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[2025] NSWLEC 83
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-11
Pepper J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale (No 4) [2025] NSWLEC 83
Hearing dates: 17 October 2024
Date of orders: 11 August 2025
Decision date: 11 August 2025
Jurisdiction: Class 5
Before: Pepper J
Decision: See orders at [256].
Catchwords: ENVIRONMENTAL OFFENCES: application for costs following the withdrawal of criminal proceedings – whether the investigation of alleged offences under s 120 of the Protection of the Environment Operations Act was unreasonable or improper – whether the proceedings were initiated without reasonable cause or in bad faith – whether the prosecutor unreasonably failed to investigate matters – whether the prosecutor failed to communicate the withdrawal of proceedings in a timely manner – whether exceptional circumstances warranting an award of professional costs – entitlement to a costs certificate under s 2 of the Costs in Criminal Cases Act – applicable legal principles – limited costs order made in some of the proceedings – costs certificate issued in relation to some of the proceedings.
Legislation Cited: Costs in Criminal Cases Act 1967, ss 2, 3
Criminal Procedure Act 1986, ss 208, 246(1), 247E, 247F, 247G(3), 247H, 247J, 247K, 247L, 257B, 257C, 257D, 257G(b)
Environmental Planning and Assessment Act 1979, s 121B
Land and Environment Court Act 1979, s 34
Protection of the Environment Operations Act 1997, ss 96, 120, 120(1), 121, 122, 169, 192, 196, 198, 203, 216, Sch 6
Cases Cited: Beatson v R [2015] NSWCCA 17
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
Cumberland Council v Tony Younan; Ronney Oueik; H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67
Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287
Environmental and Earth Sciences Pty Ltd v Environment Protection Authority [1999] NSWCCA 192; (1999) 103 LGERA 434
Higgins v The Queen (No 2) [2022] NSWCCA 82
JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228; (2014) 87 NSWLR 320
JD v Director of Public Prosecutions [2000] NSWSC 1092
Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257
Kiangatha Holdings Pty Ltd v Oberon Shire Council [2020] NSWLEC 1386
Kiangatha Holdings Pty Ltd v WaterNSW [2020] NSWCCA 263
Kiangatha Holdings Pty Ltd v WaterNSW; Natale v WaterNSW [2022] NSWCCA 280
Knezovic v Shire of Swan-Guildford [1968] HCA 38; (1968) 118 CLR 468
Lismore City Council v Ihalainen (No 3) [2015] NSWLEC 53; (2015) 212 LGERA 222
Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30
Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21; (2009) 165 LGERA 6
R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia [1978] HCA 51; (1978) 140 CLR 470
Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 7) [2022] NSWLEC 83
Southon v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352
WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale [2019] NSWLEC 185
WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale [2022] NSWLEC 6
WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Natale [2023] NSWLEC 142
Category: Costs
Parties: WaterNSW (Prosecutor)
Kiangatha Holdings Pty Ltd (First Defendant)
Laurence Natale (Second Defendant)
Representation: Counsel:
M Wright SC with Z Shahnawaz (Prosecutor)
B Collins KC (First and Second Defendants)
Solicitors:
Lindsay Taylor Lawyers (Prosecutor)
Sparke Helmore Lawyers (First and Second Defendants)
File Number(s): 2018/295909; 2018/295910; 2018/295911; 2018/295912
Publication restriction: Nil
TABLE OF CONTENTS PARAGRAPH NUMBER
Kiangatha Holdings Pty Ltd and Laurence Natale Seek Their Professional Costs of Four Withdrawn Criminal Proceedings [1]
Kiangatha Owns and Occupies Property in the Megalong Valley [8]
Investigation by WaterNSW [23]
WaterNSW Commences Class 5 Proceedings [53]
The First Notices of Motion [66]
The Appeal of the First Notices of Motion [76]
The Second Notices of Motion [85]
The Appeal of the Second Notices of Motion [97]
The Third Notices of Motion [117]
Preparation for the Trial [132]
Kiangatha and Natale Seek Their Costs [148]
The Relevant Legislative Regime [152]
Issues for Determination [159]
Evidence of the Parties [160]
Summary of the Parties’ Positions [165]
Legal Principles Applicable to an Award of Costs to a Defendant [167]
The Unreasonable Investigation Issue [170]
The Without Reasonable Cause Issue [188]
The proceedings were not initiated without reasonable cause [196]
The proceedings were conducted improperly [205]
The Unreasonable Failure to Investigate Issue [226]
The Exceptional Circumstances Issue [232]
Costs Payable on an Ordinary Basis [236]
The Costs Certificate Issue [238]
Costs of the Motions [253]
Orders [256]
By four amended summonses filed by WaterNSW on 27 September 2018, Kiangatha Holdings Pty Ltd (“Kiangatha”) and Laurence Natale were each charged with two offences against s 120(1) of the Protection of the Environment Operations Act 1997 (“POEOA”).
The offences related to the pollution of waters during the construction of a dirt road between 8 and 10 kms on land owned by Kiangatha, located approximately 15 kms west of Katoomba in Ganbenang, NSW, in the Megalong Valley (“the property”).
Kiangatha was the principal defendant in proceedings 2018/295909 and 2018/295910, and Natale, Kiangatha’s director, was the defendant in proceedings 2018/295911 and 2018/295912 through the special executive liability provisions contained in s 169 of the POEOA.
All four amended summonses were ultimately withdrawn by WaterNSW. The amended summonses in respect of proceedings 2018/295910 and 2018/295912 (“Sites A and B”) were withdrawn on 4 August 2023 and the amended summonses in respect of proceedings 2018/295909 and 2018/295911 (“Sites C and D”) were withdrawn on 19 July 2024.
Kiangatha and Natale now seek an order that WaterNSW pay their professional costs of the proceedings pursuant to s 257C(1) of the Criminal Procedure Act 1986 (“CPA”) on an indemnity basis, to be determined in accordance with s 257G of that Act.
In the alternative, Kiangatha and Natale seek that the Court grant them a certificate under s 2 of the Costs in Criminal Cases Act 1967 (“CCCA”).
For the reasons that follow, I find that in relation to the charges referable to Sites A (proceedings 2018/295910) and B (proceedings 2018/295912), WaterNSW should pay Kiangatha and Natale’s costs from 28 June 2023 on an ordinary basis, but that there is to be no order for costs in the defendants’ favour in respect of Sites C and D (proceedings 2018/295909 and 2018/295911, respectively).
Further, the Court grants a costs certificate to Kiangatha and Natale in proceedings 2018/295910 and 2018/295912 (Sites A and B) but not in proceedings 2018/295909 and 2018/295911 (Sites C and D).
The background facts relevant to these applications have been set out in some detail having regard to the nature and extent of the submissions put by Kiangatha and Natale.
The background to the charges was summarised by Fagan J in Kiangatha Holdings Pty Ltd v WaterNSW [2020] NSWCCA 263 (“Kiangatha CCA”) as follows (at [4]-[7]):
[4] In 2017 the first applicant (“Kiangatha”) was the owner and occupier of 13 parcels of land comprising a total of about 5,000 ha located approximately 15 km west of Katoomba in the Megalong Valley (“the land”). The second applicant, Mr Natale, was the director of Kiangatha at that time. At its eastern end the land has a frontage onto Cox’s River. From there the various parcels extend for approximately 5km to the west. Gibraltar Creek joins Cox’s River at the north-eastern corner of the land. From this point Gibraltar Creek runs more or less due west and forms approximately 1 km of the northern boundary of the land.
[5] The land is hilly, with slopes generally descending from the southern boundary toward the north, steeply in places. Most of the land is covered by light eucalypt forest, with some cleared areas. A public road known as The Six Foot Track traverses parts of the land. The Track follows Gibraltar Creek for about 1 km west of Cox’s River and crosses parts of the western section of the land along the south bank of a tributary of Gibraltar Creek named Murdering Creek.
[6] The respondent alleges that between 1 May and 10 October 2017 Kiangatha constructed an unsealed road over numerous parcels of the land at the direction and under the control of the [sic] Mr Natale. The length of the road is given, variously, as 8 km or 10 km. This work was not discovered until an inspection was conducted by an officer of Oberon Council on 4 October 2017. It was reported by the Council to the respondent the next day. It is alleged that in performing this work the applicants failed to implement sufficient measures for sediment and erosion control to contain the flow of sediment from the disturbed ground, resulting in sedimentary pollutants either being deposited into ephemeral drainage lines or being placed in a position from which it was likely the sediment would descend or be washed into the drainage lines.
[7] Ephemeral drainage lines are depressions in the natural surface of the land that become watercourses when sufficient run-off occurs during significant rainfall. They may also be referred to as gullies. The gullies that are the subject of the respondent’s allegations follow the slope of the land from south to north and lead to Murdering Creek and Gibraltar Creek. From photographs that are in evidence it appears the gullies are dry most of the time. In some locations road construction was carried out directly across gullies with the result that soil and sediment was placed directly into those features. In other places disturbed soil on cuttings, batters, embankments and the like was left in such a position that plumes of sediment could fall or be washed or blown into gullies.
James Caddey, Catchment Assessments Officer and authorised officer at WaterNSW and qualified surveyor, first became aware of development on the property in March 2013 when Natale sent an email to Malcolm Hughes, the then Manager of Planning and Assessments at the Sydney Catchment Authority (“SCA”). The email attached a concept plan that proposed a 300-lot subdivision of the property, a 200 room hotel, a golf club house and an equestrian facility (“the proposed development”).
Caddey first attended the property on 11 April 2013 to assess the possible water quality impacts of the proposed development. He observed that the property was extremely steep and, in some parts, mountainous. Accordingly, he considered that there would be significant constraints in developing the property.
Natale met with Rodney Lund, an employee at RT & KM Lund, Earthmoving and Excavation Contractors (“RTKM”) on 12 May 2017. At that meeting Kiangatha engaged RTKM to undertake earthworks at the property.
A letter of advice drafted by Caddey was sent by Greg Greene, the then Manager of Planning and Assessments at the SCA, to Natale on 16 June 2013. The letter outlined the issues involved with developing the property and advised Natale that an estimated 40% of his property was made up of “State Protected Lands” under the Native Vegetation Conservation Act 1997 or “vulnerable lands” under the Native Vegetation Act 2003, being land with slopes of more than 18 degrees. Greene also instructed Natale that he would need to prepare a Water Cycle Management Study for the proposed development in order to demonstrate how it would have a neutral or beneficial effect on water quality during both the construction and operational phases.
Between May 2017 and 5 October 2017 Kiangatha contracted RTKM to perform the following earthworks at the property:
(a) regrading and vegetation removal of approximately 4 kms of existing gravel access and fence line tracks within the property; and (b) grading of approximately 6 kms of gravel access tracks to link access to the property from the Six Foot Track and a public road, and to connect cattle grazing land across the property.
8 The Track Works were required to provide safe heavy vehicle access to the Property grazing areas by cattle trucks, including to remove free roaming cattle that were located across the Property. Some of the cattle had roamed into adjacent land that Kiangatha had previously leased from New South Wales Crown Lands (Crown Lands), of approximately 5,500 acres (Leasehold Land) and used for cattle grazing. The lease of the Leasehold Land had expired and reverted to form part of the Kanangra-Boyd National Park (the Park).
9 In 2016, Kiangatha was required by NSW National Parks (National Parks) to remove its cattle from the Leasehold Land.
10 By October 2017, I estimate that there was about 80 head of cattle that belonged to Kiangatha and would have been free to roam over the Property and the Leasehold Land, as there were no partition fences between the sites.
11 Prior to the Track Works, Kiangatha accessed the Property through Lot 16 DP 757035, owned by Crown Lands and from whom Kiangatha held a lease to graze its cattle over that property. That lease expired in 2012, after which Kiangatha had no access from the Six Foot Track to its grazing lands within the Property.
(a) $4,466 for “18 hrs dozer hire” and “freight on dozer”, dated 12 May 2017; (b) $5,643 for “forward payment been for 27hrs dozer hire to form fire trails”, dated 25 May 2017; (c) $3,762 for “forward payment been for 18hrs dozer hire to form fire trails”, dated 31 May 2017; and (d) $1,881 for “forward payment been for 9hrs dozer hire to form fire trails”, undated.
Natale emailed Rodney Lund on 9 August 2017, stating that, “my understanding is that the work is being processed under RAMA/Routine Agricultural Maintenance Activity”.
On 10 August 2017 Natale and his licenced stock and station agent, John Costigan, met with Shane Wilson, the then Planning and Development Director at Oberon Council (“the Council”). Natale gave Wilson a copy of plans for an ecotourism development showing six cabins on four lots connected by a road throughout the property.
At that meeting Wilson recalled advising Natale and Costigan that the ecotourism development was potentially possible with consent, however, that ecotourism activity and works associated with the development would need to have little to no environmental impact. Natale did not inform Wilson that the road construction works had already commenced.
The Council received an enquiry on 4 October 2017 from local resident, Sharon Kerr, asking whether it had granted permission for the “massive road” being constructed on the property.
In response to Kerr’s complaint, Wilson and Chris Schumacher, the Technical Services Director at the Council, conducted a site inspection of the property on the same day and observed heavy machinery, road construction works and freshly bulldozed land. Wilson also noticed that there was no erosion or sediment control measures in place. At the inspection Wilson directed the earthworks to cease and the machinery to be removed from the property (“the first Stop Work Order”).
The matter first came to the attention of an authorised officer of the Council on 4 October 2017, and to the attention of an authorised officer of WaterNSW on 5 October 2017, following notification by the Council.
On 5 October 2017 Wilson called authorised officer and Catchment Compliance Manager at WaterNSW, Paul Crossan, and advised him about the unauthorised construction of a network of unsealed roads by Kiangatha.
In response to a request from Natale for a meeting with the Council to understand “the issues involved” with the development, Wilson advised Natale at 7.47 am on 5 October 2017 that:
I appreciate the concern you now find yourself under, however, this is not a matter in which Council is going to rush.
It will involve a complex and full investigation that will be undertaken over the coming days and weeks.
