Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97 | Case summary

Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97 | Case summary | Zoe

Judgment (12 paragraphs)

[1]

Background

The factual background to the EPA commencing summary criminal proceedings in the Land and Environment Court ("the LEC") for offences committed contrary to ss 211(1) and 211(2) of the Protection of the Environment Operations Act 1997 (NSW) ("the POEO Act"), each alleging non-compliance with a statutory notice issued under s 191 of the POEO Act ("the Notice"), has been summarised by Macfarlan JA and does not require repetition by me.
However, in resolving the question whether the EPA's application for leave to appeal under s 5F(3) is competent, and even if it is competent whether leave should be granted to permit the EPA to agitate the grounds of appeal which challenge the primary judge's decision as to the validity of the Notice, I have found it necessary to review the circumstances in which the primary judge was invited to determine that question, including the power she exercised in doing so and the attitude of the parties when she embarked upon that exercise. It is also necessary to consider what the parties submitted at various times in the court below were the legal consequences of either a finding of invalidity, as contended for by the respondent, or a finding of validity, as contended for by the EPA, and how the primary judge dealt with those submissions.

[2]

The procedural history of the proceedings

On 25 October 2019, by the service of two summonses the EPA commenced proceedings in the Class 5 jurisdiction of the LEC permitting the Court to hear and dispose of proceedings brought under Parts 8.2 and 8.3 of the POEO Act.
The first summons alleged an offence contrary to s 211(1) of the POEO Act constituted by the respondent failing, without reasonable excuse, to comply with a Notice issued by the EPA on 24 September 2018 (as varied by the service of a variation notice on 28 September 2018) to provide specified information and/or records. The requirement the respondent allegedly failed to comply with was particularised as failing to provide all test data of mixed waste organic output (MWOO) produced at the premises in a specified period, [1] including any additional sampling and testing as specified in paragraph 1(j) of the Notice.
The second summons alleged an offence contrary to s 211(2) of the POEO Act constituted by the respondent furnishing information in purported compliance with the Notice knowing that the information was misleading in a material respect. That information was particularised as information it had provided in response to paragraph 1(j) of the Notice, namely an incomplete set of test data and an incomplete set of test reports for MWOO produced at the premises in the specified period.
On 29 May 2020, the respondent filed a notice of motion in both proceedings relevantly seeking an order that the summonses be dismissed. The sole basis upon which that order was sought was that the Notice (as varied by the variation notice) was invalid. [2]
The notice of motion was listed for a two-day hearing before Pain J on 26 and 27 November 2020, and convened as a preliminary hearing pursuant to Div 2A of the Criminal Procedure Act 1986 (NSW).
Both parties filed detailed written submissions addressing the issues raised by the respondent's notice of motion. Extensive affidavit evidence was tendered. [3]
On the afternoon of 25 November 2020, the EPA advised the respondent by letter that it was of the preliminary view that the summonses could not be dismissed at a preliminary hearing and could only be dismissed after a trial had been convened and concluded. [4] The following day the EPA's counsel made the following submission: "[W]e submit that the appropriate course is for your Honour to give judgment and then list the matter for further directions for the parties to indicate what course they would take in light of your Honour's judgment. For example, if your Honour were to rule in your judgment that the notice was invalid, then obviously a key plan[k] of both charges would fall away and in any ordinary world the prosecutor would withdraw the charges and that's what would happen. It's our submission that it's, and recognising there are some authorities to the contrary in this court, which I will take you to, but it's not an order made in the criminal law to summarily dismiss a summary prosecution, and in fact what needs to happen is that the matter needs to be withdrawn by the prosecutor or proceed to hearing and there be an acquittal. So they're the two things that ought happen and they preserve appeal rights over the way." [5]
Precisely what the EPA's senior counsel intended by the words "they are" (the binary options to which she had earlier referred) and "preserve appeal rights" is not clear. However, given the context in which counsel made that submission, she could not conceivably be taken to have been referring to "preserving" the opportunity for the EPA to make an application for leave to appeal her Honour's finding on invalidity as an "interlocutory judgment or order" pursuant to s 5F(3)(a) of the Criminal Appeal Act.
Further, by that submission, the EPA must be taken to have accepted that the respondent's notice of motion raised an issue capable of being determined as a preliminary matter in the proceedings pursuant to s 247G(2) and ss 247G(3)(f) and (g) under Division 2A of Criminal Procedure Act. That Division relevantly provides as follows: Division 2A Case management provisions and other provisions to reduce delays in proceedings 247A Application This Division applies to proceedings before - (a) the Supreme Court in its summary jurisdiction, or (b) the Land and Environment Court in its summary jurisdiction, or (c) the District Court in matters brought under section 229B(1)(b) of the Work Health and Safety Act 2011. 247B Purpose (1) The purpose of this Division is to reduce delays in proceedings by - (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned. 247C Definitions (1) In this Division - appearance order means an order for the appearance or apprehension of a person made under section 246. court means - (a) the Supreme Court, or (b) the Land and Environment Court, or (c) the District Court. preliminary conference means a conference held under section 247H. preliminary hearing means a hearing held under section 247G. presiding Judge means the judge presiding at the hearing of the proceedings. (2) In this Division, a reference to the defendant is to be read as including a reference to the Australian legal practitioner representing the defendant. … 247G Preliminary hearings … (2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection - … (f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial, (g) give a ruling on any question of law that might arise at the trial or sentencing hearing. (4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court's own initiative. (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. … 247W Preliminary orders and other orders bind presiding Judge (1) A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless - (a) in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding. (4) In this section - preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.
While the EPA's position prior to the commencement of the preliminary hearing was that the Court did not have jurisdiction to summarily dismiss a summary prosecution (that being the only relief sought by the respondent's notice of motion, save for an order for costs), it did not oppose the motion being heard on the stated basis that in the event that the Notice was found to be invalid, and that the prosecutions could not succeed for that reason, "what needs to happen" is that the EPA would either withdraw the summonses or proceed to a hearing and for the respondent to be acquitted. [6]
With the EPA's analysis of the preliminary hearing due to be embarked upon as expressed at that time and in that way, the legal status, characterisation or effect of a finding that the Notice was invalid, or whether such a finding might constitute an "interlocutory judgment or order" susceptible to an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act, did not arise. As importantly perhaps, there was no question of the respondent reconsidering whether it should seek a ruling on the validity of the Notice before a final hearing of the summonses. Were the issue as to the validity of the Notice to be reserved to a final hearing, a finding of invalidity by the presiding judge would inevitably have resulted in the summonses being dismissed and acquittals entered as final orders. At that time, of course, the presiding judge might have been invited by the EPA to state a case pursuant to s 5AE(1) of the Criminal Appeal Act or the EPA may have wished to consider approaching the Office Of the Director of Public Prosecutions (ODPP) or the Attorney General to lodge an appeal under s 5C of the Criminal Appeal Act or s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). [7]

