Environment Protection Authority v Lee

Land and Environment Court (NSW)|2023-04-03|Before: Pepper J

The EPA Seeks to Enforce an Order Made by the Local Court

By summons filed on 15 December 2022, the applicant, the Environment Protection Authority ("EPA"), seeks the following relief: 1. A declaration that the Respondent has breached section 251 of the Protection of the Environment Act 1997 by not complying with Order 3 made by the Parramatta Local Court on 20 September 2022 in Local Court proceedings number 2022/00215311, namely, "3. Pursuant to s 245(c) of the Protection of the Environment Operations Act 1997, the Defendant must cause, within 28 days of the date of these orders, the following steps to be taken: a. Furnish to the EPA the information and records required by notice for information and records number N-9632 issued by the EPA to the Defendant on 19 July 2021, pursuant to s 191(1) of the Protection of the Environment Operations Act 1997." 2. An order that the Respondent comply with Order 3 made by the Parramatta Local Court on 20 September 2022 in Local Court proceedings number 2022/00215311, namely, "3. Pursuant to s 245(c) of the Protection of the Environment Operations Act 1997, the Defendant must cause, within 28 days of the date of these orders, the following steps to be taken: a. Furnish to the EPA the information and records required by notice for information and records number N-9632 issued by the EPA to the Defendant on 19 July 2021, pursuant to s 191(1) of the Protection of the Environment Operations Act 1997."
A notice of motion to amend the summons filed on 23 March 2023, was withdrawn by the EPA on 31 March 2023.
As the reasons that follow indicate, as presently framed the summons must be dismissed because the Court has no jurisdiction to grant the relief sought in either prayer and even if it did, there is insufficient utility to grant the relief in prayer 1.

The Proceedings Were Heard Ex Parte

The proceedings before this Court were heard ex parte because the respondent, Mitchell Lee, failed to appear at the hearing. Indeed, there have been no appearances whatsoever by Lee during the Class 4 proceedings.
The following affidavits of service were read by the EPA: 1. three affidavits of service of Imad Zalneddine, a licenced process server, all sworn on 29 March 2023; and 2. three affidavits of service of Norman Brodbeck, a licenced process server, sworn 2 and 28 February and 23 March 2023, respectively.
These affidavits plainly demonstrate that Lee has been served with the summons and all of the evidence upon which the EPA relied at the final hearing. In other words, he has received the material and has elected not to appear at the hearing.
This evidence was reinforced by email and letter correspondence between the EPA and Lee tendered during the hearing.
In these circumstances, the Court determined that it was appropriate to proceed with an ex parte final hearing.

Lee is Convicted of Failing to Comply with a Notice to Provide Information in the Local Court

