Resolution
30For my part, I have reached the firm conclusion that this is a matter in respect of which the court should not grant leave. It is clear, from the primary judge's carefully reasoned decision, that she was not satisfied that the unfairness alleged by the applicant had been established. On this central point, her Honour's decision is not attended with sufficient doubt to warrant the matter being argued on appeal.
31As I read the decision, there were essentially three reasons that underpinned the conclusion reached by the Pepper J. First, the applicant could not demonstrate that a licence must have been issued for the pumping station and its augmentation system.
32Secondly, if contrary to this finding, a licence had been issued, it would not have provided a defence for the present prosecution involving, as the incident did, a massive eruption of untreated sewage. Thirdly, the second "overflow" was not causally related to the work carried out by the council as a consequence of the EPA's prevention notices. Fourthly, her Honour found that no representation as alleged had either been made or relied upon. The limited evidence of Mr Chapman (to which I have earlier made reference) could not have amounted to a representation that would support the central argument advanced by the applicant.
33True it is that Mr Chapman gave oral evidence on the subject, as mentioned during submissions this morning by senior counsel for the applicant, but her Honour was not bound to accept that evidence, and indeed, it is clear, she was not persuaded by it.
34In relation to the disciplinary aspect of her Honour's decision, no error has been demonstrated. In my opinion, her Honour took into account all relevant matters, and did not overlook any matter of relevance. The ultimate decision, based as it was on the public interest in maintaining a prosecution of a significant kind, was well within her Honour's discretion. In addition, I have concluded that none of the matters alleged to be errors in the primary judge's decision warrant the grant of leave. I shall deal with each of these separately. I accept, as senior counsel for the applicant argued, that her Honour effectively examined need for a licence by reference to the Morisset Street Pumping Station, rather than by reference to the New South Wales reticulation system. Her Honour gave a number of reasons for this basis of examination.
35In this regard, the first conclusion reached by her Honour was favourable to the council. This was that the pumping system, indeed, fell within the definition of "sewage treatment systems" in the Schedule to the Act. However, the EPA had unsuccessfully argued that it did not. Notwithstanding this finding, her Honour thought that the capacity of the pumping station rendered it ineligible to be separately licensed. That aspect of her Honour's decision was criticised because a calculation of the capacity of the entire New South Wales reticulation system would have yielded a much greater and different result. While there is force in this submission, the remaining reasons advanced by her Honour as to why a licence was not required were plainly applicable however, not only to the Morisset Street pumping station, but to the New South Wales system as a whole. Indeed, these were the principal reasons, as I read the decision, that supported the primary judge's conclusions on this point. It could not therefore be said, despite the forceful arguments put by senior counsel for the applicant, that her Honour did not deal with the case advanced by the applicant.
36Secondly, I am not persuaded that her Honour's construction of the relevant legislation, both in Chapter 3 of the Act and Schedule 1, was other than broadly correct and was indeed appropriate to the circumstances of the argument presented before her. There may well have an arguable case relating to the first conclusion I have set out above but this aspect of the decision was, as I have said, favourable to the applicant.
37Thirdly, the argument relating to the legal test for a permanent stay does not, in my opinion, raise a question of principle and in any event the test is settled and well established, as her Honour noted in her decision.
38Fourthly, the evidence which was admitted for a limited purpose, was relied upon by the primary judge in an appropriate manner. Mr McIlwaine argued that certain evidence had been admitted on a limited basis under section 136 of the Evidence Act 1995 but that, despite this limitation, her Honour had in fact made factual findings beyond that permitted by the limitation. The evidence in question, including in particular that concerning the circumstances leading to the second overflow on the evening of 4 th November 2007, was said to have been admitted only on the basis that it was evidence of matters that the EPA had were entitled to have regard to in exercising its prosecutorial discretion in deciding whether to charge the council in respect of the second pollution incident.