[3]

The decision on the question of validity (the respondent's notice of motion)

On 22 December 2020, after a two-day hearing in which I am satisfied the EPA was afforded every opportunity to persuade Pain J that the Notice was validly issued, including by the tender of the full complement of evidence relevant to that question and extensive written and oral submissions, her Honour published her reasons for concluding that the EPA had not discharged that onus.
As to what orders should be made in disposition of the respondent's notices of motion, where it was common ground that in light of her Honour's ruling the EPA could not make out its case, her Honour said: "[96] Eastern Creek submitted that the summonses should be dismissed. The EPA submitted that if the Court finds in favour of Eastern Creek, the summonses should not be dismissed, rather that the Court should make findings giving the EPA the opportunity to consider whether to withdraw the proceedings. Such a course preserves the EPA's appeal right. [97] I will discuss appropriate relief and costs further with the parties before making any final orders. A timetable for doing so will be discussed with the parties."
The following day, the EPA advised the respondent in writing that it was considering what it described as "the soundness of Pain J's reasons with a view to determining whether the EPA will appeal the decision once formal orders are made". [8] Again it is not clear what "appeal" the EPA was considering at that time. I note, however, that the EPA had earlier submitted that "the summonses should not be dismissed but, rather, the Court should make findings [as to the validity of the Notice] giving the EPA the opportunity to consider whether to withdraw the proceedings" and, noting that course "preserves the EPA's appeal rights", I am unable to accept the EPA's submission in this Court that senior counsel for the EPA had consistently advanced the submission in the Court below that the primary judge's decision on invalidity "may have been enough to create an appeal right (under s 5F of the Criminal Appeal Act) but out of an abundance of caution a determination or finding should formally have been made" so that it could be entered into the Court's records.
That submission was not advanced in the court below until after the primary judge delivered her reasons on the validity issue and submissions were filed as to the orders she should make in the final disposition of the respondent's notice of motion and in accordance with the timetable set by the primary judge.

[4]

The decision on finding orders (the EPA's notice of motion)

On the day listed for the hearing of the EPA's notice of motion, an amended notice of motion was filed, with leave, where the order for declaratory relief [9] was abandoned and the following orders were sought: "1. Pursuant to her Honour's reasons in Environment Protection Authority v Eastern Creek Operations Pty Ltd [2020] NSWLEC 182, that the Honourable Justice Pain make the following determination or finding pursuant to s 247G(2) of the Criminal Procedure Act 1986 (NSW): That the Notice to Provide Information and/or Records issued by the Environment Protection Authority on 24 September 2018 (No 1570268), as varied by the Variation of Notice to Provide Information and/or Records issued by the Environment Protection Authority on 28 September 2018 (No 1570525), is invalid by reason of it being ultra vires s 191(1) of the Protection of the Environment Operations Act 1997 (NSW). 2. In accordance with s 5AE(1) of the Criminal Appeal Act 1912, that the Honourable Justice Pain submit the question of law as contained in the draft stated case which is at annexure A to the affidavit of Elizabeth Emily Spain dated 4 February 2021 to the Court of Criminal Appeal for determination. 3. Such further or other orders as the Court deems fit to make."
Senior counsel for the EPA submitted to Pain J: "I don't make any concession that there is not already a finding. However, for an abundance of clarity we seek a formal finding or a formal determination so there can be no doubt that that can be entered in the court's records and so there can be an appeal." [10]
Further, in response to Pain J's question as to why the EPA sought a formal finding or determination of invalidity, [11] senior counsel submitted: "… it is for an abundance of caution given that there is no case law on these case management provisions in Division 2A. It may well be, your Honour, that there is a finding or determination in the reasons itself that constitutes an interlocutory judgment an [sic] order, and we can file our appeal right now, … however given that the matter is not clear all we seek is the clarification that this is a finding or it is a determination for the purposes of s 247G(2) so we don't fall over before the Court of Criminal Appeal on a procedural technicality." [12]
Later, the EPA's senior counsel submitted: "So we say the correct position is that nothing binding has happened yet. If your Honour takes the view that there has been a finding [or] determination then that may mean that an appeal right has already crystallised, although if your Honour does take that view it may be said that there would be no harm in formalising that by making a finding or determination but it is only if there is a judicial act under s 247G(2) that there can be a binding effect on the trial judge. What that means is if nothing is to be done in answer to these two notices of motion, there has been no decision on whether this notice is valid and it would be absolutely open to argue that point again before the trial judge because there has been no legal consequence." [13]

[5]

The parties' submissions in this Court

In the Notice of Appeal, Environmental Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182 (referred to as "judgment 1"), when read together with Environmental Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39 (referred to as "judgment 2"), identified as "the interlocutory judgment", was the subject of the application for leave to appeal under s 5F(3)(a). [15] No application is made for leave to appeal "judgment 2". That is, apparently in acknowledgement of the fact that her Honour's conclusion that she "would make orders for summary dismissal in relation to both charges" cannot be characterised as an interlocutory judgment or order.
The EPA submitted that what it characterised as the primary judge's finding (or determination) in judgment 1 that the statutory Notice was invalid determined an identifiable or separate part of the proceedings capable of being entered into the records of the Court and which could not later be modified or reversed by the trial judge. The EPA submitted that, characterised in that way, the finding of invalidity was a finding (or determination) that has the characteristic of finality in the proceedings between the parties and which, consistent with the authorities relied upon by the EPA in its submissions, qualified the ruling on invalidity as an interlocutory judgment and, accordingly, within the jurisdiction of this Court to review under s 5F(3) with leave.
The respondent submitted that although her Honour's reasons for dealing with the notices of motion filed by both parties are published as judgments (and accorded a citation in that form for reporting purposes), properly construed, they do no more than to constitute the formal delivery of her Honour's reasons.
To my thinking, it remains unclear how the primary judge's effective refusal to make a "finding or determination" that the Notice was invalid, at the instance of the EPA by its notice of motion, can form part of her reasons for earlier concluding the Notice was invalid, and even less so, how the second judgment serves either to convert the first judgment into an "interlocutory judgment or order", or even how it might operate to inform the characterisation or effect of the first judgment as "interlocutory".
In the respondent's submission, the first set of reasons address the question underlying the relief sought by its notice of motion. Those reasons address the basis upon which the primary judge concluded the EPA had failed to discharge the onus of proving the Notice was valid, incidentally, but importantly, the sole ground upon which the respondent sought an order that the summonses be dismissed which, if made, would constitute a final order.

