Environment Protection Authority v VE Resource Recovery Pty Ltd; Environment Protection Authority v Arnold Vitocco; Environment Protection Authority v Freescale Trading Pty Ltd; Environment Protection Authority v Runkorp Pty Ltd

General information, not legal advice.

Legislation Cited: Criminal Procedure Act 1986, ss 247E, 247F, 247X
Land and Environment Court Act 1979, s 23
Land and Environment Court Rules 2007, r 5.2(1)
Protection of the Environment Operations Act 1997, ss 48(2), 64(1), 144AAB, 169(1), 262
Protection of the Environment Operations (Waste) Regulation 2014, cl 93(7)
Supreme Court Rules 1970, r 11(4)(a) of Pt 75

Cases Cited: Director-General, Department of Environment Climate Change and Water v Walker Corporation Pty Ltd [2011] NSWLEC 27
Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585
Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78
Environment Protection Authority v Blacktown Waste Services Pty Ltd [2025] NSWLEC 31
Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29
IMM v The Queen [2013] NTSC 9
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Leiper v R [2018] NSWCCA 117
MacDonald v R; Maitland v R [2016] NSWCCA 306; (2016) 93 NSWLR 736
Marwan v Director of Public Prosecutions [2019] NSWCCA 161; (2019) 278 A Crim R 592
Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302
R v Abu-Mahmoud [2024] NSWCCA 21
R v Basha (1989) 39 A Crim R 337
R v MA; R v AD [2024] NSWCCA 69
Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129
Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1
Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121
Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97

Category: Procedural rulings

Parties: Environment Protection Authority (Prosecutor)
VE Resources Recovery Pty Ltd (Defendant)
Arnold Vitocco (Defendant)
Freescale Trading Pty Ltd (Defendant)
Runkorp Pty Ltd (Defendant)

Representation: Counsel:
H El-Hage SC with A Brown and P Boyle (Prosecutor)
A Galasso SC with B Anniwell (Defendant)
A Galasso SC with B Anniwell (Defendant)
T Howard SC with T March (Defendant)
T Howard SC with T March (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Fishburn Watson O’Brien Lawyers (Defendant)
Fishburn Watson O’Brien Lawyers (Defendant)
Fishburn Watson O’Brien Lawyers (Defendant)
Fishburn Watson O’Brien Lawyers (Defendant)

File Number(s): 2024/477291, 2024/477277, 2024/477327-376, 2024/477421-470

Publication restriction: Nil

JUDGMENT

Notices of Motion are Filed by the Parties in Criminal Proceedings

1. Two notices of motion fall for determination by the Court. The first, filed by the prosecutor, the Environment Protection Authority (“EPA”), on 19 December 2025, seeks leave to file and serve further evidence in criminal proceedings in Class 5 of the Court’s jurisdiction. The further evidence consists of the following affidavits annexed at “A” to the motion (“the supplementary evidence”):

1. Affidavit of Minela Addison dated 19 June 2025

2. Affidavit of Amy Joy Ferris dated 10 July 2025

3. Affidavit of Alex Nicol dated 2 October 2025

4. Affidavit of James Challoner dated 15 October 2025 and Exhibit JC-1

5. Affidavit of Damien Vella dated 30 October 2025

6. Affidavit of Rao Amir Mehmood dated 25 November 2025

7. Affidavit of Alan Zhao dated 28 November 2025

8. Affidavit of Grace (Weichen) Jia dated 2 December 2025

9. Affidavit of Rohan Last dated 4 December 2025

10. Affidavit of Geronimo Jr Abrot dated 17 December 2025

11. Affidavit of Jason Thorley dated 17 December 2025

12. Affidavit of Duncan James dated 18 December 2025 and Exhibit DJ-2

13. Affidavit of Scott Peebles dated 18 December 2025 and Exhibit SMP-1

14. Affidavit of Nyovan Moonan dated 19 December 2025

15. Affidavit of Diego Bigolin dated 19 December 2025

16. Affidavit of Melissa Tedesco dated 17 December 2025

17. Affidavit of Brendan Smith dated 18 December 2025

2. The second motion was filed by the defendants on 23 February 2026, and seeks a stay of the Class 5 criminal proceedings against them “pending further order of the court” (order 1). In the alternative, that the proceedings be stayed until the EPA serves on the defendants (order 2) (“the alternative orders”):

(a) any further affidavits or statements (which have not already been served with leave of the Court) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings;

(b) in respect of all witnesses who the Prosecutor proposes to call to give oral evidence in the proceedings but have refused to provide the prosecutor with an affidavit or statement:

(i) affidavit evidence from the Prosecutor verifying that the witness has refused to give an affidavit or statement and disclosing both the date on which the witness communicated his or her refusal and the record of the communication by which that refusal was notified to the Prosecutor;

(ii) a summary or précis of the evidence that the prosecutor proposes to adduce from each such witness at the hearing of the proceedings;

(c) an amended notice pursuant to s 247E of the Criminal Procedure Act 1986 (NSW) to reflect the matters that are subject of subparagraphs (a) and (b) above; and

(d) an amended statement of facts to include any additional or amended asserted facts deriving from the additional evidence the subject of subparagraphs (a) and (b) above.

3. The defendants’ application is, in many respects, a response to the EPA’s supplementary evidence motion. The stay is said to be necessary because of the prejudice or unfairness that arises from the conduct of the EPA in continuing to serve affidavit evidence and the open-ended content of its notices filed under s 247E of the Criminal Procedure Act 1986 (“CPA”). The gravamen of the defendants’ complaint is that the notices allow for evidence to be served in a piecemeal and ongoing fashion, which precludes — or at the very least, unfairly impedes — knowledge of the extent of the case put against them.

4. Both applications are opposed. For the reasons discussed below, the EPA’s motion is upheld whereas the defendants’ motion must be dismissed.

Nature of the Charges Against the Defendants

5. The principal proceedings before the Court concern the alleged supply of contaminated mulch, in relation to which four defendants have been charged by the EPA. The defendants are:

(a) in proceedings 2024/477291, VE Resource Recovery Pty Ltd (“VERR”); (b) in proceedings 2024/477277, Arnold Vitocco (“Vitocco”); (c) in proceedings 2024/477327 to 2024/477376, Freescale Trading Pty Ltd (“Freescale”); and (d) in proceedings 2024/477421 to 2024/477470, Runkorp Pty Ltd (“Runkorp”).

6. VERR has been changed with one offence against s 64(1) of the Protection of the Environment Operations Act 1997 (“POEOA”). Section 64(1) of the POEOA makes it an offence for a holder of an environment protection licence (“EPL”) to contravene a provision of its licence:

64 Failure to comply with condition

(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

7. Relevantly, VERR was the holder of EPL 11233, which authorised the scheduled activities of resource recovery and waste storage at Lot 11 in DP 1218155, known as 761 The Northern Road, Bringelly (“Bringelly Facility”).

8. The EPA allege that the production of recycled timber mulch at the Bringelly Facility was not carried out competently, as particularised in the summons. As a consequence, there was an alleged failure on the part of VERR to comply with condition O1.1 of EPL 11233.