39I do not, with all due respect, consider that there is any validity in this complaint made by Mr McIlwaine. There is no dispute that the evidence referred to in the written submissions filed on behalf of the applicant, and about which complaint is made, was admitted for the purpose stated. I do not consider that the findings made contravene this limitation.
40Particular attention was drawn to paragraph [155] of the judgment in which her Honour referred to the fact that the pollution was caused not by a failure of the structures but by the failure of the pump at the Morisset Street pumping station, combined with the failure of the council to provide a timely response to the stoppage. When considered in context, however, it is clear that her Honour was doing no more than evaluating the material available to the prosecutor which, on the assumption that the evidence were accepted, indicated that the cause of the failure in the system was as stated by her Honour. That was a significant matter underpinning the decision to prosecute. I do not consider that the finding made in this respect was one that went beyond the scope of the limitation under section 136. It is necessary to read the primary judge's decision fairly, and when read in that way, this seems to me to be the inevitable consequence.
41Fifthly, the argument concerning the power to award costs is of itself not sufficient to warrant the grant of leave. It can have no real connection to the corrections or otherwise of the decision on the stay application. However, Mr Glissan QC has indicated his instructions are that, on this limited point, this Court may, if it thinks appropriate, vacate the costs order particularly as it was not the subject of any submissions or debate in the court below. I consider that the order should be vacated because it was not a matter brought to either partiy's attention before it was made. As a consequence, neither party had an opportunity to make any submissions concerning the order. The vacation of the order for costs will enable the court below to consider that issue at some future point of time if it becomes necessary. I prefer not to express any opinion on the availability of the power to order costs in the present situation.
42Finally, the additional ground (relating to facts that should have been found at first instance) does not commend itself to my mind as a matter warranting the grant of leave. Her Honour's findings in this regard are clearly set out between paragraphs [151] to [171] of the decision. These findings, and her Honour's overall analysis of the factual situation, demonstrate the inherent weakness of the representation argument sought to be relied upon by the applicant at first instance. There was nothing to stop the council, if it wished, from applying for a licence and if refused to appeal the decision to the Land and Environment Court. More importantly, as her Honour found, the EPA's attitude that it could not issue a licence, or that a licence was not required for the pumping station, simply could not equate to a representation by the EPA that pollution occasioned by a major sewage surcharge would ever be regarded as permissible. Nor could it amount to a representation that a prosecution would not be mounted if such an event occurred. Mr Chapman himself acknowledged, as her Honour noted, the EPA had made it "perfectly clear" that no licence would be issued that permitted "an overflow structure which would discharge untreated sewage".
43Finally, her Honour noted at paragraph [155] that the pollution was caused not by a failure of the underground retention system and earth bund installed as a result of the prevention notices. It was caused by the failure of the pump at the Morisset Street Pumping Station, combined with the failure of the council to provide a timely response to the stoppage. This evidence was before her Honour precisely on the point of the prosecutorial discretion. For that reason, it was available to her to consider on both the unfairness and discretion issues. It was not of course evidence of the truth of the facts for the purpose of the proposed prosecution. Mr Glissan QC agreed that this was the case and that the findings are not to be findings in the trial, nor could they be treated as such.
44In these circumstances the factual findings at paragraphs [151] and [153] which are challenged were plainly open to her Honour and there is no sufficient doubt, in my opinion, as to the correctness of those findings. In these circumstances I would propose the following orders:
(1) The decision below be varied but only to the extent necessary to vacate the order for costs made by Pepper J.
(2) Otherwise leave to appeal should be refused.
45HALL J: I also agree that leave should not be granted from the judgment of her Honour Justice Pepper on the stay application. In the circumstances in which the costs order was made, and having regard to the fair and proper concession by senior counsel for the respondent, I am also of the view that the costs order should be set aside. I otherwise respectfully agree with the reasons of the presiding judge and the orders that he proposes.
46MCCALLUM J: I agree with the orders proposed by the presiding judge for the reasons his Honour has stated.
47WHEALY JA: The orders of the Court will be as I have proposed. The Court will now adjourn.