Environment Protection Authority v McConnell Dowell Constructors

PROSECUTOR Mr D A Buchanan SC SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr J P Doyle (Solicitor) SOLICITORS Doyles Construction Lawyers

IN THE LAND AND 50009 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 29 June 2001

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

The matter presently before the Court is whether a defect in the summons in these class 5 proceedings can be cured by the application of s 43 of the Land and Environment Court Act 1979 ("the Court Act").

The matter arises from the following circumstances. The summons claims an order charging the defendant with polluting waters contrary to s 16(1) of the Clean Waters Act 1970. In answer to a question posed in a stated case, the Court of Criminal Appeal has held that the summons is defective because it omitted an essential ingredient of the offence, namely, reference to the conduct of the defendant said to constitute the act of polluting (McDonnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 ("the Court of Criminal Appeal judgment")). However, by reason of the manner in which the question posed in the stated case was framed, the Court of Criminal Appeal did not determine the applicability of s 43 of the Court Act, and stated at p 134 that it was "… a matter for further consideration …" by this Court.

Section 43 provides as follows: Defects and variances in process

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 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.

The defendant, by way of a notice of motion, now seeks an order that the summons be struck out as invalid, or, alternatively, an order that the proceedings be permanently stayed. Specifically, the defendant claims that s 43 does not apply to cure the defect in the summons because:

(1) s 43 applies only to an "application" or an "order" - it does not apply to a summons; (2) the defect is an essential legal element of the offence and as such cannot be cured by the application of s 43.

I deal with each of these claims in turn. Application of s 43 to a summons

Section 43 expressly states that it applies to "… any application referred to in, or to any order or warrant made or issued under, section 41 …". The defendant's claim is that s 43 applies only to "an application" or "an order", and does not apply to a summons. I reject that claim. In my judgment, an application under s 41 is made by a summons seeking an order under that section, and the reference in s 43 to "an application referred to in … section 41 …" is a reference to such a summons. I have reached that conclusion for the following reasons.

The method of commencement of class 5 proceedings in this Court is governed by pt 75 r 7 of the Supreme Court Rules 1970, which are taken to form part of the rules of this Court with certain adaptations (see pt 6 r 2 of the Land and Environment Court Rules 1996 ("the LEC Rules")). So adapted, pt 75 r 7 provides that proceedings in class 5 of this Court's jurisdiction are commenced by a summons claiming an order under s 41 of the Court Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.

Section 41 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) … 8. Schedule F to the Supreme Court Rules provides that the form for an application under pt 75 r 7 is Form 74A, which is in the form of a summons.

9. The procedure I have outlined was followed in these proceedings, as I have earlier found (Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd, [1999] NSWLEC 111 at par 11 ("the first LEC judgment")), that is, the summons was filed in the registry of this Court on 24 February 1999, and the order under s 41(1) was made on the same date.

10. Mr Doyle, appearing for the defendant, accepted that, in accordance with pt 75 r 7, proceedings in class 5 are commenced by the filing of a summons. But he claimed that s 41 requires an "application" to be made for an order, and that the summons is not the "application" required to invoke s 41. Such an application, he submitted, must take the form of a notice of motion. That follows, he said, pursuant to pt 9 r 1 and r 2 of the LEC Rules, which are in the following terms: Application of this Part

1. This Part applies to an interlocutory or other application in relation to any proceedings, other than an application by which proceedings are commenced.

2. An application to which this Part applies is to be made by motion.

11. In Mr Doyle's submission, what is required to properly institute proceedings is a summons (which is the originating process), a notice of motion (which constitutes the application referred to in s 41) and the order made under s 41. He contended that this submission was supported by pt 6 r 2(2) of the LEC Rules, which provides as follows: (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. (The reference to "subrule (1)" is a reference to the fact that div 2 of pt 75 (which includes pt 75 r 7) of the Supreme Court Rules is to be taken to form part of the LEC Rules with certain adaptations).

