prosecutor said that the above evidence was served on the defendants in 2018, and accordingly the defendants “do not and could not claim there has been any denial of procedural fairness”. Further, the prosecutor submitted that it had also served on the defendants the Macleod report (in the notice of prosecution case) in which Mr Macleod opines on whether the ephemeral drainage lines pleaded in the proceedings are watercourses.

  2. The prosecutor also relied on the summary by Robson J of the relevant considerations in relation to procedural fairness in Kiangatha (No 3) at [93] to [99]. Finding that the true nature of the prosecution case was adequately conveyed to the defendants, and hence that the proposed amendments did not charge fresh offences out of time, Robson J took into account the evidence that was filed and served when the proceedings were commenced: at [175]. The prosecutor submitted Robson J’s approach to be correct, and that “the Court should not now depart from it”.

Conclusions in relation to the first issue

  1. In relation to the first issue as to whether I should exercise the Court’s discretion to hear and determine separate questions at a preliminary hearing pursuant to s 247G of the CPA, I find as follows.

  2. I accept the prosecutor’s submission in relation to the conduct of the defendants in bringing these notices of motion. It is plainly inconsistent with “the purpose and aims of ss 247G-247V” of the CPA which was held by Robson J in Auen Grain at [38] to be “consistent with the overriding purpose of civil procedure to ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’”. It is also inconsistent with s 247B of the CPA which provides that the purpose of the case management provisions in Division 2A, Part 5 of the CPA is to “reduce delays in proceedings”. The defendants now bring a further attempt to challenge the validity of the charges. The proceedings were first filed in 2018 and then amended in 2022. Having regard to the overriding purpose of the CPA, these proceedings ought be finally determined. The motion challenging the form of the amended summonses has not been brought in a timely manner.

  3. The defendants’ first notices of motion were heard on 1 and 2 July 2019 in Kiangatha (No 1). As submitted by the prosecutor, there was no challenge then that there is no offence known to law or to the language of “ephemeral drainage lines leading to Murdering Creek”. The amended summonses in their present form were served in May 2021. In Kiangatha (No 4), as observed by the Court of Criminal Appeal, the defendants did not dispute that the original summonses charged them with offences that were known to law.

  4. The proceedings on 3 March 2023, instead of being set down for hearing for four weeks were adjourned until 31 March 2023 due to the defendants having recently briefed new counsel. On that occasion there was no indication from the defendants as to any challenge as to the form of the amended summonses.

  5. At no stage prior to the service by the prosecutor of its notice of prosecution case and its evidence, did the defendants seek further particulars from the prosecutor about its case in relation to the particularisation of waters.

  6. I likewise accept the prosecutor’s submission that the question whether the “ephemeral drainage lines leading to Murdering Creek” fall within the statutory definition of “waters” and are natural watercourses within the definition of “waters” in the POEO Act, is a question of fact for the trial judge.

  7. I do not accept that there has been any relevant procedural unfairness on the part of the prosecutor in describing the nature of the alleged offences in the amended summonses. The evidence served by the prosecutor in 2018 in support of the orders sought in the summonses pursuant to s 246 of the CPA in commencing these Class 5 proceedings made clear that on the prosecutor’s case, the ephemeral drainage lines leading to Murdering Creek constitute watercourses. That evidence is referred to above at [76]. Likewise, the evidence in the Macleod report is above at [20] and [78]. I also have regard to Robson J’s consideration of the principles of procedural fairness in Kiangatha (No 3) at [93] to [99].

  8. In all the circumstances, I am not satisfied that the Court should proceed to hear and determine the separate questions.

Second issue: Whether the amended summonses properly allege and disclose offences against s 120(1) of the POEO Act

  1. If I be wrong as to whether the Court should hear and determine the separate questions, I now consider whether the amended summonses properly allege and disclose offences against s 120(1) of the POEO Act.

The defendants’ submissions

Fundamental principles in relation to the identification of “essential elements” in a summons

  1. The defendants submitted that it is “entitled to read, understand and act upon a summons which commences criminal proceedings against it, as if the summons was a complete clear, meaningful and firm foundation upon which the defendant may consider its rights and options and to seek legal advice and investigate and prepare to formulate its defence”. The defendants relied upon the following principles in relation to the determination of the validity of the amended summonses.

  2. In Lodhi v Regina (Lodhi),[17] Spigelman CJ said at [82]:

82. The identification of each essential factual element in an indictment serves a number of important purposes of the administration of criminal justice. (See John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 esp at 519-520; R v Janceski [2005] NSWCCA 281; 223 ALR 580 at [52]-[53]).

17. (2006) 199 FLR 303; [2006] NSWCCA 121 (Spigelman CJ, McClellan CJ at CL and Sully J agreeing).

  1. McClellan CJ at CL at [97] added the following remarks:

97. At common law an information was required to state “every essential ingredient of the offence, but also giving particulars of the acts relied upon as constituting the offence … The offence had to be described with accuracy and with sufficient particularity to enable a superior court to see for itself whether the acts alleged were sufficient to constitute the offence.” Jordan CJ in Ex parte Lovell: Re Buckley (1938) 38 SR (NSW) 153 at 156 and see Smith v Moody (1903) 1 KB 56 at 59.

