Environment Protection Authority v McConnell Dowell Constructors

Land and Environment Court (NSW)|1999-05-20|Before: Pearlman J, Mrs J, Mr J

Introduction 1 to 2 The statutory process 3 to 10 The facts relating to the issue of the summons 11 to 13 Question 1 - should the summons be struck out? 14 The written consent 15 to 25 The order under s 41 26 to 45 The summons 46 to 61 Service of the summons, order and affidavits 62 to 65 Question 2 66 to 69 Conclusion 70 to 72

IN THE LAND AND 50009 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 20 May 1999

ENVIRONMENT PROTECTION AUTHORITY Prosecutor v McCONNELL DOWELL CONSTRUCTORS (AUSTRALIA) PTY LTD Defendant JUDGMENT

Three questions have arisen for determination in these class 5 proceedings. They are: (1) Whether the summons issued by the prosecutor against the defendant should be struck out as an abuse of process; and

(2) Whether the defendant, for the purpose of making submissions in relation to question (1), should be permitted to inspect documents produced by the prosecutor, it being contended by the defendant that the prosecutor's claim for legal professional privilege has been lost; and

(3) Whether a notice to produce issued by the prosecutor to the defendant on 22 March 1999 should be set aside.

At the close of submissions it was agreed between the parties that the first question should be dealt with prior to the second question. If the first question is answered in the defendant's favour, then the defendant's need to inspect the produced documents would not arise, and, of course, the third question would become irrelevant. If, however, the first question is answered against the defendant, then the second question arises. I am content to approach the questions in this way.

The defendant has been charged with an offence against the Environmental Offences and Penalties Act 1989 ("the EOP Act") in that, on or about 25 February 1998, at Woolloomooloo Bay, it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970. The summons particularised the pollutants as "oil; and/or wastes containing oil; and/or inflammable liquids" . It particularised the waters as being "Woolloomooloo Bay" .

The offence with which the defendant is charged, arising under s 16(1) of the Clean Waters Act, constitutes, by virtue of s 16(7) of that Act, an offence against s 8B of the EOP Act. Proceedings for offences under the EOP Act may only be instituted in accordance with s 13 of the EOP Act, which relevantly provides as follows: 13 (1) Proceedings for an offence against this Act may be instituted only with the written consent of: (a) the Environment Protection Authority, or (b) a member of the staff of that Authority authorised in writing by that Authority for the purposes of this subsection.

(2A) Subsection (1) does not apply to the institution of proceedings in the Land and Environment Court for an offence against this Act by a person if the Court grants the person leave to bring the proceedings. The Court is not to grant leave unless satisfied that: (a) the Environment Protection Authority has decided not to take any relevant action (as defined in subsection (2B)) in respect of the act or omission constituting the alleged offence against this Act or has not made a decision on whether to take such action within 90 days after the person applied to the Authority for consent to institute the proceedings, and (b) the Environment Protection Authority has been notified of the proceedings, and (c) the proceedings are not an abuse of the process of the Court, and (d) the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence against this Act. 5. For the purpose of considering the operation of s 13(1), it is relevant to note that s 19(1) of the Protection of the Environment Administration Act 1991 provides that the affairs of the Environment Protection Authority ("the Authority") are to be managed and controlled by the Director-General of the Authority. Section 19(2) of the same Act provides that "Any act, matter or thing done in the name of, or on behalf of, the Authority by the Director-General is taken to have been done by the Authority" .

Section 21(ca) of the Land and Environment Court Act 1979 ("the LEC Act") provides that an offence under s 8B of the EOP Act falls within class 5, being the Court's summary jurisdiction.

Part 6 r 2(1) of the Land and Environment Court Rules 1996 ("the LEC Rules") provides that Div 2 of Pt 75 of the Supreme Court Rules 1970 is taken to be part of the LEC Rules, and is to apply to class 5 proceedings with such adaptations as may be necessary. Accordingly, the commencement of class 5 proceedings is governed by Pt 75 r 7 of the Supreme Court Rules, which provides that such proceedings shall be commenced by summons "… claiming an order under s 4 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence" . According to Pt 6 r 2(1), the reference to the "subject Act" is to be taken to be a reference to the corresponding provision of Div 5 of Pt 4 of the LEC Act.