12. In my opinion, this submission ignores the express words of pt 75 r 7 about the nature of the summons which commences proceedings. That rule provides that proceedings are commenced "by summons claiming an order under section 4 of the subject Act" (the latter words are by pt 6 r 2(1)(d) of the LEC Rules taken to be a reference to s 41 of the Court Act when applied in this Court). These words are substantially repeated in pt 6 r 2(2) of the LEC Rules, that is, "a summons seeking an order pursuant to section 41 of the Act". It is the summons which claims or seeks or makes an application for an order under s 41. It would simply be redundant to interpret the relevant provisions as requiring another form of application to do precisely what the summons is required to do. In truth, the summons is the application which is referred to in s 41. The provisions I have outlined make it plain, in my opinion, that the summons serves two purposes. First, it constitutes the means by which class 5 proceedings are commenced, and, secondly, it constitutes an application for an order under s 41. Its first purpose expressly excludes it from the operation of pt 9 r 1 of the LEC Rules, which applies to an application "other than an application by which proceedings are commenced".

13. Authority for this conclusion is to be found in the following passage from the judgment of Gleeson CJ in the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 at 311: The scheme is that when an order to a person that he attend court to answer a particular charge within the court's summary jurisdiction is made it issues in response to the filing of a summons seeking such an order . The (Supreme Court) rules require that the summons be filed and that the prosecutor shall also lodge with the Registrar copies of a minute of the order sought. An application for the order may be made ex parte. It is a matter for the court, having regard to the exigencies of its business, to decide exactly when and where a judge will consider the summons and any supporting material. (my emphasis).
14. The same question did not precisely arise for determination in Taylor v Environment Protection Authority (2000) 50 NSWLR 48, but Sperling J (with whom Meagher JA and James J agreed) noted in par 10, by reference to s 41, that "[t]he form prescribed for such an application is a summons, claiming an order that the defendant appear to answer to the offence (Form 74A)".

Mr Doyle raised an alternative argument based on the form of the summons. The summons claims five orders which can be summarised as follows:

(1) An order that the defendant appear before a Judge of the Court to answer the charge. (2) An order that the defendant be dealt with according to law for the commission of the above offence. (3) An order for costs. (4) An order for remediation under s 14 of the Environmental Offences and Penalties Act 1989. (5) Any other order the Court sees fit.

Mr Doyle submitted that, if the Court was to hold that the summons is the application under s 41, then s 43 could only apply to the first of the orders sought, because that order is the order which would be made under s 41. Therefore s 43 would not apply to any other order sought. In particular, it would not apply to the second order sought, and that second order is a fundamental part of the summons which would then remain defective. In other words, so this submission went, the summons could only be an application to the extent that it sought an order under s 41, and it could not be an application in relation to the other orders.

No authority was cited for this proposition, and I am unable to accept it. It ignores pt 75 r 7 of the Supreme Court Rules, which provides that the proceedings are commenced by a summons claiming both an order in the form of order 1 and an order in the form of order 2. The prescribed form of the summons, form 74A, includes both order 1 and order 2. For the reasons I have already set out, it is a summons in that form which constitutes the application under s 41. I can see no justification in the language of pt 75 r 7, the form itself, or either s 41 or s 43 for reading the summons in discrete parts. Furthermore, order 2 refers to "the above offence". If the effect of the operation of s 43 is to cure the defect in order 1 of the summons insofar as it refers to the offence, then it must follow logically that the expression "the above offence" refers to the offence described in a way to which no objection may be allowed. In any event, order 2 simply originates the proceedings and underpins the application under s 41. It does not state the charge. The charge is stated in the order under s 41 (Hornsby Shire Council v Winsloe (1998) 101 LGERA 117).

Whether or not the defect in the summons in this case is cured by the application of s 43 depends upon the nature of the essential ingredient which was omitted, and it is to that question that I now turn. Is the defect cured by s 43?