  1. And at [102], McClellan CJ at CL said:

102. The approach endorsed by the High Court in John L Proprietary Limited has been applied by this Court. In Stanton v Abernathy (1990) 19 NSWLR 656 Gleeson CH said:

As Mahoney JA pointed out, and as the High Court held in the case of John L Pty Limited v Attorney General (NSW) s 145A does not do away with the common law requirement that an information must identify the essential factual ingredients of the actual offence alleged to have been committed: Smith v Moody (1903) 1 KB 56; Johnson v Miller (1937) 59 CLR 467 and Ex parte Graham re Dowling (1968) 88 WN (NSW) 270.

  1. In Doja v R (Doja),[18] McClellan CJ at CL said at [105]:

105. An indictment is defective at common law and liable to be quashed if objection is taken before trial, if it fails to identify an essential factual ingredient of an offence. Contemporary Australian statements of the relevant principles can be found in John L Pty Ltd v The Attorney General for the State of NSW (1987) 163 CLR 508 at 519-520 and Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573.

18. [2009] NSWCCA 303 (Spigelman CJ, McClellan CJ at CL and Grove J).

  1. At [106] his Honour referred to an earlier decision of Hunt CJ at CL in R v Mai as follows:[19]

106. In R v Mai (1992) 26 NSWLR 371; Hunt CJ at CL said (at 377):

“… the indictment … must identify the nature of the offence and the manner in which it had been committed. Like an information, the indictment at common law must disclose an offence punishable by law, and it may be quashed if it does not, for it is the indictment which founds the jurisdiction of the court to which it is presented.

…

It must identify the essential factual ingredients of the offence charged” (see also R v Saffron (1988) 17 NSWLR 395 at 445; Lodhi v R (2006) 199 FLR 303 at [78]–[94], [97]–[109].

19. (1992) 26 NSWLR 371 at 377 (Hunt CJ at CL, Enderby and Allen JJ agreeing).

  1. In light of the above authorities, the defendants rejected the prosecutor’s submissions which “essentially involve[d] the contention that deficiencies in the [a]mended [s]ummonses may be addressed when they are exposed, by simply advancing an evidentiary proposition which falls outside the limits of the [a]mended [s]ummonses and extends its reach according to that evidence”. In the present case, after “maintaining for several years that the relevant summonses were driven by the likelihood, rather than the actuality of a polluting result”, the defendants submitted that “the prosecutor now asserts that it is at liberty to advance its case as if it were either an actual pollution case or a likely pollution case”. The defendants submitted that “‘further particularisation’ of essential legal elements are not capable of curing a defective summons”.

  2. The defendants further relied on Spigelman CJ’s dissenting judgment in Rockdale Beef where at [27] his Honour said:

27. Nor does s 16 of the [CPA] apply to save a charge that omits an essential legal element of an offence: Ex parte Lovell; Re Buckley (1938) 3 SR (NSW) 153 at 173; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 at 120; Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [26].

  1. Spigelman CJ there found that the charge was defective in that “it failed to plead the essential legal elements of such a charge”. [20] In that case, the Court was not asked and his Honour did not consider whether an amendment of the charge was possible.

    20. Rockdale Beef at [37], [41] (Spigelman CJ in dissent).

  2. In Rockdale Beef, the majority, Basten JA with whom Mason P agreed, was of the opinion that the authorities did not support the proposition that s 16(2) of the CPA will not save an information which fails to specify an essential legal element of the offence. At [123] Basten JA said (emphasis added):

123.  These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of “amendment” itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not “void” in the sense that the “defects cannot be removed by amendment or otherwise put aside”, adopting the terminology of Mahoney JA in Boral Gas at 518C-D, nor are the proceedings based on them a nullity.

  1. In Doja, Spigelman CJ at [26] placed emphasis on the use by Basten JA of the word “necessarily”, and said:

26.  I note particularly Basten JA’s conclusion at [123] of his judgment, set out in its context by McClellan CJ at CL, to the effect that the failure to properly plead the elements of an offence does not “necessarily render the information invalid”. The use of the word “necessarily” is significant. Basten JA focused on the role of a court attendance notice with respect to procedural fairness. His Honour was not considering the jurisdictional role of an indictment.

  1. In Doja, Spigelman CJ at [5(v)] said that apart from procedural fairness, an indictment also performs the important function in the administration of justice of “investing the trial court with jurisdiction to hear and determine the prosecution”. His Honour said at [6]:

6. There is a discernable tendency to focus on the role of an indictment as a step in the process of ensuring an accused is given procedural fairness. It is, however, important not to lose sight of the other functions of an indictment.