I will liaise with the General Manager upon his return next week and advise you of a time that will be suitable to meet and further discuss this matter.
In the meantime, I suggest that you take all reasonable measures to ensure that environmental damage is minimised, including and [sic] erosion and sediment control alike.
Please note that this doesn’t include the continued removal of trees or the construction of roads.
That same day, Lund attended the Council’s office at approximately 11.00 am and advised Wilson that “there is in excess of 10 km of road constructed throughout the property”. Lund provided Wilson with a statement concerning the works, emails from Natale requesting that the works be undertaken, copies of invoices for the works, and photographs of the construction on the property.
At 3.00 pm on 5 October 2017 Natale and Costigan met with Wilson. Natale informed Wilson that the works were necessary to allow access in order to remove 80 head of wild cattle from the property. Wilson advised Natale to engage a suitably qualified person to advise him in relation to environmental protection measures.
After searching the Council’s Development Consent Register and finding no indication that Kiangatha had been granted development consent for the works carried out at the property, on 10 October 2017, Wilson issued Natale with an order under Item 19 of s 121B of the Environmental Planning and Assessment Act 1979 (“EPAA”) requiring him to cease all works associated with the construction of roads on the property (“the second Stop Work Order”).
WaterNSW officers subsequently carried out inspections of the property on 10, 13, 18 and 23 October (by helicopter), 6, 16 and 21 November, and 4 and 28 December 2017. On each occasion, officers of WaterNSW recorded observations, mapped the extent, and took photographs and videos, of the works.
In addition, WaterNSW officers investigated ownership of the property, whether any development consents applied, and details of Kiangatha, including its registration and officers.
In November 2017 WaterNSW commissioned Mark Passfield, Environmental Scientist and Director at Strategic Environmental and Engineering Consulting (“SEEC”) and certified professional in erosion and sediment control, to produce an expert report into the sediment control practices adopted at the property and the water pollution impacts of the works. Specifically, WaterNSW requested that Passfield (footnotes omitted):
(i) Undertake a site inspection with WaterNSW staff to inspect approximately 10km of recently-constructed, unsealed road/tracks.
(ii) Prepare a report that:
• Describes the issues relating to erosion and sediment control; and
• Includes specific advice on whether the works are causing, or are likely to cause, a pollution event (noting that the pollutant of concern is sediment).
(iii) If the advice is that the works are causing, or likely to cause, a pollution event, provide general advice on measures required to prevent pollution.
(iv) Provide a professional opinion on whether there is a potential for run-off water from the site of the road construction to reach receiving waters and tributaries within the declared catchment vicinity.
Passfield conducted a site inspection of the property on 21 November 2017 in the company of Amelia Stein, a Compliance Officer at WaterNSW and qualified soil scientist. He obtained soil samples from two locations on the property for a suite of erosion-control soil tests.
Fiona Smith, the Executive Manager of Water Catchment and Protection at WaterNSW, issued a Notice of Preventative Action under s 96 of the POEOA to Kiangatha on 7 December 2017 (“Prevention Notice”). The Prevention Notice required Kiangatha to carry out certain works and to provide WaterNSW with progress reports. Direction 4 required Kiangatha to:
On all roads, install and maintain appropriate stormwater management measures, including suitable rollover banks, mitre drains or other appropriate measures as required, to reduce stormwater flow velocity on the exposed road network, and to appropriately divert this stormwater onto stabilised areas, in accordance with [the Blue Book, Volume 2C].
Kiangatha was also required, by direction 3 of the Prevention Notice, to “establish at least 50% ground cover over the exposed road network and its associated earthworks on the premises” by 5.00 pm on 4 January 2018.
In his affidavit sworn on 22 August 2024, Natale deposed to the “extensive and costly works” required to comply with the Prevention Notice, which he said “was impossible for Kiangatha to achieve in the short time specified having regard to the holiday period”. These works included:
(a) installing and maintaining erosion and sediment controls; (b) establishing 50% groundcover to exposed tracks; (c) installing and maintaining stormwater management measures; (d) engaging a registered surveyor to survey the track works; and (e) engaging qualified consultants, including a certified professional in erosion and sediment control to prepare a Soil and Water Management Plan and a Remediation Plan.
On 15 December 2017, Kiangatha filed a class 1 appeal seeking a stay of the Prevention Notice.
The Court made orders on 21 December 2017 staying parts of the Prevention Notice. In respect of direction 4, the Court ordered Kiangatha to submit a plan of “Priority Areas” that required the most immediate remediation work to be completed by 22 December 2017. Direction 3 was varied to require the works to be completed by 28 February 2018, and only in certain Priority Areas agreed with by WaterNSW.
In compliance with the Court’s orders, Kiangatha provided a plan of five Priority Areas to WaterNSW on 21 December 2017 and engaged:
(a) Calare Civil, soil engineers to advise in relation to sedimentation controls; (b) Robert Resources, soil consultants as its consulting engineer; (c) AAM Pty Ltd, surveyors for aerial surveying; (d) Central West Surveying, to carry out ground surveying; and (e) various civil contractors, to carry out land works.
On 3 January 2018 WaterNSW provided Kiangatha with a revised plan of six Priority Areas and an amended schedule of works for those areas.
Further inspections of the property were conducted by officers of WaterNSW on 2 March, 20 June and 19 September 2018, 20 April 2021 and 8 May 2023.
WaterNSW received an expert report from Passfield on 9 January 2018 (“the Passfield Report”), which concluded that:
- It is my opinion that the works have already caused, and are likely to continue to cause, a pollution incident:
○ Plates 7, 8, 11, 13, 14, 15 and 16 all show sediment that has been either washed into, or placed into, a watercourse or drainage line. Most of the plates show the sediment in first or second order watercourses.
○ I concluded the sediment was derived from work areas because it:
— Had a similar colouration to the disturbed soils;
— Had no topsoil or organic matter within;
— Had no vegetation growing on it; and
— Could often be traced back to the works area by following the plume upstream.
○ The earthworks have exposed soil surfaces exposed to the forces of erosion by rain-splash sheet erosion, rilling and concentrated flow.
○ Locally, soil has been placed across or within watercourses and natural drainage gullies, putting it into a position where it is likely to become mobilised by concentrated flow.
○ Locally, the site has a very high concentrated-flow erosion risk due to the steep topography (natural and man-made).
○ The site has a high sheet-erosion risk due to the moderate erodability of the soil coupled with the steep topography.
○ The soil contains 20-60% fine-grained material (fine sand or finer) which, because of the site's steep topography, could be transported a significant distance from its source.
○ A small portion of the soil (2-7%) is dispersive and so would not settle under gravity. It could be transported into the Coxs River and thence to Warragamba Dam.
○ The earthworks have not included "practicable means as may be necessary to prevent, control or minimise pollution". There is no Soil and Water Management Plan to aid that.
○ The earthworks have not been carried on in accordance with good environmental practice. In particular:
— There is no Soil and Water Management Plan prepared for the works that meets the requirements of the relevant guidelines (Landcom (2004), DEC (2008) and OEH (2012)).
— Drainage control on the road works is poor; concentrated surface water is frequently scouring the new road pavements and is frequently flowing over steep batters causing erosion.
— There are very few sediment control measures in place.
— There has been no attempt at progressive rehabilitation of exposed soils (i.e. no attempts to re-vegetate or cover embankments).
— Soil has been placed across watercourses and gullies with no culverts installed.
— Soil has been pushed into drainage lines.
- The site contains a number of drainage lines and first and second order watercourses (Jenolan and Hampton 1:25,000 topographic maps). These gullies and watercourses are tributaries of Murdering Creek or Gibraltar Creek. Murdering Creek joins and becomes Gibraltar Creek which then joins Coxs River.
- I observed eroded material in some first and second order streams on the site (e.g. Plates 7, 8 ,11, 13, 14, 15 and 16). The material was generally coarse grained fine gravel. The lack of finer material (fine sand, silt and clay) indicates it would have washed further downstream.
- The soil contains about 40-60% fine-grained material (fine sand, silt and clay) which, because of the site’s steep topography, could be transported a significant distance from its source.
- It is my opinion that fine sand, silt and clay could have been transported as far as Murdering Creek and/or Gibraltar Creek, as the local topography remains steep up to their banks.
- A portion of the soil (10-15%) is silt or clay and that fine material could be transported by the local creeks and drainage gullies to Coxs River.
- A small portion of the soil (3-7%) is dispersive. It is my opinion that [sic] portion could be transported into Coxs River and thence to Warragamba Dam.
Q280. --- yes I take that into consideration. Were you aware prior, during or after that this wasn’t a clear catchment area?
A I voiced my concern to him as soon as – yeah, I seen where the Cox River was and I said, ---
…
Q282. Yes.
A --- yeah and that’s when I said to him, “I want some form of documentation off you to say that we can actually proceed with this.” And I think it was within a matter of days or something from memory, that’s when Shane and Chris from Oberon Council (indistinct) out there and I just when, yeah, “No I’m out ---
…
Q287. Were you aware and prior to start the works during, or after that the, that the actually location was classified as venerable [sic] land?
A No.
…
Q290. Yes okay. Were you aware that the property aligned with – intersected with crown land?
A Once I got down there I was advised that it boarded a National Park ---
Q291. Yes.
A --- which I didn’t not know prior to getting there.
…
A --- I was actually guided by Lawrence and John, because a surveyor had been in there previously and pegged it and they knew where the, where the survey pegs were and I didn’t within the bush.
Q294. Did they outline to you that there was actually crown land running through?
A No.
…
A --- then I, I found out that the Six Foot Track was there ---
Q297. Yes.
A --- and I said, “It’s a heritage track isn’t it?” And they said, “They had approval from the Six Foot Track Heritage Trust, “or something I think they called it---
…
Q314. And I think we’ve covered it before and I just want to, just reiterate it and I just want to make sure that (indistinct) You – were you ever provided with an Erosion and Sediment Control Plans?
A No not from them and they were going to do that on their own ---
…
Q317. And to verify. You actually requested such plans?
A Verbally?
Q318. Yes.
A Yep ---
Q319. Okay.
A --- yep to say that you know, you guys have got to do something ---
Lund attended a further interview with WaterNSW on 1 June 2018.
Crossan wrote to Costigan on 31 May 2018, requesting that Costigan participate in a voluntary interview with WaterNSW officers. Costigan declined the request.
On 6 June 2018 Crossan issued a notice pursuant to s 203 of the POEOA requiring Costigan to attend an interview with officers of WaterNSW. That interview took place on 20 June 2018.
Crossan wrote to Kiangatha on 9 July 2018, requesting a voluntary interview with Natale. Natale declined to participate. In response, on 12 July 2018, Crossan issued Kiangatha with a notice under s 203 of the POEOA requiring Kiangatha to nominate a person to attend an interview to provide information regarding the unauthorised roadworks.
Kiangatha’s solicitors advised Crossan on 17 July 2018, that Natale was the only officer of Kiangatha with sufficient knowledge to provide information on behalf of the company, and that they had “serious concerns about Mr Natale’s health”. They informed Crossan that Natale had an appointment with his doctor on 30 July 2018.
A further s 203 notice was issued to Natale by Crossan on 3 August 2018, requesting Natale to nominate a place and time to attend an interview. Natale’s solicitor’s responded on 9 August 2018, advising that due to health issues Natale was “not in a position to nominate a time for an interview with WaterNSW at this stage”. They provided Crossan with medical certificates and a schedule of Natale’s appointments with various medical specialists.
WaterNSW issued Kiangatha with a notice under s 192 of the POEOA on 17 July 2018, requiring that certain information and records were to be provided. He received partial responses to the notice from Kiangatha on 7, 28 and 31 August 2018.
On 31 July 2018 WaterNSW engaged Dr Peter Hancock, an aquatic ecologist at Eco Logical Australia, to prepare an expert report in relation to the potential ecological harm caused by sediments entering waters due to the roadworks at the property. Dr Hancock’s instructions were in the following terms:
- WaterNSW have requested the following:
a. Expert evidence in relation to the harm sediments cause to aquatic ecology when they enter waters, with a focus on the types of soils found at the site.
- To complete this, the following tasks were required:
a. Conduct a site inspection accompanied by WaterNSW staff to inspect roads constructed in 2017, and to visit aquatic habitat (creeks, dams, rivers) that may have, or may still, receive sediment washed from the roads or associated works. The site visit included:
i. observations of visible impacts from sediment pollution to aquatic habitats
ii. photographing aspects of the site that may indicate potential to pollute, or show signs of pollution
iii. noting aspects of the site that may be relevant for assessing an increase in sediment to nearby waterways
b. Prepare a report that:
i. describes the observations made during the site visit
ii. describes the potential for road construction to impact on aquatic ecosystems
iii. outlines my professional opinion on whether nearby aquatic ecosystems have been impacted, or have the potential to be impacted, by road construction.
6.1 Indication of past or potential sediment pollution
- When visited in August 2018, most of the first and second order waterways were dry and did not appear to be aquatic habitat.
- Many of the first and second order creeks contained sandy sediment.
- While some of the sediment may have come from pre-existing roads (Hafey 2017 suggests The Six Foot Track), drainage lines and waterways in all Priority Areas contained sediment that washed in from roads recently constructed by Kiangatha Holdings.
- These low-order waterways are currently dry and do not contain aquatic habitat. However, if a large rainfall event occurs before the sediment is stabilised by vegetation, there is the potential for pollution to aquatic habitat and key fish habitat in Murdering Creek, Gibraltar Creek, and the Coxs River.
- It is likely that finer sediment has already been washed downstream and into receiving waterways. These waterways include separate farm dams downstream of Priority Areas 2 and 3, Murdering Creek downstream of Priority Areas 1, 3, 5, and 6, Gibraltar Creek downstream of Priority Area 4, and the Coxs River downstream of all Priority Areas.
- The dam downslope of Priority Area 3 sits in a watercourse and currently contains very little water. It is my opinion that the upper layers of sediment in this dam has been derived from the road construction in Priority Area 3. Considering the large volume of loose sediment still beside the road, and the steep slope, this dam will be further polluted during the next large rainfall event.