[6]

Consideration

It has been repeatedly observed by the collected authorities to which the parties have referred extensively in their submissions that there is no bright line distinguishing interlocutory judgments or orders on the one hand from rulings, with or without detailed reasons, that do not constitute judgments or orders on the other. [16] It is also clear beyond question having regard to those authorities, and others, that no appeal under s 5F lies from a judge's reasons for making an order or giving a ruling. [17]
In R v Bozatsis (1997) 97 A Crim R 296, after referring to the judgment of Sheller JA in Lethlean v R (1995) 83 A Crim R 197, Gleeson CJ said as follows: "King CJ, in Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called 'incidental rulings'. A judgment or order, he said, is a 'judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings'. However, rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference. One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it. In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said: 'What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination.'"
In Turnbull v R [2016] NSWCCA 109, RA Hulme J identified a number of factors that informed the question at issue in that case, namely whether a pre-trial ruling on the scope of the partial defence of extreme provocation in a murder trial, a ruling which involved the trial judge construing the amendment to s 23 of the Crimes Act, albeit without a complete appreciation of all of the evidence that may bear upon that issue, including the evidence which may have been relied upon by the accused, constituted an interlocutory judgment or order amenable to appeal under s 5F(3) of the Criminal Appeal Act.

[7]

Conclusion

I am not persuaded that the application for leave to appeal pursuant to s 5F(3)(a) is competent. Even were I in error in reasoning to that conclusion, I would refuse leave.

[8]

Consideration of the stated case

On 12 May 2021, the primary judge, Pain J, submitted the following question of law to this Court for determination under s 5AE(1) of the Criminal Appeal Act: "Do I have the power to summarily dismiss a summons prior to the commencement of any trial/hearing under Chapter 4 Part 5 Division 3 of the Criminal Procedure Act 1986 (NSW), in circumstances where, following a preliminary hearing conducted pursuant to s 247G of the Act, I have determined that a Notice to Provide Information and/or Records is invalid and the validity of the Notice is critical to an element of the charge pleaded in the summons."
The specific question raised by the stated case concerns whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in Ch 4 Pt 5 Div 2A of the Criminal Procedure Act has the power to summarily dismiss a summons having found a statutory notice to be invalid and where a valid notice is an element of the criminal charge laid by the service of the summons. The more general question is whether a superior court has the power to dismiss a summary prosecution prior to a final hearing.
The EPA submitted that the specific question was appropriate for referral to this Court under s 5AE(1) of the Criminal Appeal Act, not least because of the three cases decided in the LEC, where an order for summary dismissal has been made following a preliminary hearing, none addressed, in a principled way, whether such an order was within power and where there is otherwise no binding decision on that question. [19]
The EPA submitted that each of the decisions was wrongly decided.
The respondent submitted to the contrary. The respondent submitted that each of the decided cases concerned whether an administrative act upon which a criminal charge depended for its legal sufficiency was valid, and in each case an order was made dismissing the summons supported by the primary judge's reasons for taking that approach.
The respondent did not seek to persuade the Court that the question raised by the stated case was not one appropriate for this Court to decide in the exercise of the Court's discretion under s 5AE(2). The respondent submitted that an answer to the question will have implications not only for all summary prosecutions in the LEC and specified prosecutions in the District Court, [20] but also for the wide range of summary prosecutions which may be commenced in the Supreme Court where the case management provisions in Ch 4 Pt 5 Div 2A of the Criminal Procedure Act apply. [21]

[9]

The EPA's submissions on the stated case

Given the focus by both parties on the operation of s 247G of the Criminal Procedure Act, it is useful to set out the relevant subsections of that section in full.
Sections 247G(2), (3) and (4) provide: 247G Preliminary hearings … (2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection - (a) hear and determine an objection to any application for an appearance order prior to the commencement of a trial, (b) order the holding of a preliminary conference under section 247H, (c) order preliminary disclosure by the prosecutor or the defendant under section 247I, (d) give a direction under section 247M(3), (e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced, (f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial, (g) give a ruling on any question of law that might arise at the trial or sentencing hearing. (4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court's own initiative.
The EPA submitted that despite the breadth of power conferred under s 247G(2), it does not extend to orders that would bring validly commenced proceedings to an end in circumstances where other provisions of the Criminal Appeal Act specifically provide for how that might occur. The EPA submitted that, properly understood, the power under s 247G(2) is directed at "case management within a proceeding". [23]
The EPA submitted that it is notable that s 247G(3) makes no express provision for a judge presiding over a preliminary hearing to order that a summons be dismissed. The EPA accepted that while that was not determinative of the issue raised by the stated case it was nonetheless relevant in construing the power that is granted under s 247G(2). The EPA also submitted that s 247G(4) does not broaden the powers under s 247G(2) but it is facultative in the sense that it confirms the court can exercise all or any of the powers granted under subs (2) of its own motion.

[10]

The respondent's submissions on the stated case

In support of the stated case being answered by the Court in the affirmative, the respondent submitted that none of the five contextual features or "considerations" [35] upon which the EPA relied in support of the statutory construction of s 247G(2) for which it contended were compelling in circumstances where, as here, the offences charged by summons cannot be proved to the criminal standard because the EPA, as the prosecutor, is unable to establish the issue of a valid Notice; a condition of legal (criminal) liability in the defendant.
The respondent submitted that the breadth of the statutory language in s 247G(2) leaves no room to doubt that the legislature intended that the powers conferred on a superior court as introduced by the Amending Act in 2012 are such that the court may, in its discretion, do any or all of the following actions in the management and conduct of summary proceedings: 1. engage in an extensive range of judicial acts after a preliminary hearing, namely, to make orders, determinations, findings, directions and rulings; 2. to take such actions as the court "thinks appropriate", which are words of wide import; and 3. make orders, determinations, findings, directions and rulings not only for the efficient management of proceedings, but also for the efficient conduct of the proceedings.
In the respondent's submission, this Court should treat an order directed to the efficient conduct of proceedings as a more expansive concept than an order (or other actions) for the "management of proceedings".
The respondent emphasised that the heading of Div 2A, which is to be taken to be part of the Act, [36] is not limited to case management provisions but, as the full heading reads, "case management provisions and other provisions to reduce delays in proceedings". The respondent submitted that that heading (cited for emphasis in its submissions in full) not only derogates from the EPA's submission that the powers conferred by s 247G(2) should be construed as limited to procedural steps taken for the purpose of case management, but it also identifies the reduction of delay as one of the statutory objectives of the operation of Div 2A. The respondent submitted that to require a superior court to engage in the futile exercise of listing a matter for a further hearing following an order made in a preliminary hearing after a full hearing on the merits as to whether a critical aspect of the prosecution's case can be established, a listing which would inevitably result in the matter not actually proceeding to a final hearing (either because the summonses are withdrawn by the prosecutor or an order for dismissal was not opposed), would increase rather than reduce delay in the efficient dispatch of proceedings before a court in exercising summary jurisdiction.