  1. Further, in Rockdale Beef Spigelman CJ at [34] said that the failure to omit essential legal elements means that the jurisdiction of the court is not engaged, resulting in jurisdictional error. In relation to an offence pursuant to the Occupational Health and Safety Act 2000 (NSW) under the jurisdiction of the Industrial Court of New South Wales, his Honour said:

34. If the charge omits an essential legal element of the offence then the proceedings are not proceedings for “an offence against” the OH&S Act and, accordingly, the Industrial Court has no jurisdiction to hear and determine the charge. (See eg John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520; McConnell Dowell Constructors Australia Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 at [14]; R v Janceski (2005) 64 NSWLR 10 at [53].)

  1. Similarly, the defendants here submitted that “if the [a]mended [s]ummonses fail to contain essential legal elements of the offence of water pollution, then the proceedings are not proceedings for ‘an offence charged in the order’ and the Land and Environment Court has no jurisdiction to hear and determine the charge.” As a consequence of the “defective particulars lacking essential legal elements”, the defendants submitted that “the [a]mended [s]ummonses are nullities and are not capable of establishing a proper basis for the commencement of proceedings”. Therefore there was “nothing to which s 16(2) can apply”.

The prosecutor’s pleadings in relation to “pollution of waters”

  1. The defendants submitted that the amended summonses describe the charges as “based upon” s 120(1) of the POEO Act, the gravamen of the offences being that the defendants “polluted waters”. However, the defendants said that the “mere recitation of section 120(1) of the POEO Act and the expression ‘polluted waters’ is not enough” to satisfy the requirements of s 12 of the CPA or Kirk. The defendants submitted that waters may be polluted in a number of ways, referring to the various “limbs” of the definition of “water pollution” or “pollution of waters” (extracted at [26] above).

  2. The defendants submitted that the amended summonses which say that “the defendant thereby placed the Pollutants in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters” appeared to be based upon paragraphs (d)(ii) of the definition of “water pollution” or “pollution of waters” in the POEO Act which provides:

(d) placing any matter (whether solid, liquid or gaseous) in a position where-

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate,

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or ...

  1. The final two lines of the statutory definition of “water pollution” or “pollution of waters” provide:

...if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

  1. The defendants submitted that the final two lines cannot be ignored, and must be given work to do. Further, the defendants submitted that the prosecutor now makes the “extraordinary” submission that the amended summonses permit the prosecutor to elect, after 5 years to describe “waters” previously said to be “ephemeral drainage lines” as watercourses, but takes an “extraordinary” step further by contending that it is now to be permitted to elect between subparagraphs (c) and (d)(ii).

  2. The charges in each of the amended summonses do not allege “actual” pollution. They rely upon the alleged likelihood that pollutant will be washed into “waters” and a further likelihood that the “waters” will be polluted. The charges in each of the amended summonses were submitted to be “defective and incomplete because each fails to recognise and allege...the second essential element of an offence”, referring to paragraph (d)(ii) of the definition of “water pollution” or “pollution of waters” in the dictionary to the POEO Act. In the two amended summonses, “the prosecutor's formulation of the two ‘likely’ (emphasis added) to pollute charges fail to recognise that such a charge under paragraph (d)(ii) of the [definition] is incomplete unless it includes an allegation framed in the terms of the concluding line of paragraph (d)(ii)”, namely that the matter was “likely to fall, descend or be washed into” an “ephemeral drainage line” or the dry beds of an “ephemeral drainage line”.

  3. Further, the defendants submitted that in paragraph 1 of each of the amended summonses it is alleged by the prosecutor that the defendants have “polluted waters”. The prosecutor had “at least in part, endeavoured to engage the provisions” of paragraph (d)(ii) of the definition of “water pollution” or “pollution of waters”. However, “[s]uch an attenuated allegation does not satisfy the provisions of section 12 of the CPA”. The POEO Act is “drafted in a manner which implicitly recognises that by the device of a statutory [d]ictionary it calls up the essential details of the elements which together comprise the offence”. The dictionary builds on and expands the two essential concepts bound up within s 120(1) of the POEO Act, those elements being “waters” and “water pollution”.

Construction of “waters” as defined in the POEO Act

  1. The definition of “waters” in the POEO Act provides that the word “waters” means the whole or any part of:

(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

  1. The defendants submitted that one of the two “essential elements” of any charge founded upon s 120(1) of the POEO Act is that the “polluting matter” was placed in such a manner that it was likely to pollute “waters”. The defendants contended that the two amended summonses “do not allege the commission of an offence under the POEO Act” on the basis that an “ephemeral drainage line”, as particularised, “does not fall within the statutory definition of ‘waters’”. Further, the defendants said that the expression “ephemeral drainage line” is not one which has been used in the POEO Act, or any of the other water-related legislation or any of the decided cases.

  2. The essential question for the Court, therefore, was submitted to be whether the “mandated definition of ‘waters’ in the [d]ictionary includes the category of illusory and/or concealed reference [to] ‘ephemeral drainage lines’”. The defendants submitted that the principle governing the application of dictionary provisions which set out what a word “means” is that the words following the word “means” are an “expression of the exclusive meaning to be ascribed to those words”. [21] The statutory definition of “waters” in the POEO Act was submitted to play an important part in determining whether an “ephemeral drainage line” falls within the definition of “waters”. The defendant submitted that the POEO Act “does not reveal any contrary intention that the exhaustive and exclusive definition in the Dictionary does not provide the only true meaning of the word ‘waters’”.

