Environment Protection Authority v CSR Ltd

LEGISLATION CITED: application to strike out - adequate particulars - amendment - summons - duplicity

DATES OF HEARING: 04/20/1999; 04/22/1999; 05/03/1999

DATE OF JUDGMENT DELIVERY: 05/05/1999

PROSECUTOR Mr S J Rushton (Barrister)

SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr P D McClellan QC with Mr B J Preston (Barrister)

SOLICITORS Mallesons Stephen Jacques

IN THE LAND AND 50080 of 1997 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 5 May 1999

ENVIRONMENT PROTECTION AUTHORITY Prosecutor v CSR LTD (trading as CSR WOODPANELS) Defendant JUDGMENT

Two issues have currently arisen for determination in the course of these proceedings.

First, the defendant has sought, by notice of motion, an order that the proceedings be struck out on the ground that the prosecutor has failed to provide the particulars which, on 18 December 1997, the Court ordered to be given.

Secondly, the prosecutor has sought, by notice of motion, an order that the summons in these proceedings be amended by adding after the word "harmed" in par 1 the words "or was likely to harm" .

It is appropriate that I deal with the defendant's notice of motion first, because, of course, if the defendant is successful, the prosecutor's notice of motion will not arise.

A brief recapitulation of the proceedings thus far is necessary for an understanding of the basis for the defendant's claim that the proceedings should be struck out.

The defendant has been charged under s 6(1) of the Environmental Offences and Penalties Act 1979 ("the EOP Act") alleging that it did, without lawful authority, negligently cause a substance to leak in a manner which harmed the environment. The summons particularised the substance as being liquid from an effluent pond called "the Blue Lagoon" , the negligence as being that the defendant knew or ought to have known that the Blue Lagoon would leak the substance, and that the environmental harm was constituted by a number of specified matters, including pollution of waters, destruction of biota, and change in the composition of waters.

The defendant sought further and better particulars of the charge, and letters about this passed between the prosecutor and the defendant's solicitors. Ultimately, the defendant claimed that the prosecutor had failed to furnish adequate particulars, and it put on a notice of motion seeking an order that the prosecutor provide the particulars sought. On 18 December 1997, I ordered that particulars relating to certain matters be furnished by the prosecutor to the defendant ( I shall return to the detail of that order in due course).

In response to the prosecutor's request, I thereafter stated a case to the Court of Criminal Appeal pursuant to s 5A(1A) of the Criminal Appeal Act 1912. On 19 November 1998, that Court answered in the negative the question as to whether I had erred in directing the prosecutor to provide the defendant with the specified particulars ( Environment Protection Authority v CSR Limited (1998) 101 LGERA 109).

In a letter dated 9 February 1999, the prosecutor provided responses to the orders which I had made on 18 December 1997. However, the defendant now claims that those responses fail to provide the particulars which were ordered to be given, and for that reason, the proceedings ought now to be struck out.

In the course of the series of letters which passed between the prosecutor and the defendant's solicitors in relation to particulars, a critical statement appeared as follows in a letter which the defendant's solicitors wrote to the prosecutor on 7 October 1997: Acts of CSR said to have caused the leak

We understand from the particulars supplied that the negligent acts alleged by the EPA are that CSR, on a number of separate and unidentified occasions, pumped or otherwise placed effluent into the Blue Lagoon ('the Acts") in circumstances where CSR knew, or ought to have known, on each of those separate occasions, that the Blue Lagoon was insufficiently impervious to receive the effluent and that, consequently, it would leak ('the Negligence").

The prosecutor replied on 31 October 1997, stating that the above statement was correct.