The basal facts giving rise to the litigation were contained in the following affidavits read by the EPA: 1. the affidavit of Fergus Cowan, an Operations Officer at the EPA, affirmed 13 December 2022, together with documents exhibited to that affidavit; 2. an updating affidavit of Cowan dated 30 March 2023. This affidavit was necessary because it became apparent at the hearing that there was a substantial lacuna in the evidence of the EPA insofar as it had nothing demonstrating that the order the subject of these proceedings had not been complied with by Lee subsequent to 13 December 2022. The EPA sought leave to adduce oral evidence by Cowan to this effect during the hearing which was declined by the Court on the grounds of procedural fairness. No prior notification had been given to Lee that this course would be adopted. Because this evidential gap could have been fatal to the EPA's case, the hearing was adjourned part-heard to permit the EPA to file an updating affidavit, and to serve it on Lee, deposing to the fact that as at 31 March 2023, the order the subject of these proceedings had not been complied with; and 3. an affidavit of Peter Zivkovic, a Legal Officer at the EPA, affirmed 13 December 2022, attaching, relevantly, a copy of the Court Attendance Notice ("CAN") and a transcript of the sentence proceeding in the court below.
In short, on 19 July 2021 Lee was issued with a Notice to Provide Information and/or Records pursuant to s 191 of the Protection of the Environment Operations Act 1997 ("POEOA") ("the Notice"). The Notice was issued to obtain material relating to an investigation by the EPA into the transportation and stockpiling of potential waste material at premises at Boxers Creek on 10 December 2020. The information and records had to be provided by 6 August 2021. They were not provided by that date, or at all.
The EPA commenced criminal proceedings in the Paramatta Local Court in respect of Lee's failure to comply with the Notice pursuant to s 211 of the POEOA.
Section 211 makes it an offence to fail to comply with a requirement made of a person under the Chapter, for example, the requirement set out in s 191: 191 Requirement to provide information and records (EPA) (1) The EPA may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities or functions under this Act. (2) This section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.
On 20 September 2022 Lee entered a plea of guilty to, and was convicted of, an offence against s 211(1) of the POEOA in the Local Court. Section 211 provides as follows: 211 Offences (1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence. …
Lee was fined $3,000 and was subject to a professional costs order in the sum of $2,500. Critically, the Learned Magistrate also made an order in these terms ("the Local Court order"): 3. Pursuant to s 245(c) of the Protection of the Environment Operations Act 1997, the Defendant must cause, within 28 days of the date of these orders, the following steps to be taken: a. Furnish to the EPA the information and records required by notice for information and records number N-9632 issued by the EPA to the Defendant on 19 July 2021, pursuant to s 191(1) of the Protection of the Environment Operations Act 1997.
The Local Court was empowered to make order 3.
Section 9 of the Local Court Act 2007 specifies the jurisdiction of that Court: 9 Jurisdiction The Court has - (a) a civil jurisdiction consisting of the jurisdiction conferred on it by Part 3, and (b) a special jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to proceedings to which Part 4 applies, and (c) a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings.
Sections 215, 243 to 245 of the POEOA relevantly state: 215 Proceedings for other offences (1) Proceedings for an offence arising under this Act or the regulations (other than under Part 5.2) may be dealt with - (a) summarily before the Local Court, or (b) summarily before the Land and Environment Court in its summary jurisdiction. … 243 Operation of Part (1) Application to proved offences This Part applies where a court finds an offence against this Act or regulations proved. (2) Meaning of proved offences Without limiting the generality of subsection (1), a court finds an offence proved if - (a) the court convicts the offender of the offence, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section). (3) Definitions In this Part - the court means the court that finds the offence proved. the offender means the person who is found to have committed the offence. 244 Orders generally (1) Orders may be made One or more orders may be made under this Part against the offender. (2) Orders are additional Orders may be made under this Part in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. (3) Other action not required Orders may be made under this Part regardless of whether any penalty is imposed, or other action taken, in relation to the offence. 245 Orders for restoration and prevention The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow) - … (c) to prevent the continuance or recurrence of the offence.
The Local Court was "the court" for the purpose of s 245(c) of the POEOA because it was the court that found the offence proved.
As the affidavits of Cowan demonstrate, the Local Court order has not been complied with by Lee.
Accordingly, rather than commence contempt proceedings in the Local Court (which the EPA stated could be pursued under s 24 of the Local Court Act), or seek a further conviction pursuant to s 251 of the POEOA in either the Local Court or this Court, the EPA commenced proceedings in Class 4 of the Court's jurisdiction.
Section 251, which is contained in Pt 8.3 of the POEOA, states as follows: 251 Offence A person who fails to comply with an order under this Part (except an order under section 246, 247 or 248) is guilty of an offence. …
Section 252 in Pt 8.4 of the POEOA permits civil enforcement proceedings to be commenced to remedy or restrain breaches of that Act in this Court: 252 Remedy or restraint of breaches of this Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. … (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. …
Section 20(1)(ci) of the Land and Environment Court Act 1979 ("the LEC Act") confers the following jurisdiction on this Court in respect of the POEOA: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - … (ci) proceedings under Part 8.4 of the Protection of the Environment Operations Act 1997…
In relation to its civil jurisdiction, the Court is relevantly conferred with the following power in s 20(2) of the LEC Act: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,…

