Citation: Taylor v Environment Protection Authority [2000] NSWCCA 71
Court: Court of Criminal Appeal, New South Wales
Date: 25 August 2000
Judge(s): Meagher JA, James J, Sperling J (Sperling J delivered the leading judgment; Meagher JA and James J agreed)
Background
The appellant, Rodney Scott Taylor, faced three concurrent prosecutions brought by the Environment Protection Authority (EPA) for alleged offences under section 33(1) of the Pesticides Act 1978 (NSW). The charges arose from the alleged use of a registered pesticide in careless disregard of instructions on its registered label, with the offending conduct alleged to have occurred in June 1997.
The EPA commenced proceedings by filing a summons under Part 75 rule 7 of the Supreme Court Rules, as adapted for the Land and Environment Court, rather than by laying a formal information. Taylor moved to have the proceedings dismissed, arguing that section 59(3) of the Pesticides Act required proceedings to be commenced by information and that the summons did not satisfy that requirement.
Lloyd J in the Land and Environment Court refused to dismiss the proceedings. Taylor requested that Lloyd J state questions of law for determination by the Court of Criminal Appeal under section 5A(1A) of the Criminal Appeal Act 1912. Three stated cases, materially raising the same questions, came before the Court.
Legal Issues
- Whether section 59(3) of the Pesticides Act 1978 mandatorily requires proceedings to be commenced by way of information, or whether the word "may" renders that provision directory only
- Whether a summons issued under Part 75 rule 7 of the NSW Land and Environment Court Rules can constitute or satisfy the function of an "information" for the purposes of section 59(3)
- Whether the summons filed by the EPA was sufficiently particular to be valid as an initiating process
- Whether any defects in the summons were cured by a "Lord Jervis" provision (a statutory provision that cures technical defects in informations)
- Whether costs should be awarded in the stated case proceedings
Decision
The Court agreed with Lloyd J's reasoning and answered the stated case questions accordingly. Sperling J, with whom Meagher JA and James J agreed, held that section 59(3) of the Pesticides Act is not a mandatory provision. The word "may" in that section is directory, meaning that proceedings can be validly commenced by other initiating processes that perform the same essential function as an information, not solely by laying a formal information.
The Court further held that the summons filed by the EPA did perform the same function as an information. An "information" need not take any single fixed form; what matters is whether the initiating process sufficiently identifies the party informing the court, the accused, and the nature of the alleged offence. The Court also noted that the term "information" can, in appropriate contexts, encompass documents such as indictments, reinforcing a functional rather than strictly formal approach.
On the question of particularity, the Court examined whether the summons adequately described the offences charged. A "Lord Jervis" provision, which operates to cure technical or formal defects in an information where a defendant has not been misled or prejudiced, was also considered in the context of whether any identified deficiencies could be remedied.
On costs, Sperling J reviewed the case law on costs orders in stated case proceedings and concluded that there was no special reason to award costs in favour of the prosecuting authority. The appellant had raised a cogent and properly argued point of law, and no costs order was made.
Orders Made
- The proceedings were remitted to the Land and Environment Court of New South Wales for determination according to law.
- No order as to costs was made.
Key Takeaways
- Section 59(3) of the Pesticides Act 1978, which permits proceedings to be "commenced by information," is a directory provision only. The use of the word "may" does not create a mandatory requirement to proceed exclusively by information.
- A summons that identifies the informing party, the accused, and the substance of the alleged offence can satisfy the functional requirements of an "information" for the purposes of section 59(3), even though it is a different procedural form.
- The Court of Criminal Appeal confirmed a functional, not strictly formalistic, approach to identifying what constitutes an "information," consistent with earlier authority that the term can in some contexts extend to documents such as indictments.
- Where a "Lord Jervis" provision applies, technical or formal defects in an initiating process may be cured, provided the defendant has not been misled or suffered prejudice as a result of those defects.
- In stated case proceedings, costs will not automatically follow the event. The Court declined to award costs where the appellant had raised a legitimate and properly argued point of law, with no special circumstances justifying a costs order in favour of the prosecution.
Legislation and Cases Referenced
Legislation:
- Pesticides Act 1978 (NSW), ss 33(1), 59(3), 59(4), 40
- Pesticides and Allied Chemicals (Amendment) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5A(1A)
- Land and Environment Court Act 1979 (NSW), s 41
- Justices Act 1902 (NSW)
- Supreme Court Rules (NSW), Pt 75 r 7
- Land and Environment Court Rules (NSW), Pt 6 r 2(d)
Cases:
- John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508
- The Queen v Hull (1989) 16 NSWLR 385
- Stanton v Abernathy (1990) 19 NSWLR 656
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 ACrimR 553
- Environment Protection Authority v Cooke (Unreported, NSWCCA, 14 March 1996)
- Fraser v The Queen (No 2) (1985) 1 NSWLR 681
- Johnson v Miller (1937) 59 CLR 467
- Davies v Ryan (1933) 50 CLR 379
- De Romanis v Sibraa (1977) 2 NSWLR 264
- The Queen v Clyne (1980) 1 NSWLR 599
- The Queen v Proust (1989) 17 NSWLR 267
- The Queen v Clifford (1980) 1 NSWLR 314
- The Queen v Vatner (1992) 29 NSWLR 311
- NSW Grains Board v Davis (Unreported, NSWCCA, 17 July 1997)
- Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
- Smith v Moody [1903] 1 KB 56
- The Queen v Slater [1881] 8 QBD 267