- A period of almost 10 months had passed between the cessation of road construction in October 2017 and the site visit in August 2018. This is sufficient time for any direct evidence of impacts to aquatic ecosystems to be obscured.
- However, it is my opinion that fine sediment has washed into Murdering Creek, Gibraltar Creek, and Coxs River since road construction began, and that more sediment will be washed in from the waterways currently holding eroded sediment.
6.2 Potential impacts
- The dam near Priority Area 3 is likely to have been partially filled by sediment mobilised during road construction and subsequent rainfall event. This was observed as the increase in suspended solids concentration reported in SEEC (2018). As a constructed structure, this dam would have only been low quality aquatic habitat. Any aquatic life in the dam would have been adversely affected as indicated in Section 5.1.
- If mobilised, the sandy sediment in first and second order tributaries could wash into creeks and smother benthic habitats.
- It is likely that fine sediments have washed into Murdering Creek, Gibraltar Creek and Coxs River. Coxs River is habitat for one species of threatened fish, and the increase in suspended fine sediments may have reduced habitat quality in this river for Macquarie Perch.
- The dispersive and finer components of these soils may have reached as far down as Lake Burragorang.
(a) Ivan Draper, Compliance Officer at WaterNSW, affirmed 21 September 2018, recounting Draper’s inspections of the property on four separate occasions and his observations of the impact of the roadworks on features including a “drainage line as a watercourse”, a “watercourse”, and a “gully or drainage channel”; (b) Crossan, affirmed 21 September 2018, attaching the Passfield and Hancock Reports. Crossan’s affidavit detailed the evidence relied upon by WaterNSW to commence the proceedings, including site inspections, records of interviews and expert reports; and (c) Stein, sworn 22 September 2018, deposing to her observations during three separate site inspections of the six identified Priority Areas at the property. Stein variously described the property’s features including a “natural watercourse”, a “natural tributary”, “drainage lines”, a “dry watercourse” and “gullies”.
That same day Molesworth AJ made orders pursuant to s 246(1) of the CPA requiring Kiangatha and Natale to appear in Court to answer offences against s 120 of the POEOA. The first return date was set for 9 November 2018.
The summonses, orders of Molesworth AJ and affidavits of Draper, Crossan and Stein, were served on Kiangatha and Natale on 2 October 2018.
The summonses in respect of proceedings 2018/295910 and 2018/295912 (referred to as “the actual pollution charges” and upon amendment, identified as the “Sites A and B charges”) were originally particularised as follows:
Particulars:
Land:
a. Lot 26 DP 757035;
b. Lot 9 DP 821872;
c. Lot 1 DP 114711;
d. Lot 9 DP 1213121;
e. Lot 113 DP 48712;
f. Lot 302 DP 1230926;
g. Lot 303 DP 1230926
h. Lot 30 DP 757035
i. Lot 100 DP 757035;
j. Lot 24 DP 757035;
k. Lot 20 DP 757035;
l. Lot 10 DP 8281873; and
m. Lot 11 of DP 821873.
Waters: The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River; and/or
A dam located on Lot 8 DP 821872.
Pollutant: Soil and Sediment from the earthworks and sediment laden waters that flowed from the earthworks.
Manner of Breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which place Kiangatha Holdings Pty Limited, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery.
The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.
The works have:
- involved the placing of pollutant into ephemeral drainage lines: and /or
- created significant areas of disturbed soil thereby placing Pollutants in a position where the Pollutant has fallen descended or been washed into ephemeral drainage lines and a Dam,
thereby introducing the Pollutant into the Waters.
Manner of Breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which place Kiangatha Holdings Pty Limited, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery. The works created significant areas of disturbed soil and the placing of soil and sediment on the Land.
The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.
The Defendant thereby placed the Pollutants in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters.
On 3 October 2018 the 12-month limitation prescribed by s 216(2) of the POEOA expired.
Robson J made orders on 9 November 2018, requiring Kiangatha and Natale to serve on WaterNSW a request for further and better particulars by 16 November 2018.
Kiangatha and Natale served a request for further and better particulars on WaterNSW on 16 November 2018. Relevantly they sought identification of where the alleged offences were said to have been committed and the locations of the ephemeral drainage lines.
WaterNSW provided a response on 4 December 2018.
In answer to the following particular: “which part or parts of each of the identified ephemeral drainage lines are said to have been affected by the alleged offences”, WaterNSW stated that “this is a matter for evidence and is not a proper request for particulars”.
The particulars did, however, include a map of the relevant land showing the constructed road indicated by a pink dotted line marked with 35 “Red Dot” locations at which WaterNSW alleged water pollution had occurred, along with a table identifying the precise location of each red dot.
The map marked the contours of the natural surface of the land and gullies as blue lines. The contours indicated that the gullies passed through natural depressions in the lands surface and all ultimately led to Murdering Creek or Gibraltar Creek. A copy of the map is reproduced below:
At this point in time Sites A, B, C and D had not been identified. Instead, the particulars alleged that the likely pollution charges occurred along the entirety of the constructed road and the actual pollution charges occurred at the Red Dot locations.
On 19 December 2018 Kiangatha and Natale filed notices of motion seeking that each of the summonses be quashed and set aside or permanently stayed for duplicity and uncertainty. Those motions were heard by Robson J on 1 and 2 July 2019.
Robson J articulated the essential question for the Court as follows: “whether the summonses charge more than one act of actual or likely pollution in each count so as to infringe the rule against duplicity” (WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale [2019] NSWLEC 185 at [16]).
Kiangatha and Natale’s position on the motion was that the summonses disclosed multiple offences in relation to the 35 different Red Dot locations identified in respect of the actual pollution charges and the different drainage lines or parts of the drainage line network identified in respect of the likely pollution charges. They also argued that the extended charge period gave rise to the potential for multiple offences at the same location but at different times.
WaterNSW accepted that all four summonses were patently duplicitous in respect of the particularisation of the waters. It disputed, however, the extent of any latent duplicity due to the early stage of the proceedings.
At the hearing before Robson J WaterNSW indicated an intention to apply for leave to amend the summonses to cure the patent duplicity in respect of the particularisation of the waters, insert a date range for all alleged offences, amend the definition of pollutant, reduce the area of land at which it alleged the actual pollution charges occurred, and make other minor administrative amendments.
On 6 December 2019 Robson J delivered judgment in Kiangatha, finding that each of the summonses were bad for duplicity (at [11]). His Honour granted WaterNSW the opportunity to seek leave to amend the summonses (at [125]).
Subsequent to judgment being given in Kiangatha, the proceedings were listed for mention before Robson J on 20 December 2019, whereby WaterNSW sought leave to amend the summonses. Kiangatha and Natale did not object to this course. Accordingly, Robson J made orders dismissing the notices of motion and granting leave to WaterNSW to amend the summonses (Kiangatha at [128]).
WaterNSW filed putative amended summonses on 17 January 2020 (“the putative amended summonses”). Each of the putative amended summonses specified that the offences were alleged to have been committed between 1 May and 10 October 2017.
The actual pollution charge in proceedings 2018/295910 and 2018/295912 were particularised in the following amended terms:
Particulars:
Land:
a. Lot 26 DP 757035;
b. Lot 9 DP 821872;
c. Lot 1 DP 114711;
d. Lot 9 DP 1213121;
e. Lot 113 DP 48712;
f. Lot 302 DP 1230926;
g. Lot 303 DP 1230926
h. Lot 30 DP 757035
i. Lot 100 DP 757035;
j. Lot 24 DP 757035;
k. Lot 20 DP 757035;
l. Lot 10 DP 8281873; and
m. Lot 11 of DP 821873.
Waters: The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River; and/or A dam located on Lot 8 DP 821872.
Pollutant: Soil and Sediment from the earthworks and sediment laden waters that flowed from the earthworks.
Manner of Breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which place Kiangatha Holdings Pty Limited, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery.
The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.
The works have:
- involved the placing of pollutant into ephemeral drainage lines: and /or
- created significant areas of disturbed soil thereby placing Pollutants in a position where the Pollutant has fallen descended or been washed into ephemeral drainage lines and a Dam,
thereby introducing the Pollutant into the Waters.
Particulars:
Land:
a. Lot 26 DP 757035;
b. Lot 9 DP 821872;
c. Lot 1 DP 114711;
d. Lot 9 DP 1213121;
e. Lot 113 DP 48712;
f. Lot 302 DP 1230926;
g. Lot 303 DP 1230926
h. Lot 30 DP 757035
i. Lot 100 DP 757035;
j. Lot 24 DP 757035;
k. Lot 20 DP 757035;
l. Lot 10 DP 8281873; and
m. Lot 11 of DP 821873.
Waters: The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River; and/or A dam located on Lot 8 DP 821872.
Pollutant: Soil and Sediment from the earthworks and sediment laden waters that flowed from the earthworks.
Manner of Breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which place Kiangatha Holdings Pty Limited, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery.
The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.
The Defendant thereby placed the Pollutants in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters.
And in proceedings 2018/295911:
Particulars:
Land:
a. Lot 26 DP 757035;
b. Lot 9 DP 821872;
c. Lot 1 DP 114711;
d. Lot 9 DP 1213121;
e. Lot 113 DP 48712;
f. Lot 302 DP 1230926;
g. Lot 303 DP 1230926
h. Lot 30 DP 757035
i. Lot 100 DP 757035;
j. Lot 24 DP 757035;
k. Lot 20 DP 757035;
l. Lot 10 DP 8281873; and
m. Lot 11 of DP 821873.
As shown on the attached map and photographs for “Site D”.
Waters: The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River; and/or
A dam located on Lot 8 DP 821872.
As shown on the attached map and photographs for “Site D”.
Pollutant: Soil and Sediment from the earthworks and sediment laden waters that flowed from the earthworks.
Manner of Breach: Kiangatha Holdings Pty Limited was the occupier of the Land at which Kiangatha Holdings Pty Limited, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery. The works created significant areas of disturbed soil and the placing of soil and sediment on the Land.
The Defendant failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks.
The Defendant thereby placed the Pollutants in a position where the Pollutant was likely to fall descend or be washed into the Waters or the dry beds of the Waters.
Kiangatha and Natale filed an application for leave to appeal Kiangatha on 3 January 2020. The appeal was heard on 15 June 2020.
The grounds of appeal for which leave was sought were as follows (Kiangatha CCA at [44]-[45]):
[44] Grounds 1–4 are raised in respect of amended summonses Nos 09 [295909] and 11 [295911] concerning the likely pollution charge against each applicant. The grounds raised in respect of amended summonses Nos 10 [295910] and 12 [295912] may be designated as grounds 5–8.
[45] The substantive grounds of appeal for which leave is sought by both applicants, in relation to both the likely pollution charge and the actual pollution charges, are as follows:
2 & 6 The Primary Judge erred in finding that the offence charged was not duplicitous by reason of alleging the multiple breaches [in relation to multiple locations at which pollutants were placed], as it was a continuous offence, rather than a number of separate offences committed intermittently.
3 & 7 The Primary Judge erred in finding that the offence charged was not duplicitous by reason of alleging the multiple breaches [in relation to multiple locations at which pollutants were placed], as the act of pollution the subject of this charge was the construction of the 8 km road as a whole, being a single criminal transaction.
Grounds one, five, four and eight of the appeal were consequential upon the determination of grounds three and seven (Kiangatha CCA at [64]). Grounds one and five were in effect that Robson J erred in declining to dismiss the summonses or order that they be stayed pending WaterNSW making an election between the multiple infringements comprehended in each charge. Grounds four and eight were to the effect that his Honour ought to have found that all of the charges were duplicitous by reason of alleging multiple offences.
On 21 August 2020 Dixon SC handed down judgment in the Class 1 proceedings commenced by Kiangatha (Kiangatha Holdings Pty Ltd v Oberon Council [2020] NSWLEC 1386). That decision gave effect to an agreement between the parties under s 34 of the Land and Environment Court Act 1979 and approved an application made by Kiangatha for development described as “the use of part of the existing tracks as roads to maintain grazing land associated with use of the property for extensive agriculture, and associated stabilisation and rehabilitation works”.
On 19 October 2020 the Court of Criminal Appeal granted leave to appeal Kiangatha and upheld the appeal. It made the following orders (Kiangatha CCA at [72]):
(1) Leave granted to the applicants pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against the orders of the Land and Environment Court made 20 December 2019 in proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912.
(2) Appeal upheld.
(3) Order numbered (1) in each of proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912 made by the Land and Environment Court on 20 December 2019 is set aside.
(4) In lieu thereof it is ordered that further proceedings on each summons are stayed until the respondent elects and particularises in relation to each summons a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which the respondent will proceed.
[50] Each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence against s 120 at the moment of placement. Each placement directly into a dry gully, for the purposes of the actual pollution charges, was likewise a complete offence at the moment of placement. A number of individual acts, each one complete at the moment of its performance, do not become something that is “continuing” just by being drawn together under the one charge. Taken together, they remain a number of completed acts. The combination of all of the placements that are relied upon in this case under each charge respectively does not assume the character of a continuing infringement so as to be excused as an exception to the rule against duplicity.
[54] In respect of the likely pollution charges in amended summonses Nos 09 [295909] and 11 [295911], the respective positions of the numerous gullies particularised by blue lines marked on the respondent’s map show that the conduct alleged to satisfy element (1) of each offence (see [30] above) comprised a substantial number of separate placements of material. The contours on the map indicate that material placed in a position from which it would likely descend into any one of the gullies could not possibly descend into any of the other gullies. They are separated by spurs and other features. Hence, what has been particularised by the respondent is a series of separate placements each creating a likelihood of the descent of soil into a separate dry watercourse. The gullies affected are at distances of hundreds of metres from each other, some of them being separated by more than a kilometre. Thus, in the likely pollution charges the respondent is alleging a large number of infringements of s 120.