The Court Does Not Have Jurisdiction to Grant the Relief Sought in the Summons

Prayer 1

The first issue to be determined is whether the Court has the power to make the declaration sought in prayer for relief 1.
The Court's discretion to grant declaratory relief is broad and extends to cases where a matter of criminal law or procedure arises (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 20, 79 and 81 and Imperial Tobacco Ltd v A-G [1981] AC 718 at 750 and see the express statement to this effect in s 252(2) of the POEOA). Nevertheless, the courts have emphasised that it is generally only in exceptional circumstances that such a declaration is granted and that the "whole concept of a declaration that a crime has been committed being made in civil proceedings is abhorrent" (Inglis v Moore (1979) 24 ALR 411 at 415 per St John J and see also Liverpool City Council v Roads and Traffic Authority (1991) 74 LGERA 265 at 280).
While s 252 of the POEOA confers exclusive jurisdiction on this Court for "an order to remedy or restrain a breach of the Act", s 251 is a provision which, if contravened, gives rise to criminal liability. It makes the failure to comply with some other order an offence. Does, therefore, this infraction fall within the ambit of the power conferred upon the Court by s 252 of the POEOA?
There is no question that a provision creating an offence under the POEOA contains an inherent cognate legal duty not to do (or conversely, to do) the very act prohibited (or mandated) by the provision that may be the subject of civil enforcement proceedings under s 252 of the POEOA.
In Meriton Apartments Pty Limited v Sydney Water Corporation [2004] NSWLEC 699 the Court was required to determine an application for summary dismissal of the following civil claim (at [1]): 1 The respondent, Sydney Water Corporation, is the occupier of the Warriewood Sewage Treatment System at Warriewood Road, Warriewood ("the premises"). On 10 September 2004 the applicant, Meriton Apartments Pty Limited, commenced Class 4 proceedings against the respondent claiming the following relief: 1. A declaration that the respondent is in breach of s 129(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"). 2. An order that the respondent do all things necessary to prevent the emission of offensive odour from the premises being the Warriewood Sewage Treatment Plant, Warriewood Road, Warriewood.
In that case, although s 129(3) of the POEOA made breach of s 129(1) an offence, the Court held that the duty contained in s 129(1) was capable of remedy or restraint under s 252 of that Act in civil enforcement proceedings commenced in this Court (Meriton at [13]-[16]): 13 Mr Rushton's submissions rest on the assumption that the applicant seeks relief in relation to the past, or possible future, commission of criminal offences. That assumption is incorrect. The applicant's points of claim seek neither a declaration that the previous conduct of the respondent involved the commission of a criminal offence, nor that the respondent's future conduct will involve the commission of a criminal offence. Rather the applicant seeks to restrain a breach of s 129(1) of the POEO Act. The applicant commenced civil proceedings pursuant to s 252 of the POEO Act, which relevantly states: (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. ….. (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. ….. (8) In this section: breach includes a threatened or apprehended breach. 14 This Court has power to hear and dispose of such proceedings under s 20(1)(ci) of the Land and Environment Court Act 1979 ("the Court Act"). 15 Proceedings are brought under s 252 of the POEO Act to enforce a public duty imposed under that Act; a duty by which Parliament expresses the public interest in protecting the environment: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. Section 252(1) is an open standing provision that removes the common law limitations on the standing of citizens to commence proceedings to enforce a public right. Any person can commence proceedings regardless of whether or not any right of that person has been or may be infringed by, or as a consequence of, the breach of the public duty: Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250 at 256-257; Building Owners and Managers' Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 at 72-73 upheld on appeal (1985) 55 LGRA 444 at 447; F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 310, 313. A public interest also exists in upholding environmental legislation and ensuring that all persons comply with the duties imposed by the legislation. Proceedings brought under s 252 of the POEO Act, in Class 4 of this Court's jurisdiction, are not criminal proceedings. This is reinforced by s 252(2), which states that such proceedings may be brought whether or not proceedings have been instituted for an offence against the Act. In fact, if the applicant had brought proceedings to prosecute the respondent for a criminal offence, those proceedings would require the leave of this Court under s 219 of the POEO Act. Moreover, in Sydney City Council v Building Owners and Managers' Association of Australia Ltd (1985) 55 LGRA 444 at 447-448, Mahoney JA (Hope and Priestley JJA concurring) stated that the reference to "a breach" in s 123(1) of the Environmental and Planning Assessment Act 1979 ('the EP&A Act"), is not limited to something essentially attracting a criminal sanction. The wording of s 252 of the POEO Act is similar to that provision of the EP&A Act. Accordingly, s 252 of the POEO Act should not be read down to only include breaches with criminal consequences. It is necessary to consider the respondent's submissions in this context. Does