[11]

Conclusion

The EPA accepted that Pain J proposes to make orders that each summons be dismissed based on what it described as "a consideration of evidence and the merits of the case". [51]
While it is true that the EPA's ultimate position was that Pain J should have simply made "a finding or determination" of invalidity under s 247G(2) which would take effect, on the EPA's analysis, as an interlocutory judgment attracting the leave provisions in s 5F(3) of the Criminal Appeal Act (an approach which I have found was not open to the EPA in the particular circumstances of this case), the EPA did not advance the submission on the stated case that the notices of motion upon which the respondent moved for orders for dismissal were incompetent, or that the primary judge should have refused to hear and determine the issue of invalidity as a pre-trial issue and to have listed the matter for a final hearing. Perhaps the EPA determined it could not be heard to make that submission in this Court having consented to a preliminary hearing before the primary judge on the basis of its clear acceptance that an invalid notice would be fatal to its case against the respondent and, it might be inferred, that it also accepted the determination of that issue at an early stage in the proceedings would avoid the costs and the burden of listing the summonses for a final hearing which would be inutile if the finding of invalidity was adverse to it as prosecutor.
In my view, there is nothing in the construction of s 247G, within the structure of the Criminal Procedure Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing.
The construction of s 247G(3) advanced by the respondent (in particular s 247G(3)(f) although not only that sub-provision) provides, in my view, a source of power available to a superior court to be exercised in those circumstances. That purposive construction [52] is an endorsement of the legislature's commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense. [53]
I would answer the stated case in the affirmative.

[12]

Endnotes

The respondent was authorised under an Environment Protection Licence issued pursuant to the POEO Act to undertake a range of activities, including waste processing and composting, at its alternative waste treatment facility (AWT) at Wall Grove Road Eastern Creek being "the premises" to which the Notice referred. One of the products produced at the premises was an organic based output known as mixed waste organic output (MWOO).
In the alternative the respondent sought an order that the proceedings be temporarily stayed until the EPA elects on which of the summonses it will proceed with an order that the remaining summons be dismissed on the ground of double jeopardy. Since the primary judge determined the Notice was invalid the alternative relief did not arise.
That evidence was included in the appeal book in this Court (AB tabs 11, 12, 13 and 14).
The question whether a judge of the LEC has the power to summarily dismiss a summons (that is prior to the commencement of any trial or substantive hearing under Ch 4 Pt 5 Div 3 of the Criminal Procedure Act) was the subject of the stated case, which was the alternative relief sought by the EPA in the proceedings in this Court.
AB Tab 9, p 153.
I note that in the EPA's reply submissions filed in support of the stated case, it refocused attention on the orders sought under the respondent's notice of motion with the implied criticism that seeking the dismissal of the proceedings contingent on the finding of invalidity would "bypass appeal rights and bring the proceedings to an end, not because of a fatal defect in the summonses or charges but on matters relevant to the sufficiency of the evidence to support an element of the charges, in the absence of conducting a hearing or trial". The EPA went on to submit "in effect by interlocutory application the respondent sought a final order".
The EPA contended in this Court that neither were options available to it. The Court invited the parties to address that question by filing a note at the conclusion of the hearing. It has not proved necessary to return to consider those submissions either of the s 5F(3)(a) application or in addressing the question stated by the primary judge.
Annexure A to the EPA's reply submissions filed in this Court on 22 September 2021.

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Eastern Creek Operations Pty Limited

Legislation Cited (16)

Environment Operations Act 1997(NSW)

Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012(NSW)

Environment Administration Act 1991(NSW)

Environment Operations (Waste) Regulation 2014(NSW)

Supreme Court (Summary Jurisdiction) Act 1967(NSW)

Trade Practices Act 1974(Cth)

Criminal Procedure Act 1986(NSW)

Crimes (Appeal and Review) Act 2001(NSW)

Criminal Appeal Act 1912(NSW)

Evidence Act 1995(NSW)

Income Tax Assessment Act 1936(Cth)

Interpretation Act 1987(NSW)

Land and Environment Court Act 1979(NSW)

Land and Environment Court Rules 2007(NSW)

Supreme Court Rules 1970(NSW)

Work Health and Safety Act 2011(NSW)

Cases Cited (69)

ctor-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39 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 Lethlean v R (1995) 83 A Crim R 197 Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149 Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94 Munday v Gill (1930) 44 CLR 38; [1930] HCA 20 Nicholson v R [2017] NSWCCA 38 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 421; [1994] HCA 54 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 R v Bozatsis (1997) 97 A Crim R 296 R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 R v Dabhade [1992] All ER 769 R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 R v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Kanaan [2003] NSWCCA 396 R v Metal Trades Employees' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3 R v RAG [2006] NSWCCA 343 R v Steffan (1993) 30 NSWLR 633 SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314 Tran v R [2017] NSWCCA 93 Turnbull v R [2016] NSWCCA 109 Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156 Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 179; [1982] HCA 57 WO v DPP [2009] NSWCCA 275 Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 Texts Cited: G Spencer Bower, A Turner and K Handley, The Doctrine of Res Judicata (3rd ed, 1996, Butterworths) Category: Principal judgment Parties: Environment Protection Authority (Applicant) Eastern Creek Operations Pty Limited (Respondent) Representation: Counsel: N Sharp SC / M Rabsch (Applicant) S Buchen SC / J Caldwell (Respondent)

Cited By (4)

Ballina Shire Council v Joblin

Environment Protection Authority v Pullinger

Secretary, Department of Planning and Environment v Harris

Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Natale

In addressing the EPA's submissions, she referred to the seminal passage in R v Steffan (1993) 30 NSWLR 633 (cited by the EPA) where, at 635-636 (as her Honour described it), the Court gave guidance as to the factors inherent in the characterisation of a judgment or order as interlocutory. "The phrase 'interlocutory judgment or order' is not defined in the Criminal Appeal Act, but it has been considered by this Court on a number of occasions since s 5F was inserted in 1987. Orders made refusing a stay of proceedings upon the ground of a claimed abuse of process because of delay or prejudice are, as we have said, conceded to be interlocutory orders from which an appeal may be brought by leave pursuant to s 5F. Indeed, it was the stated intention of the legislature that s 5F would transfer proceedings in relation to such matters from the Court of Appeal to the Court of Criminal Appeal. It is unnecessary to refer to those cases. Applications for leave to appeal in other situations give a better appreciation as to what does and what does not amount to an 'interlocutory judgment or order'. Before turning to some of those cases, however, it is instructive to consider first how the phrase and its component parts are ordinarily used. A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a 'judgment', but that is an altogether different usage of the word 'judgment' and denotes the reasons which have been expressed rather than the formal act of the court." (Emphasis added.)