On 14 April 2021 Moore J handed down judgment in the Class 4 civil enforcement proceedings commenced by the Council against Kiangatha in respect of the works carried out at the property (Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30). The substantive result of the orders was that Kiangatha gave an undertaking to carry out the rehabilitation works approved by the development application within a specified time and that the proceedings were otherwise discontinued (at [178]).
On 20 April 2021 WaterNSW Officers Caddey and Kirk Newport carried out investigations and survey work on the property involving the use of a drone to take aerial photography, particularly in relation to the four locations identified as Sites A, B, C and D.
In response to order 4 of the Court of Criminal Appeal’s orders in Kiangatha CCA, WaterNSW filed notices of motion on 7 May 2021, seeking leave to rely on the Sites A, B, C and D amended summonses (together, “the amended summonses”).
Robson J summarised the effect of the amended summonses in WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Laurence Natale [2022] NSWLEC 6 (“Kiangatha (No 2*)*”) as follows (at [20]):
[20] I note in passing that a practical result of the proposed amendments to the summonses is that the two summonses for the likely pollution charges, and the two summonses for the actual pollution charges, respectively, no longer relate to effectively the same locations. Rather, each summons relates to a discrete Site. In this respect:
(1) The likely pollution charge in proceedings 2018/00295909 relates to Kiangatha, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site C, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site C.
(2) The likely pollution charge in proceedings 2018/00295911 relates to Mr Natale, and the Land being Lot 113 DP 48712 as shown on the attached map and photographs for Site D, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site D.
(3) The actual pollution charge in proceedings 2018/00295910 relates to Kiangatha, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site A, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site A.
(4) The actual pollution charge in proceedings 2018/00295912 relates to Mr Natale, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site B, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site B.
The notices of motion were opposed by Kiangatha and Natale on the basis that the amended summonses alleged fresh charges that were brought out of time and with evidence obtained unlawfully.
WaterNSW’s motions were heard by Robson J on 11 and 12 August 2021. His Honour summarised the issues before him as follows (Kiangatha (No 2*)* at [23]):
[23] The primary issue before me is whether leave should be granted to amend the summonses in accordance with the proposed amended summonses. This gives rise to a number of overlapping sub-issues raised by the parties in submissions, including:
(1) Whether the proposed amended summonses are so different to the original summonses that they constitute “fresh” charges. This requires consideration of the scope and content of the proposed amendments.
(2) Whether the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. This requires consideration of the interests of justice, any injustice caused, notice of the charges, and other issues of procedural fairness.
(3) Whether the manner in which the proposed amended summonses were prepared (that is, attendances by authorised officers of WaterNSW and the use of a drone to take aerial photography) constitutes trespass onto Kiangatha’s property, which is unfair or disentitling conduct by the prosecutor.
[130] Before considering the issues raised in the parties’ submissions, it is convenient to note two matters which are not in issue. First, it is clear that the defendants do not seek to argue that the original summonses were a nullity and thus incapable of amendment: Tcpt, 11 August 2021 p 31(1–2). In this respect, Order (4) in Kiangatha CCA is premised on the original summonses being capable of amendment to cure the duplicity identified by the Court of Criminal Appeal, by electing and particularising a single offence in relation to each summons.
[131] Secondly, the defendants do not dispute that the original summonses charge the defendants with offences that are known to law: Tcpt, 11 August 2021, p 33(1–2). The defendants were each charged with two offences of water pollution, and the prosecutor addressed the elements of the offences, albeit in a duplicitous manner, in the original summonses and the later particulars.
[47] In his affidavit affirmed 12 July 2021, Mr Mulligan traversed similar (and in some cases the same) ground as in his affidavit affirmed 7 May 2021, but in greater detail. He deposed to the service of the original summonses on each defendant on 2 October 2018 (along with copies of the affidavits of Mr Crossan, Mr Draper, and Ms Stein, and their exhibits). He noted that in the defendants’ appeal to the Court of Criminal Appeal, “each party proceeded on the basis of the Amended Summonses for which leave was granted by Robson J”. Following this, he understood that in Kiangatha CCA, the Court of Criminal Appeal had determined that “the Summonses, in the form for which leave had been granted by Robson J, were affected by duplicity”. Mr Mulligan noted his understanding that the prosecutor was entitled to make an election, and undertake further particularisation of a single offence for each of the summons, on which the prosecutor would proceed. He referred to Kiangatha CCA at [68], and in particular, the comment that “the respondent could readily identify by map coordinates the separate locations at which soil was placed in proximity to a gully that was likely to be polluted by erosion of the soil into it. The specific part of the gully that was placed at risk of such transfer of soil could also be identified by map coordinates.”
[48] Mr Mulligan deposed that following the judgment in Kiangatha CCA, the prosecutor selected four locations to be the subject of proposed amended summonses, and decided to represent these locations graphically on maps to identify (to the defendants) the locations where it is alleged the earthworks had been carried out “which placed soil or sediment in a position where it was placed in, or was likely to fall or descend into”, waters. The maps would also identify the particular waters which were the subject of the charges.
[49] Mr Mulligan described the preparation of the maps. He stated that the aerial photography data then available to the prosecutor (via the NSW Government’s SIXMaps service) was at a scale of 1:100,000 and was sufficient to produce a large-scale overview map of the whole of Kiangatha’s property (being the aerial map referred to at [19(1)] above), however, it had a “margin of error” when “zoomed in” to the individual Sites to produce individual maps, which meant that certain landscape features did not align with GPS data of the road and drainage lines with “reasonable accuracy”.
[50] Mr Mulligan deposed that in order to obtain more accurate aerial imagery of the individual Sites, authorised officers of the prosecutor attended Kiangatha’s property on 20 April 2021 and undertook aerial photography using a drone. At that time, further detailed GPS surveying of the ephemeral drainage lines at the individual Sites was also undertaken. Mr Mulligan deposed that the further aerial photographs were “compiled into individual map layouts” for the individual Sites, and then overlain with GPS data of the constructed road and the drainage lines creating maps for each of the individual Sites at a scale of 1:1,250. These composite aerial maps for the Sites were attached to the proposed amended summonses (being the maps referred at [19(2)]–[ 19(5)] above).
Kiangatha and Natale read an affidavit of Stephanie Vatala, solicitor, sworn 15 June 2021. Vatala deposed to the “spatially and physically different locations” of Sites A, B, C and D compared to the Red Dot locations, as set out in a survey plan attached to an affidavit of Geoffrey Meyer, affirmed 15 June 2021.
On the basis of the evidence of Meyer, Robson J found that (at [136]-[139]):
[136] In the absence of evidence to the contrary, I accept the evidence of Mr Meyer and find that there is a difference in the locations of the geographic coordinates of Red Dot Locations 2, 6, 5 and 18 and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closest Red Dot Locations varies between 34.1m and 85.7m.
[137] Mr Meyer deposed that in addition to distance, there are also “topographical differences” between the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations. Having reviewed Mr Meyer’s evidence, including the videos of the landscape between the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations, I accept that there are minor differences in slope, vegetation coverage and proximity to ephemeral watercourses and parts of the constructed road. However, I do not consider these differences to be material, in circumstances where the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations are generally located within the same dry gully, are proximate to the same ephemeral watercourses and the same parts of the constructed road, and have similar vegetation coverage.
[138] My view about the immateriality of the differences in locations is confirmed by my consideration of the survey plan prepared by Mr Meyer (which identifies the relative locations of the Sites and Red Dot Locations 2A, 6B, 5C and 18D) and my comparison of the survey plan with the composite aerial maps and ground-based photographs attached to the proposed amended summonses (which identify the Sites and provide further insight into the physical characteristics of the landscape surrounding the Sites).
[139] In summary, I find that while the different geographic coordinates of the Sites and the closest Red Dot Locations suggest there has been a change in the locations of the offences between the original summonses and the proposed amended summonses, this change is not material. Given this, I do not accept the defendants’ contentions that the Sites are “physically removed” from the closest Red Dot Locations or “totally new”. Rather, I find that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represent the permissible particularisation of the location of the offences.
[146] Further, I do not consider that the references to the Sites in the proposed amended summonses materially changes the essential elements of the offences with respect to the locations of the offences. The essential elements of the actual pollution charges and the likely pollution charges were identified by Fagan J in Kiangatha CCA at [30]–[31]:
[30] By logical extension of those decisions to the offences alleged against the applicants, the two essential ingredients of the likely pollution charge are:
(1) the soil and sediment was placed in a location from which it was likely to be washed, or otherwise to descend, into the bed of a dry gully (par (d)(ii) of the definition of water pollution); and
(2) the soil and sediment was material that, had it been placed in any waters, would have polluted or would have been likely to pollute those waters (concluding words of the definition of water pollution).
[31] By similar extension of the authorities to the actual pollution charge in the present case, the two essential elements of that offence are:
(1) the soil and sediment was placed in the bed of a dry gully (pars (d)(i) and (e) of the definition of water pollution); and
(2) the soil and sediment was material that, had it been placed in any waters, would have polluted or would have been likely to pollute those waters (concluding words of the definition of water pollution).
[147] The essential elements of the actual pollution charges include the placement of soil and sediment in the bed of a dry gully. After reviewing the locations of the geographic coordinates of the closest Red Dot Locations and the Sites and the visual representations on the maps, in my view the placement of soil and sediment in either of the locations of Site A and Site B or Red Dot Locations 2 and 6 constitutes the placement of soil and sediment in the bed of the same dry gully. Given this, I do not accept that the differences in the locations constitutes a material change to an essential element of the charges.
[148] The essential elements of the likely pollution charges include the placement of soil and sediment in “a location” from which it was likely to move into the bed of a dry gully. Four points can be made about the references to locations. First, neither the Sites nor the closest Red Dot Locations are relevant to the locations of the placement of the soil and sediment from which it was likely to move into the bed of a dry gully — rather, these locations were characterised in the original summonses as along the entirety of the lower side of the constructed road, and in the proposed amended summonses as the yellow-shaded areas of the constructed road.
[149] Secondly, having considered the differences in the characterisation of the locations where the soil and sediment was placed in the various summonses, I do not consider this to be material. While the references to locations and the impact this has on the likelihood of movement make the materiality of the locations for the likely pollution charges less clear cut than the actual pollution charges, in my view the change from the whole lower side of the constructed road to the yellow-shaded areas constitutes a narrowing or restriction of the factual matrix (discussed further below) such that the locations characterised in the proposed amended summonses were included in the locations characterised in the original summonses. I do not consider the failure to confine the yellow-shaded areas to the downslope edge of the road when characterising the locations where the soil and sediment was placed to be material.
[150] Thirdly, in circumstances where the essential elements of the likely pollution charges include the likely movement of the soil and sediment into the bed of a dry gully, the prosecutor particularised the locations of likely movement as drainage lines adjacent to, downslope of, or transected by the constructed road for the original summonses, and the proposed amended summonses include Site C and Site D as the approximate locations where pollutant has entered waters, I also consider the reference to Site C and Site D to constitute a narrowing or restriction of the factual matrix. I do not accept the defendants’ complaint about the failure to identify Site C and Site D in the original summonses.
[151] Fourthly, and to the extent it is relevant, in my view the placement of soil and sediment in either of the locations of Site C and Site D or Red Dot Locations 5 and 18 constitutes the placement of soil and sediment in the bed of the same dry gully. Given these four findings, I do not accept that the differences in the locations referred to in the likely pollution charges to constitute a material change to an essential element of the charges.
[152] I therefore accept the prosecutor’s contention that the essential nature of its case in relation to the actual pollution charges and likely pollution charges is the same. Simply stated, notwithstanding that one aspect of the particulars of the original summonses, being the locations of the offences, has changed between the summons, the offences alleged (being water pollution) and their essential elements, have stayed the same: Snowy Monaro CCA (No 2) at [44]. Accordingly, no fresh charges have been laid.
[174] Moreover, I do not accept the issues the defendants raise with what could be termed the “quality” of any notice that was in fact provided. The defendants submit that the notification provided through service of the original summonses is not proper notice where the Sites were not identified, and it was not made clear that the Sites would specifically be the subject of the charges. In response, the prosecutor relies on the scope of the evidence in the three affidavits provided with the original summonses. I prefer the position of the prosecutor, and accept that the prosecution is entitled to rely on the evidence in the three affidavits provided with the original summonses: Rockdale Beef at [126].
[175] In this respect, I consider that there are parallels with the situation outlined by Nettle J in Kypri at [38], in that if the true nature of the offence alleged is otherwise conveyed in writing to the defendant before the expiration of the limitation period, it may be amended without unfairness. Where the original summonses were provided to the defendants with the material in the three affidavits and that material had a broader scope than the proposed amended summonses (such that amending the summonses to reflect the proposed amended summonses constitutes a restriction rather than a modification of the underlying factual matrix), I find that the true nature of the offences alleged in the proposed amended summonses was adequately conveyed prior to the expiry of the limitation period. This conclusion also addresses the defendants’ submission regarding the inclusion of the composite aerial maps as new material introduced without notice.
[176] In these circumstances, sufficient notice was provided of the nature of the charges, and no procedural unfairness to the defendants is caused by the amendment of the summonses to reflect the proposed amended summonses.
In relation to the third issue, the Court held that because the statutory powers in ss 196 and 198 of the POEOA permitted WaterNSW to access Kiangatha’s property and take aerial photographs, the evidence was lawfully obtained (Kiangatha (No 2*)* at [214]).
Ultimately Robson J made orders granting WaterNSW leave to rely on the amended summonses on 31 January 2022 (Kiangatha (No 2*)* at [217]-[218]).
[58] The grounds of appeal comprehend two principal issues. The first issue (grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912) is whether the locations now identified are different from the locations previously specified in the earlier form of the summonses. In the course of his submissions, Mr Ireland of counsel for the applicants made clear that ground 1 was asserting, in substance, that the primary judge erred in permitting the amendments, and that grounds 2 to 5 and 2 to 6 respectively were particulars of ground 1.