To be valid, a summons for an offence must accurately state the nature or the essential legal elements of the offence: Johnson v Miller (1937) 59 CLR 467 at 489. A summons must also state the 'essential factual ingredients' of the offence, which generally include the time, place and manner in which the offence was allegedly committed: Johnson v Miller at pp 486 and 489; John L Pty Ltd v Attorney-General (NSW) (1978) 163 CLR 508 at 519 - 520; Taylor v Environment Protection Authority at pars 20 - 22. A defendant may also seek further particulars as to the offence (usually known as "further and better particulars") to enable the preparation of his or her defence. But the absence of these particulars in a charge will not render that charge or summons invalid: De Romanis v Sibraa and Anor (1977) 2 NSWLR 264 at 291 - 292.

If the summons fails to state the essential legal elements of the offence, then it will have disclosed no offence, and it will be incurably defective: Ex p Lovell, re Buckley (1938) 38 SR 153 at 173. However, a defect in a summons which fails to state the essential factual ingredients of the offence will be cured by the application of provisions commonly known as 'Lord Jervis' provisions, which include s 43, as well as s 65 of the Justices Act 1902 and s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (see, generally, Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 131 - 132).

In that context, I turn to consider the defendant's claim that s 43 does not operate to cure the defect in the summons. In response to a direction from the Court, Mr Doyle filed written submissions, but they were in outline form only, and he amplified the defendant's claim in oral submissions. However, I confess to having considerable difficulty in understanding how this claim is precisely put.

Despite that difficulty, I have understood that the defendant's claim is formulated in the following way. The defect in the summons is that it fails to specify the act which is said to constitute the act of polluting. The prosecutor intends to claim that the defendant is guilty of the alleged offence on the basis of vicarious liability for the acts or omissions of a subcontractor. Those acts or omissions constitute the act of polluting which was not specified in the summons. But the defendant will not be vicariously liable for the acts or omissions of a subcontractor unless the defendant exercises the requisite degree of control over the acts of the subcontractor in accordance with the tests which have been formulated in the authorities (Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) NSWLEC 6 at pars 274 - 314; Scott and Ors v Davis (2000) 175 ALR 217 at pars 60, 61 and 110). It was said by Mr Doyle that simply specifying the acts or omissions of the subcontractor in the summons will not be sufficient unless further matters are specified which link the acts or omissions to the defendant by way of vicarious liability. Those further matters (which relate to the conditions which go to establishing vicarious liability) are legal elements of the offence, and without their specification the summons will not disclose an offence known to the law. Therefore, the defect cannot be cured by the application of s 43.

In my opinion, that submission is contrary to the findings of the Court of Criminal Appeal. Paragraphs 38 and 41 of the Court of Criminal Appeal judgment are directly in point. Spigelman CJ said as follows: The submissions of the Defendant referred to two relevant omissions: the failure to disclose the act or omission of the Defendant which is relied on and also the failure to specify that the Defendant is guilty of the alleged offence on the basis of vicarious liability for the acts or omissions of a subcontractor. At times in its submissions, it appeared that the latter proposition was intended to exhaustively state the basis of the objection. At other times, however, the two ways of putting the proposition appeared to be distinct. I proceed on the basis that the Defendant submitted that each of the two omitted matters were essential ingredients of the offence, i.e. both the act or omission said to constitute the act of polluting, on the one hand, and the fact of reliance on vicarious liability on the other hand.

Vicarious liability is a direct liability. The acts of the servant or agent are taken to be the acts of the employer, or, in this case, head contractor … The fact that the Defendant is vicariously liable is not an ingredient of the offence at all, let alone an essential ingredient. 24. Mr Doyle sought to interpret these findings by submitting that they referred only to "… reliance on vicarious liability …" and, conformably with these findings, the fact that the prosecutor relies upon the vicarious liability of the defendant need not be stated. But, he said, the manner of polluting must be stated, and if the manner of polluting is constituted by the acts or omissions of a subcontractor, the link between the subcontractor and the defendant must also be stated.

However, as Spigelman CJ pointed out in the passages I have quoted, vicarious liability is a direct liability. The summons claims an order charging the defendant directly in the following terms: An order that the defendant … appear before a Judge … to answer the charge that, … it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to section 16(1) of the Clean Waters Act 1970.