Although some further particulars were furnished by the prosecutor, the defendant claimed that the prosecutor had failed to furnish adequate particulars. This led ultimately to the orders which I made on 18 December 1997, which was a direction that the prosecutor provide answers to the defendant's request for particulars in relation to two matters as follows: (1) the date or dates when the acts or omissions alleged to constitute the defendant having negligently caused a substance to leak in a manner which harmed the environment occurred; and

(2) the facts, matters and circumstances by which the person or persons who managed the defendant's Tumut site ought to have known that the Blue Lagoon was insufficiently impervious to receive effluent and that, consequently, it would leak . 13. After the stated case was determined, the prosecutor responded to the order I had made in a letter dated 9 February 1999, by referring to each numbered matter in the following terms: 1. From 1992. The EPA alleges that the offence was a continuing one from 1992 until the decommissioning of the Blue Lagoon;

2. The EPA alleges that from 1992, CSR became aware that the Blue Lagoon was insufficiently impervious to receive effluent. At that time, CSR became aware that the Blue Lagoon was leaking effluent and failed to take any or any sufficient steps to prevent the reception of further effluent into the Blue Lagoon and the leaking of effluent from the Blue Lagoon. The EPA refers you to Annexures 'H' and 'I' to the affidavit of Robert Monteith sworn 24 October 1996.

In claiming that the proceedings should be struck out, the defendant has concentrated on what it perceives as the failure of the prosecutor to furnish the particulars required by par (1) and par (2) of my order. Thus, Mr McClellan QC, appearing for the defendant, submitted that, in relation to par (1), the prosecutor is required to identify the acts or omissions alleged to constitute the defendant having negligently caused a substance to leak in a manner which harmed the environment, and then to specify the date or dates upon which they occurred. It was said that, in this context, the response "From 1992" is meaningless.

However, so far as concerns par (1), the particulars now furnished reveal a change from what the prosecutor originally said. The prosecutor now claims a "continuing offence" rather than negligent acts occurring "on a number of separate and unidentified occasions" . Mr Rushton, appearing for the prosecutor, frankly acknowledged that the particulars furnished to the defendant on 7 October 1997 were imprecise and may have been confusing.

Mr McClellan responded to the particularisation of the offence as a "continuing offence" by submitting that the offence which is created by s 6(1) cannot be properly interpreted as a continuing offence. Consequently, he said, the prosecutor cannot furnish particulars of a continuing offence which would be relevant to these proceedings.

In taking issue with that submission, Mr Rushton referred to Hodgetts and Anor v Chiltern District Council (1983) 2 AC 120, Alphacell Limited v Woodward (1972) AC 824 and Empress Car Co (Abertillery ) Ltd v National Rivers Authority (1998) 1 All ER 481. In Hodgetts v Chiltern, it was held that it is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time. In Alphacell v Woodward it was held that the act of "causing" was constituted by a series of acts, comprising the works operation of the defendant, leading to the pollution of a river. In Empress v National Rivers, it was held that the defendant "caused" a pollutant to enter waters if he actively did something which produced a situation in which the pollution matter could escape, even though what he did was not the immediate cause of the pollution.

Mr McClellan endeavoured to distinguish all three cases on various grounds, including the fact that in none of them was negligence an essential ingredient of the offence, as it is in the offence created by s 6(1).

I desist from determining this issue, because it is not relevant to the task I am presently required to undertake. It is not my task at this stage of the proceedings to determine whether or not an offence under s 6(1) can be a continuing offence or, indeed, to define precisely what a "continuing offence" is (cf Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 85 - 86). Those are questions for the trial judge, to be determined on all the evidence which will be adduced at the trial. My task is confined to determining the notice of motion, that is, whether the prosecutor has furnished the defendant with particulars sufficient for the defendant to know the nature of the charge against it ( Johnson v Miller (1937) 59 CLR 467), and, for that purpose, to determine if the prosecutor has furnished a sufficient response to the orders which I made on 18 December 1997.

So far as concerns the allegation of "negligently causing a substance to leak" , the prosecutor has now stated that, from 1992 and continuing until the Blue Lagoon was decommissioned (which Mr Rushton specified as being in 1997 or 1998), the defendant intermittently as part of its continuing manufacturing process placed or pumped effluent into the Blue Lagoon when the Blue Lagoon was leaking and in circumstances where it failed to prevent that leak.

The prosecutor has now abandoned its particularisation of the offence as being constituted by acts or omissions on a "number of separate and unidentified occasions" . It has said that the defendant placed effluent in the Blue Lagoon over a period of time. It is not the placing of the effluent into the Blue Lagoon which constitutes the offence with which the defendant is charged. That is only part of the circumstances. The details which have now been furnished by the prosecutor rely upon its allegation that the Blue Lagoon was leaking over the whole period from 1992 until it was decommissioned.