    21. Citing Douglas v Tickner (1994) 49 FCR 507 at 519 (Carr J); Owen v Menzies [2012] QCA 170 at [106] (Muir JA); Sheritt Gordon Mines v Federal Commissioner of Taxation [1977] VR 342 at 353 (McInerney J).

  3. The defendants submitted that the following matters were significant:

  1. The expression, “ephemeral drainage lines” is not an expression used in the POEO Act, related statutes or the decided cases.

  2. There is nowhere in the amended summonses that the prosecutor sets out “any physical characteristics said to be exhibited by whatever is an ‘ephemeral drainage line’ which might tend to show why such a thing should qualify for entry into any one of the categories of ‘waters’ in the statutory [d]ictionary”.

  3. The Court is “therefore left to conduct a search for the meaning of the words ‘ephemeral drainage lines’ based entirely upon the words themselves”.

  4. Despite the “cryptic language of the expression”, it may be concluded from the words themselves that “such a thing does not qualify for entry into the categories of ‘waters’ which are prescribed by the statutory definition in the [d]ictionary”.

  5. It is “tolerably clear that the prosecutor itself has refrained...from endeavouring to include by express reference or otherwise the words ‘ephemeral drainage lines’ within the definition”. From this it may be concluded that the prosecutor did not consider that an “ephemeral drainage line” was coterminous with any of the statutory definitions. There are “sound policy reasons why an ‘ephemeral drainage line’, being a mere landform or topographical expression, and being ephemeral at that, should not be included within the statutory definition of ‘waters’”.

  1. At the time the POEO Act was enacted, the definition of a “watercourse” was well settled. In Knezovic v Shire of Swan-Guildford (Knezovic). [22] The chief justice, with whom the other justices agreed, said that: [23]

In Gartner v. Kidman, the majority of the Justices participating adopted a passage from Angell on Watercourses, 5th ed. (1854), p. 3, as stating the meaning at common law of a watercourse, namely:

"a watercourse consists of a bed, banks and water: yet the water need not flow continuously and there are many watercourses which are sometimes dry. There is, however, a distinction between a regular flowing stream of water which at certain seasons are dried up and those occasional bursts of water which at times of freshet or melting of ice and snow descend from the hills and inundate the country."

It seems to me, on an examination of such authorities as exist and of the work of recognised writers on this subject, as well as the decision of the Court, that it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen of course in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation. It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel.

22. (1968) 118 CLR 468; [1968] HCA 38 (Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ).

23. At 475 to 476 (Barwick CJ).

  1. The defendants said that the above passage in Knezovic sets out the legal description of a “watercourse” in Australian law, and accordingly “there is no indication in the POEO Act that the Parliament intended to reject or vary that statement or principle which continues to inform the meaning of the word ‘watercourse’ as it appears in the POEO Act”. It was submitted that when that description is applied to the term “watercourse” in the statutory definition of “waters”, the effect is to “conclusively” rule out any suggestion that an “ephemeral drainage line” could be brought within the term “watercourse”. In any event, the prosecutor has not sought to allege in either of the amended summonses that an “ephemeral drainage line” is a “watercourse” within the meaning of the POEO Act, and “it is now too late to do so”. Further, the chief justice’s statements with respect to the description of the word “drain” are of “added significance” as they provide additional support for the conclusion that “an ephemeral drainage line” does not fall within the statutory definition of “waters”.

  2. In relation to the description in paragraph (a) of the definition of “waters” in the dictionary to the POEO Act, the defendants submitted that the subject matter of each amended summons, namely “ephemeral drainage lines” are “self-evidently” not: a “river”; a “stream”; a “lake”; a “lagoon”; a “swamp”; “wetlands”; “unconfined surface water”; “natural or artificial watercourse”; a “dam”; nor “tidal waters (including the sea)”. In relation to the description in paragraph (b) of the definition of “waters” in the dictionary, the defendants submitted that the expression “ephemeral drainage line” cannot be properly brought within the definition of “waters” because (1) an “ephemeral drainage line” is a type of drain; and (2) the only type of drain contemplated by the statutory dictionary is that which is encompassed within paragraph (d)(ii) of the definition of “water pollution” in the dictionary.

  3. The defendants relied on the judgment of Fagan J (Hoeben CJ at CL and Rothman J agreeing) in Kiangatha (No 2) at [30]:

30. By logical extension of those decisions to the offences alleged against the applicants, the two essential ingredients of the likely pollution charge are:

(1) the soil and sediment was placed in a location from which it was likely to be washed, or otherwise to descend, into the bed of a dry gully (par (d)(ii) of the definition of water pollution); and

(2) the soil and sediment was material that, had it been placed in any waters, would have polluted or would have been likely to pollute those waters (concluding words of the definition of water pollution).

