McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority

LOWER COURT JURISDICTION : Land and Environment Court LOWER COURT FILE NUMBER(S) : 50009/99 LOWER COURT JUDICIAL Pearlman J OFFICER :

COUNSEL : J L Glissan QC (McConnell Dowell) J Kelly (EPA) SOLICITORS : Doyles Construction Lawyers (McConnell Dowell) Stephen Garrett (EPA) CATCHWORDS : CRIMINAL LAW - jurisdiction of Court of Criminal Appeal in stated case - "question of law" Criminal Appeal Act 1912, s5AE - CRIMINAL LAW - procedure - summons must disclose essential ingredients of offence - CRIMINAL LAW - coercive orders, Land and Environment Court Act 1979 s41 - no requirement for judge to be satisfied of prima facie case against a defendant Clean Waters Act 1970 Criminal Appeal Act 1912 Environmental Offences and Penalties Act 1989 LEGISLATION CITED : Land and Environment Court Act 1979 Pesticides Act 1978 Land and Environment Court Rules 1996 Supreme Court Rules 1970 Attorney-General (Commonwealth) v Oates (1999) 164 ALR 393 Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 Baker v Macleod (Land and Environment Court, 1 August 1986, unreported) Barton v The Queen (1980) 147 CLR 75 Berwin v Donohoe (1915) 21 CLR 1 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389 Director of Public Prosecutions v Humphrys [1977] AC 1 Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Gatacre v Soil Conservation Service of NSW (1992) 78 LGERA 379 Goldsborough & Co v MacMahon (1887) 8 NSWLR 118 Johnson v Miller (1937) 59 CLR 467 McDonnell v Smith (1918) 24 CLR 409 CASES CITED: Maxwell v The Queen (1996) 184 CLR 501 Mousell Bros Limited v London and North Western Railway Co [1917] 2 KB 836 Oates v Attorney-General (Commonwealth) (1998) 156 ALR 1 Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 R v Australasian Films Limited (1921) 29 CLR 195 R v Bacon & Cox [1973] 1 NSWLR 87 R v Cain [1976] 1 QB 496 R v Cassell (New South Wales Court of Criminal Appeal, 24 July 1996, unreported) R v Dossi (1918) 13 CrAppR 158 R v Stringer [2000] NSWCCA 243 R v VHP (New South Wales Court of Criminal Appeal, 7 July 1997, unreported) Stanton v Abernathy (1990) 19 NSWLR 656 Taylor v Environment Protection Authority [2000] NSWCCA 71 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Traveland Pty Limited v Doherty (1982) 63 FLR 41 Water Board v Environment Protection Authority (1994) 83 LGERA 174 DECISION : The Court should answer the questions as follows; 3(i) Decline to Answer; 3(ii) Yes; 3(iii) Decline to Answer; 3(iv) Decline to Answer; 3(v) Decline to Answer; 3(vi) No with respect to Part 75 rule 9, otherwise, decline to Answer; 4(i) Yes.

SPIGELMAN CJ GROVE J KIRBY J

Wednesday 13 September 2000 McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LIMITED v ENVIRONMENT PROTECTION AUTHORITY

Pearlman J stated seven questions for determination by the Court of Criminal Appeal pursuant to s5AE of the Criminal Appeal Act 1912. Her Honour had delivered a judgment dealing with interlocutory matters including whether a summons issued by the prosecutor should be struck out as an abuse of process in proceedings commenced in the Land and Environment Court by the Environment Protection Authority against McConnell Dowell Constructors (Aust) Pty Ltd.

Held: (Per Spigelman CJ, Grove J and Kirby J agreeing)

1 Did I err in finding that the decision of the Director General of the Environment Protection Authority is a decision that is not reviewable by a Court?

The Court should decline to answer this question as it is hypothetical.

2 Did I err in finding that the Summons disclosed properly the essential ingredients of an offence against the Environmental Offences and Penalties Act 1989 and s16(1) of the Clean Waters Act 1970?

Yes. The Summons did not identify an act of polluting which is an essential factual ingredient of the offence. Stanton v Abernathy (1990) 19 NSWLR 656, Taylor v Environment Protection Authority [2000] NSWCCA 71, Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 applied.

Vicarious liability is not an ingredient of an offence under s16(1) of the Clean Waters Act 1970.

3 Did I err in finding that the proceedings were properly commenced on 24 February 1999?

The Court should decline to answer this question as no submissions were addressed to it by the Defendant.

4 Did I err in finding that the EPA could rely upon the affidavits of Mr David Blair sworn 9 September 1998, Mr Andrew Hawkins sworn 17 February 1999 and Mr Mark Callaghan sworn 23 February 1999 in support of its application to Talbot J on 24 February 1999?

In view of the answer to question 7 below, the Court should decline to answer the question. Whether it is a question of law within s5AE of the Criminal Appeal Act1912 doubted.

5 Did I err in finding that a prima facie proof was established on the basis of the affidavits properly relied on for the application before Talbot J on 24 February 1999?

