Citation: Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLC 2
Court: NSW Local Court
Date: 25 June 2024
Judge: Nash LCM
Background
The Natural Resources Access Regulator (NRAR) prosecuted a corporate landholder, Green Leaf Australia Group Pty Limited, and its director, Mr Xiuming Lin, for offences under the Water Management Act 2000 (NSW). The company operated a commercial farming business growing tomatoes, cucumbers, and ginger on a rural property at Clybucca in the Macleay Valley. The NRAR alleged that multiple dams on the property were used and constructed without the required statutory approvals.
Sixteen charges were brought against the company and a further 16 against Mr Lin personally. The charges included using water supply works without approval, constructing or extending dams without approval, and carrying out controlled activities without approval. Some charges against Mr Lin were brought under executive liability provisions, holding him personally responsible for the company's contraventions.
By agreement, all oral and documentary evidence was treated as having been adduced in both sets of proceedings, and the magistrate determined all 32 charges in a single judgment.
Legal Issues
- Whether the NRAR had standing and jurisdiction to institute and maintain the prosecution proceedings
- Whether certain charges had been commenced outside the statutory time limitation period
- How the rebuttable presumptions in s 367B of the Water Management Act 2000 applied to the charges
- How the executive liability provisions in s 363 of the Act applied to Mr Lin as company director
- How the deeming provision in s 91L of the Act applied to establish corporate liability
- Whether evidence derived from statutory notices issued to the company and director was admissible (determined on a voir dire)
- Whether the prosecution proved, beyond reasonable doubt, the elements of each charge in relation to each dam
Decision
The magistrate resolved the preliminary jurisdictional question in favour of the NRAR, confirming that the regulator had the power to institute and maintain the prosecution. The time limitation challenge was also addressed, with the court applying s 367B and its rebuttable presumptions to determine whether charges had been brought within time.
On the admissibility question, the court conducted a voir dire in relation to Exhibits 38 to 41, which concerned statutory notices issued to the company and to Mr Lin. The court's reasons on admissibility are set out separately within the judgment, and the resolution of that question informed the evidentiary foundation for the prosecution case.
In relation to the substantive charges, the court found that the prosecution had proved the principal offences beyond reasonable doubt for each of the 12 charges proceeded with against the company, and equally for each of the 12 charges against Mr Lin. The alternative charges (charges 13 to 16 for each defendant) were accordingly withdrawn and dismissed, as the principal offences had been established.
The court noted that the proceedings raised complex questions about the interaction of several provisions in the Water Management Act 2000, including the deeming provision in s 91L, which can attribute an occupier's liability to a corporate landholder, and the executive liability provisions in s 363, which can make a director personally liable for a corporation's contravention.
Orders Made
- Guilty verdicts entered against Green Leaf Australia Group Pty Limited on charges 1 to 12
- Guilty verdicts entered against Mr Xiuming Lin on charges 1 to 12
- Alternative charges 13 to 16 against the company withdrawn and dismissed
- Alternative charges 13 to 16 against Mr Lin withdrawn and dismissed
- Directions for a sentencing hearing to be made in consultation with the parties
Key Takeaways
- The Local Court confirmed that the NRAR has jurisdiction to institute and maintain prosecutions under the Water Management Act 2000, a question that had been contested in these proceedings.
- Under s 91L of the Water Management Act 2000, an occupier of land can be taken to have committed a relevant offence even where the direct act was carried out by another person, with this deeming mechanism available as an alternative basis for corporate liability.
- Section 363 of the Water Management Act 2000 exposes company directors to personal liability for contraventions committed by their corporation, and the court found those provisions satisfied against Mr Lin on all 12 charges.
- The rebuttable presumptions in s 367B govern whether charges have been brought within the statutory limitation period, and the court applied those provisions in resolving the time limitation challenge raised by the defence.
- Where a principal charge is proved, alternative charges arising from the same conduct are withdrawn and dismissed, rather than resulting in a separate verdict.
Legislation and Cases Referenced
Legislation
- Water Management Act 2000 (NSW), ss 91B(1), 91L, 363, 367B, 392
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)
- Natural Resources Access Regulator Act 2017 (NSW)
- Crown Proceedings Act 1988 (NSW)
- State Records Act 1998 (NSW)
- Acts Interpretation Act 1901 (Cth)
Cases
- Natural Resources Access Regulator v Bao Lin Pty Ltd [2022] NSWLEC 42
- Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Henry Payson Pty Ltd [2023] NSWLEC 5
- Natural Resources Access Regulator v Littore [2024] NSWLEC 53
- Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165
- Australian Securities and Investments Commission v King (2020) 270 CLR 1
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
- Ostrowski v Palmer (2004) 218 CLR 493
- Proudman v Dayman (1941) 67 CLR 536
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Jones v Dunkel (1959) 101 CLR 298
- Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204