After considering the competing submissions of the parties, the primary judge posed the question for determination as she saw it as follows: "While provision for the determination of preliminary issues under s 247G in Ch 4 Pt 5 Div 2A has existed in the [Criminal Procedure Act] since 30 April 2012 there appears to be little caselaw in relation to practice and procedure issues that may arise. Certainly the issues that have been raised before me do not seem to be the subject of any judgment. At its core the issue is what should happen when the preliminary question determined pursuant to all s 247G concerns a matter that is fundamental to the success of a prosecution so that a charge cannot succeed if the matter were to proceed to trial (assuming no appeal occurs as provided for in s 5F(3)(a) of the [Criminal Appeal Act]). My reasons in Eastern Creek No 1 [[2020] NSWLEC 182] that the Notice (as amended) the subject of the two charges had not been proved to be valid means that both charges must fail were the matter to proceed to trial. Because of the dispute between the parties as to what the appropriate outcome should be, I did not provide a finalised outcome in Eastern Creek No 1 as I identified at [97]. I did give reasons, culminating in [93] extracted above. At issue is whether a determination as sought in prayer 1 of the EPA's amended notice of motion or orders dismissing proceedings as sought in the Defendant's notice of motion should be made. The EPA seeks a determination to enable it to appeal against an interlocutory order under s 5F(3)(a) of the CA Act. It submits that it should have the ability to appeal my judgment as it would have had in Class 4 proceedings if the Defendant had commenced a collateral attack in that manner. I agree with the EPA that my judgment, while containing reasons, does not have a finding which enables the outcome to be recorded as a formal act of the Court, to draw on the extract of R v Steffan set out in [12] above in the EPA's submissions. An outcome of a judgment is different to reasons. At issue is what that outcome should be."

The EPA further submitted that when read together, ss 247G(5) and 247W operate to make it clear that "orders, determinations or findings made or rulings given in a preliminary hearing" by a judge under s 247G(2) are in nature "provisional" and not "final". The EPA submitted that that construction is further supported by the operation of ss 247G(7)-(9). Those subsections provide as follows: 247G Preliminary hearings … (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. … (7) A relevant preliminary hearing matter means - (a) an objection to an application for an appearance order, or (b) a question that was the subject of a ruling or finding under subsection (3)(e). (8) Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3)(g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing. (9) Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned. 247W Preliminary orders and other orders bind presiding Judge (1) A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding. (2) If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless - (a) in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or (b) that order is inconsistent with an order made on appeal. (3) If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding. (4) In this section - preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.

The respondent also submitted that there is no common law principle precluding or preventing the dismissal of a summons prior to a hearing convened under Ch 4 Div 3 of the Criminal Procedure Act. In that regard, the respondent emphasised the following passage in Munday v Gill (1930) 44 CLR 38; [1930] HCA 20 at 86 which distinguishes between summary proceedings and a trial on indictment: "There is … a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society. In the one the prisoner is brought to the bar of the Court 'in his own proper person and being demanded concerning the premises in the indictment specified and charged upon him how he will acquit himself thereof he saith that he is not guilty thereof and thereof for good and evil he puts himself upon the Country and he who prosecutes for our Lord the King doth the like.' In the other the defendant is given a sufficient opportunity to appear which (unless he be in custody because it is considered that he will abscond) he may exercise or not at his choice, and, whether he avails himself or not of his right to be present, he is dealt with by those assigned to keep the peace, who judge both law and fact. 'There is,' says Blackstone, 'no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice'". (Emphasis added.)

HEADNOTE [This headnote is not to be read as part of the judgment] On 14 February 2003 the Environment Protection Authority (the "EPA") issued a licence under the Protection of the Environment Operations Act 1997 (NSW) to Eastern Creek Operations Pty Limited ("Eastern Creek") authorising it to undertake a range of activities, including waste processing, resource recovery and composting, at its facility in Eastern Creek. Between 2010 and 2018, operations at the facility included the sorting and processing of waste into an organic-based output known as mixed waste organic outputs ("MWOO"). On 24 May 2018 the EPA received a report which found, inter alia, that MWOO contained chemical contaminants which raised "significant concern" for the environment and human health. On 24 September 2018 the EPA issued a Notice to Eastern Creek, purportedly pursuant to s 191 of the Protection of the Environment Operations Act 1997 (NSW), requiring it to provide specified information and/or records pertaining to MWOO. The EPA brought two Class 5 proceedings in the Land and Environment Court against Eastern Creek, charging it with offences in connection with the Notice. The EPA alleged that Eastern Creek failed to produce the required material and in purported compliance with the Notice knowingly produced misleading material. The EPA subsequently sought leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a ruling made by Pain J in the course of the proceedings that the Notice is invalid. The primary issues in the application were: (1) Whether the Notice is valid; (2) Whether the EPA is entitled to seek leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) and whether leave to appeal should be granted; (3) By way of case stated, whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summons after finding invalid a statutory notice which constituted an element of the criminal charge laid by the service of the summons. The Court (Fullerton and Lonergan JJ; Macfarlan JA dissenting) dismissed the application for leave to appeal and (per Fullerton and Lonergan JJ) answered the stated case question in the affirmative: In relation to Issue 1 (validity of the Notice): Macfarlan JA found the Notice to be valid. Fullerton and Lonergan JJ found it unnecessary to consider the validity of the Notice. Per Macfarlan JA: For a notice such as that in the present case to be valid, it must not only identify with sufficient clarity the documents which are required to be produced, it must show to the person to whom it is addressed that any document which he or she is required to produce is one whose production the issuer is entitled to require: [28]. Macfarlan JA found that the Notice in question satisfied these requirements: [51]. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67, applied. In relation to Issue 2 (leave to appeal under s 5F): Per Fullerton J, Lonergan J agreeing: While it can be said that the finding of invalidity on the Notice had, in one sense, the requisite element of finality by resolving an issue in the proceedings in a binding manner, it was not a finding that determined "an identifiable or separate part of the proceedings". The proper characterisation of the primary judge's finding that the Notice is invalid is that it, in effect, operated as a final order and that, save for the EPA inviting her Honour not to order that the summonses be dismissed, the finding of invalidity would have had that effect. Although on one view it was a decision made in the proceedings at a preliminary stage and not in a final hearing, in this case that is not a relevant consideration and even less a determining factor in the characterisation of the ruling as "interlocutory": [133]. Their Honours were not persuaded that the application for leave to appeal pursuant to s 5F(3)(a) is competent. Even if they were in error in that conclusion, they would have refused leave: [136]. R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296, distinguished; Turnbull v R [2016] NSWCCA 109, applied. Per Macfarlan JA, contra: The primary judge's determination that the Notice is invalid was an "interlocutory judgment or order" for the purposes of s 5F(3) of the Criminal Appeal Act 1912 (NSW) against which the EPA is entitled to seek leave to appeal. The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing: [2], [72]. As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour's conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not of significance. The determination was well capable of being reflected in the Court records consistently with "ordinary usage". It was unlike a simple ruling on the admissibility of evidence which is not ordinarily entered in the records of the Court: [72]. In light of the conclusion that the Notice is valid, leave to appeal should be granted. The primary judge's determination, if it stands, effectively puts an end to the prosecutions which are brought by the EPA in its capacity as a protector of the environment and health of the community: [75]. R v Steffan (1993) 30 NSWLR 633, applied. In relation to Issue 3 (case stated): Per Fullerton J, Lonergan J agreeing; Macfarlan JA not deciding: The question raised by the case stated is a pure question of law and should be answered: [143]. There is nothing in s 247G of the Criminal Procedure Act, when considered in the structure of the Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing: [216]. The construction of s 247G(3) advanced by the respondent provides a source of power available to a superior court to be exercised in those circumstances. That purposive construction is an endorsement of the legislature's commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense: [217].