[59] The second issue concerns the use of evidence obtained from what is said to be the trespass onto the applicants’ land (grounds 6 to 8 in proceedings 295909 and 295911), and grounds 7 to 9 in [sic] (proceedings 295910 and 295912).
[67] The applicants effectively invite this Court to take a different view of the factual conclusions reached by the primary judge and set out at [32] to [37] above. The principal factual matter in dispute before the primary judge was whether the locations of Sites A, B, C and D sufficiently correlated with Red Dot locations 2, 6, 5 and 18. This Court had the advantage of reviewing the location of the Sites and the Red Dot locations on the one map, and of viewing the videos taken moving between each of the corresponding Sites and locations.
[68] It cannot be said that the primary judge’s conclusions on those factual issues were not reasonably open to him, for the reasons his Honour gave. Further, the factual findings were made in order to determine an interlocutory application seeking amendment of the summonses. As Spigelman CJ said in DAO at [55], a high degree of restraint is required by an appellate court when asked to interfere with a determination of an interlocutory matter involving practice and procedure. A factual error by a primary judge will not normally satisfy the requirement for the grant of leave required by s 5F: R v Matovski (1989) 15 NSWLR 720 at 722 –723.
[69] No basis is shown for interfering with the determination of the primary judge concerning the locations of the alleged offending, and the materiality of the changes.
[70] Grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912 should be rejected.
Davies J also rejected the second ground of appeal (Kiangatha CCA (No 2*)* at [80]-[85]).
Linda Holland of Eakin McCaffery Cox was appointed as the legal representative of Kiangatha and Natale on 1 March 2023.
On 3 March 2023 the proceedings were adjourned with the consent of WaterNSW for four weeks due to Kiangatha and Natale having briefed new counsel.
Pleas of not guilty were entered by Kiangatha and Natale on 31 March 2023.
The same day, the Court made the following orders by consent:
(a) that WaterNSW serve its notices pursuant to ss 247E (“s 247E Notice”), 247J (“s 247J Notice”) and 247L (“s 247L Notice”) of the CPA; and (b) that Kiangatha and Natale serve their notices pursuant to ss 247F (“s 247F Notice”) and 247K (“s 247K Notice”) of the CPA.
On 19 May 2023 WaterNSW instructed Andrew Macleod, an environmental scientist specialising in erosion and sediment control and soil science from SEEC, to prepare an expert report in the proceedings.
Macleod provided WaterNSW with his expert report on 25 May 2023 (“Macleod Report”). In the Report, Macleod noted that he relied upon the Passfield Report and that “Passfield and I worked together at SEEC for over 10 years although he has now retired”.
Macleod was instructed to address the following questions concerning each of Sites A to D:
14.1 Are the drainage lines specified at Sites A-D "waters" within the meaning of the POEO Act?
14.2 In your expert opinion, was the Pollutant described in the Summonses placed in the drainage lines at Site A and Site B?
14.3 In respect to Sites A and B, was the Pollutant described in the Summonses placed in the position where it was likely to fall, descend, be washed, or be blown into Murdering Creek, or any identifiable natural watercourse between those sites and Murdering Creek?
14.4 In your expert opinion, was the Pollutant described in the Summonses placed in a position where it was likely to fall, descend, be washed, or be blown into the natural watercourse at Site C and Site D?
14.5 If so, please identify the extent of areas of disturbed soil where soil and sediment was placed in the position where it was likely to fall, descend, be washed, or be blown into the drainage lines at Site C and Site D.
14.6 In your expert opinion, what measures, if any, could have been implemented to prevent, control or mitigate the Pollutant entering the drainage lines?
15.1 the word “likely” means ‘a real or not remote chanc**e or possibility regardless of whether it is less or more than a fifty per cent chance’: (see: Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403 at [54]-[58]; and
15.2 “waters” includes any part of any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters, as set out in the Dictionary to the POEO Act; and
15.3 “watercourse” has the meaning given by Barwick CJ in Knezovic v Shire of Swan-Guildfor**d (1968) 118 CLR at 475 - 476:
…it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation*.*
Macleod concluded that only the locations at Sites A and B were not “watercourses” for the purposes of the POEOA.
In relation to Site A Macleod opined that:
I conclude that the drainage feature at Site A is not a watercourse based on the definition in the POEO Act (1997). In my opinion, the drainage feature at Site A is a drainage depression only. I did not observe fluvial features that would be expected of a watercourse such as a bed and banks. I did not observe a defined channel in which water might flow for 40m both upstream and downstream of Site A.
I observed evidence of sedimentation in the form of valley infilling. However, without the presence of a defined watercourse channel, bed and banks, I conclude that this sedimentation is colluvial material derived from erosion of the surrounding hills and deposited by sheet flows rather than as a result of fluvial processes as might occur in a watercourse.
I conclude that the drainage feature at Site B is not a watercourse based on the definition in the POEO Act (1997). In my opinion, the drainage feature at Site B is an ephemeral gully only. It is similar in nature to a drainage depression but is more steeply incised in the landscape. I did not observe fluvial features that would be expected of a watercourse such as a bed and banks, although extensive areas upstream and downstream of Site B were infested with weeds such as Blackberry, which made effective observations challenging.
I investigated 40m upstream and downstream of Site B and I did not observe a defined channel in which water might flow.
I did observe evidence of scour caused by a concentrated flow of water approximately 10m upstream of Site B that prompted further investigation. I considered whether that scour constituted a bank and the small gully that had been created by that scour could be considered a watercourse based on the definition in the POEO Act (1997). However, the small gully created by the scour was discontinuous and was merely an erosional feature that I assume was caused by very rare flows in the ephemeral gully.
In my opinion the drainage feature at Site C is a watercourse based on the definition in the POEO Act (1997). I observed flowing water at or just downstream of Site C within a defined channel with bed and banks. I did not observe flowing or ponded water upstream of Site C. However, I observed a defined channel with a bed and banks for at least 40m upstream and also at Site C.
The watercourse at Site C includes numerous fluvial features including a bed of small stones and sediments, banks formed by a combination of erosion of natural soils and deposition of sediments carried by flowing water, small riffles and cascades, plus small pools. Pools in the length of stream 40m upstream of Site C were observed to all be dry, but pools in the length of stream up to 40m downstream of Site C were observed to hold water, with trickle flows into and out of each pool. I assume that the trickle flows are from springs given that no flows were observed upstream of Site C.
3.1.5 Response: Site D
…
In my opinion the drainage feature at Site D is a watercourse based on the definition in the POEO Act (1997). I did not observe flowing or ponded water at Site D or within 40m upstream or downstream of Site D. However, at Site D I observed a defined channel with a bed of variable width but commonly 0.5 to 2m wide, with low banks of around 0.1 to 0.3m high on one or both sides of the channel. The banks were discontinuous due to thick vegetation and weed infestations along the channel.
The drainage feature at Site D lies in a steep-sided valley but includes depositional features that have developed as a result of both colluvial (deposition of eroded sediments from hillsides) and fluvial (deposition as a result of a watercourse) processes. A narrow strip of deposited sediments occurs in the V-shaped valley to create a narrow, near-flat floor. This was evident for at least 40m both upstream and downstream of Site D.
Dr Hancock provided WaterNSW with a second expert report dated 25 May 2023, a copy of which was not tendered at the hearing of the costs application.
WaterNSW served its s 247E notices on 26 May 2023, which included the Macleod Report.
Kiangatha and Natale filed their s 247F notices on 19 June 2023.
The proceedings were listed for further directions on 23 June 2023, where an order pursuant to s 247H of the CPA was made by the Court.
On 27 June 2023 the Board of WaterNSW convened and resolved to withdraw the Sites A and B charges.
Whether each or any, and if so which, of the Amended Summonses in the present proceedings properly allege and disclose offences against the provisions of s 120*(1) of the Protection of the Environment Operations Act 1997.*
Kiangatha and Natale wrote to WaterNSW on 28 July 2023, requesting that the amended summonses in relation to Sites A and B be withdrawn because the Macleod Report had found that they were not “waters” within the meaning of s 120(1) of the POEOA.
The first letter notifying WaterNSW’s intention to withdraw the amended summonses with respect to Sites A and B was sent on 31 July 2023 (“the first withdrawal letter”). It relevantly said:
1 We refer to the above Land and Environment Proceedings, being:
1.1 LEC 2018/295910 – proceedings against Kiangatha Holdings Pty Limited pursuant to an Amended Summons served on 7 May 2021, in respect to a charge of pollution of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 at a location defined in the Amended Summons as “Site A”; and
1.2 LEC 2018/295912 – proceedings against Mr Laurence Natale pursuant to an Amended Summons served on 7 May 2021, in respect to a charge of pollution of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 at a location defined in the Amended Summons at “Site B”,
(together, the Site A and B Summonses).
2 As you are aware, the Prosecutor filed and served its evidence on the Defendants on 26 May 2023. That evidence included an expert report by Mr Andrew Macleod, annexed to his affidavit of 25 May 2023 (Expert Report).
3 The Expert Report sets out Mr Macleod’s opinion that the locations referred to in the Site A and B Summonses are not “waters”, as defined in the POEO Act, having regard to the matters which the Prosecutor asked Mr Macleod to consider.
4 On the basis of the Expert Report, we are instructed to inform you that the Prosecutor withdraws the Site A and B Summonses. The Prosecutor will inform the Court of the withdrawal of those charges on the next occasion.
5 The Prosecutor does not propose to withdraw the charge against the Defendants in proceedings 2018/295909 (“Site C”) and 2018/295911 (“Site D”) and will seek to have those matters listed for trial expeditiously.
The charges were withdrawn by consent on 4 August 2023.
Kiangatha and Natale sent a letter to WaterNSW on 7 September 2023, requesting that the amended summonses relating to Sites C and D be withdrawn. The letter also alleged that the proceedings were not in compliance with WaterNSW’s Prosecution Guidelines (“the Prosecution Guidelines”).
Part 6.2 of the Prosecution Guidelines, entitled ‘Discretion – is the prosecution in the public interest?’, stated:
Not every criminal offence detected and investigated by WaterNSW must be the subject of a prosecution, as there are other compliance and enforcement mechanisms available.
Furthermore, WaterNSW must use its resources in an appropriate manner. It is important that these resources are not wasted pursuing matters that are not in the public interest to prosecute.
A prosecution will not be commenced unless the investigation results in evidence that is admissible in court and which indicates a prima facie case against the alleged offender. Evidence, for example, may not be admissible in court if a confession was illegally obtained by means of duress.
WaterNSW will take care to make sure that the evidence collected is of a sufficient quality to support the prosecution of an offence. The weight that a court may give to the evidence of a witness is diminished if, for example, the witness:
- exaggerates;
- has a faulty memory;
- is hostile or friendly to the defendant;
- gives evidence that is untruthful;
- provides a statement that may not stand up to cross examination;
- is materially in conflict with other eye witnesses to the incident;
- is unable to identify the defendant;
- makes contradictory statements in relation to their observations; or
- is not likely to be accepted by the court as a witness of credit.
The following discretionary factors will be considered by WaterNSW (where relevant) in deciding whether to commence a prosecution in the public interest:
- seriousness or, conversely, the triviality of the alleged offence or whether it is only ‘technical’ in nature;
- the harm, or potential harm, caused by the offence;
- any mitigating or aggravating circumstances;
- the degree of culpability of the alleged offender in relation to the offence (such as whether the offence arose from deliberate or wilful conduct);
- the availability and efficacy of any alternatives to prosecution;
- the previous conduct of the alleged offender and whether any enforcement measures have been used by WaterNSW against the alleged offender for other incidents;
- whether the alleged offender had been prosecuted by another agency for similar conduct;
- whether another agency is considering undertaking a prosecution arising from the same incident;
- whether the breach is a continuing or repeat offence;
- whether the issue of specific Court orders (such as restraining orders, restoration, prevention, cost recovery) are warranted in the circumstances;
- the prevalence of the alleged offence and the need for deterrence, both specific and general;
- whether the time period for commencement of the prosecution has expired;
13. whether the prosecution will be too costly or resource intensive;
- the age, physical or mental health or special infirmity of the alleged offenders or witnesses;
- whether there are counter-productive features of the prosecution;
16. the likely outcome in the event of a finding of guilt, having regard to the sentencing options available to the Court;
- any precedent which may be set by not instituting proceedings;
- whether the proceedings are to be instituted against others arising out of the same incident;
- whether the alleged offender reported the incident; and
- whether or not the alleged offender is willing to co-operate or has cooperated in the investigation (such as making available all relevant information) or prosecution of others.
The applicability of and weight to be given to the above factors will depend on the circumstances and facts of each particular case.
On 22 September 2023 a letter was also sent by Kiangatha and Natale to Peter Duncan, Chairman of the Board of WaterNSW, requesting that WaterNSW review the proceedings and withdraw the remaining charges.
The motions for a separate question filed by Kiangatha and Natale were heard on 4 October 2023 before Pritchard J. Her Honour summarised the issues before her in the following manner (WaterNSW v Kiangatha Holdings Pty Ltd; WaterNSW v Natale [2023] NSWLEC 142 at [4]-[5] (“Kiangatha (No 3*)*”)):
[4] The motions were before me on 4 October 2023. In opening, Mr Collins KC for the defendants provided the following outline of issues for determination:
(1) a first issue as to whether the Court should hear and determine the separate questions at a preliminary hearing pursuant to s 247G of the Criminal Procedure Act 1986 (NSW) (CPA), being “[w]hether each or any, and if so which, of the [a]mended [s]ummonses in the present proceedings properly allege and disclose offences against the provisions of section 120(1) of the [POEO Act]” (the separate questions); and
(2) a second issue if the Court proceeds to determine the separate questions, whether each of the amended summonses is defective and should be quashed for the reason that the amended summonses do not disclose an offence known to the law, namely because “the ephemeral drainage lines leading into Murdering Creek” as particularised in the amended summonses are not “waters” as defined in the POEO Act.