That corresponding provision is s 41, which relevantly provides as follows:

41 (1) Upon an application being made by any person (in this Division referred to as "the prosecutor") in accordance with the rules, a Judge shall make an order - (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order. (b) … (2) An order under subsection (1) may be made ex parte.

Part 6 r 2(2) of the LEC Rules also applies. It provides as follows: 2(2) Despite subrule (1) a summons seeking an order pursuant to Section 41 of the Act is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged.

Finally, Pt 75 r 9(1) of the Supreme Court Rules is relevant. It provides as follows: 9(1) The summons and any affidavit in support of an application (under s 41 of the LEC Act) shall not, unless the Court so directs, be served before the making of the order but shall be served on the defendant when the minute of order is served on him.

The Court's file contains, amongst other things, a written consent to institute proceedings signed on 23 February 1999 by the Director-General. It also contains a sealed and signed order under s 41(1) dated 24 February 1999 requiring the defendant to appear to answer the charge. There is also a sealed copy of the summons, upon which is noted the fact that it was filed in the Registry of the Court on 24 February 1999.

In an affidavit sworn on 28 April 1999, Mr C S F McElwain, who is a solicitor in the employ of the prosecutor, deposed to the circumstances surrounding the making of the order under s 41(1). He stated that he attended at the chambers of Talbot J on 24 February 1999 for the purpose of commencing proceedings. At that time, he showed Talbot J three affidavits, being the affidavits of Mr A J Hawkins, Mr D Blair and Mr M Callaghan. Mr McElwain stated that his Honour did not ask to see further affidavits, and he did not show him any further affidavits, although he had four further affidavits with him on that day.

According to the affidavit of Mr R C Shaw, a solicitor in the employ of the defendant's solicitors, and a table of information, furnished by those solicitors, the following is the order in which various relevant documents were served upon the defendant: On 3 March 1999:

the consent; the order; the summons

the affidavits of Mr J E P Van Roon, Mr K J Welsh, Mr N J Nordstrom

the affidavits of Mr A J Hawkins, Mr D Ka Ming Ho, Mr M A Callaghan

It is against this statutory and factual background that the defendant makes its claim that the summons is an abuse of process. As I understood him, Mr Doyle, for the defendant, contended that various steps in the statutory process were so defective that they tainted the summons in such a way as to constitute an abuse of process. The defects which Mr Doyle alleged were as follows: (a) The written consent of the Director-General of the prosecutor was defective in that the Director-General could not have been satisfied that there was a prima facie case against the defendant;

(b) The order was defective in that Talbot J could not have been satisfied that the prosecutor had established a prima facie case against the defendant;

(c) The summons is defective in that it fails to set out essential ingredients of the offence, being a specification of how the defendant is alleged to have polluted the waters, and, if the defendant is said to be vicariously liable for the offence, how that vicarious liability is said to arise;

(d) The summons and affidavits were not served in accordance with the mandatory requirement in Pt 75 r 9 of the Supreme Court Rules that the summons, order and affidavits be served together. I deal with each of these grounds in turn.

Mr Doyle claimed that no proper written consent under s 13(1) had been given by the Director-General. The principal basis for this submission was Mr Doyle's claim that the Director-General could not have been satisfied, on the affidavits then available and presumably furnished to him, that there was a prima facie case against the defendant. Mr Doyle acknowledged that s 13(1) of the EOP Act does not expressly specify the basis upon which the Director-General should furnish his consent, but, in Mr Doyle's submission, a requirement to be satisfied of a prima facie case arises by necessary implication from s 13(2A)(d) where, in deciding whether to grant leave to commence proceedings, the Court is required to be satisfied that "the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence …" . Secondly, according to Mr Doyle's submission, the essential legal ingredients of the offence have not been specified in the summons, and that failure has tainted the consent, because the consent could not have been properly given for an offence known to the law. It was said that the requirement to give consent is a fundamental matter of fairness to a defendant, protecting a person from being harassed by a frivolous prosecution (see Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 at 419).