  1. The defendants submitted that Fagan J there clearly stated that “the second essential element of the offence which must be alleged must be engaged in the amended summonses”. Without this “essential second element”, the defendants submitted that the amended summonses are “defective and must be dismissed”.

Whether an “ephemeral drainage line” is to be construed as a “drain”

  1. Further, the defendants submitted that in each of the amended summonses, the prosecutor relies upon the expression “ephemeral drainage line” which, the defendants submitted, are “unknown and undefined”. The defendants submitted that “as a matter of language ‘an ephemeral drainage line’ is a ‘drain’ of some kind and yet the only kind of drain which has been brought within the statutory definition of ‘waters’ in the POEO Act is one which is ‘used or designed to receive or pass rainwater, floodwater, or any water that is not polluted’”, as it appears in paragraphs (d)(ii) and (e) of the definition of “pollution of waters”. The defendants said that the amended summonses do not allege that “an ephemeral drainage line” is a drain of the kind which falls within the definition of a drain within the meaning of paragraphs (d)(ii) or (e) of the definition of “water pollution” or “pollution of waters” in the dictionary to the POEO Act. In the result, an "ephemeral drainage line" has not been alleged and could not be seen to fall within the statutory definition of "waters" under the POEO Act.

  2. The defendants submitted that it was fatal to the prosecutor that “the [a]mended [s]ummonses do not make any attempt to allege that ‘an ephemeral drainage line’ is a drain of that kind, nor can the [a]mended [s]ummonses be read as if the words ‘an ephemeral drainage line’ mean a drain which is ‘used or designed to receive or pass rainwater, floodwater or any water that is not polluted’.” The prosecutor had “simply failed to read and implement the clear provisions of paragraph (d)(ii) which require the likelihood of particular events to be examined at two quite different levels”.

The prosecutor’s submissions

The essential elements

  1. The prosecutor submitted that the Court would be “comfortably satisfied” that the amended summonses charge an offence known to law. Mr Wright SC for the prosecutor said that the prosecutor was “not attempting to replead, change [or] alter” its case as suggested by the defendants. Rather:

Where we differ with the defendants here is that we say that the formulation of the offence is sufficiently and properly formulated by reference to s 120. It does not need to descend into the detail or minutiae of either the definition [of] “waters” or the definition of “water pollution”. Were it so, the formulation of charges would be extraordinarily convoluted and frankly, virtually incomprehensible.

  1. The amended summonses were said to provide particulars relating to the location at which the alleged offence occurred, the waters, the pollutant, and the manner of breach.

  2. Other than ss 11 and 12 of the CPA, the prosecutor submitted that “[t]here are no other applicable rules governing the content of a summons”. However, there are requirements imposed by the common law. In Kirk at [26], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ summarised those requirements as follows:

26. The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".

  1. The prosecutor submitted that the phrase “it polluted waters” (in relation to Kiangatha) and the phrase “did pollute waters” (in relation to Mr Natale) in the amended summonses mirror s 120(1) which provides that “a person who pollutes any waters is guilty of an offence” and was accordingly a sufficient description in accordance with s 11 of the CPA. The “essential particulars” as to place, waters, pollutant and manner of breach were submitted to satisfy the requirements imposed by s 12 of the CPA and the common law requirements articulated in Kirk.

Particulars of “pollution of waters”

  1. In relation to the defendants’ contention that the charges particularised in the amended summonses are “incomplete” because they do not frame the allegations “in the terms of the concluding line of paragraph (d)(ii)” in the definition of “water pollution” or “pollution of waters”, the prosecutor submitted that the charges are not brought under paragraph (d)(ii) of the statutory dictionary, rather under s 120 of the POEO Act.

  2. The prosecutor submitted that the defendants invite the Court to accept that the dictionary definitions in the POEO Act are incorporated into the offence provision and constitute elements of the offence. However, the elements of a water pollution offence are as articulated by Pepper J in Environment Protection Authority v Riverina (Australia) Pty Ltd) (Riverina)[24] at [15]:

    24. [2014] NSWLEC 190 (Pepper J) citing McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127; [2000] NSWCCA 367 at [46]–[55] (Spigelman CJ, Grove and Kirby JJ agreeing).

  1. the act of polluting, by the action of placing or introducing;

  2. a pollutant;

  3. into waters;

  4. by a person.

  1. Each of those elements, the prosecutor submitted, is addressed in the amended summonses. The defendants’ complaints are rather as to the sufficiency of particulars which “are factual matters which are capable of further particularisation by the prosecutor or by order at any stage of proceedings”.

  2. The prosecutor submitted that the defendants’ argument is “precisely the kind of technical argument rejected by cases such as GPI General and Rockdale Beef”. In particular, in GPI General Basten JA said at [81] (Allsop P agreeing at [11]):

81. If this conclusion were wrong, the validity of criminal proceedings would be at risk of being returned to pre-Jervis's Acts technicalities, despite the clear intention of s 16 of the Criminal Procedure Act. It may be noted that the principal mischief to which Jervis's Acts were devoted was not the inadequate commencement of proceedings, but convictions based on technical irregularities.