[5] A further issue that arose in the parties’ written submissions and at the hearing on 4 October 2023 was whether the separate questions as to whether the amended summonses are defective and ought be dismissed, are questions of fact which should be resolved by reference to evidentiary material. The defendants contended that the separate questions are questions “purely” of statutory construction. The prosecutor contended that evidentiary material was required in relation to the construction of the expression “ephemeral drainage line” as it appears in the amended summonses. If I find that the separate questions are questions of fact, they will not fall within the scope of s 247G(3)(g) of the CPA which allows a court in a preliminary hearing to “give a ruling on any question of law that might arise at the trial or sentencing hearing”. Accordingly, I will deal with the issue of whether the separate questions raise questions of fact by reference to the first issue above.
HER HONOUR: I’m just looking at the definition of waters; where do ephemeral drainage lines fit within the definition of waters?
WRIGHT: Natural or artificial watercourse.
HER HONOUR: So natural watercourse you would say?
WRIGHT: And it wouldn’t matter if they were natural or artificial. One problem with the defendant’s [sic] analysis, with great respect, is that you assert that we have to be pigeonholed into the use of a word “drain”. But we don’t because, contrary to the question of water pollution, waters, and we say it is true in the definition of water pollution, the definition of waters, and I’ll take you to clear authority on this proposition later for these words are introduced, it was meant to be a definition of the widest import and is.
You don’t need to find in the definitions of waters every possible description of something which may constitute a natural or artificial watercourse. …
[6] In relation to the first issue, that is whether I should exercise the Court’s discretion to hear and determine the separate questions at a preliminary hearing pursuant to s 247G of the CPA, I have determined to decline to exercise that discretion. I have accepted the prosecutor’s submission that the defendants’ conduct in bringing these notices of motion is inconsistent with the overriding purpose of the case management provisions in the CPA to “reduce delays in proceedings”, which was submitted to be analogous to the overriding purpose of civil procedure to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The motions have not been brought in a timely manner. I have also accepted the prosecutor’s submission that the question whether the “ephemeral drainage lines leading to Murdering Creek” falls within the statutory definition of “[w]aters” in the dictionary to the POEO Act is a question of fact for the trial judge.
[7] The second issue only arises if I be wrong as to whether the Court should hear and determine the second questions. If it be necessary, I do not find the amended summonses to be defective for failing to disclose an offence known to the law.
[8] Accordingly, I will make orders dismissing the defendants’ notices of motion filed 25 July 2023.
[68] The prosecutor submitted that despite now contending that the summonses are invalid on their face and do not disclose offences known to law, the defendants did not bring this motion until after the prosecutor had served its notice of prosecution case and all its evidence. At no stage did the defendants seek further particulars from the prosecutor about its case in relation to the particularisation of waters.
[80] In relation to the first issue as to whether I should exercise the Court’s discretion to hear and determine separate questions at a preliminary hearing pursuant to s 247G of the CPA, I find as follows.
[81] I accept the prosecutor’s submission in relation to the conduct of the defendants in bringing these notices of motion. It is plainly inconsistent with “the purpose and aims of ss 247G-247V” of the CPA which was held by Robson J in Auen Grain at [38] to be “consistent with the overriding purpose of civil procedure to ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’”. It is also inconsistent with s 247B of the CPA which provides that the purpose of the case management provisions in Division 2A, Part 5 of the CPA is to “reduce delays in proceedings”. The defendants now bring a further attempt to challenge the validity of the charges. The proceedings were first filed in 2018 and then amended in 2022. Having regard to the overriding purpose of the CPA, these proceedings ought be finally determined. The motion challenging the form of the amended summonses has not been brought in a timely manner.
[82] The defendants’ first notices of motion were heard on 1 and 2 July 2019 in Kiangatha (No 1). As submitted by the prosecutor, there was no challenge then that there is no offence known to law or to the language of “ephemeral drainage lines leading to Murdering Creek”. The amended summonses in their present form were served in May 2021. In Kiangatha (No 4), as observed by the Court of Criminal Appeal, the defendants did not dispute that the original summonses charged them with offences that were known to law.
[83] The proceedings on 3 March 2023, instead of being set down for hearing for four weeks were adjourned until 31 March 2023 due to the defendants having recently briefed new counsel. On that occasion there was no indication from the defendants as to any challenge as to the form of the amended summonses.
[84] At no stage prior to the service by the prosecutor of its notice of prosecution case and its evidence, did the defendants seek further particulars from the prosecutor about its case in relation to the particularisation of waters.
[85] I likewise accept the prosecutor’s submission that the question whether the “ephemeral drainage lines leading to Murdering Creek” fall within the statutory definition of “waters” and are natural watercourses within the definition of “waters” in the POEO Act, is a question of fact for the trial judge.
[86] I do not accept that there has been any relevant procedural unfairness on the part of the prosecutor in describing the nature of the alleged offences in the amended summonses. The evidence served by the prosecutor in 2018 in support of the orders sought in the summonses pursuant to s 246 of the CPA in commencing these Class 5 proceedings made clear that on the prosecutor’s case, the ephemeral drainage lines leading to Murdering Creek constitute watercourses. That evidence is referred to above at [76]. Likewise, the evidence in the Macleod report is above at [20] and [78]. I also have regard to Robson J’s consideration of the principles of procedural fairness in Kiangatha (No 3) at [93] to [99].
[87] In all the circumstances, I am not satisfied that the Court should proceed to hear and determine the separate questions.
[150] I am comfortably satisfied that each of the amended summonses charges an offence known to law, in conformity with the principles enunciated in Kirk at [26]. The phrase “it polluted waters” in the summons in relation to Kiangatha, and the phrase “did pollute waters” in relation to Mr Natale, reflect the requirements of ss 11 and 12 of the CPA, as well as the common law requirements articulated in Kirk.
[151] The elements of a water pollution offence are as articulated by Pepper J in Riverina at [15]. Each of those elements is pleaded in the amended summonses. The defendants’ complaints as to the sufficiency of the particulars are technical matters capable of being addressed by way of further particulars at any stage of the proceedings.
[152] I am satisfied having regard to Genkem and Environmental and Earth Services that whether the relevant facts are sufficient to establish that the pleaded waters are “waters” within the statutory definition in the dictionary to the POEO Act is a matter for the trial judge.
[153] I have not, for the purpose of this interlocutory proceeding, accepted the defendants’ submission in relation to the definition of “waters” in the POEO Act. However, that will be a matter for the trial judge.
[154] Likewise, whether ephemeral drainage lines are “watercourses” having regard to the definition of “waters” in the dictionary to the POEO Act will be a matter for the trial judge.
[155] Nor do I accept the defendants’ submission that it is now too late for the prosecutor to allege that the ephemeral drainage lines are watercourses.
[156] For the reasons above, I would, if necessary, reject the defendants’ submissions in relation to the second issue.
On 2 February 2024 the Court set down a hearing in relation to the amended summonses in respect of Sites C and D. The matters were listed on 11 November 2024 for two weeks. The Court also made orders directing Kiangatha and Natale to file and serve their s 247K notice by 22 March 2024.
WaterNSW filed its s 247J notice on 5 February 2024.
On 24 March 2024 Kiangatha and Natale filed and served an affidavit of Meyer affirmed 22 March 2024, deposing to his observations when surveying Sites C and D (“the Meyer affidavit”).
Kiangatha and Natale filed and served their s 247K notices in response to the s 247J notice on 25 March 2024. The response included an affidavit of Prof Gerald Nanson, a geomorphologist, fluvial sedimentologist and hydrologist, affirmed 22 March 2024, which attached his expert report (“the Nanson Report”) (a copy of which was not tendered at the hearing of the motion the subject of these proceedings) (T81:45-82:13).
A further letter requesting WaterNSW to withdraw the amended summonses in relation to Sites C and D was sent by Kiangatha and Natale on 5 April 2024. In that letter, the Nanson Report was summarised:
3 Nanson Report
3.1 Professor Nanson, an internationally pre-eminent geomorphologist, fluvial sedimentologist and hydrologist, following three detailed site inspections of Sites C and D and surrounds, has opined in relation to the issues raised in the Proceedings, including that:
(a) geologically and geomorphologically, each site is located in a valley, in hill country of highly stable weathered granite;
(b) groundwater, in proximity to a water table, is a necessary requirement for a watercourse that will have water flow;
(c) the absence of groundwater in the valley floors at and proximate to Sites C and D, means that flows there are ephemeral with no supply of groundwater, as distinct from intermittent and perennial flows;
(d) the features for there to be a 'watercourse', alleged to be each of the ephemeral drainage lines at Sites C and D in the Amended Summons, in accordance with the definition stated by Barwick CJ in Knezovic, including of continuity, permanence and unity and a defined bed and banks with flowing water, are not exhibited at or in the vicinity of Sites C and D;
(e) Site C comprises a steep bedrock valley, with slopes of colluvium and embedded boulder floaters, with non-alluvial boulders over a partly vegetated floor;
(f) Site D comprises a grassy, concave-upwards shaped valley floor, with no definable channel and no bed and banks, that is highly discontinuous and with no evidence of any baseflow channel or any regular groundwater discharge; and
(g) Sites C and D are ephemeral drainage features with no defined channel and with no bed and banks.
3.2 As to the Macleod Report, Professor Nanson responds, including as follows:
(a) the flow system at Site C is incapable of forming riffles and pools, including because the valley floor is greatly obstructed;
(b) there is no sign of sediment transport such as by alluvial sediment or fluvial transport or deposition;
(c) the trickle flow observed by Mr Macleod at Site C, could be attributed to soil water draining after rain;
(d) it is not possible at Sites C and D for there to be any springs, due to the lack of groundwater above the level of the drainage features; and
(e) no photographs are provided of any observations made by Mr Macleod.
3.3 By contrast, the Nanson Report annexes numerous photographs of the features of Sites C and D and surrounds, that substantially supports Professor Nanson's observations and opinions.
WaterNSW filed and served its s 247L notice on 22 April 2024, objecting to the Nanson Report and the Meyer affidavit.
In response, on 3 May 2024 Kiangatha and Natale requested that WaterNSW identify which parts of the Nanson Report and the Meyer affidavit that it disputed and in what respect.
Kiangatha and Natale sent a letter to WaterNSW on 8 May 2024, querying whether it intended to continue to prosecute or withdraw the remaining charges in respect of Sites C and D given that no response was received to their letters of 7 September 2023 and 5 April 2024. It also enclosed a confidential letter addressed to Duncan requesting the withdrawal of the remaining charges.
On 22 May 2024 WaterNSW provided Kiangatha and Natale with its amended s 247L notice identifying the parts of the Nanson Report and Meyer affidavit that it disputed. WaterNSW said that it maintained the view that its original s 247L notice was compliant and suggested that to “resolve any doubt as to the proper articulation of the ‘dispute’”, the experts should prepare joint reports.
On 25 June 2024 the Board of WaterNSW met and resolved to discontinue the Sites C and D proceedings.
Kiangatha and Natale served their amended s 247K notices on 28 June 2024. In the attached letter they sought clarification of the application of the test for a “watercourse” set out in Knezovic v Shire of Swan-Guildfor**d ([1968] HCA 38; (1968) 118 CLR 468). They also refused to consent to a joint conference between Macleod and Prof Nanson on the basis that the issue had been clarified by the amended s 247L notice.
It was not until July 2024 that WaterNSW sent letters to Kiangatha and Natale stating that the proceedings would be discontinued and that it would withdraw the remaining amended summonses.
The letter formally advising the defendants of the withdrawal of the amended summonses in relation to Sites C and D was dated 1 July 2024. It stated:
1 We refer to the above Land and Environment Court proceedings, being:
1.1 LEC 2018/29509 [sic] – proceedings against Kiangatha Holdings Pty Limited pursuant to an Amended Summons served on 7 May 2021, in respect to a charge of pollution of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 at a location defined in the Amended Summons as “Site C”; and
1.2 LEC 2018/295911 – proceedings against Mr Laurence Natale pursuant to an Amended Summons served on 7 May 2021, in respect to a charge of pollution of waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 at a location defined in the Amended Summons at “Site D”,
(together, the Proceedings).
2 On Tuesday 25 June 2024 the Board of WaterNSW met and, having considered all relevant representations and the WaterNSW Prosecution Guidelines (in particular, the discretionary factors in Part 6.2.4), resolved on public interest grounds to discontinue the Proceedings.
3 Nonetheless, WaterNSW considers that, had the matter proceeded to a fair trial, the evidence was capable of establishing the elements of the relevant offences.
Paul Gavazzi advised WaterNSW that he had been instructed to act for Kiangatha and Natale on 5 July 2024.
The Court granted leave on 19 July 2024 to WaterNSW to withdraw the remaining amended summonses and set down a hearing on the question of costs on 17 October 2024. Gavazzi also became the solicitor on the record for Kiangatha and Natale on that day.
The trial dates were vacated on 22 July 2024.
On 22 August 2024 Kiangatha and Natale filed and served notices of motion seeking that WaterNSW pay their professional costs of the four withdrawn proceedings.
On 14 October 2024 leave was granted to Kiangatha and Natale to issue a notice to produce on WaterNSW in respect of their costs application.
However, the following day they advised that they no longer pressed items 1 and 2 of the notice to produce.
The notice to produce was subsequently withdrawn on 17 October 2024.
120 Prohibition of pollution of waters
(1) A person who pollutes any waters is guilty of an offence.
Note—
An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation — see section 169.
(2) In this section—
pollute waters includes cause or permit any waters to be polluted.
169 Liability of directors etc for offences by corporation—offences attracting special executive liability
(1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that—
(a) (Repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(1A) For the purposes of this section, each of the following provisions attract special executive liability—
…
(i) section 120 (1),
…
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations. …
water pollution or pollution of waters means—
(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or
(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or
(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
and, without affecting the generality of the foregoing, includes—
(d) placing any matter (whether solid, liquid or 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, onto 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
(e) placing 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,
if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.
waters means the whole or any part of—
(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or
(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.
208 Dismissal of matter if matter withdrawn
(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.
(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.
257C When professional costs may be awarded to accused person
(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.
