Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd

Parties: Environment Protection Authority (Prosecutor)
Andrew Lloyd Hughes (Defendant in proceedings 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657)
ANT Civil Pty Ltd (Defendant in proceeding 2023/297689)

Representation: Counsel:
A McGrath (Prosecutor)
Z Burrows (solicitor) (Defendant)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Zali Burrows Law (Defendant)

File Number(s): 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657, 2023/297689

Publication restriction: Nil

EX-TEMPORE JUDGMENT

1. This matter was listed today for final address by orders I made on 26 February 2026, which was the 21st day of these criminal prosecution proceedings. The orders I made on that day included orders that the Prosecutor file and serve its closing written submissions by close of business on 30 March 2026, and the Defendants file and serve their closing written submissions by 10am, Friday 10 April 2026.

2. The Prosecutor has filed and served written submissions; the Defendants have not.

3. There was one further day of hearing of evidence on 25 March 2026. As at that date, and every day prior to it, the Defendants have been represented by Mr G Foster of Counsel, instructed by Ms Z Burrows.

4. The orders made on 26 February 2026 included an order for oral closing address to commence today and to continue, if necessary, all week until and including Friday 17 April 2026, with the exception of tomorrow (Tuesday 14 April), which was to accommodate a request of Mr Foster.

5. This morning when the matter was called on for hearing there was no appearance by or on behalf of the Defendants. I asked the Prosecutor to contact Ms Burrows, and Mr Foster.

6. At 10:26am my Associate received an email from Ms Burrows which relevantly provided as follows:

"Can you please advise His Honour that I have been ill since last Thursday with virus and an infection and apologise to the Court for non-appearance. I can provide a medical certificate.

Could the matter please stand over to Wednesday.

Otherwise if proceeds today, may I please have the transcript of today" (emphasis added).

7. On my instructions, my Tipstaff sent an email to Ms Burrows, outlining the content of an email that was about to be sent to her just prior to receiving her email of 10:26am, and which also relevantly provided as follows:

"While his Honour notes that you are unwell, he is surprised that there was no communication with the Prosecutor or the Court until after 10am this morning. Further, his Honour expects Mr Foster to appear this morning so that any application to adjourn final addresses until this Wednesday at 10am can be made in the proper way."

8. In response to that email, Ms Burrows sent a further email to my Associate which reads relevantly provided as follows:

"Mr Foster is no longer in the matter.

In respect of the submissions I will file a Notice of Motion seeking an extension later today and an adjournment of proceedings. I will also provide a medical certificate.

Mr Hughes has no available funds to afford counsel to draft submissions and to appear, and my illness has caused me great difficulty in being able to prepare submissions for filing and to appear today.

I continue to feel unwell and I apologise for the non-attendance this morning.

If his Honour presses the prosecutor's closing submissions commence today, may I please have the transcript. Content with this course as not to waste Courts time."

9. In response to that email, on my instructions my Tipstaff sent a further email to Ms Burrows (copied to the Prosecutor) which relevantly provided as follows:

"The matter was back in Court at the time your email below was received.

Noting that you are unwell, and noting Mr Foster of Counsel is no longer briefed to appear for your clients, his Honour requests that you appear at 11:30am this morning by AVL on a link I will provide shortly. His Honour is prepared to hear your application to adjourn until Wednesday morning remotely and without the need for you to file a notice of motion.

Could you please confirm immediately that you are able to appear by AVL at 11.30 or shortly thereafter."

10. Ultimately, Ms Burrows appeared by AVL at 11:50am. She informed the Court again that she had been unwell, and that Mr Foster had returned his brief last week, seemingly because he has not been paid for his services. Ms Burrows said she was content for the Prosecutor to commence final oral submissions now, but asked if she could file the Defendants' submissions by next Monday at 9am (20 April), and for the matter to be adjourned until "next week or the week after" for "half a day" for the Defendants' submissions.

11. Mr McGrath, Counsel for the Prosecutor, opposed the application to adjourn. He also submitted that he was somewhat disadvantaged by not having any indication in a clear sense of what the defences are to any of the five charges brought against Mr Hughes, or the charge brought against ANT Civil Pty Limited: the six charges are summarised in Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd [2025] NSWLEC 115 at [11] (Search Warrant Judgment).

12. My discretion in this application needs to be exercised judicially. I need to consider fairness to the Defendants in the sense of ensuring they have a fair trial.

13. I also need to consider the interests of justice, including the public interest in the conclusion of these prosecutions, the hearings of which originally commenced on 13 October 2026, with a 20-day listing, but have been extended by, amongst other things, various interlocutory applications: Search Warrant Judgment; Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 2) [2025] NSWLEC 121; Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 3) [2026] NSWLEC 3.

14. There is a strong public interest in concluding these prosecutions. The Defendants have been represented by Counsel for all of the evidence of the hearings, and witnesses have been cross-examined by the Defendants' Counsel. The proceedings are now at the stage of oral closing address, with the evidence closed since 25 March 2026.

15. The Defendants have had access to the full transcript of the proceedings, at least since 27 March 2026. In those circumstances, I cannot see any significant prejudice to the Defendants if I grant an adjournment, but only until this Wednesday, as was originally requested by Ms Burrows in her email sent this morning at 10:26am (see [6] above).

16. I am therefore not presently inclined to adjourn the matter for the Defendants' submissions until next week or the following week as subsequently requested by Ms Burrows. I am, however, prepared to adjourn the final oral addresses until Wednesday morning at 10am.

17. I am also inclined to make an order that by 5pm tomorrow, that is Tuesday 14 April 2026, the Defendants are to file and serve, at least in some abbreviated or bullet point form, a short written outline indicating whether there is a positive defence to be submitted for any of the charges brought against either Defendant. The orders I make therefore are these:

18. On the application of the Defendants, I adjourn final oral addresses until this Wednesday 10am, 15 April 2026, with the matters also listed on 16 and 17 April 2026 (if necessary).

19. On or before 5pm on Tuesday 14 April 2026, the Defendants are to file and serve a written outline of submissions, which may be succinct and in bullet point form, outlining the defence position (in accordance with [17] of this Judgment) on each of the five charges brought against Mr Hughes, and the charge brought against ANT Civil Pty Limited.

20. Costs of the adjournment application and of 13 April 2026 are reserved.

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