In view of the answer to question 7 below, the Court should decline to answer this question. Whether it is a question of law within s5AE of the Criminal Appeal Act1912 doubted.

6 Did I err in finding that non-compliance with the requirements of Rule 75(8) and (9) of the Supreme Court Rules 1970 was cured by s68(2) of the Land and Environment Court Act 1979?

No with respect to Pt 75 r9. No reasons were advanced why s68(2)(a) should not apply. No submissions were made with respect to Pt 75 r8.

7 Did I err in finding that before making an order under s41(1) of the Land and Environment Court Act 1979, a judge must be satisfied that there is a prima facie case against the Defendant?"

Yes. Part 6 r2(2) of the Land and Environment Court Rules 1996 does not require a judge to be satisfied that there is a prima facie case before making an order under s41(1). The Court should not, in the absence of clear legislative intent, interpret the act or rules of a court in a manner which would give the appearance that a judge of a court performs a function closely associated with the prosecution process. Director of Public Prosecutions v Humphrys [1977] AC 1, Baker v Macleod (Land and Environment Court, 1 August 1986, unreported), Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566, Maxwell v The Queen (1996) 184 CLR 501, Barton v The Queen (1980) 147 CLR 75 considered.

SPIGELMAN CJ GROVE J KIRBY J

Wednesday 13 September 2000 McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LIMITED v ENVIRONMENT PROTECTION AUTHORITY JUDGMENT

1 SPIGELMAN CJ: On 20 May 1999 the Chief Judge of the Land and Environment Court, Pearlman J, handed down a judgment dealing with certain interlocutory matters that had arisen in the context of Class 5 proceedings commenced by the Environment Protection Authority ("the Prosecutor") against McConnell Dowell Constructors (Aust) Pty Ltd ("the Defendant"). One of the issues that arose before her Honour was whether the summons issued by the Prosecutor against the Defendant should be struck out as an abuse of process. 2 Section 5AE of the Criminal Appeal Act 1912 provides that a Judge of the Land and Environment Court may "submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination". Subsection 5AE(2) provides: "The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit." 3 By a document entitled a Stated Case, Justice Pearlman submitted six questions "asked by the Defendant" and one question "asked by the Prosecutor". The seven questions were as follows, using the denotation in the Stated Case: "3(i) Did I err in finding that the decision of the Director General of the Environment Protection Authority is a decision that is not reviewable by a Court? 3(ii) Did I err in finding that the Summons disclosed properly the essential ingredients of an offence against the Environmental Offences and Penalties Act 1989 and s16(1) of the Clean Waters Act 1970? 3(iii) Did I err in finding that the proceedings were properly commenced on 24 February 1999? 3(iv) Did I err in finding that the EPA could rely upon the affidavits of Mr David Blair sworn 9 September 1998, Mr Andrew Hawkins sworn 17 February 1999 and Mr Mark Callaghan sworn 23 February 1999 in support of its application to Talbot J on 24 February 1999? 3(v) Did I err in finding that a prima facie proof was established on the basis of the affidavits properly relied on for the application before Talbot J on 24 February 1999? 3(vi) Did I err in finding that non-compliance with the requirements of Rule 75(8) and (9) of the Supreme Court Rules 1970 was cured by s68(2) of the Land and Environment Court Act 1979? 4(i) Did I err in finding that before making an order under s41(1) of the Land and Environment Court Act 1979, a judge must be satisfied that there is a prima facie case against the Defendant?" 4 In her judgment Pearlman J set out the relevant factual context as follows: "[3] The defendant has been charged with an offence against the Environmental Offences and Penalties Act 1989 (the EOP Act) in that, on or about 25 February 1998, at Woolloomooloo Bay, it did pollute waters contrary to s16(1) of the Clean Waters Act 1970. The summons particularised the pollutants as 'oils; and/or wastes containing oil; and/or inflammable liquids'. It particularised the waters as being 'Woolloomooloo Bay'." 5 Section 16 of the Clean Waters Act 1970 provides: "16(1) A person shall not pollute any waters. (2) Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if: (a) the person places any matter (whether solid, liquid of gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, on to the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed in such a position, or

(b) the person places any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed on such a dry bed or in such a drain, channel or gutter, and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters. (3) A person shall not cause any waters to be polluted, whether intentionally or not. (4) A person shall not permit any waters to be polluted. (5) (Repealed) (6) Notwithstanding the foregoing provisions of this section it shall not be an offence arising under those provisions for a person to pollute any waters if he holds a licence (including a licence granted under the Waste Minimisation and Management Act 1995 in respect of a waste facility) and does not pollute the waters in contravention of any of the conditions of the licence. (7) Any person who contravenes the provisions of this section is guilty of an offence against the Environmental Offences and Penalties Act 1989."