(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if—
(a) the accused person is discharged as to the offence the subject of the proceedings, or
(b) the matter is dismissed because the prosecutor fails to appear, or
(c) the matter is withdrawn or the proceedings are for any reason invalid.
The Court’s discretion to award costs was enlivened in the present case by reason of the withdrawal of the proceedings (s 257C(3)(c) of the CPA). The question is whether the defendants have satisfied the Court that the statutory discretion should be exercised in their favour.
Section 257D limits the circumstances in which the Court may make a discretionary award of costs against a prosecutor to the following circumstances:
257D Limit on award of professional costs against a prosecutor acting in a public capacity
(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following—
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
257G Calculation of costs
The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined—
(a) by agreement between the prosecutor and accused person, or
(b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations).
(a) whether the investigation into the alleged offences was conducted in an unreasonable or improper manner by WaterNSW (s 257D(1)(a) of the CPA) (“the unreasonable investigation issue”); (b) whether the proceedings were initiated without reasonable cause or in bad faith or were conducted by WaterNSW in an improper manner (s 257D(1)(b) of the CPA) (“the without reasonable cause issue”); (c) whether WaterNSW unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware and which suggested either that Kiangatha and Natale might not be guilty or that, for any other reason, the proceedings should not have been brought (s 257D(1)(c) of the CPA) (“the unreasonable failure to investigate issue”); (d) whether, because of other exceptional circumstances relating to the conduct of the proceedings by WaterNSW, it is just and reasonable to award professional costs (s 257D(1)(d) of the CPA) (“the exceptional circumstances issue”); and (e) whether the Court ought to issue a costs certificate to Kiangatha and Natale under s 2 of the CCC Act (“the costs certificate issue”).
(a) an affidavit of Natale sworn 22 August 2024. In that affidavit Natale deposes, among other things, that the total legal costs (including costs spent on experts) incurred by the defendants is $1,284,755.10. Moreover, the proceedings have, as may be expected, exacted a significant personal burden; (b) an affidavit of Gavazzi sworn 22 August 2024, together with a 140 page exhibit, which largely comprised of correspondence passing between the parties’ lawyers. Gavazzi was the defendants’ solicitor in the proceedings at the time of the costs hearing. Other legal firms representing the defendants during the course of the proceedings included Addisons Lawyers, Dentons Lawyers, Eakin McCaffery Cox Lawyers and Kathpa Lawyers. WaterNSW was represented by Lindsay Taylor Lawyers. In particular, a letter dated 4 December 2018 from Lindsay Taylor Lawyers to Addisons, responding to a request for further and better particulars from the defendants on 16 November 2018. The letter enclosed the map showing points (Red Dots) that is reproduced above at [64], together with an accompanying Table identifying the precise location of each red dot; and (c) the transcript from the hearing before Pritchard J on 4 October 2023, quoted above at [127].
WaterNSW sought to resist the costs application by relying upon an affidavit of Liam Mulligan, affirmed 20 September 2024. Mulligan is a solicitor for WaterNSW. In that affidavit he outlined the relevant procedural history and investigation by WaterNSW. He noted that the investigation was primarily undertaken by officers of WaterNSW at that time, namely, Stein, Draper and Crossan.
Documents exhibited to Mulligan’s affidavit included:
(a) the 2 October 2018 letter serving the summonses in these matters on Kiangatha and Natale; (b) WaterNSW’s Prosecution Guidelines dated March 2024 (which was after the date that the prosecution commenced these proceedings); (c) extracts of two civil proceedings involving Kiangatha (Kiangatha Holdings Pty Ltd v Oberon Council [2020] NSWLEC 1386 and Oberon Shire Council v Kiangatha Holdings Pty Ltd [2021] NSWLEC 30); and (d) the letters sent to the defendants by WaterNSW advising them of the withdrawal of the charges.
(a) an affidavit of Stein, sworn 22 September 2018. At the time of swearing her affidavit, Stein was a compliance officer at WaterNSW. She inspected the property on multiple occasions and deposed to her observations of, among other things, erosion and sedimentation; (b) an affidavit of Caddey, affirmed 26 May 2023. Caddey was a Catchment Assessment Officer at WaterNSW. He inspected the property and surveyed Sites A, B, C and D; (c) an affidavit of Wilson, sworn 25 May 2023. Williams was the Deputy General Manager – Infrastructure at Narrandera Shire Council. He deposed to various inspections that he attended at the property; (d) an affidavit of Draper, sworn 21 September 2018. Draper was a Compliance Officer at WaterNSW who was appointed as an Authorised Officer under the POEOA and the Water NSW Act 2014. He attested to WaterNSW’s first awareness of the commission of the alleged offences and his inspection of the property whereat he observed erosion and sedimentation with the works giving rise to the charges; (e) an affidavit of Crossan, affirmed 21 September 2018. Crossan was a Catchment Compliance Manager; and (f) a 2018 expert report by Dr Hancock from Eco Logical Australia, opining as to the aquatic ecology impacts from clearing at the property.
(a) the withdrawal of the charges engaged the entitlement to costs under s 257C of the CPA; (b) the words “unreasonable” and “improper” in s 257D(1)(a) should have their ordinary meaning; (c) the investigation by WaterNSW was unreasonable and conducted in an improper manner pursuant to s 257D(1)(a) because it did not adequately, or at all, identify the ephemeral drainage lines, and therefore, “watercourses” and “waters” the subject of the charges at the time the proceedings were commenced. The defendants were accordingly incapable of knowing the precise locations of the alleged offences at that time. Kiangatha and Natale also relied upon the submission below with respect to s 257D(1)(b) for the purpose of s 257D(1)(a); (d) the proceedings were initiated without reasonable cause for the purposes of s 257D(1)(b) because they were commenced without any substantial prospect of success. At the time of initiation, the WaterNSW investigators did not have the necessary expertise to determine if the ephemeral drainage lines comprised “waters” for the purpose of s 120 of the POEOA. It was not until 19 May 2023 that it engaged an expert to opine in relation to whether the ephemeral drainage lines at Sites A and B were “waters” and “watercourses”. This was more than five and a half years from when WaterNSW first became aware of the circumstances resulting in the prosecutions being commenced; (e) Kiangatha and Natale repeated the arguments above to submit that WaterNSW had failed to investigate (or investigate properly) a matter of which it ought reasonably been aware, namely, that the ephemeral drainage lines at Sites A, B, C and D did not constitute “waters” or “watercourses” for the purposes of s 257D(1)(c) of the CPA; (f) there were exceptional circumstances relating to the conduct of the proceedings that justified an award of costs in their favour, including that:
(i) failing to commence the proceedings without proper investigation or evidence of the location, nature and character of the placement of the ephemeral drainage lines or of the “waters” the subject of the charges; (ii) failing to engage an appropriate expert in relation to “waters” until 2023 when the proceedings were commenced in 2018; (iii) failing to identify offences known to law because an ephemeral drainage line did not constitute “waters” for the purposes of s 120 of the POEOA; (iv) failure to identify Sites A, B, C and D until 2021; (v) conducting the proceedings beyond the grant of leave from the Court of Criminal Appeal in Kiangatha CCA (No 2) to particularise a single offence to each summons by gathering fresh surveying and aerial photographic evidence and expanding the evidence beyond that relied upon when the summonses were filed; and (vi) the “extraordinary” delay in the conduct of the prosecutions. It was not until 2024 that WaterNSW withdrew the remaining two charges in relation to Sites C and D. This delay caused Kiangatha and Natale to incur unnecessary and unreasonable significant costs and disruption.
(a) Kiangatha and Natale have not satisfied the Court of the matters required by s 257D(1)(a)-(c) of the CPA for any of the proceedings; (b) Kiangatha and Natale’s submissions on “exceptional circumstances” lack clarity and for that reason s 257D(1)(d) of the CPA is not demonstrated; and (c) if the Court were to grant a costs certificate pursuant to the CCC Act in relation to the Sites A and B charges, which were withdrawn for evidentiary reasons, then any certificate should exclude the costs associated with Kiangatha and Natale’s unsuccessful interlocutory applications.
It is worth observing from the outset that under the CPA the power to award costs against a prosecutor acting in a public capacity is “heavily constrained” (Lismore City Council v Ihalainen (No 3) [2015] NSWLEC 53; (2015) 212 LGERA 222 at [7]).
In Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21; (2009) 165 LGERA 6, Biscoe J, with his Honour’s customary comprehensiveness, reviewed the authorities and distilled the following propositions from the cases (at [15]):
15 I distil the following proposition from the cases:
(a) the onus is upon the defendant to bring the case within one of the exceptions to the general rule laid down by s 257D(1) that professional costs are not to be awarded in favour of an accused person: Fosse at [16]; Halpin at [43]; Wollongong at [6];
(b) the finding of a prima facie case may not negate the application of s 257D in the circumstances of the case;
(c) the exceptions in s 257D(1)(a) and (c) are concerned with investigations, whereas the exception in (b) is concerned with the proceedings. A prosecutor’s failure to interview an eye witness when it was not known what the witness’ evidence might be, could satisfy the test in (a) but not the test in (c) because of the additional requirement: Wollongong at [7].
(d) as to the exception in s 257(1)(a) (that the investigation was conducted in an unreasonable or improper manner)
(i) the test is purely objective. The test is not whether the investigation fell “grossly below optimum standards”: JD at [29] – [30]; Wollongong at [77]. The question whether proceedings have been initiated without reasonable cause is to be answered by reference to the quality of the evidence gathered “with an eye not only to the enquiries which had been made but also to those which should have been made”: JD at [28]; Wollongong at [8];
(ii) it is unnecessary in every case for the defendant to show that an investigation conducted in a reasonable manner would have suggested that the defendant might not be guilty or that the proceedings ought not to be brought: Cliftleigh at [21];
(iii) a conclusion that the investigation was conducted in an unreasonable manner does not impugn the general competence, far less the integrity, of those responsible for the investigation: JD at [31], Wollongong at [7].
(e) as to the exception in s 257D(1)(b) (that the proceedings were initiated without reasonable cause):
(i) the failure of proceedings does not, of itself, mean that the proceedings were initiated without reasonable cause: R v Moore at 473; Wollongong at [9];
(ii) proceedings will be instituted without reasonable cause if, objectively assessed on the facts or the facts apparent at the time of initiating the proceedings, they had no real prospects of success or were doomed to failure: Council of Kangan at [60]; Kanan at 6; Wollongong at [9].
(a) merely because the evidence of one expert is preferred by a Court over the evidence of another does not in and of itself provide a defendant with an entitlement to costs (Southon v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [73]); and (b) the preparation of expert evidence is generally not part of the investigation of the alleged offence for the purposes of s 257D(1)(a) and (c) (Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 7) [2022] NSWLEC 83 at [40] and [44]).
The defendants relied upon the Stein affidavit, with its failure to reference ephemeral drainage lines, and the absence of any reference to “watercourse” in the amended summonses, to submit that WaterNSW had deliberately eschewed a “watercourse” case from the outset. A similar criticism was made about the affidavit evidence of Draper.
In addition, the maps and photographs attached to the amended summonses depicting Sites A to D were not prepared until 2021 and were not available to WaterNSW at the commencement of the proceedings. It was not until more than two and half years after the prosecutions were commenced that WaterNSW obtained evidence to support the charges, including for the substituted offence locations in the amended summonses.
Moreover, Caddey, who deposed that he attended Sites A to D on six occasions, four of which preceded the commencement of the proceedings, did not produce any photographs of the alleged ephemeral drainage lines prior to the prosecutions being initiated. His observations could not provide WaterNSW with any proper basis for commencing the proceedings in relation to Sites A to D.
Finally, the failure of Stein, Draper and Caddey to take any photographs of the alleged ephemeral drainage lines meant that the defendants were incapable of knowing the precise locations of the alleged offences until the proceedings were considerably advanced.
In summary, Kiangatha and Natale asserted that it was “unreasonable” and “improper” for WaterNSW to rely on the site inspections and investigations of its officers because neither did they, nor could they, opine on whether or not ephemeral drainage lines constituted “waters” under the POEOA for the purpose of the s 120 charges. In short, no pollution could ever be established on a prosecution based on ephemeral drainage lines.
I do not accept the defendants’ characterisation of the adequacy of the investigation prior to the commencement of the prosecutions. The evidence discloses that WaterNSW investigated the offences by obtaining evidence from multiple site inspections, interviews with witnesses, documentary evidence gathered by it, and the engagement of two expert aquatic witnesses.
As WaterNSW explained, the matter came to its attention following notification by Oberon Council. In 2017 WaterNSW carried out nine inspections of the site. On each occasion, officers of WaterNSW recorded their observations, mapped the extent of the works and took photographs and videos as deposed to in their affidavits. WaterNSW also investigated the ownership of the site.
In 2017 and 2018 WaterNSW conducted interviews with the contractors who undertook the works, especially Lund, and the stock and station agent for Kiangatha, Costigan.
Importantly, in January 2018 WaterNSW obtained an expert report from a surface water management expert, Passfield, who had inspected the site on 21 November 2017.
Kiangatha and Natale submitted that the proceedings were initiated without reasonable cause or were conducted by WaterNSW in an improper manner pursuant to s 257D(1)(b) of the CPA. This was because WaterNSW should not have commenced and continued the proceedings unless there were substantial prospects of success (citing Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; (2012) 227 A Crim R 287 at [47]-[48]). According to the defendants, the withdrawals gave rise to “the inarguable conclusion that the Prosecutor determined that there was no substantial prospect of success of any of the proceedings at the proposed trial”. The conclusion was “inarguable” because WaterNSW initiated the proceedings by summonses and then continued them by the amended summonses upon the “unfounded premise” that the alleged ephemeral drainage lines were “waters”, and in particular, were “watercourses”.
Furthermore, neither Stein nor Draper made any reference to any test, nor had any expertise, in determining whether the ephemeral drainage lines were a “watercourse” for the purpose of s 120 of the POEOA. Thus, because both Sites A and B were never “waters”, it follows that there could never have been a breach of s 120 and that the defendants were always innocent of the offences as charged. Put another way, the prosecution case in relation to Sites A and B, and hence Sites C and D, had no prospect of success from the outset and for this reason the proceedings should not have been brought.