In my opinion, therefore, the omission to state the facts which could establish the vicarious liability of the defendant for the acts or omissions of its subcontractor is not an omission of any essential ingredients of the offence, and in particular, it does not constitute an omission to specify the legal elements of the offence.

I may have misunderstood Mr Doyle's submissions, and accordingly I turn to consider another possible basis upon which he was putting the defendant's claim. That basis may have amounted to a submission, first, that the omission of the manner of polluting is itself the omission of the legal elements of the offence so that the summons fails to state an offence known to the law and is not cured by the application of s 43, and, secondly, that the omission of information as to the relationship of the defendant and its subcontractor is an additional defect that also cannot be cured by the application of s 43. However, even if Mr Doyle's submission is to be taken has having been framed in this way, it makes no difference to the conclusion I have reached, for the following reasons.

In delivering the Court of Criminal Appeal judgment, Spigelman CJ did not expressly make any distinction between the essential legal elements which must be specified in the summons, and the essential factual ingredients which must also be specified. However, his Honour referred to Taylor v Environment Protection Authority, and quoted extensively from the judgment of Sperling J in that case. As Spigelman CJ noted in par 43, the issue in Taylor v Environment Protection Authority, and in this case, was "… whether or not there has been sufficient specification of the 'manner' of the alleged acts or omissions relied on".

In Taylor v Environment Protection Authority, the summons relevantly provided as follows: The prosecutor claims: 1. An order that the defendant … appear before a judge of the Court to answer to the charge that … he committed an offence against s 33(1) of the Pesticides Act 1978 … in that, not being a person authorised under s 25 of the Act, he did, in using a registered pesticide, carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a registered label for an approved container for the pesticide that contains that instruction.

Particulars: (a) Registered Pesticide: Ficam W Insecticide. (b) Instruction: 'Do not allow contact with mattresses, bedclothes or clothing.'

At pars 20 and 22, Sperling J noted that, to be valid, an information must identify the essential factual ingredients of the offence charged, but that the authorities provide no comprehensive formula for what constitutes essential particulars. His Honour cited Johnson v Miller at p 486 as identifying various requirements, including the time, place and manner of the defendant's acts or omissions.

At par 23, Sperling J continued as follows: The summons in the present case does not specify the essential ingredients of the alleged offence. It specifies the legal elements of the alleged offence, but it does not specify the acts or omissions by which the appellant is alleged to have carelessly disregarded the instruction on the container. In particular, it does not specify whether the pesticide is alleged to have come into contact with a mattress (or mattresses), bedclothes or clothing, nor does it specify in what manner (that is, by what acts or omissions) the appellant is alleged to have allowed the pesticide to come into contact with such item or items.

In the Court of Criminal Appeal judgment, Spigelman CJ, at pars 48 and 49, referred to s 16 of the Clean Waters Act in the following passages: Section 16 has been called a "result offence", in the sense that the consequence, ie. the pollution, is an essential ingredient of the offence (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83). However, Hunt CJ at CL said in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82, after referring to the classification as a 'result offence" : In Brownlie v SPCC, Gleeson CJ said that he was adopting and modifying the classification so that, so far as s 16(1) is concerned, the prosecution is required to prove both the conduct of the defendant in placing the material in the waters and the pollution of the waters as a consequence of the defendant having done so.

I agree. Both the polluting and the pollution are essential ingredients of the offence under s 16. The charge in this case referred only to the pollution. 33. With respect, I do not understand Spigelman CJ to be saying, in the passages I have quoted, that both the "pollution" and "polluting" are essential legal elements of the offence. His Honour was concerned with the essentiality of the specification of the act of polluting, and was not concerned to distinguish between the legal elements and the factual ingredients of the offence. But his reference to Taylor v Environment Protection Authority, in particular the passage from the judgment of Sperling J which I have quoted in par 31 and his reference to the classification of an offence under s 16(1) as a 'result offence' support a conclusion, it seems to me with respect, that the "act of polluting" is an essential factual ingredient of the offence and not an essential legal element of the offence.

It follows that the defect in the summons, that is, the omission to specify the acts or omissions of the defendant said to constitute the act of polluting, may be cured by the application of s 43, that is, no objection to that defect shall be allowed.