In considering this issue, I put aside for the moment the question of whether or not the affidavits establish a prima facie case, and the question of whether or not the summons is defective for failing to specify the essential legal ingredients of the offence charged. This issue falls for determination upon whether the proper construction of s 13(1) calls for the Director-General to be satisfied of a prima facie case before he issues a consent, and whether, in any event, his decision to issue a consent is reviewable by the Court.

The discretion conferred upon the Director-General under s 13(1) in its terms is unconfined. (I am, of course, referring to the discretion conferred on the EPA, which is exercised, as I have previously explained, by the Director-General under s 19(2) of the Protection of the Environment Administration Act). Where a discretion is unconfined "… the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act" - per Mason J in The Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Ors (1985) 162 CLR 24 at 40 (see also Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758).

I am not persuaded that an implication that the Director-General is bound to be satisfied of a prima facie case can be derived from the Court's obligation to be so satisfied in s 13(2A). Section 13(2A) deals with an entirely different circumstance, that is, the power of the Court to grant leave to a person to commence proceedings in a case where the EPA has not itself furnished consent. In such a circumstance, the EOP Act sets out four particular matters in respect of which the Court must be satisfied before it grants leave. By contrast, s 13(1) is silent as to any particular considerations to be taken into account by the Director-General. That contrast is compelling, in my opinion. It confers a wider and more unconfined discretion in the Director-General, which suggests that an implication that the Director-General is bound to take into account any particular matter does not arise.

Mr Doyle further submitted that an obligation for the Director-General to be satisfied of a prima facie case can be implied from the purpose of s 13(1), that section constituting a fundamental protection of a defendant from vexatious or frivolous prosecution. I am prepared, for present purposes, to accept that formulation as the purpose of the section. But it does not lead to an implied obligation on the part of the Director-General to be satisfied of a prima facie case. The Court has power to control an abuse of its process in the interest of a fair trial, but judicial review of the decision to prosecute is not the appropriate method of control. Authority for that proposition is to be found in a passage from the joint judgment of Gibbs ACJ and Mason J in Barton v The Queen (1980) 147 CLR 75 where it was held that the decision of the Attorney General under s 5 of the Australian Courts Act 1828 to present an ex officio information is not examinable by the courts. At pp 95 - 96, their Honours said: It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal trial in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial.

I have concluded, for these reasons, that the consent of the Director-General is not open to challenge on the ground that he was required to be satisfied of a prima facie case, because, to the contrary, his discretion is unconfined.

However, Mrs Kelly, appearing for the prosecutor, contended that, in any event, the Director-General's consent is not reviewable by the Court. Mrs Kelly relied for this proposition on Barton v The Queen, where, at pp 94 - 95, Gibbs ACJ and Mason J said: It has generally been considered to be undesirable that the court, whose ultimate function is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v Humphrys [1977] AC 1 - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.

The proposition was restated in unequivocal terms by Gaudron and Gummow JJ in Maxwell v The Queen (1995) 184 CLR 501 at 534 in the following passage: It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen … at 94 - 95, 110 ) … The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what …"

(See also Director of Public Prosecutions v B (1998) 155 ALR 539 at par 21).

Those decisions preclude the challenge which the defendant makes to the Director-General's consent. But Mr Doyle pointed to three English cases which are authority for the proposition that a consent to prosecute is reviewable in rare or limited circumstances. In R v Inland Revenue Commissioner, ex p Mead and Anor (1993) 1 All ER 772, it was held that a decision to prosecute is susceptible to judicial review, but the circumstances in which such jurisdiction could be successfully invoked would be rare in the extreme (see Stuart-Smith LJ at 782). In R v Director of Public Prosecutors ex p C (1995) 1 Cr App R 136 it was common ground that there was a power to review a decision not to prosecute, but that the power is one to be exercised sparingly (see Kennedy LJ at 139). R v Chief Constable of Kent County Constabulary and Anor ex p L (1993) 1 All ER 756 was a case which related to a decision to prosecute a juvenile, and it was held that there was a power to review the decision but only where it would be shown that the decision was made regardless of or clearly contrary to a settled policy.