In my opinion, so far as concerns the element of "negligently causing" , the prosecutor has now furnished adequate particulars, and it has, so far as concerns my first order, furnished the date upon which the offence commenced and the period during which it continued. I note for completeness that a similar conclusion was arrived at by Cowdroy AJ in Environment Protection Authority v Shell Company of Australia Limited (25 September 1998, unreported), where, in response to a similar complaint about the failure to furnish the date or dates upon which the offence had occurred, the prosecutor particularised a continuous offence, and his Honour concluded, at par 12, that the defendant "now has clear notice of the precise period during which the offence allegedly occurred and of its continuous nature in that period" .

I turn then to the question of whether adequate particulars have been furnished by the prosecutor in relation to its allegation that the defendant knew or ought to have known that the Blue Lagoon was insufficiently impervious to receive the effluent.

In response to par (2) of my order, the prosecutor has said that from 1992, the defendant "became aware" that the Blue Lagoon was leaking. It had earlier stated that the persons so aware were the managers from time to time of the defendant's Tumut premises. It has also said that, from 1992, the defendant "failed to take any or any sufficient steps to prevent the reception of further effluent into the Blue Lagoon and the leaking of effluent from the Blue Lagoon."

Mr Rushton submitted that the particulars now furnished allege that the fact that the Blue Lagoon was leaking constituted the knowledge which resided in the managers of the defendant's Tumut site, and the knowledge whereby they knew or ought to have known that the Blue Lagoon was insufficiently impervious to receive effluent. He pointed to documents furnished to an officer of the prosecutor (and annexed to the affidavit of Mr R W Monteith sworn on 24 October 1996) in which, as at 3 March 1992 (and repeated on subsequent occasions) it was noted that the Blue Lagoon "has proven to leak effluent into the adjacent earth" and "[T]he aim is to eliminate this dam" . In my opinion, the prosecutor has accordingly furnished an adequate response to the second order which I made on 18 December 1997.

I conclude, for these reasons, that the prosecutor has now furnished particulars sufficient for the defendant to know the case it has to meet, and the notice of motion to strike out the proceedings must be dismissed.

Section 6(1) of the EOP Act relevantly provides that a person is guilty of an offence if that person "…negligently causes any substance to leak…in a manner which harms or is likely to harm the environment…"

In par (1) of the summons, the prosecutor charged the defendant with an offence against s 6(1) "…in that it did…negligently cause a substance to leak in a manner which harmed the environment."

The prosecutor now wishes to add after the word "harmed" the words "or was likely to harm" .

An affidavit of Mr P T Barley, a solicitor in the employment of the prosecutor, was read in support of the prosecutor's notice of motion seeking that amendment. Mr Barley deposed to the fact that the defendant had furnished a certain report to the prosecutor in response to a notice to produce, and that report contained an estimate that groundwater flow rates from the defendant's Tumut premises "would have a travel time of between 2.5 - 12 years ". Mr Barley formed the view, on the basis of that estimate, that the defendant might argue that the pollutants from the Blue Lagoon had not, within the period from 1992 to 1994, reached the point where samples had been taken. Hence the prosecutor sought leave to amend the summons.

The defendant resisted the grant of leave to amend the summons on the following grounds: (a) the amendment sought renders the summons bad for duplicity and uncertainty; (b) the amendment sought alleges an offence outside the statutory limitation period; (c) the amendment sought creates prejudice to the defendant in a manner which ought not to be permitted in that the amendment, if not alleging a new offence, expands the offence charged, and the proceedings have been on foot since 6 August 1997.

The basis for the defendant's claim that the amendment would render the summons bad for duplicity is its submission that, relevantly, s 6(1) of the EOP Act creates two separate offences: first, negligently causing a substance to leak in a manner which harms the environment; and second, negligently causing a substance to leak in a manner which is likely to harm the environment.

The prosecutor denied that s 6(1) could be read in this way. It submitted that the offence which is relevantly created by s 6(1) is one offence, that of negligently causing a substance to leak in such a manner that it causes harm to the environment or is likely to cause harm to the environment.