  1. In Rockdale Beef, Basten JA said at [131] (Mason P agreeing at [53]):

131. ...Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2).

  1. The prosecutor submitted that the defendants’ allegation that the failure to state expressly that the pollutant would have or was likely to pollute waters “does not advance the understanding of the allegation”. While the defendants focus on para (d) of the definition of “water pollution” or “pollution of waters” in the POEO Act, the prosecutor drew the Court’s attention to para (c) which refers to:

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter…

  1. In Environmental and Earth Sciences Pty Ltd v Environment Protection Authority (Environmental and Earth Sciences),[25] the prosecutor said the Court of Criminal Appeal “made clear” that when the definition of prescribed matter is relied on, it is not necessary to prove any change in condition of waters. Referring to the reasoning of McClemens CJ at CL in Majury v Sunbeam Corporation Ltd (Majury),[26] the Court said at [51]:

51. ...for the purposes of the definition of pollute in par (c) it was sufficient that matter of a prescribed nature under reg 2(2)(b)(iii) had been placed in or on or otherwise introduced into or on to the waters. No question arises there of the pollutant being required to change the condition of the waters...

25. (1999) 103 LGERA 434; [1999] NSWCCA 192 (Wood CJ at CL, Bell J and Carruthers AJ).

26. [1974] 1 NSWLR 659 (McClemens CJ at CL).

  1. The Court (at [46]) cited McClemens CJ at CL in Majury at 662 to 663:

...there is a placing in or on the water, if the pollutant in the possession of the defendant and on his land gets into the water as a direct result of its being where it is; in other words, if the defendant causes it to get there.

  1. The Court further noted (at [48]) that “the definition of ‘pollute’ in s 5 [of the Clean Waters Act 1970 (NSW)] has now been strengthened by the addition in each paragraph of the phrase ‘or otherwise introduce into or on to, the waters’”.

  2. Consistent with Environmental and Earth Sciences, the prosecutor submitted that “it is sufficient proof of the offence that prescribed matter, being soil and sediment, got into the waters, as a direct result of being placed where it was, by the [d]efendants”. Paragraph (c) of the definition of “waters” is “general” and “not dependent on (d)” which is preceded by the words, “and, without affecting the generality of the foregoing". The prosecutor submitted that it is also open for it to rely on para (d) in the alternative, the words of which are reflected in the pleadings.

  3. The prosecutor reiterated that whether or not the particularised pollutant, being soil and sediment, did pollute or was likely to pollute the waters is a matter for evidence. If the failure to expressly state that “the pollutant would have or was likely to pollute waters” is considered to be a defect (which was not conceded) the prosecutor submitted that it is not a matter of substance, rather it is “arguably a matter of form, and since the requirements of ss 11 and 12 of the [CPA] are satisfied it is clearly a matter to which s 16(2) of the [CPA] applies”. The prosecutor said that it was open for it at trial to rely on either “limb”, and for the Court to find definitions proved in the alternative.

Definition of “waters”

  1. The waters particularised in the amended summonses are “the ephemeral drainage lines leading to Murdering Creek”. The prosecutor said that the defendants “now submit for the first time” that the summonses do not disclose an offence known to law, are defective and should be dismissed, because an “ephemeral drainage line” does not fall within the statutory definition of “waters”.

  2. Mr Wright for the prosecutor put the prosecutor’s construction of “waters” as follows:

One problem with the defendant’s analysis, with great respect, is that you assert that we have to be pigeonholed into the use of a word “drain.” But we don’t because, contrary to the question of water pollution, waters, and we say it is true in the definition of water pollution, the definition of waters...was meant to be a definition of the widest import and is.

  1. Mr Wright further submitted that the definition of “waters” is “non-exhaustive, non-exclusive, and, indeed, broad and expansive”.

  2. In Environment Protection Authority v Genkem Pty Ltd (Genkem),[27] the defendant was charged that it polluted waters under s 16 of the Clean Waters Act 1970 (NSW) (Clean Waters Act), namely, a swamp. The definition of “waters” in the Clean Waters Act (which is almost identical to the definition of waters in the POEO Act) was: “any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or part thereof, and includes water stored in artificial works, water in water mains, water pipes and water channels, and any underground or artesian water, or any part thereof.” In Genkem, the prosecutor alleged that the particular waters polluted was a “swamp” and accordingly “waters” for the purposes of the Clean Waters Act, which was a matter “hotly in dispute” at trial. [28] Bignold J said that “the question whether the land was relevantly a swamp is a question of fact to be determined by the Court”. [29] Finding that the waters were not a swamp but that the offence was nonetheless established, His Honour held at 55:

I am not satisfied beyond reasonable doubt that the surface waters lying on the land on the western side of Allco Road were relevantly a swamp.

However I am satisfied beyond reasonable doubt that they were nonetheless relevantly “waters”, falling within that part of the statutory definition embraced by the words “unconfined surface water”.