In M v Director of Public Prosecutions (Supreme Court, 6 March 1996, unreported), Dunford J, correctly in my respectful opinion, rejected these authorities, stating, at p 4, that they do not represent the law in New South Wales. That conclusion is reinforced by the subsequent High Court decisions of Maxwell v The Queen and Director of Public Prosecutions v B . But even if there was a limited right of review as the English cases suggest, there are no exceptional circumstances alleged in this case to ground such a review. The kind of circumstances, for example, that Stuart-Smith LJ envisaged in Ex p Mead at p 782, were " [A]bsurd examples, such as a policy only to prosecute black men or the political opponents of an outgoing government … [and] fraud and corruption". Nothing of that kind is raised by the defendant in this case.

I conclude that the summons should not be struck out on this ground.

Mr Doyle's principal submission in relation to the order was that it was not, as required by s 41, based upon an application made "in accordance with the rules" . Part 6 r 2(2) of the LEC Rules, he submitted, requires the prosecutor to furnish to the judge affidavits which establish a prima facie case against the defendant. That follows, he said, from the requirement that such an application "is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged" . This, Mr Doyle said, is the second fundamental plank in the protection of the defendant from a frivolous prosecution (the first being the requirement for the Director-General's consent), and fairness to the defendant requires that a prima facie case be shown.

Mrs Kelly's first response to this submission was her claim that there is no requirement for a judge of this Court, when making an order under s 41(1), to be satisfied that the prosecutor has a prima facie case against the defendant. Her submission was that, in order to be an application "in accordance with the rules" under s 41(1), the prosecutor need only, pursuant to Pt 6 r 2(2) of the LEC Rules, produce a summons which is "… accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged" . In her submission, it is simply a matter for the prosecutor to assert to the judge that the summons is accompanied by affidavits of that nature. Mr McElwain had seven such affidavits, she claimed; and Talbot J was not required to concern himself as to whether any or all of those affidavits established a prima facie case. The task of a judge of this Court under s 41(1), she said, was the simple administrative act of making the order.

I find it impossible to accept such a submission. It is founded upon a literal interpretation of Pt 6 r 2(2) which seems to me to be unsupported by both the language of Pt 6 r 2(2) itself, and by the purpose of that rule given its historical background.

The language used in Pt 6 r 2(2) is not free of ambiguity. It is unclear as to what is meant by the requirement that the affidavits "accompany" the summons, nor is it clear whether those affidavits are to support the application for an order. But the language indicates that Pt 6 r 2(2) is important - it operates "despite" the provisions of subrule (1), which means that it operates and has effect no matter what is provided in subrule (1). It is also exclusive to this Court - no similar rule appears in the Supreme Court Rules. Furthermore, Pt 6 r 2(2) spells out unequivocally the type of affidavits which are required to accompany the summons. They are not simply affidavits upon which the prosecutor intends to rely at the trial - they are affidavits intended to be relied upon as "establishing prima facie proof" . It is also relevant, in construing Pt 6 r 2(2), to consider its context. It constitutes at least part of the foundation for an order to be made by a judge requiring a person to appear to answer a charge. The judge "shall make" an order, upon an application being made "in accordance with the rules" . Part 6 r 2(2) is one such rule.

Some assistance can, I think, be derived from Pt 75 r 9 of the Supreme Court Rules. Although Pt 6 r 2(1) of the LEC Rules adopts the relevant Supreme Court Rules with such adaptations as may be necessary, it is clear that Pt 75 r 9(1) provides for affidavits which " are in support of an application". I consider that the function of supporting an application for an order is precisely the work which Pt 6 r 2(2) is required to do, and, consequently, the judge in issuing the order must be satisfied that the affidavits establish a prima facie case.

Further support for such a construction can be derived from the historical background to Pt 6 r 2(2). It was enacted in 1991. Prior to its enactment, it had been held by Cripps J in Baker v Macleod (1 August 1986, unreported) that there was no requirement that a judge, in making an order under s 41, be satisfied that the prosecutor could make out a prima facie case. In so holding, Cripps J observed, at pp 3 - 5, that the relevant rules were those appearing in Div 2 of Pt 75 of the Supreme Court Rules, and that there was "… no requirement, in terms, that a prosecutor must furnish an affidavit setting out the nature of the case sought to be made against a defendant before an order can be made for the issue of a summons" . He found that such a requirement did not exist either by implication or in the established practice of the Supreme Court. Considering the sequence in time between his Honour's decision and the enactment of Pt 6 r 2(2), it is apparent, I think, that Pt 6 r 2(2) was enacted at least in part to overcome Baker v Macleod . The rule now provides, in terms, that affidavits of the nature described must accompany the summons.