The validity of the Notice

The Notice indicated near its outset that it sought the provision of records and information for the purpose of an investigation (see the words "as part of this investigation" in the second paragraph). In the first paragraph it identified that investigation as one "into the potential risk to the environment and human health of land applying… MWOO".
As was acknowledged by the EPA in the course of the hearing in this Court, the grammar of the last few words of this statement leaves much to be desired. In its context nevertheless the phrase clearly conveys the meaning that the investigation is into the risks of "applying" MWOO to land. The word "applying" (and the other variants of it used in the Notice such as in the expressions "applied to land" and "application site") clearly conveys the meaning of use of MWOO in some fashion in relation to land. This is the sense in which it is used in the Order referred to at [15] (which employs the expressions "application to land" and "land application") and in Eastern Creek's letter of 11 September 2018 (see [19] above), although it is not necessary to rely on such extrinsic material to ascertain the meaning of the Notice. Its meaning is apparent on its face.
Eastern Creek did not contend, nor could it reasonably have done so, that the investigation so described was not within the powers of the EPA, bearing in mind the EPA's objectives, responsibilities and powers under the POEA Act (see [4]-[8] above) and its objects and powers under the POEO Act (see [9]-[12] above) and the PEOW Regulation (see [13] above).
Moreover the Notice made clear that the investigation was continuing, by stating that the records and information were required "as part of this investigation" and using the expression "[t]he EPA is investigating" under the headings "Background" and "Matter/s to which this notice relates".
The description of the investigation as "an investigation into the potential risk to the environment and human health" of the use of MWOO to land (at three places in the Notice) indicated that the investigation was a broad one insofar as potential risks were concerned. The EPA did not need to list the gamut of ways in which the environment or human health might be affected, or have been affected, by the use of MWOO in relation to land as that was the very matter it was investigating.
Equally the EPA was justified in seeking information and records relating to a period of years during which Eastern Creek had undoubtedly been involved in operations that led to the application of MWOO to land. Eastern Creek's licence, referred to in the Notice, assumed the existence of such operations. In any event these were well known to both the issuer and recipient of the Notice and thus able to be taken into account in considering the sufficiency of the terms of the Notice.
The possibility of MWOO's application to land giving rise to risks to the environment and to human health cannot be doubted, especially in light of the TAC report's findings (see [16] above). Those risks and their consequences were therefore a proper subject of investigation in relation to use of MWOO throughout the period identified in the Notice bearing in mind the EPA's statutory responsibilities and powers.
The present case is distinguishable from D'Anastasi where, as Young JA put it, there was a "suspected misuse" of pesticides or, as Sackville AJA put it, an "apparent poisoning of the birds" (at [7] and [108]). In those circumstances, the recipient was entitled to be told in the notice, inter alia, what pesticide was the subject of the investigation and why information and documents related to any more than the dead birds that were discovered were required. Pesticides have a commonly accepted utilitarian value, when used properly. That an unidentified type of pesticide may have been misused on one, or a limited number of occasions, did not of itself suggest the likelihood of misuses on other occasions.
In the present case, it is not however a question of misuse of MWOO (because there is no suggestion to this Court that its use did not occur in accordance with the statutory Order and Exemption) but a concern that authorised use may have given rise to risks to the environment and to human health. In that circumstance, a report finding that MWOO raises "significant concern" for the environment and human health would necessarily give rise to a concern justifying investigation that it may have caused such harm on all or at least many occasions on which it was used. It may be that the investigation will reveal that MWOO can be used in particular ways that do not give rise to harm but, whether that is or is not so, that is a proper subject for investigation.
Furthermore, the gathering by the EPA of information as to how MWOO had been used in the past was a proper part of the investigation described in the Notice because, if the investigation revealed that use of MWOO was, and had been, harmful to the environment or to human health, it was well within the EPA's remit to identify, and attempt to deal with, the consequences of its use in the community, including by advising stakeholders who had used MWOO of the outcome of its investigation and assisting those stakeholders to eliminate or lessen the harm that might have occurred. The information and records it sought by the Notice were plainly conducive to that occurring. As Gibbs ACJ observed in Federal Commissioner of Taxation v ANZ, the nature of information or documents sought in the Notice may elucidate the purpose of them being sought (see [28] above).
In this Court Eastern Creek submitted that the omission of the following from the Notice "strongly militates in favour of the conclusion that the Notice is invalid": "…the Applicant was investigating the risks to the environment and human health identified in the TAC Report, such as the risk of PBDEs, phenol, phthalates, cadmium, copper and zinc in MWOO impacting upon plant and animal health and reproduction, affecting soil function and contaminating the food chain and water supplies; the risk of glass, metal and plastic in MWOO contaminating crops and forage, impacting upon soil quality and affecting the aesthetic quality of soils; and the risks associated with glass, PBDEs and metals in MWOO persisting in soils."
That detail was however unnecessary where many of the risks described were obvious ones to be investigated and the list is not one that Eastern Creek in any event suggests could, or should, have been exhaustive.
In addition to relying on D'Anastasi, with which I have dealt above, Eastern Creek relied on appeal on Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 where, in the context of subsisting criminal proceedings against the applicant concerning excavations to his land, the applicant was given a notice by the prosecutor to attend to answer questions "about the over excavation". Preston CJ of the LEC found that the matter in relation to which questions were to be answered was not sufficiently described by this expression. Unlike this case, that case was concerned with a specific occurrence which could, and should have been, identified with precision to afford the applicant procedural fairness by giving him notice of the matter about which he was to be asked questions. Zhang does not assist in resolving the present case which, as I have described, is concerned with a Notice issued for the purposes of a necessarily generalised investigation.
Eastern Creek further submitted that the Notice was deficient because it did not equate the matter with which it was concerned to one "relating to [the EPA's] responsibilities or functions under [the POEO Act]" (see the terms of s 191(1) of the Act). As I have indicated, the Notice however stated that Eastern Creek was required to provide identified information and records for the purposes of an ongoing investigation into the potential risk "to the environment and human health" of applying MWOO to land. Such an investigation clearly relates to the EPA's responsibilities and functions under the Act. Section 184 sets out the various purposes for which the power to issue a notice under s 191 may be exercised, including to "protect the environment" and to "obtain information or records for purposes connected with the administration" of the Act. The objects of the Act, including to "protect… the environment" and to "reduce risks to human health", further fortify this finding (see s 3). As well, these provisions must be considered against the background of the POEA Act (see [3]-[8] above) which constituted the EPA and was enacted prior to the POEO Act.
For these reasons, I do not, with respect, agree with the primary judge's conclusion that the Notice is invalid. Her Honour's essential reason for her conclusion, stated in [84] of her judgment (see [26] above), was that the Notice "does not specify in any meaningful way the matter the subject of the Notice for the purposes of s 191". For the reasons I have given, I consider that it does. I note that her Honour referred in [89] of her judgment also to the Notice being "impermissibly wide in scope" but I further note that, as acknowledged by Eastern Creek in both its written and oral submissions on appeal, it does not challenge the Notice on the ground of oppression, that is, that it was oppressively wide in its scope or required compliance within an unreasonably short time.
Finally, I note that both parties appeared to be in agreement on appeal that paragraph 1(o) of the Notice was defective but could be severed from it.