The omission to specify information as to the relationship between the defendant and its subcontractor is not an ingredient of the offence under s 16(1) (see the Court of Criminal Appeal judgment at par 38 and 41) and it does not constitute an additional defect in the summons.

In conclusion, then, I hold that s 43 applies to the failure of the prosecutor to specify the act or omission of the defendant said to constitute the act of polluting, and the defendant's objection to the defect is not allowed. The summons should not be dismissed upon this basis.

The defendant's alternative claim is that the proceedings should be permanently stayed. Once again, I have had some difficulty in trying to fathom the basis of Mr Doyle's submissions on this point. I understand, nonetheless, that the claim is made that there has been an abuse of process in that, by reason of the delay in the proceedings, the defendant cannot receive a fair trial. Specifically, the defendant alleges that the prosecutor's failure to properly draft the summons (omitting an essential ingredient), as well as its failure to furnish further and better particulars of the charge in response to the defendant's request, has had the inevitable consequence that the trial will be unfair. Whilst the defendant acknowledges that delay in itself is not usually a ground for a permanent stay of the proceedings, it claims that the delay in this case is inordinate as it arises from a tactical decision on the part of the prosecutor not to furnish proper particulars of the charge and, combined with the defect in the summons, this has meant that the defendant has not been properly advised of the charge against it for a period of more than three years after the alleged offence.

The Court has the power to grant a permanent stay in criminal proceedings, derived from pt 12 r 1 of the LEC Rules as well as from its inherent power to prevent an abuse of process. In Jago v The District Court of New South Wales and Ors (1989) 168 CLR 23 at p 34 Mason CJ said: To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v The Queen (1980) 147 CLR at 111 per Wilson J.

It is extremely rare for a court to grant a permanent stay, particularly in criminal matters: The Queen v Glennon (1992) 173 CLR 592 per Mason CJ and Toohey J at p 605; Walton v Gardiner (1993) 177 CLR 378 at pp 392 - 393. The exercise of the power involves balancing the risk of unfairness to the defendant against the community expectation in criminal matters that a trial will occur: Jago v The District Court at pp 33 and 72; Walton v Gardiner at p 396.

Affidavits as to the facts and circumstances in the conduct of the proceedings were provided by Ms M Chaperlin and Mr R C Shaw, both solicitors presumably in the employ of the defendant's firm of solicitors, and by Mr C S F McElwain, the solicitor within the Environment Protection Authority who has the primary conduct of the matter. From those affidavits, and from the Court's record, I have derived the following relevant factual chronology of the conduct of the proceedings: 25 February 1998: The date upon which the offence is alleged to have occurred;

24 February 1999: The proceedings are commenced by the filing of the summons and the order under s 41 is made;

1 March 1999: The summons and order are served upon the defendant's solicitors together with the consent to prosecute and a notice to produce, but no affidavits are served;

18 March 1999: Three affidavits are served by the prosecutor;

18 March 1999: The defendant's solicitors write to the prosecutor stating: "[w]e consider your summons to be inadequately particularised and request that you provide further and better particulars as soon as possible and in any event by the close of business on Tuesday, 23 March 1999" ;

24 March 1999: Prosecutor responds by noting that the request is a general request, and that "you have not requested particulars in relation to any specific issues". It claims the request is not a proper request for particulars;

26 March 1999: Three further affidavits are served by the prosecutor;

1 April 1999: The defendant's solicitors serve a notice of motion ("the initial notice of motion") seeking orders from the Court, firstly, that the summons be struck out as an abuse of process, secondly, that the prosecutor provide further and better particulars of six specific matters, and thirdly, that the notice to produce be set aside;

6 April 1999: The prosecutor asks the defendant's solicitors to provide, amongst other things, confirmation that the provision of particulars will not remedy the alleged abuse of process;

9 April 1999: The defendant's solicitors so confirm;

16 April 1999: A further affidavit is served by the prosecutor;

20 May 1999: Judgment is delivered by the Court in respect of the matter raised in the initial notice of motion (the first LEC judgment). In par 58, I state:

Section 43 … does enable an order to be made requiring the prosecutor to furnish further and better particulars … 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.

