Citation: CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373
Court: Court of Criminal Appeal, New South Wales
Date: 20 September 2000
Judge(s): Spigelman CJ, Hulme J, Smart AJ
Background
The appellant, a timber panel manufacturer operating under the name CSR Woodpanels, faced prosecution by the Environmental Protection Authority (EPA) in the Land and Environment Court. The EPA alleged that CSR had negligently caused liquid from an effluent pond known as the "Blue Lagoon" to leak, polluting a nearby spring, Rifle Range Creek, and surrounding groundwater. The Blue Lagoon had been operational since around 1980, and the EPA alleged leaking had been occurring at least since 1992.
The proceedings became contentious at an interlocutory stage over two related issues: whether the EPA had provided adequate particulars of the offence, and whether the offence under section 6(1) of the Environmental Offences and Penalties Act 1989 could be characterised as a continuing offence rather than a series of discrete acts. The EPA eventually particularised its case as a continuing offence running from 1992 until the pond was decommissioned.
CSR brought an appeal by way of case stated against several interlocutory rulings by Pearlman J in the Land and Environment Court, including decisions on the amendment of the summons, the sufficiency of particulars supplied, and the nature of the offence charged.
Legal Issues
- Whether section 6(1) of the Environmental Offences and Penalties Act 1989 creates an offence capable of being constituted by continuing conduct, rather than only discrete acts
- Whether the particulars supplied by the EPA were sufficient to meet the standard required for criminal proceedings
- Whether the trial judge erred in permitting the EPA to amend the summons to reflect a continuing offence
- Whether the trial judge was correct to decline to determine the continuing offence question herself, leaving it to the trial judge
Decision
The Court of Criminal Appeal, with all three judges agreeing in the result, answered each of the questions posed in the case stated in the negative. Smart AJ delivered the principal reasons, with Spigelman CJ agreeing, and Hulme J adding brief observations on the question relating to the continuing nature of the offence.
On the question of whether the offence under section 6(1) was capable of constituting a continuing offence, the court addressed the issue substantively even though it ultimately answered the formal questions in the EPA's favour. The court examined the nature of the conduct alleged, including the ongoing pumping of effluent into a pond known to be insufficiently impervious, and considered whether such conduct could constitute a single continuing offence rather than a series of separate discrete acts.
Hulme J observed that the question arose only as an incident of the interlocutory motions before Pearlman J, and that her decision to leave the point to the trial judge was a course properly open to her in that context. The Court's ultimate answers to the case stated questions were in the negative in each instance, meaning none of the questions were answered in CSR's favour.
On particulars, the court kept steadily in mind the principles from Johnson v Miller and Stanton v Abernathy, noting that some matters raised by CSR had not been put to the judge below and were better resolved at first instance than on appeal for the first time.
Orders Made
- Each question posed in the case stated answered in the negative
- Case remitted to the Land and Environment Court with that expression of opinion
- CSR ordered to pay the EPA's costs of the case stated
Key Takeaways
- The Court of Criminal Appeal confirmed that answering case stated questions in the negative meant each question was resolved in the EPA's favour, not CSR's, despite the court addressing the substantive continuing offence issue.
- Under section 6(1) of the Environmental Offences and Penalties Act 1989, the question of whether an offence constituted by ongoing leaking from an effluent pond is a continuing or discrete offence was identified as a live issue requiring determination at trial.
- A trial judge presiding over interlocutory motions acts within proper bounds when declining to resolve a novel statutory characterisation question, leaving that determination to the trial judge.
- Sufficient particularity in environmental prosecutions requires identification of the relevant dates or periods of alleged conduct and the factual basis for any alleged constructive knowledge, as confirmed by the earlier particulars orders that remained undisturbed.
- Costs followed the event: because all case stated questions were resolved in the EPA's favour, CSR was ordered to bear the EPA's costs of the case stated, regardless of the fact that the continuing offence issue was canvassed substantively by the court.
Legislation and Cases Referenced
Legislation:
- Environmental Offences and Penalties Act 1989 (NSW), ss 6(1), 12(2), 12(3), 14
Cases:
- EPA v Bathurst City Council (1995) 89 LGERA 79
- Romeyko v Samuels (1972) 19 FLR 322
- Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197
- Environment Agency v Empress Car Co (1998) 2 WLR 350
- Hodgetts v Chiltern District Council (1983) 2 AC 120
- Walsh v Tattersall (1996) 188 CLR 77
- R v Industrial Appeals Court (1965) VR 615
- Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
- Kirkheaton District Local Board v Ainley Sons & Co (1892) 2 QB 274
- Butterworth v West Riding of Yorkshire Rivers Board (1909) AC 45
- Alphacell v Woodward (1972) AC 824
- Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659
- EPA v CSR Ltd (1998) 45 NSWLR 357
- Johnson v Miller (1937) 59 CLR 469
- Stanton v Abernathy (1990) 19 NSWLR 656