Taylor v Environment Protection Authority

Reported Decision : 50 NSWLR 48 113 LGERA 116

CITATION : Taylor v Environment Protection Authority [2000] NSWCCA 71 FILE NUMBER(S) : CCA 60060/99 HEARING DATE(S) : 6 September 1999 JUDGMENT DATE : 25 August 2000

PARTIES : Rodney Scott Taylor v Environment Protection Authority JUDGMENT OF : Meagher JA at 1; James J at 49; Sperling J at 2

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : 50093/98; 50094/98; 50095/98 LOWER COURT JUDICIAL Lloyd J OFFICER :

V M Heath (Appellant) COUNSEL : D A Buchanan SC (Respondent) Sheridan & Stubbs (For Appellant) SOLICITORS : S Garrett (For Respondent) CATCHWORDS : CRIMINAL LAW & PROCEDURE - what constitutes an "information" - whether s 33(1) of the Pesticides Act 1978 requires proceedings to be commenced by information - whether a summons issued under Pt 75 r 7 of the NSW Land and Environment Court rules is an information - requirements for validity of an information - scope and application of a Lord Jervis provision curing defects in an information. LEGISLATION CITED : Criminal Appeal Act 1912; Pesticides Act 1978; Pesticides and Allied Chemicals (Amendment) Act 1987; Pesticides Act 1978; Land & Environment Court Act 1979; Justices Act 1902 CASES CITED: Cassell (Unreported, NSWCCA, 6 November 1996 ); Fraser v The Queen (No 2) (1985) 1 NSWLR 681; Hanley v Steel (1973) 5 SASR 242; The Queen v Hull (1989) 16 NSWLR 385; John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508; Stanton v Abernathy (1990) 19 NSWLR 656; The Queen v Slater [1881] 8 QBD 267; The Queen v Woolcott Forbes (1944) 44 SR (NSW) 333; Smith v Moody [1903] 1 KB 56; Johnson v Miller (1937) 59 CLR 467; De Romanis v Sibraa (1977) 2 NSWLR 264; Davies v Ryan (1933) 50 CLR 379; Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Bartlett (1896) 17 LR (NSW) 108; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; Ex parte Burnett ; Re Wicks [1968] 2 NSWLR 11; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; The Queen v Duff (1924) 41 WN (NSW) 23; Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 ACrimR 553; Environment Protection Authority v Cooke (Unreported, NSWCCA, 14 March 1996); The Queen v Madden (1995) ACrimR 367; The Queen v Wood (Unreported, NSWCCA, 8 June 1990); The Queen v Clyne (1980) 1 NSWLR 599; The Queen v Proust (1989) 17 NSWLR 267; The Queen v Clifford (1980) 1 NSWLR 314; NSW Grains Board v Davis (Unreported NSWCCA 17 July 1997); The Queen v Vatner (1992) 29 NSWLR 311. DECISION : Questions in stated case answered.

IN THE COURT OF CRIMINAL APPEAL CCA60060/99 MEAGHER JA JAMES J SPERLING J

Friday, 25 August 2000 Rodney Scott TAYLOR v ENVIRONMENT PROTECTION AUTHORITY JUDGMENT 1 MEAGHER JA: I agree with Sperling J.

SPERLING J : Three stated cases by Lloyd J of the Land and Environment Court of New South Wales raise materially the same questions for determination by this Court. The proceedings below bear the following serial numbers: 50093/98, 50094/98 and 50095/98.

Matter No.50093/98 2 I will deal first with the stated case in matter No. 55593/98. It is in the following terms:

The proceedings are one of three concurrent prosecutions brought by the Environmental Protection Authority as Prosecutor against Rodney Scott TAYLOR, the Defendant, alleging that the Defendant has committed offences against section 33(1) of the Pesticides Act 1978 (NSW), being use of a registered pesticide in careless disregard of an instruction on a registered pesticide label.

The Defendant on notice moved for dismissal of the proceedings on the ground that no information was laid by the Prosecutor in accordance with section 59(3) of the Pesticides Act 1978. I heard the said motion on 11 September 1998 and delivered my Reasons for Judgment on 5 November 1998.