Mrs Kelly's second submission was that, in any event, the decision of Talbot J to issue the order is not reviewable by this Court. She relied for this proposition upon Howard Silvers Investments Pty Ltd v Sydney City Council and Anor (1998) 99 LGERA 154 where it was held by Lloyd J that this Court had no jurisdiction, inherent or statutory, to entertain a challenge to the decision by another judge of the Court granting conditional development consent. Mrs Kelly emphasised the reference in that case at p 161 to the opinion of Bignold J in Tweed Shire Council v The Minister Administering the Crown Lands Act (11 July 1997, unreported) where it was said, at p 5, that "It would be inconceivable (if not legally impossible) that this Court would grant prerogative relief against itself". Mrs Kelly also sought to derive some comfort from Grassby v The Queen (1989) 168 CLR 1 and Barton v Walker (1979) 2 NSWLR 740, which were cases dealing with applications for the disqualification of a judge of the same court on the ground of bias, but I do not find these authorities of any assistance in resolving the present problem.

As Lloyd J noted in Howard Silvers v Sydney City Council at 161, Barwick CJ said, in Bailey v Marinoff (1971) 125 CLR 529 at 530: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court .

Here the order made by Talbot J was perfected by being drawn up as the record of the Court, but there is a specific and relevant statutory provision that affects whether or not it can be reviewed. I refer to Pt 15 r 9 of the LEC Rules, which relevantly provides as follows: 9. The Court may, on terms, set aside or vary an order in any one of the following cases - (a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order;
The order was made by Talbot J ex parte in chambers, as s 41(2) permits. I am of the opinion that it may thus be varied or set aside.

The question, then, is whether there are grounds for so doing. The defendant claims that the order was made, as I have indicated, in the absence of a prima facie case against it. I turn then to consider the evidence which, according to the affidavit of Mr McElwain, was before Talbot J when he made the order. I do so upon the basis that the phrase "prima facie proof" in Pt 6 r 2(2) means that, on the affidavit evidence as it stood before Talbot J, the defendant could lawfully be convicted of the offence; that is, that there was a probability that the prosecutor could succeed ( May v O'Sullivan (1995) 92 CLR 654).

One affidavit inspected by his Honour was that sworn by Mr A J Hawkins on 17 February 1999. Mr Hawkins deposed to a number of conversations and circumstances by which he became aware that there had been a spill at the Finger Wharf in Woolloomooloo Bay. He deposed to attending a meeting on the site at about 9.20am on 28 February 1998 at which the persons attending included officers of the defendant. Annexure "AH 14" to Mr Hawkins' affidavit is a document entitled "Navigation Incident/Defect Form" , in which two named persons are stated to be working for the defendant, and in which those persons described the "incident" to the Sydney Ports Corporation as follows: Whilst working to demolish deck of the Woolloomooloo Finger Wharf, they cut thru (sic) a pipe under the wharf resulting in a diesel spill.

A further annexure to Mr Hawkins' affidavit ("AH 24") is a copy of a document entitled "Environmental Incident/Event Report Form" , which is headed with the name of the defendant, and which contains the following "summary of event" : As Moltoni was demolishing in the area between pile grid 109-100 Eastern Building, they located a pipe (diameter) 450 mm. The excavator driver from Moltoni then approached myself (Michael Petraccar Project Eng) and asked what do we do about this pipe. I then approached the Project Manager Craig Beveridge and we decided that we would first consult with Multiplex to see what the content of the pipes was. Moltoni then proceeded with demolition in the area as a piece of timber fell on the pipe, due to the weight of the pipe and the age of the connections the connections failed in a domino fashion. The pipe was full of oil, which was spilled into the water…