Whether "an interlocutory judgment or order"

As noted above, the issue of validity of the Notice was brought before the LEC by way of formal notices of motion filed by Eastern Creek. After the Court received substantial written and oral submissions, the primary judge addressed the issue in a careful and detailed fashion in her 45-page judgment. Her Honour concluded that the Notice is invalid but stopped short of making any consequential order, to enable the parties to first address her on "appropriate relief and costs".
In this Court, Eastern Creek contended that in these circumstances the primary judge had not given or made any "judgment or order" in relation to which the EPA would be granted leave to appeal under s 5F(3). If her Honour's determination was a "judgment or order", it was clearly interlocutory as it did not dispose of the prosecutions.
There have been many cases in which the meaning of "interlocutory judgment or order" has been considered. It is convenient to first undertake a brief survey of the more important of them.
In R v Steffan (1993) 30 NSWLR 633 the applicant had been charged with offences of bribing a Commonwealth officer. Relevant conversations had been recorded, according to the applicant, illegally. The conversations were the bases of two of the charges against the applicant but it does not appear from the judgment that they were the only evidence then available to the prosecutor such that the prosecutions would fail if the recordings were ruled inadmissible. The trial judge ruled that they were prima facie admissible. The applicant sought to challenge that decision by seeking leave to appeal under s 5F. This Court however ruled that the determination below did not constitute "an interlocutory judgment or order". The Court observed at 636: "A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a 'judgment', but that is an altogether different usage of the word 'judgment' and denotes the reasons which have been expressed rather than the formal act of the court."
Three points should be made about Steffan. First, it was concerned with a ruling on the admissibility of evidence which was, at least on the basis of s 5F in its present terms, arguably distinct from an "interlocutory judgment or order" on other questions. A ruling on the admissibility of evidence is dealt with separately in s 5F(3A) (see [53] above). In the present case the determination in question is only, in a limited sense, concerned with the admissibility of evidence. More fundamentally, the existence of a (valid) notice is an element of the charges, as it is non-compliance with it and false or misleading conduct in relation to it that are the gravamen of the alleged offences.
Secondly, the incongruity, perceived by the Court in Steffan, of entering a ruling on the admissibility of evidence in the records of the Court (see [58] above) is not present in the current case where the finding of invalidity of the Notice can readily and sensibly be reflected in a declaration or injunctive order.
Thirdly, the Court in Steffan recognised that "some procedural matters (such as an application for a change of venue or for a separate trial) would usually produce an interlocutory order…" (at 636D).
In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 the trial judge had made an order under s 138 of the Evidence Act 1995 (NSW) excluding all of the prosecution evidence on the basis that it resulted from illegal or improper conduct of the police. In addition to making an order that the evidence be excluded, the trial judge made a consequential order that further proceedings be stayed. The Crown argued that even without the order staying proceedings, the trial judge's ruling constituted an "interlocutory judgment or order" within the meaning of s 5F. Gleeson CJ (with whom Meagher JA and Bruce J agreed) stated that in a number of cases, including Steffan, there were judicial statements to the effect that "generally speaking, a ruling on the admissibility of evidence, before or during a trial, is not a judgment or order within the meaning of s 5F". However, his Honour further noted at 303 that in Steffan the Court of Criminal Appeal "said that there may well be a 'rare case' where a ruling on evidence, because it formed the basis of a stay of proceedings, could be the principal legal issue to be determined [on] a s 5F appeal". Having referred to authorities seeking to distinguish between different types of judicial rulings, his Honour said that "[i]t is the character of the question, and the effect of the decision, that makes the difference" and continued at 303: "One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it. … Bellear DCJ [the trial judge]… dealt with para 2 of the Notice of Motion [which sought the exclusion of the evidence] by saying that he was making an order excluding 'all prosecution evidence' against the respondents. What is important is not his Honour's use of the word 'order', but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order. The jurisdictional issue should be resolved in favour of the Crown."
The present case is in my view analogous. As I have said earlier, Pain J's ruling was not on a question of evidence as such. Although it would have the consequence of excluding evidence, it related to the fundamental basis of the prosecutions. As in Bozatsis, the primary judge "was, in substance, refusing to permit the Crown to seek to make a case against the appellants". In Bozatsis, Gleeson CJ noted at 302 that it was not in dispute that an order granting a permanent stay of proceedings is generally an interlocutory order within the meaning of s 5F. However, the trial judge's stay order was not regarded as critical to this Court's finding as it was merely the consequence of the ruling made under s 138. His following discussion and conclusion were directed therefore at the matter that was in dispute, namely, whether the exclusion of the evidence constituted such judgment or order, irrespective of the grant of the stay.
In the present case, Eastern Creek placed particular reliance on this Court's decisions in R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 and R v Kanaan [2003] NSWCCA 396. In Cheng the Court found that the trial judge's ruling that the accused had no case to answer was not an "interlocutory judgment or order" within the meaning of s 5F. Spigelman CJ (with whom Dunford and Kirby JJ agreed) distinguished Bozatsis on the basis that the effect of the trial judge's ruling in that case was to refuse to permit the Crown "to seek to make a case" at all whereas in Cheng the Crown made a case but it was found to be deficient (at [14] and [15]). His Honour considered that there was a close relationship between the trial judge's no case to answer decision and a verdict of acquittal and that the principle that the Crown (subject to any statutory exceptions) cannot appeal from a verdict of acquittal is fundamental and longstanding. As a result, his Honour held at [32] to [34] that, in the absence of any clear contrary indication by parliament, s 5F(2) should not be construed so as to interfere with that fundamental principle. Cheng does not therefore assist Eastern Creek in the present case because Pain J's determination that the Notice is invalid occurred at a preliminary hearing, prior to any trial, and consequently the EPA was unable "to seek to make its case" at a trial. Moreover, it cannot be said that there is a "close relationship" between a preliminary determination concerning the invalidity of a notice and a verdict of acquittal.