In delivering my Reasons, I proposed to dismiss the Defendant's motion and the Defendant requested me to state questions of law pursuant to section 5A(1A) of the Criminal Appeal Act 1912 for determination by the Court of Criminal Appeal. I agreed to that request.

The prosecutor commenced each of these proceedings by way of summons filed on 2 June 1998 seeking an order under section 41 Land and Environment Court Act 1979 to appear. The order was issued on the same day.

The offence to which the summons refers is alleged to have been committed on or about 4 June 1997.

The Prosecutor clearly intended to commence the proceedings by way of summons in an attempt to comply with the procedure for commencement established by the Supreme Court Rules as they apply in the Land and Environment Court.

The Environmental Protection Authority is the party informing the Court of the offences alleged.

Each summons contains particulars of the offence alleged by stating the particular instruction which has been disregarded.

The Defendant has not sought further particulars of the offences disclosed by the summonses. He can still do so.

The Defendant submitted that section 59(3) of the Pesticides Act 1978 requires proceedings for an offence against that Act to be commenced by way of information. I did not accede to that submission.

Section 59(3) of the Pesticides Act 1978 provides "Except as provided by subsection (4), proceedings for an offence against this Act or the regulations may be commenced by information laid within 12 months after the time when the offence is alleged to have been committed."

The Defendant submitted that to the extent there is an inconsistency between section 59(3) of the Pesticides Act 1978 and Part 75 rule 7 of the Supreme Court Rules, as adapted by Part 6 rule 2(d) of the Land and Environment Court Rules, which provides that "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 41 of the Land and Environment Court Act 1970 (NSW) in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence." (underlining is the necessary adaptation) the former special provision prevails over the latter general provision. I acceded to that submission however, for the reasons given in paragraphs 13 to 21 inclusive (below), I found that there was no inconsistency.

I held that the provision in section 59(3) of the Pesticides Act 1978 for commencement of proceedings by information is not a mandatory provision.

I distinguished John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 514 on the ground that the majority of the Court treated the procedure outlined by the Consumer Protection Act 1969 section 56(4) as mandatory.

I held that the object of section 59(3) Pesticides Act is to establish a procedure for the commencement of proceedings against those who breach the provisions of the Act, which may begin with the laying of an information, but also may be initiated by a procedure which is fundamentally consistent with that procedure. I held that the general object of the Pesticides Act is achieved if the proceedings in the present case are commenced by summons. I therefore considered that the term "may" in referring to an information in section 59(3) is only directory.

I further held that proceedings may be commenced pursuant to section 59(3) of the Pesticides Act 1978 by information or by other relevant initiating process which performs the same function as an information.

I held that it is the duty of the Court to reconcile the operation of competing statutes where it is possible.

I held that it was relevant to whether a summons can satisfy the requirements for the initiation of proceedings under section 59(3) of the Pesticides Act 1978 that the term "information" can include an indictment (R v Hull (1989) 16 NSWLR 385 at 389).

I held that the mere presence of the word "lay" or "laid" in a statutory provision providing for the commencement of proceedings by information by itself does not exclude an initiating process by means other than information.

I held that permitting, in certain circumstances, a summons to initiate proceedings for an offence against s 33(1) Pesticides Act 1978 would not render s 40 of that Act meaningless.

I held that the summons filed in these proceedings performed the same function as an information and therefore satisfied the requirements of section 59(3) of the Pesticides Act 1978.

I held that the proceedings have been correctly commenced notwithstanding the fact that they have been commenced by summons.

The Defendant submitted, in the alternative, that the proceedings were void on the grounds that the summons was not sufficiently particular. The text of the summons was: "The Prosecutor claims: 1. An order that the Defendant, Rodney Scott Taylor of 1 Holman Street, Kempsey in the State of New South Wales appear before a Judge of the Court to answer to the charge that on or about 4 June 1997 at 73 Tozer Street, West Kempsey in the said State, he committed an offence against section 33(1) of the Pesticides Act 1978 (NSW) ("the Act"), in that, 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 contains that instruction. Particulars (a) Registered Pesticide: Ficam W Insecticide (b) Instruction: "Do not allow contact with mattresses, bedclothes or clothing"

The Defendant submitted that the summons did not contain the essential particular as to the act constituting and the manner of committing the offence because (i) the relevant instruction contained multiple parts; (ii) the summons did not identify which aspect of the instruction was alleged to have been disregarded; and (iii) no acts or omissions were particularised.