Another affidavit seen by Talbot J was the affidavit of Mr M Callaghan. Exhibited to Mr Callaghan's affidavit, as "MAC 3", was a copy of a "Sub Contract agreement for the wharf at Woolloomooloo and Wharf 11" (I note however that there is no actual evidence that Talbot J saw this exhibit). In any event, that document appears to be made between Multiplex Constructions Pty Ltd and the defendant. It describes the works which the defendant was contracted to undertake on the site, the Finger Wharf, in the following terms: Provide labour, Materials and Equipment so as to replace and rectify the wharf at Woolloomooloo sub-structure including but not limited to demolition, construction and reinstatement of existing piles, apron structure, pool, piles, plant room, roadway relocation & the like all in accordance with performance specification drawing and contract document.

Clause 27 of that document contained an agreement that the sub-contractor "… must ensure that no material, pollutants or the like enter harbour waters and shall take all steps to ensure that its actions do not cause or contribute to pollutants within the environment including harbour waters" .

The third affidavit which Talbot J saw was the affidavit of Mr D Blair. Mr Blair is an employee of Moltoni Corporation Pty Ltd ("Moltoni"). He deposed to the fact that, from November 1997 to 25 February 1998, "Moltoni workers got their day to day instructions from a person known to me as Mr John Miow. I understand that Mr John Miow was the Supervisor of Demolition with McConnell Dowell. This meant that every day or so, Mr Miow would indicate the work to be done for that day to me" .

Mr Blair described, in par 8 and par 9 of his affidavit, the furnishing of instructions to Moltoni from McConnell Dowell on a day to day basis. He said, in par 14, that, when the pipes at the northern end (of the site) were observed by Moltoni workers, they conferred with a person from the defendant. In par 20, Mr Blair said that, when the incident occurred, he was told by one of the Moltoni workers that " We knocked the pipe. We were pulling up the timber bearer and it fell and knocked the pipe. As soon as it happened, I went to tell McConnell Dowell" .

Annexed to Mr Blair's affidavit is a copy of a document addressed to the defendant and headed "Method Statement" . It purports to be made by Moltoni and to set out a general method, a work plan and related matters. Also annexed is a copy of a document which Mr Blair stated, in cl 10 of his affidavit, was a " changed work method statement" . At the commencement of that statement, it is said that "Moltoni Corporation has been contracted by McConnell Dowell to dismantle the timber and concrete deck wharf structure" .

In Mrs Kelly's submission, all this evidence establishes a prima facie case against the defendant. It shows that a sub-contractor of the defendant (for whom, in Mrs Kelly's submission, the defendant was, on that evidence, vicariously liable) acted in a way which caused a spill into the Woolloomooloo Bay waters.

I accept this submission. All that the prosecutor was required to establish was a prima facie case on the affidavits accompanying the summons. I think that it has done so, and that, accordingly, the order made under s 41 is not defective and should not be set aside or varied.

Mr Doyle claimed that the summons was defective on two grounds. First, it failed to set out the essential legal ingredients of the offence, and, secondly, it was tainted by the failure of the prosecutor to establish a prima facie case in accordance with Pt 6 r 2(2) of the LEC Rules.

I have earlier dealt with the foundation for the second claim, and have found that the prosecutor has complied with Pt 6 r 2(2) in establishing a prima facie case. I turn then to the claim concerning the essential legal ingredients of the offence.

(I should interpose here that, strictly speaking, it is the order under s 41, rather than the summons, which formulates the charge - see Hornsby Shire Council v Winsloe (1998) 101 LGERA 117 - but there is no difference in this case between the charge formulated in the order and the charge formulated in the summons).

The summons sets out the charge in the following terms: …the charge that, on or about 25 February 1998 at Woolloomooloo Bay in the State of New South Wales, it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970.