9. The criminal liability of Vitocco is said to arise because he is a director of VERR. In other words, by reason of the executive liability provision contained in s 169(1) of the POEOA, VERR’s alleged breach of s 64(1) is attributed to Vitocco. Section 169(1) of the POEOA provides that:

169 Liability of directors etc for offences by corporation—offences attracting special executive liability

(1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that—

…

(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

(1A) For the purposes of this section, each of the following provisions attract special executive liability—

…

(b) section 64 (1), …

10. The EPA has also charged both Freescale and Runkorp, who were partners and traded under the name “Greenlife Resource Recovery Facility”, for allegedly operating the Bringelly Facility.

11. Each party has been charged for having allegedly conducted, contrary to s 48(2) of the POEOA, the scheduled activities of resource recovery and waste storage from the Bringelly Facility without an EPL. That provision states:

48 Licensing requirement—scheduled activities (premises-based)

(1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. …

12. Further charges have been brought against Freescale and Runkorp for causing asbestos to be reused in the process of producing, selling and supplying mulch allegedly contaminated with asbestos contrary to s 144AAB of the POEOA:

144AAB Re-use and recycling of asbestos waste prohibited

A person must not cause or permit asbestos waste in any form to be re-used or recycled. …

13. Finally, charges have been laid against Freescale and Runkorp for allegedly breaching a resource recovery order, specifically, “mulch order 2016” (“2016 mulch order”). The EPA contends that the 2016 mulch order required Freescale and Runkorp to ensure that mulch did not contain certain contaminants. It is alleged that several prohibited contaminants, including asbestos, metals and glass, were found in mulch supplied to multiple sites in New South Wales in contravention of cl 93(7) of the Protection of the Environment Operations (Waste) Regulation 2014 (“Waste Regulation”):

93 Supply of waste to which resource recovery exemptions apply

(1) The EPA may, by order, impose requirements on a specified person (or a specified class of persons) in relation to the supply by the person (or any person belonging to the specified class) of waste (resource recovery waste) to which a resource recovery exemption applies.

(2) An order can only be issued under this clause in relation to the supply by a person of—

(a) resource recovery waste that has been generated, processed or recovered by the person, or

(b) waste that will become resource recovery waste.

…

(7) A person must comply with any requirements imposed on the person (or a class of persons to which the person belongs), in relation to the supply of resource recovery waste, by an order under this clause.…

14. The charges were laid following an extensive and lengthy investigation carried out by the EPA in relation to the alleged supply of contaminated mulch, which involved the inspection of over 300 sites, the review of a considerable volume of documentary material and the interviewing of numerous witnesses.

Summary of the Notices of Motion

15. The notice of motion filed by the EPA on 19 December 2025 seeks leave to file and serve 17 additional affidavits and five associated exhibits pursuant to s 23 of the Land and Environment Court Act 1979:

23 Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

16. Section 247E of Div 2A contained in Pt 5 of Ch 4 of the CPA relevantly states that:

247E Notice of prosecution case to be given to defendant

(1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following—

(a) a copy of the application for any appearance order relating to the defendant,

(b) a statement of facts,

(c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings,

(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings,

(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings,

(e) if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,

(f) a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings,

(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings,

(h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case,

(i) a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant,

(j) a list identifying—

(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor’s possession and is not in the defendant’s possession, and

(ii) the place at which the prosecutor believes the information, document or other thing is situated,

(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness.

Evidence of the Parties

17. The EPA relied upon an affidavit of Bonnie Perris, affirmed 19 December 2025. Perris is a solicitor in the EPA’s Litigation Branch. Her affidavit set out the procedural history of the matters. Importantly, Perris exhibited the affidavits upon which the EPA now seeks to rely, together with short minutes of orders made by the Court between 7 February and 12 December 2025.

18. For example, exhibited to the Perris affidavit was the affidavit of Weichen Jia, a lab technician/environmental engineer (asbestos) at Sydney Laboratory Services in Silverwater, affirmed 2 December 2025. The latter affidavit relevantly deposed to the following:

EPA Investigation

7. I have been requested by the EPA to provide an affidavit in relation to samples I analysed at Sydney Laboratory Services for the following projects:

a. Project Number A101021.0192.00 - 2400028.

b. Project Number A101021.0192.01 - 2400061.

8. Given that I analysed the samples which are the subject of this affidavit over one year ago, I cannot specifically recall analysing the samples. However, I have reviewed the certificate of analysis and other records held by Sydney Laboratory Services in order to prepare this affidavit and trust my conclusions made regarding these samples at the time of analysis. The matters in this affidavit are based on my review of the documents referred to in this affidavit and my personal knowledge of the usual record keeping practices of Sydney Laboratory Services.

Project Number A101021.0192.00 - 2400028

9. On 10 January 2024, Sydney Laboratory Services received 26 samples from ADE Consulting Group for asbestos analysis. I have reviewed the documentation held by Sydney Laboratory Services in relation to the samples, which includes the following:

a. A copy of the chain of custody form that records details such as that Monique Hitchens and Misha Konarev collected and delivered the samples; the contact project managers are Matthew Toole and Andrew Hunt; Natalie Chambers received the samples at Sydney Laboratory Services on 10 January 2024 at 14:25pm; and, in total, 26 samples were submitted to Sydney Laboratory Services. A copy of that form is annexed to this affidavit and marked 'B'.

b. A copy of Sydney Laboratory Services' sample receipt report that records details such as that samples were collected by Monique Hitchens and Misha Konarev; the contact project managers are Matthew Toole and Andrew Hunt; Natalie Chambers received the samples at Sydney Laboratory Services on 10 January 2024 at 14:25pm; and, in total, 26 samples were received at Sydney Laboratory Services and given a Laboratory Sample ID number. A copy of this report is annexed to this affidavit and marked 'C'.

10. On 10 January 2024, I carried out an analysis in accordance with the Australian national standard (AS4964-2004) – Method for qualitative identification of asbestos in bulk samples. I also carried out asbestos identification using an internal laboratory procedure (ABI-P-01: Identification of Asbestos in Bulk Samples) which adheres to the national standard to determine if asbestos was present in the 26 samples numbered "2024000186" to "2024000211" contiguously.

11. After analysing the samples, I set out the results of the analysis I carried out in Analysis Report No. A101021.0192.00 – 2400028 on 10 January 2024. A copy of that Analysis Report is annexed to this affidavit and marked 'D'.

19. Many of the affidavits are of this ilk. That is, they are from laboratory technicians or environmental scientists who depose to site inspections, sampling, and analysis of samples of areas and material potentially contaminated with asbestos. Most are brief in length, annexing photographs or test results.

20. The defendants relied upon an affidavit of Ross Fox affirmed 20 February 2026. Fox is the principal of Fishburn Watson O’Brien (“Fishburn”), the solicitors for the defendants.