In my judgment the Prosecutor's particularisation of the relevant waters as being “a swamp” may properly be regarded as an immaterial or erroneous particular (see R v Justelius [1973] 1 NSWLR 471; Ex parte Consolidated Press Ltd; Re Harris (1961) 78 WN (NSW) 261; 7 LGRA 247) to which no objection may be taken either as a defect in form or substance conformably to s 43 of the Land and Environment Court Act 1979: cf Stanton v Abernathy (1990) 19 NSWLR 656.

To the extent necessary I would give leave to amend the particulars provided in the summons by omitting reference to “swamp”, because I am entirely satisfied that no prejudice would thereby be caused to the Defendant which throughout the trial was well aware (and conducted its defence accordingly) that there was a real issue whether the surface water lying on the land on the western side of Allco Road was relevantly “waters”.

27. (1993) 79 LGERA 47 (Bignold J).

28. Genkem at 53 (Bignold J).

29. Genkem at 53-54 (Bignold J).

  1. In Environmental and Earth Sciences, the defendant appealed to the Court of Criminal Appeal against a conviction for water pollution under the Clean Waters Act. At issue was whether the prosecutor had proved that the particularised pollutant had been placed into “waters” in accordance with the statutory definition of “waters” under the Clean Waters Act. The respective positions of the parties were summarised at 441:

The prosecution submitted that the relevant “waters”, as defined, commenced, at least, at the eastern end of the culvert. It was submitted that the culvert was a combination of a natural or artificial watercourse and water channel. Thereafter the “waters” continued all the way down to Bango Creek.

The appellant submitted, however, that one did not reach “waters”, as defined, until the confluence of the main channel and the large STP channel and that by the time the sediment reached the confluence, the matter was already in the “waters”. Thus there was no physical placing of matter by the appellant in the “waters” at that point.

  1. In a unanimous judgment, the Court of Court of Criminal Appeal (Wood CJ at CL, Bell J and Carruthers AJ) dismissed the appeal. The Court concluded at 447 that:

The finding by [the trial judge] that the “waters” as defined commenced at the final confluence was an extremely favourable one to the appellant but was in the light of all the evidence, nevertheless, quite sufficient to lead to an ultimate finding of the commission of the offence.

  1. The Court confirmed that the question of whether the “drainage line” in question constituted a “water channel”, and hence fell within the statutory definition of “waters”, was a matter appropriately determined by the trial judge, holding at 446 to 447 that:

However, before leaving this case the following observations could usefully be made.

In the Shoalhaven City Council v State Pollution Control Commission (1991) 52 A Crim R 291 at 294 Clarke JA speaking for the Court said, after referring to the definition of "waters" in s 5:

"Given this width of expression, it is difficult to contemplate any waters which were not within the definition ... "

In the light of the evidence which was presented at the trial it was, in our view, clearly open to the trial judge to have held that prior to the excavation works being carried out by the appellant, the drainage line commencing at least from the eastern end of the culvert down to the Bango Creek constituted a water channel within the definition of "waters".

  1. The prosecutor submitted that Genkem and Environmental and Earth Sciences make the following points clear:

  1. Whether the relevant facts are sufficient to establish that the pleaded waters are “waters” in accordance with the statutory definition of “waters” is a matter for the trial judge.

  2. Even if the pleaded case on waters is not established to the requisite criminal standard, the trier of fact may still find an alternative definition is made out (e.g, not a “swamp”, but still “unconfined surface waters”, as in Genkem), where there is no prejudice to the defendant.

  3. The definition of “waters” is expansive: “[g]iven this width of expression, it is difficult to contemplate any waters which [are] not within the definition”. [30]

    30. Environmental and Earth Sciences at [60] (Wood CJ at CL, Bell J and Carruthers AJ) citing Shoalhaven City Council v State Pollution Control Commission (1991) 52 A Crim R 291 at 294.

  1. The prosecutor rejected the defendants’ submission that the definition of “waters” in the POEO Act is “exhaustive and exclusive”, and that a consideration of “the list of geographical expressions” used to describe waters means that an “ephemeral drainage line” cannot fall within the definition of “waters”. Further, the prosecutor rejected the submission that it had failed to “set out any physical characteristics” of the ephemeral drainage lines “to show why such a thing should qualify for entry into one of the categories of waters”. The prosecutor submitted that even if the definition of “waters” is “exclusive and exhaustive”, it would not follow that the categories of defined waters exclude ephemeral drainage lines. None of the categories of waters as defined refers to any physical characteristics. There is no guidance in the statutory definition or elsewhere in the dictionary as to “what constitutes a river versus what constitutes a stream”. The physical features of a “watercourse” have developed in the common law. There is no reason that the common law cannot be further developed and include, for example, ephemeral drainage lines as a natural watercourse. Whether or not that is so, the prosecutor submitted, is a question of fact.