In Mr Doyle's submission, the summons is defective in four respects: (a) it fails to set out the acts or omissions of the defendant which are alleged to constitute the alleged offence - in simple terms, it fails to disclose what the defendant did which is alleged to be wrong. It does no more, he claimed, than set out an allegation that the defendant breached the EOP Act by contravening the Clean Waters Act;

(b) in adopting the phrase "on or about 25 February 1998", the summons fails to be specific enough for the defendant to know that it is being charged with one offence and if it were found that the alleged offence occurred prior to 25 February 1998, it would be out of time, virtue of s 12(1)(b) of the EOP Act; and

(c) if it is alleged that the defendant is guilty of an offence on the basis that it is vicariously liable for the acts or omissions of a sub-contractor, that allegation is an essential ingredient of the offence and was required to be set out in the summons; and

(d) since s 16(6) of the Clean Waters Act provides that it shall not be an offence under that Act if the defendant holds a licence and did not pollute waters in contravention of the conditions of that licence (and since s 18 also postpones the application of s 16 depending upon the holding of a licence), it is an essential legal ingredient of the offence that no licence was held by the defendant, and this ingredient was also required to be contained in the summons.

The formulation of the offence with which the defendant has been charged is set out in s 16(1) of the Clean Waters Act, in the following terms: 16(1) A person shall not pollute any waters.

Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the EOP Act. Furthermore, s 5 sets out wide definitions of both the words "waters" and the word "pollute" (in respect of which "pollutant" and "pollution" are stated to have a corresponding meaning).

Accordingly, the essential legal ingredients of the offence with which the defendant has been charged comprises: (a) a person (b) who polluted (c) waters (d) at a specified time (e) at a specified place (f) in contravention of s 16(1) (g) constituting an offence under the EOP Act.

All those essential factual matters appear in the summons. The defendant has been specified, it has been stated that the defendant polluted waters, the date has been specified, as well as the place, and the contravention of s 16(1) constituting an offence under the EOP Act has been specified.

It is not the case here, as occurred in Hornsby Shire Council v Winsloe or in Filipowski v Ethell (Pearlman J, 27 October 1998, unreported), that the summons fails to set out an offence which is known to the law.

Although the prosecutor furnished in the summons particulars of the pollutants and the waters, the prosecutor has not particularised the acts or omissions of the defendant which it alleges constitutes the commission of "pollute" , and it is clear (which the prosecutor expressly acknowledges) that it must properly furnish further and better particulars to enable the defendant to know the nature of the case it has to meet ( Johnson v Miller (1937) 59 CLR 467).

In any event, the prosecutor relies upon s 43 of the LEC Act to cure any defect in the summons. That section provides as follows: 43. No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.

Section 43 would not assist the prosecutor if the summons had failed to set out an offence known to the law, but it does enable an order to be made requiring the prosecutor to furnish further and better particulars - ex parte Lovell; Re Buckley and Anor (1938) 38 SR 153 at 173. Such an order has been sought by the defendant as an alternative to its motion to strike out the summons. I would refrain from making such an order at this stage, since the prosecutor has acknowledged its obligation in this regard, and further and better particulars may be furnished by it without the necessity of an order of this Court to do so.

The application of s 43 would also, in my opinion, cure any defect in the specification of the date of the offence as being "on or about 25 February 1998" . The prosecutor may be required to furnish further and better particulars of the date upon which the offence is alleged to have occurred, but the specification of the date in the summons as occurring "on or about" the specified date does not constitute an incurable defect.

Next, I reject the defendant's claim that, if the prosecutor is relying upon an allegation of vicarious liability on the part of the defendant, the factual elements which make up that allegation must be specified as an essential ingredient of the offence. I have previously indicated what I consider to be the essential factual ingredients of an offence under s 16(1) of the Clean Waters Act. Vicarious liability for the acts of another is not one of them. It is the case, however, that the prosecutor may be required to furnish particulars of that allegation, so that the defendant may be apprised of the nature of the case against it ( Johnson v Miller; John L Pty Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508 at 519 - 520.)

Lastly, the defendant claimed that the fact that no licence was held by the defendant must be stated as an essential ingredient of the offence. Mr Doyle properly acknowledged that it may be held against him, in relation to this claim, that the presence or absence of a licence is an exculpatory matter only, and is not an essential ingredient of the offence. The matter is put to rest, in my respectful opinion, by the decision of Talbot J in Environment Protection Authority v ADI Ltd (6 November 1998, unreported), where, after a careful examination of the authorities, his Honour held, at p 18, that the onus to show that the holder of a licence does not pollute waters in contravention of the conditions of that licence rests with the defendant, because "… s 16(6) is expressed as a proviso, saving or exception which provides for a special ground of excuse, justification or exculpation depending upon additional facts so that the onus of proving it is upon the person seeking to raise it …" .