Is the Director General's Consent Reviewable? 6 Her Honour noted that the Court's file contained a written consent to institute the proceedings signed on 23 February 1999 by the Director General. Section 13 of the EOP Act relevantly provides: "13(1) Proceedings for an offence against this Act may be instituted only with the written consent of: (a) the Environment Protection Authority, or (b) a member of the staff of that Authority authorised in writing by that Authority for the purposes of this subsection. (2) (Repealed) (2A) Subsection (1) does not apply to the institution of proceedings in the Land and Environment Court for an offence against this Act by a person if the Court grants the person leave to bring the proceedings. The Court is not to grant leave unless satisfied that: (a) the Environment Protection Authority has decided not to take any relevant action (as defined in subsection (2B)) in respect of the act or omission constituting the alleged offence against this Act or has not made a decision on whether to take such action within 90 days after the person applied to the Authority for consent to institute the proceedings, and (b) the Environment Protection Authority has been notified of the proceedings, and (c) the proceedings are not an abuse of the process of the Court, and (d) the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence against this Act. … (4) Subsection (1) does not apply to the institution of proceedings arising under the Clean Waters Act 1970, other than proceedings for an offence referred to in section 19 of that Act: (a) by a council of a local government area or an employee of a council of a local government area - if the proceedings are instituted with the consent of the council or with the written consent of such member or employee of the council as may be authorised by the council for the purposes of this subsection, or (b) by any other person - if the proceedings are instituted with the consent of the Water Board, the Hunter Water Board or a Water Supply Authority (within the meaning of the Water Supply Authorities Act 1987 ) or with the written consent of such person as may be authorised by such a Board or Authority for the purposes of this subsection. … (6) This section does not apply to the issue of penalty notices under section 8G or to proceedings referred to in section 8G(6)." 7 Part 2 of the EOP Act contains a hierarchy of offences in the respective Divisions of that Part. Division 1 is concerned with Tier 1 offences. Division 2 is concerned with Tier 2 offences and Div 3 is concerned with Tier 3 offences. Section 8G, with respect to penalty notices, provides the content of Div 3 relating to the least serious of the sets of offences. Section 13(6) excludes that section from the operation of s13. Accordingly, neither the consent of the authority under s13(1), nor the consent of the Court under s13(2A), is required for alleged offences at the lowest level of the hierarchy 8 Section 8B provides for the level of penalties for offences of which a person is guilty by virtue of any provision of the Clean Waters Act 1970. Section 8B is found in Div 2 dealing with Tier 2 offences. 9 Pearlman J held that the consent of the Director-General (which pursuant to s19(2) of the Protection of the Environment Administration Act 1991 is taken to have been the consent of the Environment Protection Authority) to the institution of proceedings pursuant to s13 of the EOP Act is not reviewable. In reaching this decision her Honour relied on the case law with respect to judicial review of decisions to prosecute. 10 Section 13 of the EOP Act provides three alternative means by which a prosecution may be brought:

(i) With the consent of the Environment Protection Authority (s13(1)).

(ii) Pursuant to leave of the Land and Environment Court (s13(2A)).