the Court have power to remedy or restrain past or future breaches of the POEO Act? 16 Mr Rushton submits that the Court is unable to remedy or restrain incidents that have already occurred. In particular, Mr Rushton submits that the Court cannot grant declaratory relief to establish that past conduct amounts to a criminal offence, and relies upon Inglis v Moore (1979) 24 ALR 411, in which St John J states (at 415) that the "whole concept of a declaration that a crime has been committed being made in civil proceedings is abhorrent". This argument, however, rests upon the misconceived assumption that the applicant seeks a declaration in relation to past criminal conduct. The applicant does not seek a declaration in those terms, nor in the nature of those terms. Rather, as I stated earlier, the applicant seeks a declaration that the applicant has breached the POEO Act. This is not the same as proving the commission of a criminal offence. Section 252 enables civil proceedings to be brought for a breach of a statutory prohibition. It does not attract a criminal conviction nor a penalty.
While no equivalent to s 129(1) is contained in s 251 of the POEOA, Meriton is indistinguishable on this basis and the proposition remains good law.
Thus, in Macquarie Generation v Hodgson [2011] NSWCA 424 an argument that breach of a provision creating an offence under the POEOA could not give rise to proceedings brought under s 252 of that Act in this Court "to enforce any public duty imposed under [the] Act" was raised and swiftly rejected by the Court of Appeal, holding that statutory offences create statutory duties (at [25]-[30]): 25 Mr Lloyd QC, who appeared with Mr Stafford for the applicant, relied on EPA vAlkem Drums Pty Ltd [2000] NSWCCA 416; 113 LGERA 130, 146 where Smart AJ, giving the principal judgment said, without citing authority: "Any statute which creates an offence, by necessary implication, imposes a duty on the person covered by its terms not to commit an offence (or a breach of the statute) by engaging in conduct which amounts to an offence." 26 This decision was followed in Blue Mountains Conservation Society Inc v Delta Electricity [2011] NSWLEC 145 at [28], [30] where Pepper J said, after referring to s 120[27]: "...implicit in the words 'a person who pollutes any waters is guilty of an offence' is the imposition of a duty or obligation not to pollute waters. I do not consider... that it was necessary for the legislature to expressly state that any person 'must not' or 'shall not' pollute waters to create a duty or obligation sufficient to enliven s 252 ... To hold otherwise would be, in my opinion, to elevate absurdity above common sense." 27 These cases are correct in principle and are supported by long-standing authority to which this Court was not referred. In Cope v Rowlands (1836) 2 M&W 149 [150 ER 707] Parke B said (at 157 [710]): "It is perfectly settled, that where the contract... is expressly or by implication forbidden by ... statute law, no court would lend its assistance to give it effect. It is equally clear that a contract is void if prohibited by a statute, though the statute inflicts a penalty only, because such a penalty implies a prohibition: Lord Holt, Bartlett v Vinor (1692) Carthew 252 [90 ER 750]." 28 This passage was cited by Jacobs J in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; 139 CLR 410, 430. The judgment of Parke B was also cited by Gibbs ACJ (at 414, 416) and by Mason J (at 424). 29 Long-standing authority establishes the related proposition that where a statute inflicts a penalty for not doing an act "the penalty implies that there is a legal compulsion to do the act": Redpath v Allen (1872) LR 4 PC 511, 517; cited by Williams J in BMA v The Commonwealth [1949] HCA 44; 79 CLR 201, 289. 30 Macquarie's jurisdiction point therefore fails.
However, the form of the present summons is, in my opinion, problematic in two respects. First, the duty inherent in s 251 of the POEOA is a duty to comply with an order made under s 245(c) of Pt 8.3, which in turn concerns an order made by another court, namely, the Local Court. Notwithstanding the wording of prayer 1, there is no breach of the POEOA that can properly be the subject of civil enforcement proceedings under s 252 of that Act. Rather, there has been a breach of an order made by the Local Court under s 245 of the POEOA. The duty enlivening the jurisdiction of this Court is found in neither s 251 nor 245(c) of the POEOA, but is located in s 211 of that Act when read together with s 191. There would have been no difficulty in seeking a declaration to the effect that Lee had breached his duty to provide the information and/or records pursuant to these provisions, but that is not what is sought in prayer 1 of the summons.
Second, the order made under s 245(c) of the POEOA referred to in prayer 1 is in truth a sentencing order made by the Local Court. It becomes an offence by dint of s 251 of the Act, but it cannot properly be characterised as a breach of the POEOA.
Accordingly, on its face prayer 1 of the summons does not confer jurisdiction on this Court to make any orders under s 252 of the POEOA. This is not to say that relief in respect of Lee's persistent failure to furnish the material demanded of him is not actionable in this or another Court. As alluded to above, civil enforcement proceedings alleging breach of ss 191 and 211 could be brought in this Court pursuant to s 252 of the POEOA. Alternatively, criminal proceedings could be brought in the Local Court or this Court pursuant to s 251 of the POEOA for failing to comply with the order made by the Learned Magistrate under s 245(c) of that Act.
The summons may be dismissed on this basis alone.