The Defendant further submitted that there is no statutory provision applicable to the proceedings permitting amendment of the summons to cure the lack of an essential particular or preventing objection on the grounds of such a defect. The Defendant submitted that section 43 of the Land and Environment Court Act does not apply to proceedings commenced by information pursuant to section 59(3) of the Pesticides Act 1978.

The Defendant submitted in the alternative that, if the said section 43 applies to the proceedings, that section would not cure invalidity due to the failure of the initiating process to specify an essential element of the charge.

I held that the summons was sufficiently particular.

I further held that section 43 of the Land and Environment Court Act applies to the proceedings and that this provision empowers the Court to ignore defects in initiating processes.

The Prosecutor had submitted in the alternative that if I found that section 59(3) Pesticides Act required the proceedings to be commenced by way of information, that the summons filed herein "served as" an information. The Defendant submitted that, if the summons was otherwise held to "serve as" an information, no informant was identified and the summons is not in its terms a statement by an informant that the Defendant committed an offence. Ultimately, the point did not arise because I held that the proceedings were not required to be commenced by way of information. However, I considered the submissions on this point in determining the validity of the summons. I held that the summons identified the Environmental Protection Authority as prosecutor and therefore that the Environmental Protection Authority is the party informing the Court of the offences alleged. I held that the summons is valid.

The Defendant made further submissions which are not relevant to the questions presently stated for determination by the Court of Criminal Appeal.

The appellant contends that I would err in law in dismissing the notice of motion on the grounds that (1) section 59(3) of the Pesticides Act 1978 requires proceedings for an offence against that Act in the summary jurisdiction of the Land and Environment Court to be commenced by way of information; and (2) it is not sufficient compliance with the requirement in (1) to commence the proceedings by way of summons; and (3) alternatively, the summons is void for want of sufficient particularity.

I annexe (a) a copy of the summons; (b) a copy of an exhibit received on the Defendant's motion, namely a copy of a specimen charge sheet; (c) a copy of my reasons for decision.

I submit the following questions for determination by the Court of Criminal Appeal: (1) Are proceedings in the summary jurisdiction of the Land and Environment Court of New South Wales for an offence against section 33(1) of the Pesticides Act 1978 required to be commenced by the laying of an information? (2) Are these proceedings invalid because they were commenced by filing of the summons herein pursuant to Part 75 rule 7 of the Supreme Court Rules, as adapted by Part 6 rule 2(d) of the Land and Environment Court Rules? (3) If the answer to either question (1) or question (2) is "NO", (a) is the summons lacking an essential particular; (b) if the answer to (a) is "YES", are the proceedings void?

3 Hereafter, I will refer to the defendant below as "the appellant" and the plaintiff below as "the respondent". 4 I will deal with the questions asked in order.

Question 1: Are proceedings in the summary jurisdiction of the Land and Environment Court of New South Wales for an offence against section 33(1) of the Pesticides Act 1978 required to be commenced by the laying of an information? 5 Section 59 of the Pesticides Act 1978 (NSW) provided as follows, so far as is relevant: " Proceedings for offences 59(1) Proceedings for an offence against this Act or the regulations: (a) ….. (b) may be disposed of summarily before a Local Court constituted by a Magistrate sitting alone or before the Land and Environment Court in its summary jurisdiction. (2) ….. (3) …..(P)roceedings for an offence against this Act or the regulations may be commenced by information laid within 12 months after the time when the offence is alleged to have been committed." 6 The section initially provided for proceedings for an offence to be instituted only in a Local Court. By the Pesticides and Allied Chemicals (Amendment) Act 1987 , s 59(1) was amended to allow such proceedings to be brought, as an alternative, in the Land and Environment Court of New South Wales. Before the amendment s 59 provided as follows, so far as is relevant: " Proceedings for offence 59(1) Proceedings for an offence against this Act or the regulations shall (a) ….. (b) be disposed of summarily before a Local Court constituted by a Magistrate. (2) ….. (3) Any such proceedings may be commenced by information laid within 12 months after the time when the offence is alleged to have been committed."