21. The defendants also tendered the Prosecutor’s Statement of Facts dated 27 June 2025 (“statement of facts”). The statement of facts is 325 pages in length, with over 794 footnotes, and 26 annexures (in turn separately footnoted). The footnotes extensively cross-reference other material. For example, footnote 20 states:

20 Vitocco ROI, A31-32; 1. Details of all Suppliers of Waste Timber 06.09.2022-25.01.2024.pdf) located in Exhibit DO-1, Tab 25, Q1 a)-i); Response to statutory notice from Blacktown Waste Services on 8 April 2024, p.4, located in Exhibit EO-1, Folder 15; ROI with Scott McPherson on 13 May 2024, A58-66, A72, A107-114 located in Exhibit DO-1, Tab 24; ROI with Peter Graham on 29 July 2024, A31-36 A43, A81-82, A144-150 located in Exhibit EO-1, Folder 54.

22. The footnoted material referenced the EPA’s asserted fact that, “During the Relevant Period the Greenlife Partnership received waste at the Bringelly Facility from a variety of sources. Such waste included green waste, chipped and shredded timber, crushed timber pallets and waste generated during construction and/or demolition activities.”

Procedural History

23. Given the issues raised for determination by the notices of motion, it is necessary to outline the procedural history of the prosecutions to date. This was set out in both the Perris and Fox affidavits.

24. The proceedings were commenced by way of 102 summonses filed with the Court on 23 December 2024. Service of the summonses, together with three affidavits from investigators, an evidentiary certificate, and an expert report occurred on 24 December 2024.

25. The investigator affidavits exhibited transcripts of recorded interviews with witnesses and information and records produced to the EPA in response to various statutory notices.

26. On 13 January 2025 a hard drive with the summonses, investigator affidavits, evidentiary certificate and the expert report was provided to the office of Fishburn. The Fox affidavit deposes that the hard drive contained approximately 181 gigabytes of data.

27. On 16 January 2025 the EPA served an additional 36 affidavits on the defendants.

28. On 7 February 2025 the first directions hearing before Duggan J occurred. Counsel for the EPA advised the Court that further witnesses would be approached to obtain additional affidavit evidence on the sampling of mulch, chain of custody, sample analysis and other miscellaneous matters. Orders were made by her Honour that, among other things, the EPA was to file its s 247E notices by 2 May 2025. In doing so, Duggan J said (T5:42-6:05):

HER HONOUR: --which is why I have allowed such a lengthy period of time. I really don’t want you coming back on the next occasion saying we didn’t get around to giving evidence.

EL-HAGE: We are—

HER HONOUR: So if you have any difficulties, exercise your liberty to relist and before the time expires.

EL-HAGE: We are conscious of that, your Honour. All efforts are being made to finalise the evidence as soon as possible. Your Honour’s with respect correct. It was communicated to you that there would be something in the realm of 100 additional affidavits, hence the time and we are grateful for the Court’s understanding and indeed indulgence.

29. On 29 April 2025 the EPA notified Fishburn by email that it had sent a further 31 affidavits, as well as a certificate under s 262 of the POEOA by post. This tranche of evidence was also put onto a hard drive and delivered to the office of Fishburn on 1 May 2025.

30. On 2 May 2025, at a directions hearing before Pain J, the EPA sought an extension of time to file its s 247E notices and statement of facts. In doing so, it relied upon an affidavit of Ryan Verzosa, the Manager of Litigation at the EPA, affirmed 30 April 2025. In that affidavit, Verzosa deposed that the EPA intended to obtain additional evidence on a number of matters concerning the taking of samples, the chain of custody of those samples, formal proof of the results of the analyses of the samples, the location of the samples, evidence required to formally prove business records, and evidence to confirm that statements made by witnesses in recorded interviews were accurate. According to Verzosa, the EPA was waiting to receive confirmation as to whether one witness was willing to provide an affidavit and that eight weeks would be required to in order to finalise the anticipated affidavit evidence. The EPA considered that it was appropriate and desirable to finalise any further evidence in support of the charges in advance of giving the defendants their s 247E notices.

31. In response, counsel for VERR and Vitocco stated (T6:14-36):

ANNIWELL: So this goes to why we say the conduct of the prosecutor so far in delivering a piecemeal approach to the service of evidence is unacceptable. It's not just litigation as my friend seeks to put it. These are class 5 proceedings, criminal proceedings where criminal sanctions are sought against three companies and a director. They're not civil proceedings, they're criminal proceedings, so it's important from the get go the defendants to assist with a proper pursuance of their defence, be provided with material so that they can analyse it properly and prepare their defence.

Now, we have put the prosecutor on notice that upon receipt of this evidence we have essentially, to use the expression "downed tools" because we can no longer engage in a piecemeal assessment of the evidence that is being served on the defendants. My friend talks about time and money to the EPA. There's also time and money being spent by the defendants in having to engage in an analysis of evidence that it's been served with and then is told that there is evidence from potentially another 140 witnesses coming.

So why we're proposing the order that we have is to curb the conduct of the prosecutor. They have told the Court they only need another eight weeks for all the material. We don't have a problem with that, they can have their eight weeks, but if there's anything else that they need to put on they need to come back to this Court and seek the Court's leave to do so because otherwise the defendants' preparation of their defence is being prejudiced. …

32. Her Honour extended the time for the filing and service of the s 247E notices to 27 June 2025, however, she further ordered that no further evidence could be filed or served by the EPA from that date absent leave of the Court.

33. At the same directions hearing, the EPA provided Fox with a hard drive containing amended exhibits to the three investigation affidavits served on the defendants on 24 December 2024.

34. On 27 June 2025 the EPA filed and served three s 247E notices. One notice concerned the case against VERR. Another was in respect of the charge brought against Vitocco, and the third concerned the proceedings against Freescale and Runkorp. Together with the s 247E notices, the EPA served two statements of facts, 46 further affidavits, an expert report, an evidentiary certificate and 11,639 documents by way of disclosure.

35. The s 247E notice served on VERR contained the following statement (which appears in the same form in the other s 247E notices) in respect of s 247E(1)(b) of the CPA (emphasis added):

247E(1)(b) a statement of facts

The Prosecutor’s Statement of Facts under s 247E of the Criminal Procedure Act 1986 dated 27 June 2025 in Land and Environment Court Proceedings No. 2024/477277 and 2024/477291, contains the prosecutor’s statement of facts on liability in those proceedings.

In accordance with order 2 of the short minutes of order made by the Court on 2 May 2025, the Prosecutor’s Statement of Facts dated 27 June 2025 is annotated with pinpoint references to the evidence in support of the alleged facts. Those references are not intended to be exhaustive and should not be taken to limit the evidence the Prosecutor proposes to adduce at the hearing of the proceedings as outlined in this notice.

36. In respect of s 247E(1)(c) of the CPA (which stipulates that the EPA must give to the defendants a copy of the affidavit or statement of each of the witnesses whose evidence the EPA proposes to adduce at the hearing), the EPA said in its s 247E notices that it proposed to adduce oral evidence from 81 witnesses who had not agreed to provide written evidence. Three of these witnesses appeared to be the same person, meaning the list contains the names of 78 individuals. Of those 78 witnesses, 58 were persons from whom the EPA had not provided an affidavit, statement, or record of interview.

37. By way of illustration, the s 247E notice served on VERR was drafted in the following form in respect of the witnesses:

38. Finally, in relation to s 247E(1)(e) of the CPA (which concerns the need for the EPA to disclose to the defendants any evidence proposed to be adduced at the hearing in the form of a summary or an outline of a summary), the EPA stated in the s 247E notices that it “does not propose to adduce any additional summary, other than the summaries contained within the affidavits and exhibits identified elsewhere in this notice.”