As I have earlier indicated, Pt 75 r 9(1) of the Supreme Court Rules provides that the summons and any affidavits in support of an application for an order under s 41 shall be served on the defendant when the minute of the order is served.

That rule was not complied with by the prosecutor. The order and summons were served first, but unaccompanied by any affidavits. Three affidavits were served 15 days later, but none of those affidavits had been relied upon by the prosecutor in obtaining the order under s 41. Two of the affidavits upon which the prosecutor so relied were served 23 days after the summons and order were served, and the third of such affidavits was served a further 21 days later.

Such a failure is not commendable and is hardly excusable on the part of an experienced statutory authority, but it does not nullify the proceedings. It is a proper case for the application of s 68(2) of the Court Act, which provides, relevantly, that where there is, by reason of anything done, a failure to comply with the requirements of the Court Act or of the LEC Rules, the failure shall be treated as an irregularity and shall not nullify the proceedings. The defendant has not been required to plead, and all the relevant affidavits have now been served. There is, accordingly, no justification for proceeding otherwise than in accordance with s 68(2).

For all these reasons, I conclude that the summons is not incurably defective, and should not be struck out.

The prosecutor has produced to the Court a bundle of documents in respect of which it claims legal professional privilege. The defendant asserts that the privilege has been lost.

I have not inspected the documents, but I understand from the parties' representatives that at least part of the bundle comprises material which is said to have been before the Director-General when he gave his consent under s 13 of the EOP Act. Mr Doyle sought access to that part of the bundle ("the consent documents") for the purpose of supporting the defendant's claim that the consent of the Director-General was defective in that he could not have been satisfied that there was a prima facie case against the defendant.

The issue raised by this question is whether it falls to be determined by the application of the provisions of the Evidence Act 1995, or whether it falls to be determined according to common law principles. There has been much judicial consideration of that question (see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 and the cases there cited). The issue arose for consideration in a recent High Court decision, Northern Territory of Australia v Gpao and Others (1999) 161 ALR 318, where Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (Kirby J dissenting) held that the Evidence Act does not apply to the obligations of a party to produce a document on subpoena or the grant of leave by a court to inspect or make use of documents produced on subpoena. Accordingly, the resolution of whether the Court should grant access to the defendant to the consent documents would appear to depend upon the application of common law principles.

However I refrain from examining the recent authorities and applying them in this case. That is because the issue does not strictly arise at this stage. Access to the consent documents is sought by the defendant so that it can mount a further challenge to the consent of the Director-General. For the reasons which I have earlier set out, I have concluded that the Director-General's consent is not reviewable by this Court. It may be, of course, that the defendant will seek access to the consent documents in order to advance its case in some way other than a challenge to the consent under s 13, but that is not the defendant's express purpose at this stage. Accordingly, I expressly refrain from deciding at this point whether or not the prosecutor's claim for professional legal privilege has been lost in relation to the consent documents.

For the foregoing reasons, I have reached the following conclusions: (a) the summons should not be struck out as an abuse of process; and

(b) the question of whether the prosecutor's claim for legal professional privilege has been lost does not arise for determination at this stage.

Those conclusions leave open the third question, that is, whether the notice to produce should be set aside. Furthermore, I have not dealt with the alternative order sought by the defendant, which was an order for the furnishing of further and better particulars (although I have expressed the opinion that such an order may be premature at this stage). The appropriate course, therefore, is to dismiss the defendant's notice of motion so far as it relates to the application to strike out the summons, and to stand the remainder of the motion over to a further date for hearing.

My formal orders therefore are as follows: (1) I dismiss par (1) of the defendant's notice of motion returnable on 16 April 1999;

(2) I stand over par (2) and par (3) of that notice of motion to a date to be fixed;

(3) I grant leave to the parties to approach the Registrar to obtain a date for that purpose;

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.

Land and Environment Court of New South Wales CITATION: Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [1999] NSWLEC 111

(1998) 101 LGERA 117

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