Orders are made dismissing the initial notice of motion so far as it sought that the summons be struck out, and standing it over in relation to the order seeking the provision of further and better particulars; 25 May 1999: The defendant's solicitors again seek the provision of further and better particulars as sought in the initial notice of motion;

26 May 1999: The prosecutor replies by stating that it would be premature to respond until the issue of particulars is resolved by the Court;

30 June 1999: The defendant's solicitors again seek the provision of further and better particulars;

5 July 1999: In response to the defendant's solicitors further notice of motion, I agree to state a case to the Court of Criminal Appeal, and I stand over the initial notice of motion in so far as it relates to the provision of further and better particulars;

2 March 2000: Case is stated for the determination of the Court of Criminal Appeal;

13 September 2000: Court of Criminal Appeal judgment is delivered;

19 December 2000: The defendant's solicitors ask the prosecutor to "abandon" the prosecution on the basis, amongst other things, of delay;

19 January 2001: The prosecutor furnishes further and better particulars in respect of the matters specified in the initial notice of motion.

The gravamen of the defendant's case, as I understand it, is that it has been deprived of particulars of the charge for a period commencing from 24 February 1999 (when the proceedings were commenced) to 19 January 2001, when further and better particulars were furnished. It bases that claim on the fact that the summons did not contain any specification of the manner of pollution, and that further and better particulars were not furnished by the prosecutor until the latter date.

I consider that the defendant's solicitors' request for further and better particulars made on 18 March 1999 was couched too generally to amount to a proper request, but there is no doubt that such a request was properly framed in the initial notice of motion, which was dated 1 April 1999. Hence, there has been a delay of just under two years, from that date until 19 January 2001, in the prosecutor furnishing a response.

This delay is significant, but the prosecutor has proffered an explanation. Mr Buchanan SC, appearing for the prosecutor, pointed out that the initial notice of motion sought further and better particulars as an alternative to a striking out of the summons as an abuse of process. The prosecutor apparently took the initial notice of motion at its face value, and refrained from furnishing a response to the request for particulars whilst the defendant was pursuing its strike out claim. And the defendant pursued that claim for most of the two year period - in the initial hearing in this Court (see the first LEC judgment), in the stated case to the Court of Criminal Appeal, and in its letter of 19 December 2000 asking the prosecutor to "abandon" the proceedings. It made perfunctory requests for a response to its claim for further and better particulars (on 25 May 1999 and 30 June 1999) but it did not apply to this Court for a hearing of that part of the initial notice of motion which dealt with further and better particulars so that the Court could, if the circumstances required, order the prosecutor to furnish a response. That is not to say that the prosecutor was acting as "a model litigant". It had an obligation to furnish further and better particulars, and, although it acknowledged that obligation in the hearing in this Court (see par 58 of the first LEC judgment), it did not fulfil it until 19 January 2001. Nevertheless, I accept its explanation in the circumstances which I have outlined.

The test, as I have explained, is not mere delay in itself. It is whether the delay is such that the defendant will not receive a fair trial. The defendant has furnished no evidence of unfairness or prejudice. Mr Doyle submitted that there was a "general prejudice" brought about by the "conscious tactical manoeuvre" of the prosecutor not to furnish particulars. He relied upon two authorities - Byron Shire Council v Vigden C J & Donna's Beach Pty Ltd [1999] NSWLEC 121, unreported, and Carson v Legal Services Commissioner and Anor [2000] NSWCA 308, unreported.

In Byron Shire Council v Vigden CJ & Donna's Beach, which related to charges under s 125(1) of the Environmental Planning and Assessment Act 1979, the order under s 41 was made on a Court holiday (24 December 1998) in the absence of supporting affidavits but various signed statements were produced. At the first callover on 19 February 1999, affidavits had not been filed and served. There was an interlocutory hearing before Cowdroy AJ (as he then was), on 30 April 1999, and affidavits had still not been filed and served. The matter came on for hearing again before his Honour on 24 May 1999, and still no affidavits had been served. Furthermore, as his Honour noted in par 9 of his judgment, "[u]pon the unchallenged evidence two vital potential witnesses for the defendants cannot now be located …". His Honour also noted, in par 12, that the prosecutor offered no explanation for the delay or for the non-service of affidavits. In these circumstances, his Honour dismissed the relevant summonses.