39. After the EPA had filed and served its s 247E notices, the EPA received a further 15 affidavits from witnesses in the proceedings. The EPA had approached all of these 15 witnesses in late 2024, or the first half of 2025. It had requested an affidavit from them but they had either declined, not responded, provided an affidavit but had inadvertently omitted a relevant certificate of analysis, or not included all the details of their analysis in their affidavits. In her affidavit, Perris deposed to the steps that the EPA had taken to obtain the 15 affidavits and why they could not be finalised prior to 27 June 2025.

40. The Perris evidence indicates that the EPA had made reasonable attempts to elicit written evidence from the witnesses, including in respect of six witnesses, where the EPA communicated to them that if the matter proceeded to a hearing, the EPA could ask the Court to issue a subpoena requiring them to attend to give oral evidence. She stated that:

54 I am aware that between about 2 and 15 October 2024, a solicitor in the EPA Litigation Branch issued letters to persons identified in the 247E Notices as witnesses from whom the EPA intended to adduce oral evidence. The letter indicated that:

a. if the matter proceeded to a liability hearing, the EPA may ask the Court to issue a subpoena requiring them to attend to give oral evidence; and

b. if they still wanted an opportunity to provide their evidence in writing in an affidavit, they should advise the EPA as soon as possible.

55 I am aware that, in response to those letters, Grace (Weichen) Jia, Scott Peebles, Damien Vella, Rohan Last, Jason Thorley and Amir Mehmood indicated they were willing to provide and/or finalise an affidavit. Consequently, affidavits from those six witnesses were finalised between 30 October 2025 and 18 December 2025.

41. On 25 July 2025 the defendants filed and served notices under s 247F of the CPA.

42. On 8 August 2025, at a mention before Pritchard J, the EPA was ordered to provide particulars of the manner in which it intends to rely on evidence for tendency or coincidence purposes by 5 September 2025.

43. The order was complied with on 5 September 2023, when the EPA served upon the defendants a note providing particulars of the tendency and coincidence reasoning on which it sought to rely. At the same time, it also served a 65 page aide-memoire to the sampling evidence.

44. On 9 September 2025 the EPA served on the defendants an additional 137 documents by way of disclosure.

45. Later, on 12 September 2025, the EPA served the defendants with the unfiled affidavits of Amy Ferris and Minela Addison.

46. On 3 October 2025 the defendants served a request for particulars. The EPA’s response to the request was served on the defendants on 7 November 2025.

47. Justice Pritchard made orders in chambers on 15 October 2025, extending the time for the EPA to provide its response to the request for particulars to 31 October 2025.

48. Then, on 7 November 2025, the EPA served its response to the defendants’ request for particulars.

49. On 9 December 2025 the EPA indicated to the defendants that it would seek leave to file seven additional affidavits, two of which it had served on 12 September 2025 (those of Ferris and Addison). In the same letter, it was noted that the EPA anticipated receiving or finalising affidavits from a further six witnesses. The witnesses had been listed as persons from whom the EPA proposed to adduce oral evidence at the hearing.

50. On 12 December 2025 Pain J ordered the EPA to file and serve a notice of motion seeking leave to file the 13 affidavits referred to in its letter dated 9 December 2025, as well as the supplementary affidavit of Diego Bigolin.

51. Although not referred in the orders made by Pain J, the EPA presently seeks leave to rely upon two further affidavits obtained in December 2025, namely, that of Melissa Tedesco and Brendan Smith. Tedesco is an administration support officer at the EPA who was only identified as a relevant witness in December 2025 after further enquiries were made into how certain samples were transferred from the EPA’s head office in Parramatta to Envirolab at Chatswood. Her affidavit was affirmed shortly thereafter. It is four pages in length.

52. Smith is the Director of Real Estate at ALDI. After enquiries were made into contamination and remediation issues at the ALDI Oxley Ridge site, Smith voluntarily agreed to provide an affidavit in December 2025. The affidavit contains a detailed site investigation report prepared for the ALDI site in 2016, together with a landscape plan.

Application to Adduce Supplementary Evidence by EPA

53. The application by the EPA to adduce additional evidence is separate from the defendants’ application for a stay and gives rise to different discretionary considerations, notwithstanding the intertwined character of the defendants’ submissions in respect of both. As such, the Court will deal with the applications separately, commencing with the EPA’s supplementary evidence motion.

Legal principles applicable to a grant of leave to adduce further evidence by a prosecutor

54. The supplementary evidence application is, in essence, a case management dispute. Division 2A contained in Pt 5 of Ch 4 of the CPA governs the case management of matters commenced in Class 5 of the Court’s jurisdiction.

55. In Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121, Biscoe J helpfully discussed Div 2A in Pt 5 of Ch 4 of the CPA (at [3]-[17]). In particular, his Honour noted that (at [10]):

10 It has been held that a notice of the prosecution case does not comply with s 247E if it states that the prosecutor reserves the right to adduce further specified evidence: Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 47 per Pain J. In the present case the prosecutor's s 247E notice contained no such reservation. Rather, it is the second round s 247K notice of the defence response, including objections to parts of the prosecutor's evidence, that has led the prosecutor to seek to supplement its evidence in chief.

56. Biscoe J summarised the principles to be applied in the exercise of the discretion to allow further evidence to be adduced by a prosecutor (at [27]-[28]):

27 In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations):

Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps.

Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant.

28 In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings.

57. In Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 the Court further said (at [68]):

68 From the available case law, it would appear that the touchstone for the exercise of the Court’s discretion to grant leave to rely on further evidence under the Div 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave application of casement principles, having regard to the efficient dispatch of Court business.

58. And in Environment Protection Authority v B**artter Enterprises Pty Ltd [2020] NSWLEC 78, Duggan J synthesised and applied the principles in Benedict to the matter before her. Relevantly, her Honour opined that (at [7]-[9]):

7 The principles to be applied in the exercise of the discretion to allow further evidence to be adduced, which has been served late, were conveniently summarised in the decision of Biscoe J in Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121 at [27]-[28], which I adopt, but do not repeat here. In the present case, what is required is a consideration of:

(1) Whether the evidence is relevant and admissible;

(2) Whether the evidence would cause a prejudice to the Defendant that is unable to be satisfactorily cured; and

(3) Considerations generally relating to the fairness and justice between the parties.

8 Compliance with the disclosure requirements of the Criminal Procedure Act are important as they provide both notice to the Defendant of the case it has to meet, but it also significantly contributes to the efficient management of the public resource of Court time.

9 The late service of evidence in breach of those requirements will always have a prejudicial effect on the Defendant, as it makes decisions, deploys resources and manages the preparation of the case reliant upon the disclosure made to it.

59. These cases, and the principles they espouse, were endorsed in Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88 (at [79]-[82]). In Harris, the Court of Appeal emphasised that the issue is what is the actual, not the anticipated, prejudice that will arise to the defendants if the additional evidence is permitted (at [85]-[86]).