(iii) By a local government council, or certain statutory authorities, with respect to particular kinds of offences (ss13(3), (4), (5), (5A) and (5B)). 11 The general principle that any person may institute proceedings for a criminal offence has, from time to time, been the subject of statutory modification with respect to particular offences, requiring the consent of a government official to the institution of proceedings. In a context such as the present, the general purpose to be served by such a provision is to prevent frivolous or vexatious proceedings. (See eg Rich J in McDonnell v Smith (1918) 24 CLR 409 at 411, adopted by the Court at 412, applied by Malcolm CJ in Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 at 229. See also Berwin v Donohoe (1915) 21 CLR 1 at 24 per Isaacs J). 12 Such statutory provisions have been construed so as to authorise consent granted in general terms. (See eg Berwin v Donohoe supra at 26; R v Cain [1976] 1 QB 496 at 500-503; R v Bacon & Cox [1973] 1 NSWLR 87 at 94-95 esp 95A; Traveland Pty Limited v Doherty (1982) 63 FLR 41 at 47-48 and 49; Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179). 13 Question 3(i) in the Stated Case refers to Pearlman J's finding that the relevant decision was not reviewable by the Court. In the course of her judgment her Honour appeared to distinguish this issue from another legal issue which had arisen before her when she said in par [16] of her judgment: "This issue falls for determination upon whether the proper construction of s13(1) calls for the Director-General to be satisfied of a prima facie case before he issues a consent, and whether, in any event, his decision to issue a consent is reviewable by the Court." 14 The words "in any event", adopted by her Honour from the submission on the part of the Prosecutor before her Honour, suggest a distinction between the two issues. 15 Her Honour considered the question of whether or not the Director-General had to be satisfied that a prima facie case existed in pars [17]-[20] of her judgment at the end of which she said: "20 I have concluded, for these reasons, that the consent of the Director-General is not open to challenge on the ground that he was required to be satisfied of a prima facie case, because, to the contrary, his discretion is unconfined." 16 Her Honour went on in par [21] to address the second issue with the following introductory sentence: "21 However, Mrs Kelly, appearing for the prosecutor, contended that, in any event, the Director-General's consent is not reviewable by the Court." 17 Pearlman J referred in par [23] to English authorities which suggested some scope for judicial review "in rare or limited circumstances". Her Honour went on to note at [24]: "But even if there was a limited right of review as the English cases suggest, there are no exceptional circumstances alleged in this case to ground such a review." 18 Mrs J Kelly who appeared for the Prosecutor submitted that this Court should not answer the first question. She said that the critical finding that her Honour made was that the Director-General's decision was not open to review on the ground that he was required to be satisfied of a prima facie case. That matter, she submitted, was not a question stated by Pearlman J for consideration by this Court. Mrs Kelly sought to characterise her Honour's finding that the Director-General's decision was not reviewable as "obiter". 19 Mr J Glissan QC, who appeared for the Defendant in this Court, submitted that there were circumstances in which the decision of the Director-General to give consent was reviewable and accordingly the question actually asked by her Honour should be answered "Yes". Mr Glissan QC, however, appeared to accept that the other matter addressed by her Honour was not the subject of any question in the Stated Case and submitted that if the Applicant succeeded in relation to the question asked, then the matter should be remitted to the Land and Environment Court for argument on the issue of whether or not the section requires the Director-General to be satisfied of a prima facie case. Why the Court should do this in circumstances where her Honour had already heard and determined this very matter against the Defendant, was not made clear. 20 In this Court, both the Prosecutor and the Defendant proceeded on the basis that the issue of whether or not the Director-General was obliged to determine whether there was a prima facie case before giving consent, was not encompassed within question 3(i). The proposition that an unadorned statutory requirement of consent was restricted in this way has been rejected on a number of occasions. (See eg Goldsborough & Co v MacMahon (1887) 8 NSWLR 118 at 122; Oates v Attorney-General (Commonwealth) (1998) 156 ALR 1 at 7 line 5 and 8 line 10; sub nom Oates v Williams (1998) 84 FCR 348 at 354E and 355F. This issue was not considered by the High Court in Attorney-General (Commonwealth) v Oates (1999) 164 ALR 393 at [35]). 21 As the Court did not receive submissions on this issue it is not appropriate that we deal with it. This does, however, pose a difficulty because the only ground for "review" suggested before Pearlman J, or in this Court, was based on the proposition that no prima facie case had been presented to the Director. 22 The proceedings before her Honour were not proceedings for the judicial review of a decision by the Director-General to give consent to the prosecution. The proceedings before her Honour were concerned with whether or not the summons should be struck out as an abuse of process. One basis for the claim made was that: "The written consent of the Director-General of the prosecutor was defective in that the Director-General could not have been satisfied that there was a prima facie case against the defendant." [14] 23 The submission made to her Honour on behalf of the Prosecutor was made in the form that "the Director-General's consent is not reviewable by the Court". This submission was, in my opinion, misconceived. No part of the proceedings before the Land and Environment Court constituted in any form a "review" of the decision to grant the consent. The matter before that court was an application to strike out the summonses as an abuse of process. Insofar as the submission, which her Honour appeared to accept, suggested that the Court's power to control abuse of its process could not be exercised on the basis of a defect in the consent process, then, in my opinion, the submission went too far. 24 As Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94-95: "It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue." 25 The significance of the distinction between decisions involved in a prosecution process and issues concerned with the abuse of a court's process has been emphasised by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579, where their Honours said at [21]: "The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance." 26 Their Honours went on to quote an extract from the judgment of Gummow and Gaudron JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 where their Honours identified a number of "decisions involved in the prosecution process" which their Honours concluded were "of their nature insusceptible of judicial review". It may well be that decisions relating to consent to prosecute pursuant to a statutory requirement of such consent, should be added to their Honours' list. It is not necessary or desirable to determine that in this case. 27 However, nothing in the reasoning in Maxwell or DPP (SA) v B restricts the scope of considerations relevant to the exercise by the Court of a power to control abuse of its process. It may be that, in an appropriate case, a defect in the process of seeking consent could be relevant to the exercise of such a jurisdiction by a court. However, nothing in the submissions in this Court suggests any defect of a character relevant to abuse in this case. 28 It is not apparent that any issue of "review" of the decision to grant consent arose either "at" or "in reference to" proceedings within the meaning of s5AE(1) of the Criminal Appeal Act, in the matter before her Honour, namely the alleged abuse of process. It is not desirable to determine this issue in the absence of any submissions by the parties. 29 The only alleged defect in the consent process raised before Pearlman J, or in this Court, concerned the presence or absence of a prima facie case. Her Honour has rejected the materiality of this allegation by a ruling that has not been challenged and which does not arise on the Stated Case. In these circumstances, question 3(i) is hypothetical and it is undesirable for this Court to answer it in the abstract.