Subsection (3), it may be noted, was not altered in any substantive way. 7 The amendment was made in the context of the procedures of the Land and Environment Court. Part 6 r 2(1) of the rules of that court provided that certain rules of the Supreme Court of New South Wales applied to the relevant part of the Land and Environment Court's jurisdiction, with certain adaptations. As adapted, Pt 75 r 7 of the Supreme Court rules applied to summary proceedings for an offence in the Land and Environment Court. The adapted rule was (and is) as follows: "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 41 of the Land and Environment Court Act 1970 (NSW) in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence." 8 Part 6 r 2(2) of the rules provides that a summons seeking an order pursuant to s 41 is to be accompanied by affidavits intended to be relied on by the prosecutor as prima facie evidence of the offence. (Whether such affidavits were filed in the present case is not apparent from the stated case or otherwise from the appeal papers. Nothing was said on the point at the hearing of the appeal. I proceed on the basis that nothing concerning such affidavits - whether filed or not filed - operates to the advantage or disadvantage of either side.) 9 Section 41 is as follows, so far as is material. " 41. Orders for appearance or apprehension of defendants (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 …..." 10 The form prescribed for such an application is a summons, claiming an order that the defendant appear to answer to the offence (Form 74A). The prescribed form of order is to that effect (Form 74B). 11 Lloyd J held that s 59(3) of the Pesticides Act 1978 was not a mandatory provision, and that the subsection allowed proceedings to be instituted by a process which fulfilled the same function as an information. 12 I disagree. The word "may" is used in relation to commencement by information and in relation to the time limitation. It would be a strange thing if the legislature were to have used the one word as having a mandatory meaning in one respect and not the other. The time limitation cannot be anything but mandatory. It follows that commencement by information is also mandatory. 13 Furthermore, the two elements in the subsection are inextricably intertwined. It is an information which must be laid within 12 months, not any alternative process. It is unlikely to have been intended that proceedings instituted by information must be commenced within 12 months while proceedings instituted in some other way could be commenced at any time. 14 I conclude that s 59(3), in its original and amended form - there being no substantive change - required that proceedings for an offence be commenced by information and in no other way.

I would, for these reasons, answer question (1), Yes.

Question 2: Are these proceedings invalid because they were commenced by filing of the summons herein pursuant to Part 75 rule 7 of the Supreme Court Rules , as adapted by Part 6 rule 2(d) of the Land and Environment Court Rules ? 15 In my opinion, a summons under Pt 75, rule 7 is an information within the meaning of s 59(3). (It would be the more so, if affidavits were filed with it, disclosing a prima facie case, but that is put out of account.) My reasons follow. 16 The word "information" is most commonly used to mean the document by which criminal proceedings are instituted before a magistrate. The function of such an information is to provide sufficient information for the issue of a summons directing the defendant to appear to answer the charge. Depending on the context, however, the word may have a wider meaning. In Hanley v Steel , (1973) 5 SASR 242 at 246. Bray CJ said that an information can be "an initiatory proceeding of some kind …the initiatory step in proceedings of a criminal nature, which are to be disposed of summarily …..." The word has been held, in context, to comprehend an indictment: Slater , (1881) 8 QBD 267. Woolcott Forbes , (1944) 44 SR (NSW) 333. Fraser No 2. (1985) 1 NSWLR 681. In Hull , (1989) 16 NSWLR 385. the Court of Criminal Appeal was concerned with s 45B of the Poisons Act 1966 , which provided that an "information" for an offence may be laid within 2 years after the alleged commission of the offence. The prosecution had been commenced by indictment. It was held that s 45B applied. Gleeson CJ said at 394: "In my opinion s 45B has the meaning and effect contended for by the appellant. The word "information" is used in the wider rather than the narrower sense, and the time bar imposed by the section relates to the commencement by any means of a prosecution for an offence of the kind to which the section relates. For the reasons which follow I also consider that to issue an ex officio indictment against a person who has been discharged by a magistrate relevantly involves the commencement of proceedings." 17 In the present case, the legislature amended s 59 of the Pesticides Act 1978 , giving the Land and Environment Court jurisdiction to try offences under the Act. It did so in the context of the procedures of that court, which provided for proceedings of the relevant kind to be instituted by summons for an order requiring the attendance of the defendant to answer the charge. 18 In these circumstances, the word "information" in s 59(3) is to be construed to include such a summons. I would, therefore, answer question (2), No. 19 The summons being an information within the meaning of the legislation, the answer to this question must be, No.