60. The EPA submitted that the interests of justice weigh in favour of leave being granted to adduce the supplementary evidence because:

(a) first, 15 of the 17 additional affidavits were deposed by witnesses who had previously been identified, with their content already “drawn attention to” the defendants in the EPA’s s 247E notices; (b) second, the supplementary evidence is relevant to “existing allegations”, that is, it is not relied upon to assert any new material allegation against the defendants; it is to support the case that the EPA has already alleged. In this regard, the affidavits were categorised as follows, namely, from:

(i) individuals at organisations or businesses who had responded to notices issued by the EPA (the business records themselves having been previously served) explaining the chain of custody and continuity of those records; (ii) laboratory analysts, with the results of the laboratory analyses having already been served on the defendants; (iii) environmental consultants describing their site inspections and sampling methodology, with the dates, times, places of those inspections, and the results of the sampling, having already been disclosed to the defendants; (iv) individuals providing a personal account of relevant site inspections, with the dates, times and places of those inspections having already been disclosed to the defendants; (v) individuals who had already provided an affidavit in the proceedings, with the additional evidence supplementing their existing evidence, including to correct errors and to produce relevant business records; and (vi) two individuals not listed in the s 247E notices, one of which describing the delivery of certain samples to a testing company (Tedesco), and the other annexing documents relevant to the detection and removal of historical asbestos at the ALDI Oxley Ridge site (Smith);

(c) third, the affidavits are neither complex nor lengthy; (d) fourth, the defendants have had since 9 December 2025 to consider and review the 17 affidavits, which is a reasonable period of time for them to understand the evidence; and (e) fifth, the proceedings are at an early stage, with no pleas having been entered and no hearing date having been allocated.

61. The defendants did not dispute the above facts. Rather, the defendants took issue with the breadth and evolving scope of the EPA’s brief of evidence. Two principal vices were complained of. The first, as the above procedural history demonstrates, was the continual service of intermittent tranches of prosecution evidence, which meant that the defendants could not determine the true extent and nature of the prosecutor’s case against them.

62. The second was that s 247E notices have been drafted in such a way that they constituted a vehicle for the EPA to continue to serve its brief of evidence in an opaque, non-compliant and “piecemeal fashion”.

63. In this context, the defendants emphasised the non-compliance by the EPA with s 247E of the CPA by naming 81 individuals of who the EPA proposes to adduce oral evidence from who have not agreed to provide an affidavit or statement. The footnotes list the evidence that the EPA “anticipates” the individual will give evidence in respect of. This oral evidence was neither provided for in the orders made by Pain J on 12 December 2025, nor is it consistent with s 247E of the CPA insofar as no particulars of the refusal have been provided, and moreover, no outline of the evidence proposed to be given by each witness has been given.

64. The result, according to the defendants, is an impermissible prejudice and unfairness visited upon the defendants because, as explained by Fox in his affidavit:

(a) various iterations of its s 247E notices purportedly reserve the right to the EPA to adduce further evidence in addition to that outlined in the notice; (b) it is difficult for the defendants’ legal representatives to assess the extent of the evidence that will ultimately be relied upon by the EPA; (c) the receipt of evidence has impacted upon the ability of the defendants’ legal representatives to properly advise the defendants as to the strength of the EPA’s case; (d) the footnote references and cross-references in the s 247E notices refer to a large body of information and records, which do not permit any appreciation of the parameters of the proposed evidence (see, for example, at [37] above); (e) in some instances, the evidence served on the defendants to date goes beyond the scope foreshadowed in the footnote references in the s 247E notices; and (f) granting leave to the EPA to serve a further 17 affidavits will require the defendants to once again reconsider their assessment of the EPA’s case, leading to further delay and wasted cost by reason of the duplicated effort.

Leave is granted to the EPA to adduce the supplementary evidence

65. Division 2A of the CPA, which includes s 247E, was introduced into the CPA to, among other things, reduce delay and costs in summary criminal proceedings.

66. Sections 247D and 247E are case management provisions, the aim of which is to conduct proceedings more efficiently by requiring each party to disclose aspects of its case to the other before the hearing in an orderly manner. Having said this, as the Court has recognised in Environment Protection Authority v Blacktown Waste Services Pty Ltd [2025] NSWLEC 31 (at [29]), the statutory regime promulgated by Div 2A of the CPA is, to a significant degree, coextensive with the common law duty of disclosure applying to prosecutors (s 247X(4) of the CPA). In other words, the obligation imposed by s 247E of the CPA is a legislative expression of the common law requirement that a prosecutor disclose its evidence to a defendant in order for it to be aware of the case it must meet (Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585 at [50]; Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 3) [2020] NSWLEC 129 at [38] and Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 29 at [6]).

67. While the prosecutor’s duty of disclosure is continuous, this does not in and of itself give a prosecutor the right to serve multiple iterations of its s 247E notice on a defendant. A notice does not comply with s 247E if it states, as they do in the present proceedings, that the prosecutor reserves its right to adduce further evidence, specified or not (Bulga at [3] and [9]-[11]).

68. The defective nature of the s 247E notices is not, however, a sufficient reason in and of itself to refuse the EPA’s application to rely upon the supplementary evidence.

69. Neither is, in my opinion, the fact that the s 247E notices list the names of individuals who, at this stage at least, will not be providing written evidence.

70. In this context, it may be presumed that the fact that the affidavits proposed to be adduced by the EPA are from witnesses who would otherwise have provided oral evidence, will go some way to mitigate – if not eliminate – most of the asserted unfairness complained of above at [64]. Rather than cause prejudice to the defendants at this early stage in the proceedings, the provision of the additional 17 affidavits will facilitate the objectives of Div 2A of the CPA by precisely specifying the evidence-in-chief that those witnesses will give. I do not accept that any actual prejudice will flow to the defendants if the EPA is permitted to rely on the evidence identified at annexure “A” to the notice of motion.

71. Without making a final determination (which is a matter reserved for the trial judge), the supplementary evidence appears to be relevant and admissible. In many instances it has been procured to ensure that other documentary material (test results and chain of custody evidence, for example) is admissible. Rejection of the affidavits, in light of their purpose, would cause prejudice to the EPA.

72. Having said this, there is substance to the complaint by the defendants that the EPA, by continually amending its s 247E notices, is causing wasted costs, and substantial delay to the entry of pleas and in the subsequent preparation of the proceedings for final hearing.

73. There are instances where a defendant charged with a strict liability environmental offence does not require the totality of the prosecutor’s final evidence to be served on it prior to entering a plea. To do so results in delay in the matter progressing to a hearing and may, depending on the circumstances, result in the defendant not being awarded the full 25% discount for an early plea of guilty.

74. Nevertheless, as all of the parties agreed, the charges brought against the defendants in the present case give rise to legal and factual issues of significant complexity and involve numerous witnesses. The EPA has, as it must, prepared its evidence on the basis that it will be put strictly to proof in respect of the offences. In the result, considerations of fairness and justice mean that some latitude must be afforded to the EPA in the collection and collation of its evidence. To date, this has been reflected in the orders made by the Court for the filing and serving of the EPA’s s 247E notices.