Disclosure of Essential Ingredients in the Summons 30 The summons set out the charge as follows: "… that, on or about 25 February 1998 at Woolloomooloo Bay in the State of New South Wales, it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to s16(1) of the Clean Waters Act 1970. Particulars

Pollutants 1. Oil; and/or 2. wastes containing oil; and/or 3. inflammable liquids Waters: Woolloomooloo Bay." 31 In this Court two alleged defects in the summons were pressed. First the Defendant submitted that the terminology "on or about 25 February 1998" was insufficiently specific. Secondly, it submitted that the summons failed to set out the actual acts or omissions of the Defendant which were alleged to constitute the alleged offence. Specifically, it was submitted that the charge should have identified the basis for the vicarious liability of the Defendant for the acts of its subcontractor. On either basis, the Defendant submitted, Question 3(ii) should be answered: "Yes". 32 In her judgment at [53] Pearlman J identified the essential legal ingredients of the offence as follows: "(a) a person (b) who polluted (c) waters (d) at a specified time (e) at a specified place (f) in contravention of s16(1) (g) constituting an offence under the EOP Act." 33 Her Honour concluded that all these essential factual matters appeared in the summons. 34 With respect to the first matter agitated on the appeal, I agree with her Honour. The formulation "on or about 25 February 1998" provides sufficient specificity. It is not necessary to identify a single day. The limited degree of approximation in the frequently employed formulation "on or about" constitutes a degree of specification that satisfies the requirements of pleading and of natural justice, which underlie the relevant principles. 35 The offence with which we are here concerned is not an offence in which time is, of itself, an element of the offence. (See R v Dossi (1918) 13 CrAppR 158 at 159-160; R v VHP (New South Wales Court of Criminal Appeal, 7 July 1997, unreported) at 15-16 per Gleeson CJ; R v Stringer [2000] NSWCCA 243 at [19]-[20] per Grove J). 36 With respect to the failure to identify the particular act or omission relied upon, Pearlman J found that this was a matter for particulars, rather than an essential ingredient of the offence. Her Honour said at [56]: "Although the prosecutor furnished in the summons particulars of the pollutants and the waters, the prosecutor has not particularised the acts or omissions of the defendant which it alleges constitutes the commission of 'pollute', and it is clear (which the prosecutor expressly acknowledges) that it must properly furnish further and better particulars to enable the defendant to know the nature of the case it has to meet ( Johnson v Miller (1937) 59 CLR 467)." 37 The relevant principles are as stated by Gleeson CJ in Stanton v Abernathy (1990) 19 NSWLR 656 at 666: "… an information must identify the essential factual ingredients of the actual offence alleged to have been committed … . The difficulty is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law rule has been infringed …" 38 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 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. 39 It is convenient to deal with the second matter first. The proposition that offences against s16 of the Clean Waters Act may be committed on the basis of vicarious liability is authoritatively established in Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 where at 720, Gleeson CJ, after noting that the authority had been applied by the High Court in R v Australasian Films Limited (1921) 29 CLR 195 at 214 quoted and applied the reasoning of Atkin J in Mousell Bros Limited v London and North Western Railway Co [1917] 2 KB 836 at 845, where his Lordship said: "… I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that affect or not regard must be had to the object of a statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed." 40 In Tiger Nominees Gleeson CJ went on at 720D to note that: "In this passage nothing, in my view, turns upon any distinction between 'absolute' liability and 'strict' liability."