In par 13 of the judgment in that case, his Honour said that a delay of "… over eleven months is inordinate". Mr Doyle relied upon that period of delay as underpinning the seriousness of the delay in this case brought about by the prosecutor failing to carry out the steps it was required to take. He cited Byron Shire Council v Vigden CJ & Donna's Beach as authority for the proposition that a delay of several years, as occurred in R v Nicholson (1998) 102 A Crim R 459, was not required.

Mr Buchanan submitted that Byron Shire Council v Vigden CJ & Donna's Beach was wrongly decided because it was based solely on mere delay. I think, however, that the judgment, properly understood, was based on a number of factors - delay in the filing of the affidavits, the lack of any explanation for the delay, and the prejudice to the defendants. Those were matters which seem to me to have been properly within his Honour's discretion, and I would not decline to follow that decision as being wrongly decided. But this case is not such a case. There has been delay in the furnishing of further and better particulars, but the prosecutor has proffered an explanation which I accept, and furthermore, no prejudice to the defendant has been shown.

Carson v Legal Services Commissioner was concerned, amongst other things, with a delay in the making and investigation of a complaint to the Commissioner about a solicitor. There was an unexplained delay of between six and nine years in the making of the complaint and there was a period of nearly 21 months between the acceptance of the complaint by the Commissioner and the institution of proceedings (par 261 of the judgment). In par 265 of his judgment, Sheller JA noted a number of facts - the statutory duty of the Commissioner to conduct an investigation expeditiously, the lack of communication with the solicitor and other persons and the failure of the Commissioner to give reasons. His Honour continued as follows: Against this background and in the context of the statutory requirements there is, on the ground of this delay alone, a powerful case to say that the conduct of the commissioner was oppressive and an abuse of process. Giles JA agreed with Sheller JA, but Hodgson CJ in Equity disagreed on the point of delay.

As I understood him, Mr Doyle relied upon Carson v Legal Services Commissioner for the proposition that, although no prejudice has been shown, gross delay may of itself amount to an abuse of process warranting a permanent stay of proceedings. Mr Buchanan sought to distinguish Carson v Legal Services Commissioner on a number of grounds. Apart from noting that it was a civil case as distinct from a criminal case, as this case is, Mr Buchanan noted that there was no period of limitation set by the legislature for the commencement of proceedings, as there is in this case. He also noted the express statutory requirement that the Commissioner's investigation be conducted as expeditiously as possible. Furthermore, he noted as important the requirement for the Court to exercise a balance between the risk of unfairness to the defendant and the public expectation that, in criminal matters, the proceedings will go to trial. This was a factor which persuaded Hodgson CJ in Equity to disagree with the judgment of Sheller JA on the question of delay, his Honour noting at par 347 that "… there is a substantial public interest involved in the investigation of complaints against solicitors".

I agree with Mr Buchanan's analysis, and I think that Carson v Legal Services Commissioner must be distinguished. In this present case, there has been a delay in the furnishing of further and better particulars, but there is no evidence to show how the consequence of that delay will result in a trial which is unfair to the defendant. Added to that is the explanation of the delay given by the prosecutor, and the need to recognise the public interest in proceedings such as these going to trial. In all those circumstances, I am not persuaded that the proceedings should be permanently stayed.

In summary, I have concluded that s 43 operates to disallow any objection to the defect in the summons, that is, the omission of the act by which the defendant is alleged to have committed the offence of pollution under s 16(1) of the Clean Waters Act, and I have also concluded that there has been no abuse of process which would justify a permanent stay of the proceedings. My formal orders are therefore as follows:

(1) The defendant's notice of motion filed on 15 January 2001 is dismissed. (2) I reserve the question of costs.

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.