75. Having said this, applying considerations of fairness to the defendants mean that it behoves the EPA to finalise the service of the evidence upon which it seeks to rely to enable the defendants to enter a plea and for the further timetabling of the matters.

76. Balancing all of these factors, and having regard to the legal principles identified above, I am of the view that the EPA should be granted leave to rely upon the supplementary evidence.

Application for a Stay

77. Many of the arguments canvassed by the defendants in support of a stay have been identified above.

Legal principles applicable for a temporary or conditional stay of criminal proceedings

78. As a preliminary observation, the type of stay that the defendants seek is unclear. The EPA submitted that it seems to “sit somewhere in between a permanent stay or a stay subject to conditions” (T15:38-41). According to VERR and Vitocco, the first order sought was for a temporary stay (T42:5-6) and the alternative orders were for a conditional stay (T42:19-22).

79. There is a distinction between a temporary and conditional stay. A conditional stay is where, unless and until certain conditions are satisfied, the proceedings are stayed. Stays of this kind can be both temporary or permanent depending on whether the condition is met (Leiper v R [2018] NSWCCA 117 at [14]; Marwan v Director of Public Prosecutions [2019] NSWCCA 161; (2019) 278 A Crim R 592 at [42] and R v MA; R v AD [2024] NSWCCA 69 at [2]). By contrast, temporary stays are, as the name suggests, those that operate for a limited period of time.

80. Freescale and Runkorp submitted that in the present circumstances nothing turned on the distinction (T45:12-14).

81. While I am inclined to agree, there is, however, authority indicating that in some circumstances the classification of a stay as either temporary or conditional is material. This is because the classification may change the threshold required to be met before a stay is granted. As Stern JA acknowledged in R v MA, the grant of a conditional stay required the applicant in the case before her to meet a more demanding test than that necessary to obtain a temporary stay (at [31]-[35]):

31. As is probably unsurprising, there is no body of case law as to the requisite unfairness which would justify the grant of a conditional stay of a criminal trial.

32. Such an order is not uncommon where the relevant “condition” is the payment of costs: see eg R v Petroulias (No 19) [2007] NSWSC 536. Such a condition is far removed from that reflected in the Order in this case. In Leiper, the application made was for a stay until the Crown provided transcripts of surveillance device material: at [13]. The Court (Leeming JA, Bellew and Wilson JJ) observed (at [14]) of that application that:

“… the period of the stay which was sought turned entirely upon the attitude and resources of the Crown. Indeed, if the Crown formed the view that it would not provide a transcript, it might be permanent.”

33. Given that in Leiper the Crown conceded (at [15]) that the primary judge had made a House v The King error, the Court considered for itself whether such a stay should be ordered. The Court recorded (at [42]) that the parties accepted the applicability of the threshold as stated by Bathurst CJ (Fullerton and Bellew JJ agreeing) in Seller (at [128]), and said that whether a stay in the terms sought should be made required “an assessment of the fairness of the applicant’s trial if no orders are made”: at [43]. Noting that the case for a stay was, “at best, weak”, the Court refused leave to appeal. It is apparent that, consistent with the agreed position of the parties in Leiper, the Court did not approach the application on the basis that, to succeed, it was necessary to show that the trial would be so unfair as to amount to an abuse of process.

34. The respondents on this appeal contend that the appropriate threshold to apply in this case is that applicable to a temporary stay, observing that they are not aware of any authority for the imposition of a more demanding threshold for a conditional, as opposed to a temporary, stay.

35. In my judgment, for the reasons set out below, the conditional stay ordered by the primary judge in the present case is in a somewhat different category to that sought in Leiper. In the particular circumstances of this case, such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial.

82. In the result, in the present proceedings the application of either threshold will be dispositive of the stay motion.

83. Several options were proffered by the defendants as the bases upon which the Court could grant a temporary stay. The first was in r 5.2(1) of the Land and Environment Court Rules 2007 (“LECR”), which picks up r 11(4)(a) of Pt 75 of the Supreme Court Rules 1970 (“SCR”).

84. Rule 5.2(1) of the LECR provides:

5.2 Application of other rules of court

(1) Parts 55 (Contempt) and 75 (Criminal proceedings) of the Supreme Court Rules 1970 apply, so far as applicable, to proceedings to which this Part applies.

85. Rule 11(4)(a) of the SCR states that (emphasis added):

11 Pre-trial procedures

(1) The procedures prescribed by this rule shall be complete before the trial of a case commences.

(2) This rule does not apply where the person charged with an offence pleads guilty to the offence or where the Judge dismisses the charge under section 249 (1) or 251 of the subject Act.

(3) In this rule, trial includes the hearing and determination of the case and the adjudication on the case under section 250 (a) of the subject Act.

(4) The Judge may, of his own motion or on the application of a party—

(a) make orders and give directions for the just and efficient disposal of the proceedings, …

86. The second basis was “the Court’s general power to prevent abuse of process and ensure a fair trial to the accused”. In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ opined (at 25-26 and 31, footnotes omitted):

It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v N.S.W. Bar Association; Barton v. The Queen. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v. Oades. But it may be that “injustice” in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v. Sterling Industries Ltd.; Hamilton v. Oades.

…

Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg. v. Derby Crown Court; Ex parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.

87. The extent to which the Court’s inherent power to grant a stay overlaps with the scope of the power contained in r 11(4)(a) of Pt 75 of the SCR is unclear. Determining the degree of overlap is presently not necessary. Suffice it to say that the breadth of the inherent power is as plenary in scope as the power contained in r 11(4)(a) of Pt 75 of the SCR. The touchstone of justness contained in r 11(4)(a) mirrors the fundamental concern of the inherent power, namely, is the prevention of injustice.

88. The Court’s powers are not limited to preventing unfairness of the actual trial and include the process leading up to the trial. As Mason CJ stated in Jago, “orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair” (Jago at 31). Thus, as the High Court has recognised, there is a public interest in a criminal trial proceeding in a timely manner (Jago at 33-34 per Mason J, footnotes omitted):

The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton; Sang; Carver v. Attorney-General (N.S.W.). At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo*;* Bell v*.* Director of Public Prosecutions, as explained in Watson, and Gorman v. Fitzpatrick. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney.

89. As observed in Jago, the granting of a temporary stay of criminal proceedings is rare (Director-General, Department of Environment Climate Change and Water v Walker Corporation Pty Ltd [2011] NSWLEC 27 at [18]). The authorities are replete with statements that they should only be granted in exceptional circumstances (for example, see Jago at 31 per Mason CJ and Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 at [16]-[17]).

90. In R v Abu-Mahmoud [2024] NSWCCA 21 the Court of Criminal Appeal said (at [37]):

37 The Crown emphasised that only in exceptional circumstances does the District Court have power to protect an accused from unfairness or injustice by temporarily staying proceedings or refusing an adjournment until the Crown has agreed to compensate an accused for costs “thrown away” through the fault of the Crown: Mosely; Fisher; Petroulias v R [2007] NSWCCA 154; R v Issakidis [2015] NSWSC 834. The “touchstone in every case is fairness” to the accused, whether occasioned by the Crown or by the investigating body, and the “power is to be exercised only in the most exceptional circumstances”: Petroulias at [17]. All of the circumstances are relevant to the consideration of unfairness, including the availability of legal aid: Fisher at [47]; Issakidis at [78]. In the present case, the evidence was silent as to whether legal aid was available. The Crown also criticised Mr Abu-Mahmoud’s evidence about whether in any event he could continue to fund private representation.