Prayer 2

However, even if, contrary to the conclusion arrived at above, the Court had jurisdiction to make the declaration sought in prayer 1, the order as sought in prayer 2 cannot be made.
Prayer 2 seeks an order in one court compelling compliance with an order of another court. As framed the order is bad in law.
This is because while the Local Court had the jurisdiction to hear and determine criminal matters brought under the POEOA (conferred upon by operation of s 215 of the POEOA and s 9 of the Local Court Act), the power to make the Local Court order is a power exercised pursuant to s 9 of the Local Court Act. This Court has no jurisdiction to compel an exercise of power under the Local Court Act (see s 20 of the LEC Act), or, to use the language of the prayer, to compel a party in these proceedings to comply with an exercise of power under another Act, namely, the Local Court Act, by another court.
In this regard, I note that the EPA eschewed (correctly, in my view) during oral argument any reliance upon the inherent jurisdiction of this Court to grant the relief contained in prayer 2 of the summons.
Therefore, any action to enforce the Local Court order ought properly be brought in the Local Court, whether that be by way of contempt proceedings (assuming, as the EPA submitted, this is possible pursuant to s 24 of the Local Court Act), or as a fresh prosecution pursuant to s 251 of the POEOA for failing to comply with the Local Court order. Either way, such proceedings must be commenced in the court below, not this Court.

The Relief Ought Not be Granted as a Matter of Utility

If, however, I have erred in the above analysis in respect of the availability of declaratory relief, I would nevertheless decline to make the declaration in prayer 1 on the ground of utility.
In Great Lakes Council v Lani; Lampo Pty Ltd [2007] NSWLEC 681; (2007) 158 LGERA 1, Preston J declined to grant declaratory relief in civil enforcement proceedings notwithstanding the wide discretion afforded to the Court to make an order to remedy or restrain a breach of the Act as it sees fit (s 252 of the POEOA and s 20(2)(c) of the LEC Act). As his Honour observed, the discretion extends to not making an order "if the Court does not think that any order is fit to remedy or restrain the breach" (at [12] citing F Hannan Pty Ltd v Electricity Commission (NSW) [No 3] (1985) 66 LGRA 306 at 311).
In that case, despite finding a breach of the relevant legislation and issuing an injunction, Preston J declined to grant declaratory relief on several bases, many of which are applicable to these proceedings. Thus, in the present case, the making of a declaration: 1. will not have any practical effect. Lee has twice failed to provide the documents. Further civil proceedings are highly unlikely to produce a different result, especially given his refusal to be present for any part of the litigation in this Court (Lani at [20]); 2. is not necessary in order for the Court to have the jurisdiction to make the order sought in prayer for relief 2. Put another way, the making of a declaration will not confer jurisdiction upon the Court in circumstances where none (as I have found) is present (Lani at [21]); 3. by itself neither remedies past breaches of the POEOA nor compels Lee to provide the documents and information sought in the Notice (Lani at [22]); 4. is not to be used as a substitute for criminal prosecution, which it is plainly being deployed as in this instance. As Preston J opined in Lani (at [23]-[24]): 23 Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences. 24 The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions.
The EPA submitted that there were several reasons why the making of the declaration would not lack utility, namely: 1. the Local Court would not take the failure to respond to the Notice as seriously as a specialist court such as this Court would; 2. Lee was likely to take orders issued by this Court more seriously, and therefore, comply with them; and 3. further prosecution would otherwise have to be initiated in the Local Court thereby resulting in a multiplicity of proceedings.
By way of response it may be observed that: 1. there was no evidence provided for the first proposition. That is not my experience and as the facts of this case demonstrate, the court below treated the failure of Lee to comply with Notice seriously and dealt with it appropriately in all of the circumstances; 2. given that Lee has failed to appear to date in these proceedings, this statement is demonstrably incorrect; and 3. it was always open to the EPA, as it conceded during oral argument, to bring further criminal proceedings in the Local Court charging Lee with an offence against s 251 of the POEOA instead of instituting these proceedings. On any view, this would have been the cheapest and most efficient course to pursue.
For these reasons, therefore, even if the Court had the jurisdiction to make a declaration, it would decline to do so for want of utility.

Conclusion and Orders

As is apparent from the reasoning above, the summons must be dismissed, with no order as to costs given Lee's failure to engage in the proceedings. The exhibits are to be returned.
Finally, it should be noted that prior to this matter being finally heard the matter came before the Court twice (once before Preston J on 21 December 2022 and once before Robson J on 10 February 2023), whereupon both judges raised many of the issues that have resulted in the EPA being unsuccessful. As the Chief Judge made tolerably clear (T1:39-43): …there needs to be some thought done by the EPA as to these proceedings generally. I have grave concerns that this Court has any jurisdiction, and moreover, whether this is even a claim that can be made. You want me to articulate it because it may well be that upon reflection, the EPA discontinues these proceedings. I think therefore they are wholly bad.
That the EPA, a model litigant, insisted upon pursuing these wholly misconceived proceedings in light of such cautionary remarks from the bench is a cause of some consternation.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2023

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