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Court of Criminal Appeal 13 May 2022

Environment Protection Authority v Eastern Creek Operations Pty Limited

[2022] NSWCCA 97

Also reported as (2022) 108 NSWLR 198
Other

Citation: Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97
Court: Court of Criminal Appeal
Date: 13 May 2022
Judges: Macfarlan JA; Fullerton J; Lonergan J

Background

The Environment Protection Authority (the EPA) had issued a licence to a waste-processing operator (Eastern Creek Operations) to conduct activities including waste processing and composting at a facility in Western Sydney. Between 2010 and 2018, the facility produced a material known as mixed waste organic output (MWOO). In May 2018, a report found that MWOO contained chemical contaminants raising significant concerns for the environment and human health.

In September 2018, the EPA issued a notice to Eastern Creek under s 191 of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act), requiring the company to furnish specified information and records relating to MWOO. Eastern Creek allegedly failed to comply and also furnished information in purported compliance that was knowingly misleading. The EPA commenced two Class 5 summary criminal prosecutions in the Land and Environment Court.

During preliminary hearing proceedings, Pain J ruled that the notice was invalid. The EPA sought leave to appeal that ruling under s 5F of the Criminal Appeal Act 1912 (NSW), and the Land and Environment Court also stated a case to the Court of Criminal Appeal concerning whether a judge at a preliminary hearing has power to summarily dismiss a summary prosecution.

  • Whether the notice issued under s 191 of the POEO Act was valid, in particular whether it sufficiently identified the material required and demonstrated that the EPA was entitled to require its production.
  • Whether the primary judge's ruling on notice invalidity constituted an "interlocutory judgment or order" for the purposes of s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), such that the EPA was entitled to seek leave to appeal.
  • Whether leave to appeal should be granted, even if the application was competent.
  • By way of case stated, whether a judge presiding over a preliminary hearing under the case management provisions of the Criminal Procedure Act 1986 (NSW) has power to summarily dismiss a summary prosecution prior to final hearing.

Decision

The Court dismissed the application for leave to appeal by majority, with Fullerton and Lonergan JJ in the majority and Macfarlan JA dissenting. Each judge approached the issues differently, producing a complex split outcome.

Validity of the notice (Issue 1): Macfarlan JA, in dissent, found the notice valid. His Honour applied the principle from Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 that a notice of this kind must both identify the documents required with sufficient clarity and show the person addressed that the issuer is entitled to require their production. His Honour concluded the notice in question met both requirements. Fullerton and Lonergan JJ considered it unnecessary to reach this question given their conclusions on Issue 2.

Leave to appeal under s 5F (Issue 2): Fullerton and Lonergan JJ held that the application for leave was not competent. They characterised the primary judge's ruling on invalidity as, in substance, a final rather than interlocutory ruling. Although made at a preliminary stage, it effectively brought the prosecutions to an end and could not properly be described as determining only a separate or identifiable part of the proceedings. Their Honours held that even if the application were competent, they would have refused leave in any event. Macfarlan JA disagreed, characterising the ruling as interlocutory because it was made on formal notices of motion, was the subject of a substantial dedicated hearing and a lengthy judgment, and could have been reflected in the court's records in the ordinary way.

Case stated (Issue 3): Fullerton and Lonergan JJ answered the stated case question in the affirmative. They found that nothing in s 247G of the Criminal Procedure Act deprives a superior court of the power to determine, at a preliminary hearing, whether a case should be dismissed where an essential condition of criminal liability cannot be established. Macfarlan JA did not decide this question, considering it unnecessary given his conclusion that the notice was valid.

Orders Made

  • The application for leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) was dismissed.
  • The stated case question was answered in the affirmative: a judge presiding over a preliminary hearing convened under the case management provisions of the Criminal Procedure Act 1986 (NSW) does have power to summarily dismiss a summary prosecution where an essential condition of criminal liability cannot be established.

Key Takeaways

  • The Court of Criminal Appeal confirmed, by majority, that a ruling by a primary judge effectively ending a prosecution, even if made at a preliminary stage rather than after final hearing, may be characterised as final rather than interlocutory for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), rendering a leave to appeal application under that section incompetent.
  • A finding that goes to the heart of criminal liability, and which would effectively terminate the prosecution if not challenged, is not necessarily rendered "interlocutory" merely because it is made before a final hearing or on a formal notice of motion.
  • Under s 247G of the Criminal Procedure Act 1986 (NSW), a superior court presiding at a preliminary case management hearing retains the power to summarily dismiss a summary prosecution where it finds that an essential element of the charge cannot be established.
  • Macfarlan JA articulated the validity requirements for a statutory information notice under s 191 of the POEO Act: the notice must both identify the required documents with sufficient clarity and demonstrate to the recipient that the issuer is legally entitled to require their production, applying the principles in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499.
  • In refusing leave even on the assumption that the application was competent, Fullerton and Lonergan JJ applied Turnbull v R [2016] NSWCCA 109, distinguishing the earlier authority of R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 191, 211
- Criminal Appeal Act 1912 (NSW), ss 5AE, 5C, 5F
- Criminal Procedure Act 1986 (NSW), ss 247A, 247B, 247C, 247G
- Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW)
- Protection of the Environment Administration Act 1991 (NSW)
- Interpretation Act 1987 (NSW), s 13A
- Land and Environment Court Act 1979 (NSW)

Cases:
- Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67
- Turnbull v R [2016] NSWCCA 109
- A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
- R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296
- R v Steffan (1993) 30 NSWLR 633
- Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42
- Environmental Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182
- Environmental Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39
- DPP (NSW) v Ridley [2015] NSWSC 1478
- Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163