91. Where the reason for a stay is other than to permit the determination of a related appeal, the granting of a stay is rarer still. There is a public interest in the disposition of charges of criminal offences and the conviction of those guilty of crime (Jago at 61 per Deane J and 72 per Toohey J).

92. While the appellant in Jago was seeking a permanent stay in the context of considerable delay, much of what was said by that Court is nonetheless apposite here. Mason CJ noted that (at 32, footnotes omitted):

… it is important to bear in mind that the court may mould its order to meet the exigencies of the particular case. The court may grant a limited or conditional stay and it might even order that a proceeding be stayed and not proceeded with without an order of the court: Reg. v. Campbell; Reg. v. Roberts.

93. The general principles applicable to when the granting of a temporary stay of criminal proceedings may be appropriate were restated in MacDonald v R*; Maitland v R* [2016] NSWCCA 306; (2016) 93 NSWLR 736 (at [140]):

140 It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 47. However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences: at [91]-[92], [114]; see also Redacted Judgment [2015] NSWCCA 281 at [108]-[110].

94. There is “arguably some divergence in the authorities which formulate the test to be applied” for the grant of a temporary stay (Marwan v Director of Public Prosecutions [2019] NSWCCA 161; (2019) 278 A Crim R 592 at [22] and R v MA at [21]). This potential “divergence” was considered by Stern JA in R v MA. After a review of the relevant authorities, her Honour opined that (at [29]-[30]):

29 Having regard to this authority, the Crown submitted that the preferred formulation is that derived from Gould, and consistent with Dietrich and Seller, namely, whether there is reason to believe that the trial of the accused is otherwise likely to be unfair. The respondents submit that there is “no substantive difference” between the various formulations of the test, observing that no divergence was identified by this Court in HO.

30 In my judgment, the Crown’s submission should be accepted. Consistent with the judgment of Mason CJ and McHugh J in Dietrich (at 311), some likely unfairness is required to warrant the grant of a temporary stay. Those cases in which the threshold has been phrased in terms of “risk” rather than “likelihood” are not inconsistent with that position.

95. Accordingly, the threshold for the grant of a temporary stay is met where a court has reason to believe that the trial of an accused is likely to be unfair or there is a risk of unfairness. In the particular circumstances of MA, however, Stern JA held that (at [35], emphasis added):

35 … such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial.

96. The touchstone is that of fairness within the context of the particular case.

97. The concept of unfairness is, however, a concept that defies analytical definition (Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1 at [26]-[27]). As Deane J opined in Jago (at 57):

…the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.

The defendants submit that a stay ought to be granted to address unfairness

98. Section 247E(1)(c) obliges the EPA to give to the defendants a copy of the affidavit or statement of each witness whose evidence the EPA proposes to adduce at the final hearing. According to the defendants, the asserted non-compliance with the provision arises from the statement in the s 247E notices that the EPA proposes to “adduce oral evidence from the following witnesses (who have not agreed to provide an affidavit or statement)”. The list that follows was said to be problematic for two reasons.

99. First, the majority of the named individuals had not provided an affidavit, statement or record of interview as required by s 247E(1)(c). The defendants argued that s 247E(1)(c) imposes an obligation on the EPA to either provide a written document or to identify those witnesses that had refused to do so, and to state the steps that the EPA had taken to obtain written evidence from them. The EPA’s “putative disclosure” did not do this (T53:45-48). The nature of the obligation was put in the following terms (T54:23-24):

…what you must read into it [s 247E(1)(c)] is an obligation on the prosecutor to take all due steps by the time directed by the Court to either get affidavits or identify those who have refused.

100. It was submitted that no steps had been taken on the part of the EPA to identify which witness had refused to provide an affidavit or statement compared to those who were merely reluctant or “procrastinating”, and therefore, the Court could not be (T54:34-36):

…persuaded that the prosecutor has, with due dispatch, identified in any clear way, those who have refused to give affidavits, as distinct from persons who haven’t as yet given affidavits.

101. The defendants submitted that the EPA’s lack of compliance with s 247E(1)(c) of the CPA was of “fundamental importance” and was causative of significant and ongoing prejudice to them in the manner described above at [64]. The defendants were concerned that further tranches of affidavits or statements would be relied upon by the EPA, requiring the defendants’ legal representatives to repeatedly reacquaint themselves with the prosecution case as a whole in order to properly assess each new body of evidence and its forensic significance.

102. The second issue, inextricably linked with the first, was that the list of witnesses from whom no written evidence was to be provided was accompanied by footnotes that referenced information and records provided pursuant to statutory notices which the EPA “anticipates” the witnesses will give evidence about. Given that the evidence referred to in the footnotes was comprised of “substantial documentary material”, much of which was cross-referenced with other material, the defendants argued that they were not in a position to understand the true parameters of the EPA’s case. By way of illustration, see footnote 71 to the s 247E notice served on VERR quoted above at [37].

103. VERR submitted that understanding the exact nature and extent of the evidence of Scott Pareezer and how it informs the EPA’s case against it, by reference to, for example, the materials “provided by HL Landscapes Pty Ltd”, is difficult to comprehend.

104. With respect to VERR and Vitocco, the form of the charges brought against them renders the difficulties with the s 247E notices all the more acute because the conduct of Freescale and Runkorp is attributed to them by statute. This attribution occurs because VERR holds EPL 11233 and Vitocco is a director of VERR. Accordingly, the majority of the content of the s 247E notices served on VERR and Vitocco deals with the case against Freescale and Runkorp. That is, the notices primarily address matters that VERR and Vitocco do not necessarily have detailed knowledge of, including, for example, the sites to which allegedly contaminated products were delivered. The opacity of the EPA’s case, and the difficulty of making forensic decisions with respect to it on the part of VERR and Vitocco, is exacerbated by the vagueness of the content of footnotes in their s 247E notices.

105. Moreover, because VERR and Vitocco cannot sensibly, nor reasonably, be expected to be in a position to assess the case against Freescale and Runkorp unless and until the whole compass of the allegations made against those defendants is complete, the proceedings are unfair as against VERR and Vitocco and ought to be temporarily stayed.

106. In circumstances where there has been persistent non-compliance with Court orders, in order to mitigate the prejudice caused by the EPA’s continual breach of s 247E of the CPA, the defendants therefore proposed either a temporary stay to be imposed until further order that would require the EPA to apply to the Court to release the stay and restore the proceedings, or the making of the alternative orders (set out at [2] above).

107. The proposed terms of the alternative orders are directed to ensuring that the EPA properly identifies and deposes to the witnesses who have refused to give an affidavit or statement, provides a précis of the oral evidence anticipated from those witnesses, and files and serves any further affidavits from the witnesses who are willing to depose them.