(See also Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 at 507; Gatacre v Soil Conservation Service of NSW (1992) 78 LGERA 379 at 384-385). 41 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. (See AIS v EPA supra). The fact that the Defendant is vicariously liable is not an ingredient of the offence at all, let alone an essential ingredient. The Defendant's submissions in this respect should be rejected. 42 The issue of identification of acts or omissions has recently been considered by this Court in Taylor v Environment Protection Authority [2000] NSWCCA 71. The relevant principles were set out in the judgment of Sperling J with whom Meagher JA and James J agreed as follows: "[20] To be valid an information must identify the essential factual ingredients of the offence charged: John L Pty Ltd v Attorney General (1987) 163 CLR 508 at 519-520. Cassell (New South Wales Court of Criminal Appeal, 24 July 1996, unreported); Smith v Moody [1903] 1 KB 56 Johnson v Miller (1937) 59 CLR 467. [21] A distinction has been drawn between 'essential factual ingredients' (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence: De Romanis v Sibraa [1977] 2 NSWLR 264 Davies v Ryan (1933) 50 CLR 379 at 386 Stanton v Abernathy (1990) 19 NSWLR 656 per Gleeson CJ at 666. The latter are not essential particulars: Cassell (supra). [22] The authorities provide no comprehensive formula for what constitute essential particulars. However, in Johnson v Miller various requirements were identified. These include 'the time, place and manner of the defendant's acts or omissions: per Dixon J at 486, citing Smith v Moody at 61, 63. Dixon went on to say (at 489-490): 'In my opinion he (the prosecutor) clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing the complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.' See also Smith v Moody at 60; e x parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173; De Romanis at 291; John L Pty Ltd at 521." 43 The issue in Taylor v EPA, and in this case, to use the words of Dixon J in Johnson v Miller (1937) 59 CLR 467, is whether or not there has been sufficient specification of the "manner" of the alleged acts or omissions relied on. 44 In Taylor v EPA the charge was under the then s33(1) of the Pesticides Act 1978 which, relevantly, stated: "33(1) …a person shall not in … using … (a) a registered pesticide … wilfully or carelessly disregard any instruction on any label affixed to a container in which … (e) he knows or has reasonable cause to suspect the pesticide to have been, if there is a registered label for an approved container for the pesticide that contains that instruction." 45 The relevant text of the summons was: "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 section 33(1) of the Pesticides Act 1978 (NSW) …not being a person authorised under section 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 contained that instruction. Particulars (a) Registered pesticide: Ficam W Insecticide (b) Instruction: 'Do not allow contact with mattresses, bedclothes or clothing'." 46 Sperling J concluded as follows: "[23] 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 actual omission) the appellant is alleged to have allowed the pesticide to come into contact with such item or items." 47 In my opinion, some reference to the conduct, apparently of the Defendant's subcontractor, said to constitute the act of polluting was required in the summons and in the s41 order. 48 Section 16 has been called a "result offence", in the sense that the consequence, i.e. the pollution, is an essential ingredient of the offence. (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83). However as 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 s16(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." 49 I agree. Both the polluting and the pollution are essential ingredients of the offence under s16. The charge in this case referred only to the pollution. 50 In her reasons for decision Pearlman J referred to the provisions of s43 of the Land and Environment Court Act which enables the Court to cure defects in a summons. Similar considerations arose in this Court in R v Cassell (New South Wales Court of Criminal Appeal, 24 July 1996, unreported). In that case Gleeson CJ, with whom Sully and Hulme JJ agreed, identified defects in two of four informations presented in that case. 51 The question posed in the Stated Case before the Court in Cassell was: "Did I err in finding the informations were insufficient in law?" 52 Gleeson CJ made reference to s65 of the Justices Act 1902, which is the equivalent of s43 of the Land and Environment Court Act. His Honour concluded that the effect of s65 in that case was that the objection taken to the defects should not lead to the conclusion that the informations were insufficient in law and invalid 53 Gleeson CJ interpreted the words "insufficient in law" in the question, to encompass s65 of the Justices Act and, accordingly, answered the questions posed in the affirmative. 54 The question in the present case is framed differently. It focuses, and focuses only, on the omission of an essential ingredient in the words: "Did I err in finding that the summons disclosed properly the essential ingredients of an offence …". It is not open to this Court to take the course which the Court was able to take in Cassell. The applicability of s43 of the Land and Environment Court Act is a matter for further consideration in that Court. 55 The Question posed should be answered "Yes".

Must a Judge find a prima facie case? 56 Question 4(i) was requested by the Prosecutor. The issue turns on the proper construction of Pt 6 r 2(2) of the Land and Environment Court Rules 1996 in its application to s41 of the Land and Environment Court Act. 57 Part 6 r 2(1) of the Land and Environment Court Rules provide that Div 2 of Pt 75 of the Supreme Court Rules 1970 applies to Class 5 proceedings, with appropriate adaptations. Division 2 of Pt 75 of the Supreme Court Rules is concerned with the Court's summary jurisdiction. Rule 7 provides: "7 Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 4 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence."