Question 3(a): If the answer to either question (1) or question (2) is "NO", is the summons lacking an essential particular? 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 (No. 1) , (1996) 2 NSWCR 89 at 90. 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: R v Cassell (No.1) . (1996) 2 NSWCR 89. 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 J 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 a 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: ex parte Lovell; Re Buckley ; (1938) 38 S.R. (NSW) 153 at 173. De Romanis : at 291. John L Pty Ltd . at 521.

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 acts or omissions) the appellant is alleged to have allowed the pesticide to come into contact with such item or items. 24 Question 3(a) should accordingly be answered, "Yes". Question 3(b): If the answer to 3(a) is "YES", are the proceedings void?

25 Section 43 of the Land and Environment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (ie the summons) referred to in, or to any order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902, ss 30 and 65.

26 A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price : (1899) 20 LR (NSW) 343. e x parte Bartlett ; (1896) 17 LR (NSW) 108. Ex parte Thomas; Re Otzen ; (1947) 47 SR (NSW) 261. e x parte Burnett; Re Wicks ; [1968] 2 NSWR 11. Boral Gas (NSW) Pty Ltd v Magill . (1993) 32 NSWLR 501 per Mahoney JA at 517. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd ; per Brennan J at 529, 531. Stanton v Abernathy ; (1990) 19 NSWLR 656 per Gleeson CJ at 667. R v Cassell ; (1996) 2 NSWCR 89. R v Duff . (1924) 41 WN (NSW) 23. 27 The summons in the present case falls within the second category of defective informations. It is saved by s 43. 28 Question 3(b) should accordingly be answered, "No".

Matters No. 50094/98 and 50095/98 29 The only material difference between matter No. 50093/98 and the other two matters, as recorded in the respective stated cases, relates to the particular label instruction allegedly disregarded. In matter No. 50094/98, the instruction was, "Do not contaminate utensils or surfaces where food may be prepared or stored." In matter No. 50095/98, the instruction was, "Keep away from cooking and eating utensils and remove or cover raw or processed foodstuffs before spraying." The stated cases in matters 50094/98 and 50095/98 incorporate by reference the substance of the stated case in matter 5003/98, with that sole exception. The questions asked of this Court in each case are the same. 30 What I have said in relation to matter 50093/98 applies equally to the other two matters, with the same result.

Determination 31 The questions in each of the stated cases should be answered as follows:

Appeal procedure 32 As is recorded in the stated case, the judge was requested to state these cases pursuant to s5A(1A) of the Criminal Appeal Act 1912 and agreed to do so pursuant to that section. Section 5A(1A) had, however, been repealed and replaced by s 5AE with operation on and from 31 July 1998. 33 Section s 5AE provides as follows: " Point of law stated during summary proceedings 5AE(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction … the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit." 34 The requests to the judge were valid requests under s5AE(1) and the stating of the case was a valid exercise of power or function under the section. It is of no importance that it was thought by all concerned, and so recorded in the stated case, that the process was undertaken pursuant to a section by then repealed, whereas it was in fact authorised by a new section of the act, carrying a different number but which was, in presently relevant respects, in identical terms. What was done was validly done irrespective of what was thought to be the foundation of the validity. There is no procedural problem. 35 Having determined the questions submitted for determination pursuant to s 5AE(1), the function of this Court is, pursuant to s 5AE(2), to make such order or give any such direction to the court concerned as it thinks fit.

