McFadden v NSW Environment Protection Authority

Representation: Counsel:
A Hill (Appellant)
N Evans (Respondent)
Solicitors:
Pearl Beaumont (Appellant)
Environment Protection Authority (Respondent)

File Number(s): 2025/85301

ex tempore JUDGMENT

1. The Appellant (Mr McFadden) has appealed against his sentence and conviction in the Local Court for an offence under the s 10(1)(a) of the Pesticides Act 1999 (NSW) as provided by s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The Prosecutor issued him with three Court Attendance Notices before the Local Court. The hearing in the Local Court was held over 6 days commencing on 24 June 2024, days 2 and 3 were on 9 and 10 September 2024, days 4, 5 and 6 were on 5, 6 and 7 February 2025 and judgment was delivered on 11 February 2025. In the course of the hearing two Court Attendance Notices were discontinued so that one offence remained which the magistrate ruled on and found Mr McFadden guilty of. The Prosecutor called 13 witnesses to give evidence. Mr McFadden represented himself at the hearing in the Local Court. He had solicitors at some stages during the NSW Environment Protection Authority’s (EPA) investigations.

2. The appeal is set down for hearing on 29 October 2025 for one day. The amended statement of grounds of appeal filed in court today with leave identifies 15 grounds of appeal. By amended Notice of Motion dated 25 August 2025 the Appellant seeks in order 1 to limit the appeal hearing to the first four grounds of appeal and in order 2 seeks leave to adduce fresh evidence on those limited grounds.

3. An affidavit sworn by Mr McFadden dated 8 September 2025 was read in part to support the amended Notice of Motion in prayer 1 and was particularly directed to the desirability of having grounds 2-4 determined first, due to the time and cost of obtaining fresh evidence for grounds 5-9. The fresh evidence sought to be adduced was detailed in annexure A (which became Exhibit A). Exhibit A is an affidavit of Mr McFadden dated 8 September 2025 with an Exhibit JM1. In the course of the hearing parts of the primary affidavit dated 8 September 2025 were not read and some of Exhibit A (both affidavit and annexures) was not relied on. I also ruled on objections of the Prosecutor to both the affidavit and Exhibit A. A further document being an email marked Exhibit B is also sought to be tendered as fresh evidence.

4. The Prosecutor does not oppose prayers 1 or 2 in the amended Notice of Motion accepting my ruling on its objections in relation to Exhibit A as amended in the course of the hearing.

Prayer 1

5. Ground 1 alleges duplicity in the charge and is essentially a discrete ground about which no more need be said for the purposes of this judgment.

6. The Appellant submitted that focussing on grounds 2-4 in addition to ground 1 will be fair to Mr McFadden who represented himself at the hearing in the Local Court. A key issue in grounds 2-4 is that the magistrate did not rule early in the hearing before the Prosecutor commenced its evidence that Mr McFadden objected to answers, being admissions, provided to the EPA in response to a s 191 notice issued under the Protection of the Environment Operations Act 1977 (NSW) (POEO Act) being relied on as evidence. As I understand the Appellant’s submissions this failure on the part of the magistrate infected the whole of the hearing in the Local Court.

7. The Appellant alleged that fairness to Mr McFadden required that he have the opportunity in this appeal to have that issue determined first being grounds 2-4, in addition to ground 1, as that affects the balance of his grounds of appeal against conviction in grounds 5-9. Preparing for those grounds will involve further decisions about whether to seek leave to adduce fresh evidence and that decision will be informed by the findings in relation to grounds 2-4. Preparation of that fresh evidence will be time consuming and costly. Requiring Mr McFadden to prepare all grounds to be heard at the same time will be oppressive.

8. I accept these submissions and in any event having sought to understand the nature of the appeal before the Court, which is somewhat complex, consider as a practical matter that the appeal cannot be completed in one day regardless of any order that I make now.