The subject Act is the Supreme Court (Summary Jurisdiction) Act 1967. By Pt 6 r 2(1)(d) of the Land and Environment Court Rules a reference to that Act is taken to be a reference to a corresponding provision, if there is a corresponding provision, of Div 5 of Pt 4 of the Land and Environment Court Act, which makes special provision for Class 5 proceedings. The equivalent provision to s4 of the Supreme Court (Summary Jurisdiction) Act is s41 of the Land and Environment Court Act . 58 Section 41 of the Land and Environment Court Act which is in Div 5 of the Act, provides: "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, or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order. (2) An order under subsection (1) may be made ex parte. (3) An order in respect of an offence alleged to have been committed by a person may be made under subsection (1)(b) whether or not an order in respect of that offence has been made out under subsection (1)(a). (4) An order under subsection (1)(b): (a) shall be addressed to all members of the police force, (b) may be addressed to any other person specified in the order, and (c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court." 59 Part 6 r 2(2) of the Land and Environment Court Rules provides: "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." 60 Pearlman J referred to the decision of Cripps J in Baker v Macleod (Land and Environment Court, 1 August 1986, unreported). In that case - decided before the introduction of Pt 6 r 2(2) - his Honour had held that there was no requirement upon a prosecutor to furnish an affidavit concerning the nature of the case sought to be made against the defendant, before an order can be made for the issue of a summons under s41 of the Act. His Honour said at p5: "… it is no part of a judge's function to adjudicate upon factual matters which must be established if the prosecution is to succeed." 61 His Honour concluded at p6: "In my opinion, there is an obligation on the Court before directing the issue of a summons, to satisfy itself that the offence charged is an offence known to the law and within the jurisdiction of the Land and Environment Court and that (if appropriate) the proceedings were duly authorised. It maybe that the Court would also need to satisfy itself of the existence of a condition precedent to the commencing of proceedings as for example, the existence of an order of the Court. The Court would, of course, need to satisfy itself by evidence on oath that it was appropriate to order the apprehension of a person for the purpose of that person being brought before a judge to answer an offence charged. But it is no part of the function of the Court to embark upon an assessment of the quality of the prosecutor's case. In my opinion, it is undesirable that the Court should be seen to be supervising the performance of prosecutors or to be tendering advice in terms, or by implication, as to the sufficiency of evidentiary material in respect of matters calling for later determination." 62 Pearlman J noted that Pt 6 r 2(2) was introduced into the Rules of Court subsequent to the decision in Baker v Macleod. She indicated that, in her opinion, the rule was enacted at least in part to overcome that decision. Plainly the rule does have an impact on the decision, particularly on the finding of Cripps J at p5: "There is no requirement, in terms, that a prosecutor must furnish an affidavit setting out the nature of the case sought to be made against the defendant before an order can be made for the issue of a summons. 63 The issue before this Court is the extent to which the new rule has impinged on the balance of the reasoning of Cripps J in that case. 64 There are two purposes which may be intended to be served by the obligation to provide the affidavits to a judge exercising jurisdiction under s41 of the Act. The first is to give the judge material which indicates that it is appropriate to exercise the coercive powers for which the section provides. The second purpose is to establish a prima facie case, analogous to the long established tradition of committal proceedings for criminal offences, which serves the important function of ensuring that individuals are not subjected to the rigours of a criminal process without proper cause and that the public resources of a criminal justice system are not needlessly expended. 65 The actual terminology of r 6 2(2) is, in my opinion, more consistent with the narrower than the broader purpose. If a prima facie case was to be established then the rule would more appropriately have been expressed as follows: "…accompanied by affidavits establishing a prima facie case of the offence charged." 66 The actual rule differs in two respects from a clear statement of this character. First, it introduces words qualifying the nature of the affidavits which must accompany the summons in the terms that such affidavits must be those "intended to be relied on by the prosecutor as …" establishing the relevant facts. Secondly, the traditional formulation of "prima facie case" has not be used and in lieu thereof the rule employs the word "prima facie proof". 67 The qualification in terms of the intention of the prosecutor directs attention away from any decision making process on the part of the judicial officer. It focuses attention on executive conduct. Furthermore, the use of the word "proof" directs attention to the content of the evidence, rather than to any process of reasoning on the part of the judicial officer. 68 These indications in the text of the rule are supported by the context. 69 The reasoning of Cripps J in Baker v Macleod which highlights the undesirability of the Court becoming involved in reviewing the sufficiency of evidentiary material, or the performance of the prosecutor, is reminiscent of the reasoning of the High Court, particularly in the cases of Barton, Maxwell and DPP (SA) v B, concerning the undesirability of judicial involvement in the prosecution process, to which I have referred above in relation to question 3(i). 70 As Viscount Dilhorne put it in Director of Public Prosecutions v Humphrys [1977] AC 1 at 26: "A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution." 71 It is true that the jurisdiction of the Land and Environment Court contains a unique admixture of judicial functions and the functions of an administrative tribunal. However, this Court should be slow to construe the constituting act of, or rules of, a court in a manner that may give the appearance that the judges of the court perform a function that is closely associated with prosecution process. The independence and impartiality, and particularly the public perception of both independence and impartiality, of the judicial process should not be compromised in any manner with respect to the exercise by a court of a criminal jurisdiction. Clear words are required before the Court will adopt a construction of a court's acts or rules, which may have any such tendency. 72 Accordingly, in my opinion, the most important part of the context of the rule which falls to be construed in these proceedings is that s41 to which it relates is a power given to a Judge of the Court. By s33(2) of the Act, the Court's jurisdiction in classes 4, 5, 6 and 7 must be exercised by a Judge. 73 There are two significant points of distinction between an application under s41 and a committal proceeding. Under s41 proceedings are ex parte and the judicial officer does not conduct the preliminary examination for the purpose of a trial in another court. Furthermore, nothing in s41 suggests that only one application for an order can be made. Accordingly if a judge has to assess the affidavit material as to its adequacy on a prima facie case, or some other, test, an appearance may be given that the judge is in some sense supervising the prosecutorial process. In such a context the court should not, unless compelled to do so, construe a rule in the manner for which the defendant contends. 74 The second aspect of the context is that the jurisdiction of the Court under class 5 is a summary jurisdiction. The tradition of preliminary examination in our system of criminal justice is not concerned with summary proceedings, although there have long been provisions which permit a preliminary examination of an indictable charge to be transformed into a summary hearing. Nevertheless, the fact that the relevant jurisdiction is a summary jurisdiction does not support a construction of the relevant rule which requires something in the nature of a preliminary hearing at the point of time when the Court makes an order requiring an appearance before it by the alleged offender. 75 In my opinion question 4(i) should be answered "Yes".