Consequential orders or directions 36 The appropriate order is that the proceedings be remitted to the Land and Environment Court for determination according to law.

Costs 37 As I have said, s5AE is in terms identical with the repealed s5A(1A) concerning the request to state a case and the stating of a case. However, the way the Court of Criminal Appeal is to deal with the stated case has been changed. Under s 5A(1A), the Court of Criminal Appeal was required to deal with the proceedings as an appeal. Under s5AE, the Court is required to determine the questions asked and to make such orders or give such directions as it thinks fit (as I have proposed in this case). 38 Section 17(1) of the Criminal Appeal Act 1912 provides that, on the hearing or determination of an appeal , no costs shall be allowed on either side. The effect of that section was held to be that costs could not be awarded in proceedings pursuant to s5A(1A): Environment Protection Authority v Leaghur Holdings Pty Ltd ; (1995) 80ACrimR 553. Environmental Protection Authority v Cooke Unreported, NSWCCA, 14 March 1996. It was to bring the s5A(1A) procedure into line with s5B and s5BA, particularly as to costs, that the amendment was made. Section 17(1) does not apply to s5AE. 39 There is, accordingly, power to award costs in the present proceedings. 40 The Authority has not advanced a submission that costs should be awarded merely because it is the successful party. In those cases under s5B where costs have been awarded, the court has mentioned special reasons for doing so. In Maddan, (1995) 85 ACrimR 367. for example, Hunt CJ remarked (at 7) that the stated case was "poorly drafted", "raised no appropriate question of law and that every issue argued before this court was determined against the appellant." 41 In Wood, Unreported NSWCCA 8 June 1990. Campbell J commented (at 6) that while the appellant had a "technical defence" which he was entitled to pursue, in his opinion the point raised by the appellant was not a good point. The decision was not a matter of public importance. 42 In Clyne, [1980] 1 NSWLR 599. Moffit J, with whom Begg and Cantor JJ agreed, said (at 602): "But for the application by Clyne for a stated case, it is clear that his appeal to the District Court would have been dismissed. He made written submissions drawn by him. These raised many questions, some highly artificial. They so obviously lacked merit that, when the hearing commenced, senior counsel briefed to argue the case announced that he abandoned them, or virtually so. The matter argued was substantially a new case. Even so, there was no merit in the new case, and counsel for the respondent was not called on. It is clear that it is appropriate that Clyne should be ordered to pay the costs." 43 In Proust , (1989) 17 NSWLR 267. Samuels JA remarked (at 272): "Before parting with the matter, I feel bound to observe that the form of the case stated does not, in my opinion, conform to what is contemplated by s5B….The case before us does not submit any fully formulated question of law but merely recites the learned judge's decision and the respects in which the parties contend that that decision was wrong; and ends by presenting the general inquiry whether the judge's determinations were erroneous in point of law. There is no question specifically asked in terms which enable a direct answer. I think that it would be better if these cases were stated by formulating the question or questions of law which have arisen in the fully interrogative form." (at 272) 44 In Clifford , [1980] 1 NSWLR 314. human rights issues were raised, and the court considered that the case was one of general importance. Nagle CJ at CL made recommendations for legislative change. 45 In these cases - Maddan, Wood, Clyne, Clifford and Proust - costs were awarded against the unsuccessful appellant. There were special reasons for doing do so in each case. 46 There are then two cases where costs were awarded against the unsuccessful respondent, who was also the prosecuting authority. In NSW Grains Board v Davis, Unreported NSWCCA 17 July 1997. Gleeson CJ awarded costs on the basis that the stated case had been unsatisfactorily enunciated and that the question of law was not of general importance. In Vatner (1992) 29 NSWLR 311. the court found that the defendant's arrest had been unlawful. Again, there were special reasons for awarding costs. 47 In the present case, the defendant had a cogent point, which was properly argued. There is no special reason for awarding costs in favour of the prosecuting authority in this case. I propose that no order for costs be made.

Orders 48 The only order I propose is that the proceedings be remitted to the Land and Environment Court of New South Wales for determination according to law. 49 JAMES J : I agree with the judgment of Sperling J.

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