Each party relied upon the decision of Woodward J in Bowling v General Motors- Holdens Pty Ltd (1975) 8 ALR 197. That was a case concerning alleged breaches of s 5 of the Conciliation and Arbitration Act 1904 - 1975 (Cth) in relation to the dismissal of an employee from his employment. The form of the summons alleging the breach was challenged, and that challenge was upheld for reasons given by Woodward J (with whom, on this point, Smithers and Evatt JJ agreed). In its original form, the summons alleged that the defendant "…dismissed and injured an employee…or altered his position to his prejudice…" . At pp 217 and 218, Woodward J said: In my opinion, s 5 of the Act provides for three separate offences:- (i) dismissing an employee for any one of several reasons deemed to be improper; (ii) injuring an employee in his employment for any of those reasons; and (iii) altering an employee's position to his prejudice for any of those reasons.

In any event I take the view that a defendant cannot properly be charged with all three of these actions in a single count. If they are expressed cumulatively, the information will be bad for duplicity. If they are put in the alternative it will be bad for uncertainty. I believe that such a charge is very similar to "having assaulted resisted or wilfully obstructed a member of the police force in the due execution of his duty" which was held bad in R v Galvin (No 2) (1961) VR 740 and is quite different from "unlawfully sell or dispose of a ticket in a lottery" which was held good in Gleeson v Ah Houn (1896) 22 VLR 156 or having in "possession or control" fish under a certain size, which was held good in Hedberg v Woodhall (1913) 15 CLR 531; 19 ALR 95.

In each of those cases the act involved was substantially the same whichever description was attached to it. In each case the second description comprehended the first. The relevant sections might have read "unlawfully dispose of, by sale or otherwise…" and "having in possession or otherwise in control…".

The contrast with cases in which a particular act is made unlawful by reason of any one of a number of surrounding circumstances, is even clearer. Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity.

The distinction is clearly drawn by Bray CJ in Romeyko v Samuels (1972) 19 FLR 322 at 345 where he says: "The true distinction, broadly speaking, it seems to me is between a statute which penalizes one or more acts, in which case two or more offences are created, and a statute which penalizes one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases…".

In my opinion, s 6(1) relevantly in this case falls into the second limb of the distinction made by Bray CJ quoted above - it penalises one act which possesses one or both of two forbidden characteristics. The act which is penalised is the negligently causing of a substance to leak, and that is a single act, which in this case has been charged. It is an act which is unlawful in specified circumstances, that is, where it harms the environment or is likely to harm the environment. To adopt the words of Woodward J, cumulative allegations as to those circumstances will not render the summons bad for uncertainty and duplicity.

Mr McClellan submitted that the proposition that the amendment sought would be bad for duplicity could be tested by inquiring whether the defendant could establish a claim for autrefois convict or autrefois acquit in circumstances where the current charge of actual harm is dismissed and the prosecutor then charges the defendant with a charge of likely harm. I think that the defendant could establish such a claim, because what is charged here is a single act which is unlawful because it possesses one or more forbidden characteristics. The single act remains unlawful whether it harmed the environment, or whether it was likely to harm the environment.

Section 12(1) of the EOP Act provides for a 12 month limitation period for, amongst others, offences under s 6(1). However, the defendant's contention that the amendment alleges an offence outside the statutory limitation period cannot succeed, because as I have found no new offence is charged.

As I have outlined, the defendant submits that I should not now grant leave to amend, taking into account the expansion of the offence which the amendment will bring about, and the fact that the proceedings have been on foot for almost two years. I reject this argument. The proceedings are in an early stage, despite the lapse of almost two years. The defendant has not yet pleaded to the charge, no directions have been made as to the filing and service of any evidence of the defendant, and the proceedings have not been set down for hearing. Furthermore, the prosecutor has furnished what seems to me to be an acceptable explanation of its delay in seeking to amend. Its desire to amend arose out of a document, not in the prosecutor's possession, but produced by the defendant in response to a notice to produce. Then the prosecutor held back its application to amend the summons pending the decision of the Court of Criminal Appeal in the stated case.

I propose, for these reasons, to grant leave to the prosecutor to amend the summons.

(1) The defendant's notice of motion returnable on 20 April 1999 is dismissed.

(2) I grant leave to the prosecutor to amend the summons by adding after the word "harmed" in par 1 the words "or was likely to harm" .

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