Affidavit Evidence Before Talbot J 76 The Defendant submitted that questions 3(iii), (iv) and (vi) raised the same issues and could be dealt with together. However, it makes no submissions on question 3(iii) and it is not appropriate to answer it. 77 Question 3(iv) poses the question of whether the prosecutor "could rely upon" certain affidavits in support of the application to Talbot J. Question 3(v), which the Defendant dealt with separately, asks whether the affidavits supported a finding that "prima facie proof was established". 78 The jurisdiction of this Court is limited by s5AE to a "question of law". (See generally Endicott "Questions of Law" (1998) 114 LQR 292). 79 In Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389 at 394, the High Court said in a joint judgment: "The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurors to formulate tests for finding the line between the two questions, no satisfactory test of universal application has as yet been formulated." 80 In terms, the questions posed in 3(iv) and 3(v) are directed to the admissibility of evidence and whether or not the evidence constitutes "prima facie proof". The questions are not formulated as questions of law. The Defendant sought to identify a question of law under the rubric of the questions actually posed. Specifically, the submission was made that there was no evidence supporting what was alleged to be an essential matter to be proved, namely vicarious liability of the Defendant for the acts of others. 81 It is not desirable for this Court to reformulate the question actually posed so that it answers the description "question of law". In any event, by reason of the answer I propose to question 4(i), questions 3(iv) and 3(v) do not need to be addressed. 82 In my opinion each question should be answered "Decline to answer". 83 Question 3(vi) raises an issue as to validity of service. Part 75 r 9(1) of the Supreme Court Rules is applicable to the proceedings in the Land and Environment Court. That rule provides: "9(1) The summons and any affidavit in support of an application under section 4 of the subject Act shall not, unless the court so directs, be served before the making of the order but shall be served on the defendant when the minute or order is served on him." 84 Section 68 of the Land and Environment Court Act provides: "68(1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice. (2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect: (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and (b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally. (3) The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity." 85 In her judgment Pearlman J referred to the rule and said: "[63] That rule was not complied with by the prosecutor. The order and summons was served first, but unaccompanied by any affidavits. Three affidavits were served 15 days later, but none of those affidavits had been relied upon by the prosecutor in obtaining the order under s41. Two of the affidavits upon which the prosecutor so relied were served 23 days after the summons and order was served, and the third of such affidavits was served a further 21 days later. [64] Such a failure is not commendable and is hardly excusable on the part of an experienced statutory authority, but it does not nullify the proceedings. It is a proper case for the application of s68(2) of the Court Act, which provides, relevantly, that where there is, by reason of anything done, a failure to comply with the requirements of the Court Act or of the LEC Rules, the failure shall be treated as an irregularity and shall not nullify the proceedings. The defendant has not been required to plead, and all the relevant affidavits have now been served. There is, accordingly, no justification for proceeding otherwise than in accordance with s68(2)." 86 Question 3(vi) in the Stated Case refers to non-compliance with both Pt 75 r 8 and Pt 75 r 9. Rule 8 requires the filing of both the summons and order together. Her Honour did not consider Pt 75 r 8 in her judgment. Indeed, her finding of fact in [63] to the effect that "the order and summons were served first but unaccompanied by any affidavits" suggests that r 8 was in fact complied with. No submissions were made with respect to Pt 75 r 8 and it is not clear why it has been included in the question. Even if it were otherwise appropriate to do so, that part of question 3(vi) referring to Pt 75 r 8 should not be answered. 87 In the submissions to this Court the Prosecutor relied on the proposition that Pt 75 r 9 was not engaged because the affidavits required to accompany the summons pursuant to Pt 6 r 2(2) of the Land and Environment Court Rules are not "affidavits in support of an application", within Pt 75 r 9 of the Supreme Court Rules as applicable to the Land and Environment Court. This submission does not arise on the question in the Stated Case and this Court should not deal with it. 88 With respect to Pt 75 r 9, the "question of law" proposed to be raised by question 3(vi) does not clearly appear either on the face of the question or in the submissions. 89 The submissions in this Court on behalf of the Defendant were to the effect that "the conduct of the prosecution was such as to mean its failure to comply with the rules put it 'out of Court'. Its failure should not be excused so as to require the Defendant to be exposed to a criminal penalty" and "… the failure is fundamental and goes to the root of the prosecution. Had the prosecution been compelled to comply with the rules, it is clear that the proceedings could not have been commenced within time. The statutory limitation period was not able to be enlarged. The defendant is therefore exposed to a penalty if the section is applied. This is unconscionable". 90 I find it difficult to identify any question of law in these conclusory assertions. No submission was made as to why or how the words of s68(2) should be read down in any relevant manner. The reference to a standard of "unconscionability" and the invocation of the statutory limitation period is not made to appear material to the operation of s68(2)(a), which operates of its own force. The power conferred on the Court by s68(2)(b) was not engaged in the present proceedings. No issue arose with respect to the exercise by the Court of any discretion. 91 In the absence of any submission to the effect that the failure to serve the affidavits at the same time as the minute of order pursuant to Pt 75 r 9(1) was anything other than "a failure to comply with the requirement of ... the rules …", no reason was advanced why s68(2)(a) should not apply as her Honour found. 92 Accordingly I would answer Question 3(vi): "No with respect to Part 75 rule 9. Otherwise, decline to answer".

Conclusion 93 The Court should answer the questions as follows:

3(vi) No with respect to Part 75 rule 9. Otherwise, decline to Answer.

4(i) Yes. 94 GROVE J: I agree with Spigelman CJ. 95 KIRBY J: I agree with the Chief Justice. **********

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