The Application for a Stay is Refused

108. Irrespective of the applicable threshold, and the non-compliance by the EPA with the Court’s orders concerning the filing of final s 247E notices, I do not accept that the conduct of the EPA is causing the requisite degree of unfairness which would justify the grant of a conditional or temporary stay of the defendants’ criminal trials. Put another way, this case is not in the exceptional category of cases that would attract an order for a stay.

109. First, I do not understand the text of s 247E of the CPA to preclude the EPA from relying upon witnesses who have neither deposed to an affidavit nor provided a witness statement. As discussed above, Div 2A, and therefore s 247E, is coextensive with the common law duty of disclosure upon a prosecutor. There is no warrant for construing s 247E(1)(c) of the CPA as requiring a prosecutor to rely only upon the written evidence of a witness upon whom they intend to rely. This would be a significant departure from the common law, which, having regard to its text, context and purpose, I do not consider was the objective intention of Parliament in inserting that provision, or Div 2A, into the CPA.

110. At common law, a lay witness upon whom a prosecutor seeks to rely can refuse to provide testimony. While they may be compelled to do so by way of subpoena, this will not necessarily result in the production of an affidavit or statement. A prosecutor is obliged to disclose the name of any witness subpoenaed to attend to give evidence on its behalf; but neither the prosecutor nor the defendant can compel that witness to commit their evidence to writing.

111. The fact that the witnesses are public officers or government employees does not, contrary to the submission of the defendants, in any way abrogate their right to refuse to voluntarily give evidence; or if compelled, to provide their evidence in writing. No criticism is warranted of those witnesses in this regard.

112. If, however, that witness subsequently changes their mind and commits their evidence to writing, the prosecutor must disclose it to the defendant as part of its continuous obligation of disclosure both at common law and under s 247E. It would be a perverse outcome if, contrary to the principles of case management enshrined in Div 2A of the CPA, the production of an affidavit or statement later provided by a witness who had initially elected to give oral evidence, could not be relied upon by the prosecutor. The result would disadvantage both parties, especially the defendant. I do not accept that this is what was intended by the operation of s 247E(1)(c) of the CPA upon its proper construction.

113. Having said this, I agree with the defendants that reasonable attempts must nevertheless be made by the EPA to elicit evidence from witnesses and to reduce it to written form. What will constitute a reasonable attempt will vary with the circumstances of the proceedings and will include factors such as the number of putative witnesses and the relevant content and complexity of their evidence. At the very least, the attempt should clearly indicate that they can be compelled to give oral evidence by way of subpoena in the absence of their cooperation.

114. Second, the defendants have not demonstrated prejudice – actual or potential – that cannot at this stage be cured by other means such as, for example, more rigorous case management of the proceedings. No pleas have been entered, no hearing date has been set, and no evidence has been filed that will require revision by the defendants.

115. Third, “as has been recognised by the authorities, trial judges are under a duty to utilize all other powers to control procedure to secure a fair trial before resorting to a stay of proceedings” (IMM v The Queen [2013] NTSC 9 at [6] per Blokland J. A similar sentiment was expressed by Rothman J in R v MA at [70]). The deficiencies identified by the defendants in the EPA’s conduct of the proceedings to date can be minimised, if not overcome, by this Court using its procedural powers to, for example:

(a) order that the EPA serve a précis of the evidence anticipated by each of the remaining witnesses who do not intend to provide an affidavit or statement; (b) in respect of these witnesses, order that the EPA indicate by way of affidavit whether they have been informed that, if they do not provide written evidence they may be subpoenaed to appear and provide oral evidence in any event; (c) order the pre-trial production and cross-examination of certain witnesses, that is, a Basha inquiry (R v Basha (1989) 39 A Crim R 337); (d) order an amended statement of prosecutor’s facts to include any additional or amended asserted facts deriving from the orders above; (e) order an amended s 247E notice to be filed by the EPA to reflect compliance with the orders above; and (f) reserve the right of the defendants to seek its costs thrown away by the iterative process by which the EPA has served its evidence.

116. This is precisely what was suggested by the EPA to the defendants in a letter dated 9 March 2026. That is, that the matters that the defendants sought to agitate could be adequately addressed by the case management provisions contained in Div 2A of the CPA. Draft short minutes of order were enclosed proposing the following orders:

By consent, the Court orders:

1. By [4weeks from d****ate of order], the Prosecutor is to serve on the Defendants any further affidavits or statements (which have not already been served with leave of the Court) of each witness whose evidence the Prosecutor proposes to adduce at the hearing of the proceedings.

2. In respect of all witnesses the Prosecutor proposes to call to give oral evidence in the proceedings but have not provided the Prosecutor with an affidavit or statement (including a statement in the form of questions and answers):

a. By [2 weeks from date of order], the Prosecutor is to serve a table setting out the date(s) on which either:

i. the witness communicated to the Prosecutor that they did not want to provide an affidavit or statement; or

ii. the Prosecutor attempted to contact the witness about providing a statement or affidavit but received no response.

b. By [4 weeks from date of order], the Prosecutor is to serve on the Defendant a summary or précis of the evidence that the Prosecutor proposes to adduce from each such witness at the hearing of the proceedings.

3. By [6 weeks from date of order], the Prosecutor is to file and serve a notice under s 247J of Criminal Procedure Act 1986 (NSW) (which, pursuant to s 247J(a), is to include all of the matters required to be included in the notice of the prosecution case under s 247E).

4. By [6 weeks from date of order**],** the Prosecutor is to serve a copy of the statement of facts served on 27 June 2025 marked up with any additional or amended facts and footnotes.

5. By [X weeks from date of order], the Defendants are to each file and serve a notice under s 247K of Criminal Procedure Act 1986 (NSW).

6. The proceedings are listed for directions on [date].

117. The effect of these proposed draft orders is not dissimilar to those sought in the alternative in the defendants’ notices of motion. I also note that in its oral submissions the EPA emphasised its willingness to agree to orders along the lines of the alternative orders sought by the defendants (T23:23-30). Some or all of these case management orders can and ought to be made to ensure that the preparation of the proceedings continues in an efficient and fair manner to all parties.

118. For these reasons, it is appropriate that I dismiss the defendants’ application for a stay of the proceedings, but the matters should be relisted for the making of consequential orders not dissimilar to those suggested by the Court and the parties.

Conclusion and Orders

119. The EPA has been successful in its application to adduce the supplementary evidence it has identified in its motion. The defendants have not, however, enjoyed favour in their motions for a stay of the criminal proceedings brought against them. In respect of each application, however, the costs ought to be reserved. The proceedings are to be set down for the making of consequential orders in conformity with the reasons set out in this judgment.

120. The formal orders of the Court are therefore that:

121. the Environment Protection Authority is granted leave to rely upon the supplementary evidence identified at annexure “A” to its motion filed on 19 December 2025;

122. the motions filed by VE Resource Recovery Pty Ltd, Arnold Vitocco, Freescale Trading Pty Ltd and Runkorp Pty Ltd on 23 February 2026, seeking a stay of the proceedings are dismissed;

123. in respect of each of the motions referred to above in orders (1) and (2), costs are reserved; and

124. proceedings 2024/477291, 2024/477277, 2024/477327 to 477376 and 2024/477421 to 477470 are to be listed before me for the making of further timetabling orders within the next seven days.

**********