9. In all these circumstances it is appropriate to make prayer 1 in the amended Notice of Motion.

Prayer 2

10. The application to adduce fresh evidence as now limited to Exhibit A in the course of the notice of motion hearing, and Exhibit B, should be allowed in the interests of justice in light of grounds 2-4. Prayer 2 will be made with amendments in accordance with discussion during the hearing.

Additional note

11. I note that I have asked the Appellants’ counsel if dealing with grounds 1-4 in the amended statement of grounds is dispositive of the appeal. The Appellant’s position is unclear with reference made to the possible exclusion of evidence arising if the grounds are successful. An order requiring that question to be answered must be included in my final orders dealing with the notice of motion as I consider clarification of that matter will assist in the appeal hearing in due course.

Orders

12. The Court orders that:

13. Leave is granted to the Appellant to amend the Appellant's Statement of Grounds ("the Amended Statement of Grounds") filed 21 August 2025 as follows:

(a) In each of Paragraphs 2 and 3, respectively, by addition of the words, "in fact and" before the words "in law".

2. Leave is granted to the Appellant to amend the Amended Statement of Grounds as follows:

(a) In Paragraph 3, by addition of the words, "on 24 June 2024", after the words "failing to determine". (b) In Paragraph 4, by addition of the words, "on 5 February 2025", after the words, “in determining".

3. By 4pm on 23 September 2025 the Appellant shall file and serve a Further Amended Statement of Grounds containing the amendments the subject of leave granted pursuant to Orders 1 and 2 of these Orders ("the Further Amended Statement of Grounds").
4. Pursuant to s 77(1) of the Land and Environment C**ourt Act 1979 (NSW), the Court hearing of the appeal on 29 October 2025 shall be limited to the hearing of the grounds in Paragraphs 1-4 of the Further Amended Statement of Grounds, which the Court shall determine separately from, and before the Court hears and determines, the grounds in Paragraphs 5-15.
5. Pursuant to s 37(2) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") the Court grants the Appellant leave to adduce on the hearing of the grounds in Paragraphs 1-4 of the Further Amended Statement of Grounds:

(a) The following documents, and parts of documents, tendered by the Appellant and exhibited on the hearing, on 18 September 2025, of the Appellant's Amended Notice of Motion filed 25 August 2025:

(i) Pages 10-23 of the document marked Exhibit “A" (“Exbibit A"), excluding: (ii) 1. The second sentence of Paragraph 39 of the affidavit of John McFadden sworn on 8 September 2025 ("the Appellant's Affidavit"), containing the words, "A copy of that email is at Tab [6] of Exbibit JF-1", (iii) 2. Paragraphs 41, 42, 54-57, and 67-68 of the Appellant's Affidavit, inclusive; (iv) Pages 24-83 of Exhibit JF-1 to the Appellant's Affidavit; and (v) Exhibit B, being an email dated 26 April 2023, 2:18PM, from Liam Fairgrieve, solicitor of HWL Ebsworth, to the EPA's "Ops North Coast Mailbox", copying in Mr Peter Holt, partner at HWL Ebsworth, comprising 1 page.

6. By 4pm on 9 October 2025 the Appellant shall file and serve on the Respondent a notice containing particulars of the evidence adduced in the lower court (on the hearing of the offence the subject of reasons delivered on 11 February 2025) that the Appellant contends ought be excluded, should the Court uphold Grounds 1, 2, 3 and/or 4 of the Further Amended Statement of Grounds.
7. Orders 2 and 3 of the Court's orders dated 12 June 2025, and Order 6 of the Court's orders dated 22 August 2025, are revoked.
8. By 11 October 2025 the Appellant shall file and serve an outline of his submissions in support of Grounds 1, 2, 3 and 4 of the Further Amended Statement of Grounds.
9. By 23 October 2025 the Respondent shall file and serve an outline of its submissions in reply.
10. The Appellant's costs on the filing and hearing of the Amended Notice of Motion be reserved pending the hearing and determination of Grounds 1-4 of the Amended Statement of Grounds.
11. Each of the Parties are granted liberty to apply to the Registry to re-list the matter on three days' notice to the other.

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