In Kanaan the trial judge heard submissions from counsel as to whether the evidence that the Crown proposed to lead at trial was capable of proving the offence charged. His Honour concluded that it was not and added "and I am mindful to empanel a jury and to order an acquittal" (sic). Instead, at the request of the Crown, he adjourned the case to allow the Crown to seek leave to appeal under s 5F. Hodgson JA (with whom Hulme and Hidden JJ agreed) referred to Bozatsis and said that in that case "Gleeson CJ stated that, in order to constitute a judgment or order, even an interlocutory judgment or order, there must be a measure of finality so that it requires a decision of an appellate Court to reverse it" (at [7]). His Honour found that there was "nothing of that nature" in the case before him and that, as a result, there was no relevant judgment or order.
It is arguable that this approach failed to reflect the substance of the trial judge's conclusion which was in effect a ruling fatal to the Crown's case. In any event, the legislation under which Pain J's conclusion of the Notice's invalidity was given gives a greater measure of finality to that conclusion. Her Honour was conducting a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW) (rendered applicable to the present proceedings by s 247A of the Act). Section 247G(5) provides: … (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. …
In R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 the Court found that a determination concerning the joinder or severance of counts was an "interlocutory judgment or order" for the purposes of s 5F. Wood CJ at CL (with whom Meagher JA and Bell J agreed) referred to the distinction between determinations falling within the ambit of that expression and those not doing so: "[11] The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the court: Steffan (at 636; 509-510); or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324 and 361 and Steffan (at 636; 509-510). In Steffan it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally, it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial."
Support for the EPA's application under s 5F in the present case is to be found in R v RAG [2006] NSWCCA 343 in which the Crown was held to be entitled to seek leave to appeal against the trial judge's ruling that a child complainant was not competent to give unsworn evidence (see s 13(2) of the Evidence Act 1995 (NSW)). Latham J (with whom McClellan CJ at CL and Johnson J agreed) concluded at [15]: "The trial judge's decision in the instant case was a judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant: see Steffan at 636A; Bozatsis & Spanakakis at 303. The finding that the complainant was not competent to give unsworn evidence was final, in the sense that it was not subject to review in the course of those proceedings, unlike rulings on the admissibility of evidence: Bozatsis & Spanakakis at 303. The decision may have had the consequence that the complainant's evidence was not admitted, but the substance of the decision was of an altogether different character. It was a judgment and it was also interlocutory, in the sense that it did not finally determine the proceedings between the Director and the respondent: [R v Pavia (1993) 67 A Crim R 364] at 368."
In Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 the accused pleaded guilty to two offences involving the supply of a large commercial quantity of a prohibited drug. For the purposes of his sentencing hearing, he issued a subpoena to the Commissioner of Police. The sentencing judge ordered production of the documents, rejecting a claim of public interest immunity. On a s 5F appeal brought by the Attorney General to this Court, Basten JA (with whom Hoeben JA and McCallum J agreed) found that there was an "interlocutory judgment or order" from which the Attorney General was entitled to appeal. His Honour said at [25]: "An objection to evidence based on public interest immunity will frequently give rise to an evidential ruling as to admissibility in the course of proceedings. However, such objections may also arise in respect of production of documents in answer to a subpoena or other form of court process or court order. Rulings on such objections have uniformly been treated as falling within the scope of s 5F [his Honour then referred to a number of earlier decisions]."
In Tran v The Queen [2017] NSWCCA 93 this Court found that a ruling of the trial judge declining to uphold an objection by the accused's father giving evidence as a witness for the prosecution (see s 18(2) of the Evidence Act) was an interlocutory "judgment or order" for the purposes of s 5F. The Court followed the decision in RAG which was regarded as applicable.
RAG was also followed in SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314 in which the trial judge declined to revoke the appointment of a speech pathologist as a witness intermediary in respect of a child complainant in criminal proceedings. This Court held that the practical legal effect of the appointment was that the evidence of the witness could not be taken in the absence of the intermediary. The Court at [40] accepted that "whether a decision or determination by a trial judge amounts to an interlocutory 'order' capable of grounding an appeal under s 5F(2) or (3) requires a consideration of the 'character and [legal] effect of the decision' rather than the precise words used by the judicial officer". The Court referred to R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 304 and Nicholson v R [2017] NSWCCA 38 at [49]. The Court also referred to the passage from R v F (2002) 129 A Crim R 126; [2020] NSWCCA 125 at [11] quoted in [67] above which included the reference to a "judgment" being a ruling that determines the proceedings "or at least an identifiable part of them, and [is] capable of entry in the records of the Court".

Conclusion

In light of these authorities, I consider that Pain J's determination that the Notice is invalid was an "interlocutory judgment or order" for the purposes of s 5F(3). The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing. As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour's conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not in my view of significance. The determination was well capable of being reflected in the Court records consistently with "ordinary usage" (Steffan at 636), just as the outcome of a dispute concerning a subpoena may be a notation such as "subpoena set aside" or "access to documents produced under subpoena granted". It was unlike a simple ruling on the admissibility of evidence which is not, as Steffan at 636 points out, ordinarily entered in the records of the Court. Not only was the determination capable of being translated into a formal order, but for the EPA's request that she state a case concerning her power to enter summary judgment (see [27] above), her Honour would have entered summary judgment. Whether summary judgment or some other order, such as an acquittal after trial, was appropriate was beside the present point. To preclude a challenge under s 5F(3)(a) to her Honour's determination that the Notice is invalid would in my view be impermissibly to prefer form over substance.
Further, as I have earlier pointed out, the determination that the Notice is invalid was not as such a ruling on the admissibility of evidence, although it would undoubtedly have evidentiary consequences. Essentially it was a determination that the purported legal command (that is, the Notice) upon which the prosecutions were founded is invalid. It had sufficient finality because it would stand unless the prosecutions proceeded to trial and the trial judge formed a different view.
Whilst acknowledging, as was pointed out in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [92], that orders are different from reasons for judgment, substance and not mere form is to prevail in this context (see for example DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [4] and [6] per Spigelman CJ).

Environment Protection Authority v Eastern Creek Operations Pty Limited

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