  2. In Harrison v Perdikaris (Perdikaris),[31] the chief judge, Preston J, considered the definition of “river” under the Water Management Act 2000 (NSW) (Water Management Act), relevantly defined as “any watercourse, whether perennial or intermittent and whether comprising a natural channel or a natural channel artificially improved”. Finding that “river” should be interpreted expansively and not read narrowly (at [24]), Preston J further held at [27]:

27. ...it might also be argued that the wide and inclusive definition of "river" in the WM Act and the particular physiographic, geomorphologic and hydrologic conditions of New South Wales, in respect of which the WM Act is to apply, might justify the expression "watercourse" as not being restricted to only those watercourses accepted under the common law: see M Taylor & R Stokes, "Up the Creek: What is wrong with the definition of a river in New South Wales?" (2005) 22 Environmental and Planning Law Journal 193.

31. [2015] NSWLEC 99 (Preston CJ).

  1. The article cited by the chief judge was submitted by the prosecutor to endorse the application of a scientific approach to the categorisation of river and stream flow regimes; namely, as perennial, intermittent or ephemeral. The prosecutor submitted that the reasoning of the chief judge in Perdikaris demonstrates that the Court “can receive evidence that would further develop our understanding of waterbodies”. Expert evidence of a tripartite classification (namely, perennial, intermittent and ephemeral) was accepted by Sheahan J in Burke v Hawkesbury City Council. [32]

    32. [2001] NSWLEC 222 at [53] and [78] (Sheahan J).

  2. The prosecutor submitted that its expert evidence, namely the Macleod report included in the notice of prosecution case “specifically considers whether the ephemeral drainage lines are ‘watercourses’ having regard to the definition of ‘waters’ in the POEO Act, having regard to the presence of a defined channel, bed and banks, presence of water, and fluvial features”. Whether Mr Macleod's evidence is sufficient to establish that the ephemeral drainage lines leading to Murdering Creek are watercourses is a matter for the trier of fact.

Whether it is “too late” for the prosecutor to allege that the ephemeral drainage line is a drain or watercourse

  1. In relation to the defendants’ submission that it was now “too late” for the prosecutor to allege that the ephemeral drainage lines are watercourses, the prosecutor submitted that the defendants cited no authority for this assertion, and that it is not clear on what basis it is put. The prosecutor submitted that the defendants “purport[ed] to place a limitation upon the power of the Court to amend an indictment under s 21 of the [CPA]”, which was “against the express words of the Act” which state, “[a]n order under this section may be made either before trial or at any stage during the trial”. [33]

    33. CPA s 21(4).

  1. Similarly, s 68(1) of the Land and Environment Court Act 1979 (NSW) provides:

In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

  1. The prosecutor submitted that the further particularisation of the ephemeral drainage lines constituting watercourses, as “explicitly put in evidence by the Macleod report”, does not cause the defendants any prejudice, particularly in circumstances where the defendants have not yet filed any evidence, and no trial date has been fixed.

Conclusions in relation to the second issue

  1. I am comfortably satisfied that each of the amended summonses charges an offence known to law, in conformity with the principles enunciated in Kirk at [26]. The phrase “it polluted waters” in the summons in relation to Kiangatha, and the phrase “did pollute waters” in relation to Mr Natale, reflect the requirements of ss 11 and 12 of the CPA, as well as the common law requirements articulated in Kirk.

  2. The elements of a water pollution offence are as articulated by Pepper J in Riverina at [15]. Each of those elements is pleaded in the amended summonses. The defendants’ complaints as to the sufficiency of the particulars are technical matters capable of being addressed by way of further particulars at any stage of the proceedings.

  3. I am satisfied having regard to Genkem and Environmental and Earth Services that whether the relevant facts are sufficient to establish that the pleaded waters are “waters” within the statutory definition in the dictionary to the POEO Act is a matter for the trial judge.

  4. I have not, for the purpose of this interlocutory proceeding, accepted the defendants’ submission in relation to the definition of “waters” in the POEO Act. However, that will be a matter for the trial judge.

  5. Likewise, whether ephemeral drainage lines are “watercourses” having regard to the definition of “waters” in the dictionary to the POEO Act will be a matter for the trial judge.

  6. Nor do I accept the defendants’ submission that it is now too late for the prosecutor to allege that the ephemeral drainage lines are watercourses.

  7. For the reasons above, I would, if necessary, reject the defendants’ submissions in relation to the second issue.

Costs

  1. The defendants sought that each of the amended summonses be dismissed with costs in the event that the Court acceded to the motions.

  2. The prosecutor made no submissions as to the question of costs on the motions.

Orders

  1. The Court makes the following orders:

  1. The defendants’ notices of motion filed 25 July 2023 in proceedings 2018/295909 and 2018/295911 are dismissed.

  2. No order as to costs.

  3. The proceedings are listed for directions before the list judge on Friday, 2 February 2024.

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Endnotes


Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129 (Auen Grain) at [38] (Robson J).

Decision last updated: 15 December 2023

Most Recent Citation
Cases Citing This Decision

1

WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale (No 4) [2025] NSWLEC 83
Cases Cited

39

Statutory Material Cited

5

Ballina Shire Council v Joblin [2022] NSWLEC 90
Burke v Hawkesbury City Council [2001] NSWLEC 222
Doja v R [2009] NSWCCA 303