WaterNSW put the defendants to significant expense and delay in waiting until May 2023 to engage an expert to provide an opinion as to whether Sites A and B were “watercourses” and “waters”, especially as the latter term is understood in the caselaw. WaterNSW should have engaged an expert prior to instituting the proceedings to opine on this issue and not waited more than five and a half years from when it first became aware of the circumstances giving rise to the prosecutions. Nowhere in the amended summonses or in the evidence of WaterNSW was the nature and physical features and operation of the ephemeral drainage lines explained. It was not until the service of the Macleod Report in May 2023 that the ephemeral drainage lines were “watercourses”, and therefore, “waters” for the purpose of the charges.
In this context the defendants relied upon the decision of Barwick CJ in Knezovic where his Honour opined with respect to what was comprised by a “watercourse” that (at 475-476, emphasis added):
…It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel. In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land: thus water can be seen when flowing to do so in what could be called a defined channel. If the seasonal rainfall is within an average tolerance in amount and timetable, the flow in the contour depression and in the extent to which it spreads as it flows. If there is some such normality in the volume flowing, the impression of a defined channel with limiting margins will be enhanced. If, as I would expect be the case, there is considerable variation in the rainfall and in the volume and velocity of the water flowing in the depression, the impression of a defined channel may be considerably less. But, in any event, the existence of such a defined channel will not make the drainage depression a watercourse nor the limiting margins of the water’s flow in a rainy season or period “banks” of a stream. Thus, though water when it flows in such a period flows in what can be called a defined channel, such a drainage depression will lack banks and a bed in the proper sense of that term, that is to say, identifiable margins of a continuous and permanent stream which contribute to its unity whether or not water is in fact continuously flowing over the bed. The word “occasional” in the quotation from Angell on Watercourses will here, in my opinion, embrace seasonal events, even if they occur with some regularity from season to season.
The defendants therefore argued that WaterNSW ought to have known that the ephemeral drainage lines could never be “watercourses” or “waters” for the purpose of s 120 of the POEOA.
In terms of conducting the proceedings, WaterNSW’s decision to discontinue them was informed by, and arrived at, after the following events in the conduct of the defence case:
(a) the third notices of motion hearing by which time it was clear to WaterNSW that there was a threshold problem of whether the ephemeral drainage lines constituted “waters” for the purpose of s 120 of the POEOA; (b) the change in WaterNSW’s case to alleged “watercourses” at Sites A to D, which had not been pleaded at the commencement of the proceedings; (c) the Nanson evidence, which eschewed the presence of any “watercourses” at Sites C and D and refuted the opinions expressed in the Macleod Report; and (d) details of the deficiencies in WaterNSW’s case set out in the various withdrawal requests by the defendants.
These facts establish that WaterNSW conducted the proceedings improperly and without reasonable cause.
Moreover, WaterNSW continued to advance its case notwithstanding the Macleod Report and the Nanson evidence. It only withdrew the charges after formal requests to do so by the defendants. The late abandonment of the proceedings by WaterNSW indicated, according to Kiangatha and Natale, that it must have determined that the proceedings had no real prospects of success. They were therefore initiated without reasonable cause and conducted improperly.
WaterNSW relied upon the meaning ascribed to the composite term “without reasonable cause” by Gibbs J in R v Moore; Ex parte Federated Miscellaneous Workers*’* Union of Australia [1978] HCA 51; (1978) 140 CLR 470, where his Honour said “a party cannot be said to have commenced a proceedings ‘without reasonable cause’, within the meaning of that section, simply because his argument proves unsuccessful” (at 473).
In Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257, Wilcox J stated that (at 264-265, emphasis added):
…one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceedings as being “without reasonable cause”. But where, on the applicant’s own version of facts, it is clear that the proceedings must fail, it may properly be said that the proceeding lacks a reasonable cause.
This test has been endorsed and applied in this Court (in A1 Professional at [13] and Cumberland Council v Tony Younan; Ronney Oueik*;* H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67 at [13]). Applied to the facts of this application, it becomes apparent that the proceedings were not initiated without reasonable cause.
As WaterNSW emphasised, s 257D(1)(b) of the CPA is directed to the initiation – not the continuation – of proceedings. Accordingly, the focus must be on ascertaining the facts apparent to WaterNSW at the time that the proceedings were commenced.
At that juncture, the framing of the charges as a single criminal transaction was not obviously duplicitous. It was only on appeal from the 2019 decision of Robson J in Kiangatha that the summonses were found to have infringed the rule against duplicity (Kiangatha CCA) and the matter was remitted to Robson J and WaterNSW was put to an election. It was not then apparent, on the facts known to WaterNSW, that there was no substantial prospect of success because one of the elements of the offence could not be proved, namely, the pollution of “waters” as statutorily defined. The issue of duplicity was plainly arguable, with the Court of Appeal emphasising that each case was a matter of fact and degree (Kiangatha CCA at [60]). It cannot therefore be said that the proceedings were commenced without reasonable cause.
The gravamen of Kiangatha and Natale’s complaint that the proceedings were initiated without reasonable cause or improperly is because ephemeral drainage lines could not fall with the definition of “waters”. That the amended summonses did not give rise to offences known to law formed the basis of their argument before Pritchard J in Kiangatha (No 3). This assertion was rejected by her Honour who held that she was “comfortably satisfied that each of the amended summonses charges an offence known to law” (at [150]) and that the ultimate determination of the issue was a matter for the trial judge (at [152]). As WaterNSW emphasised, the application the subject of Kiangatha (No 3) was brought by the defendants five years after the proceedings were initiated. On any view, the fact that ultimately caused the proceedings to be withdrawn by WaterNSW (that ephemeral drainage lines were not “watercourses”) was not a fact that was known to it when it commenced the proceedings.
In relation to the defendants’ reliance on Knezovic, it is, in my view, presently misplaced. First, that case concerned a definition of “watercourse” in the Rights in Water and Irrigation Act 1914 (WA) and not “waters” in the POEOA. Its application to the latter Act, if any, must be attended to with caution, and in any event, was a matter for the trial judge to determine. Second, whether by applying the test in , or some other criteria, the question of whether ephemeral drainage lines fell within the definition of “waters” in the POEOA is a question of mixed fact and law, which was also an issue reserved for resolution by the trial judge. That it was not until 19 May 2023 that WaterNSW commissioned the Macleod Report, does not render WaterNSW’s commencement of the proceedings without reasonable cause or improper. When the original summonses were filed, for the reasons explained above, the issue of the legislative status of the ephemeral drainage lines had not arisen.
Kiangatha and Natale repeated much of the submission above with respect to the proceedings purportedly having been initiated without reasonable cause to contend that they were also conducted in an improper manner. The same findings and conclusions apply.
The defendants further emphasised, however, that the late withdrawal of the charges with respect to Sites A to D caused the proceedings to be conducted improperly.
In my opinion, there is some substance to this suggestion as the following chronology (summarised from the factual background set out in detail above) reveals. Commencing with the withdrawal of the amended summonses for Sites A and B:
(a) on 19 May 2023 Macleod was instructed to provide his opinion on whether Sites A to D were “waters” within the meaning of the POEOA, following upon the determination of the appeal in Kiangatha CCA (No 2) on 15 December 2022 and the entry of the pleas of not guilty to the amended summonses on 31 March 2023. The instructions included a passage from Knezovic concerning the term “watercourse” and the statutory definition of “waters”; (b) on 25 May 2023 Macleod concluded that Sites A and B were not “watercourses” (and therefore not “waters”), whereas Sites C and D were a “watercourse”. This was served on the defendants on 26 May 2023; (c) on 27 June 2023 the Board of WaterNSW resolved to withdraw the Sites A and B charges; (d) on 28 July 2023 Kiangatha and Natale wrote to WaterNSW requesting that in light of the Macleod Report the amended summonses in respect of those sites be withdrawn; and (e) WaterNSW notified the defendants on 31 July 2023 that the amended summonses would be withdrawn in relation to those Sites. This occurred on 4 August 2023.
In my view, the timing of the engagement of Macleod does not give rise to a finding that the proceedings were conducted improperly. Macleod was engaged only after, and as a result of, the resolution of the duplicity question by the Court of Criminal Appeal. There was nothing improper about WaterNSW’s conduct in this regard. Moreover, after receipt of the Macleod Report, WaterNSW did not delay in seeking Board approval to withdraw the charges. As WaterNSW explained, the directors of the Board are subject to the State Owned Corporation**s Act 1989 and are subject to fiduciary obligations. The directors therefore sought legal advice from counsel. It was upon consideration of that advice that the Board determined to withdraw the proceedings.
Nor do I accept the criticism by the defendants of WaterNSW’s or Macleod’s reliance on the Passfield Report. In that Report, Passfield (who was expert in sediment and erosion control) opined that there had been the pollution of “first or second order watercourses” by the placement of soil and other sediments occasioned by the construction works. Passfield was not asked for his opinion on whether the ephemeral drainage lines were “watercourses” for the purpose of s 120 the POEOA because at that stage this issue had not been identified. WaterNSW was entitled to rely upon the Passfield Report as comprising evidence in support of the alleged offences and there was nothing unreasonable of improper about it doing so at that stage and having regard to the reason for which it was commissioned.
As a matter of evidence, and as was made clear from the outset, WaterNSW’s case was that the ephemeral drainage lines leading to Murdering Creek constituted watercourses. It is therefore not correct, as the defendants submitted, that the first notice that they received that the prosecutor’s case involved ephemeral drainage lines as watercourses only emerged four and half years after the commencement of the proceedings.
Kiangatha and Natale repeatedly complained that WaterNSW did not identify Sites A to D upon the institution of proceedings, and therefore, did not have a proper basis for commencing, or maintaining, the proceedings. But the submission is misconceived. As at September 2018, when WaterNSW commenced the proceedings, the prosecution related to the entirety of the property tracks and impacted drainage network. WaterNSW’s case was not confined to Sites A to D because these were not particularised until May 2021 (with GPS coordinates and contemporaneous photographs supplied with the amended summonses) as a consequence of the duplicity appeal.
Having said this, what remains unexplained though, is the additional period of time between the decision of WaterNSW resolving to withdraw the proceedings with respect to Sites A and B, and this being communicated to the defendants. Almost a month passed before this occurred, during which time Kiangatha and Natale filed applications for a separate question to determine whether the amended summonses charged offences known to law. Although unsuccessful ( ), pursuit of the applications was not, in my view, fanciful given the contents of the Macleod Report and the opinions that he expressed about what constituted “waters”. Had WaterNSW communicated its resolution to withdraw the proceedings with respect to Sites A and B in a more timely manner, the notices of motion in respect of those Sites would not have been pursued. Indeed it appears from the chronology detailed earlier in the judgment that it was not until the defendants wrote to WaterNSW on 28 July 2023 requesting that the amended summonses be withdrawn in respect of those two sites that the first withdrawal letter was sent.
(a) as at 25 May 2023, WaterNSW was in receipt of expert evidence opining that there was, unlike Sites A and B, a “watercourse” at Sites C and D (the Macleod Report). This was served on Kiangatha and Natale the following day; (b) the notices of motion seeking the determination of a separate question in respect of Sites C and D were heard and determined in late 2024, with the defendants unsuccessful at first instance and on appeal; (c) it was not until the Meyer evidence and, in particular, the Nanson Report was served on WaterNSW on 25 March 2024, that the prosecutor was in receipt of evidence to suggest that Sites C and D might not be “watercourses” for the purpose of s 120 of the POEOA; (d) a further letter was sent from the defendants to WaterNSW on 5 April 2024, requesting that the charges in relation to the remaining sites be withdrawn. No response was received; (e) on 22 April 2024 WaterNSW served its s 247L notice objecting to the Meyer evidence and the Nanson Report. The notice did not specify in detail which parts of that evidence was objected to; (f) on 3 May 2024 the defendants requested that WaterNSW identify the parts of the Nanson and Meyer evidence that it objected to and in what respect; (g) the previous letters having gone unanswered, a final letter was sent by Kiangatha and Natale on 8 May 2024, requesting the withdrawal of the remaining charges; (h) on 25 June 2024 the Board of WaterNSW met and decided to discontinue the Sites C and D charges; and (i) the second withdrawal letter was sent on 1 July 2024 and the trial dates were vacated on 22 July 2024.
With the benefit of hindsight, persistence with the prosecution of the amended summonses in relation to Sites C and D is not easy to reconcile. There is force in the content of the letter from the defendants dated 7 September 2023, which noted that given that there was scant difference between Sites A and B and Sites C and D, the remaining charges ought to be withdrawn. This was reinforced by the evidence of Nanson served on 25 March 2024, and it was reiterated in the defendants’ letter dated 5 April 2025.
Nevertheless, it remains the fact that WaterNSW had in its possession an expert report that delineated between the Sites and which stated that, in Macleod’s opinion, Sites C and D were “watercourses”. The prosecutor was entitled to rely upon that opinion, including in the face of the service of the Nanson Report and the Meyer evidence, contradicting Macleod’s conclusions. As the principles above make plain, to persist with the conduct of litigation where there is a contest in relation to the expert evidence does not make that improper conduct by the prosecution. As Pritchard J held in Kiangatha (No 3), ultimately the matter was one for resolution by the trial judge. It is entirely possible that upon the benefit of a full hearing, with the views of Nanson and Macleod being tested in cross-examination and submissions by the parties, that Kiangatha and Natale might be found guilty of the remaining charges.
The defendants made much of the exchange before Pritchard J quoted above (at [127]). However, I do not consider this to be of material assistance. If, at the final hearing, WaterNSW proved to be incorrect in either its construction of the term “waters” or its submission that there was a “natural or artificial watercourse” which was sufficient for the purposes of s 120 of the POEOA, this alone would not necessarily attract a costs order against it having regard to the caselaw. A failure by the prosecution to demonstrate beyond reasonable doubt an element of the offence does not automatically attract adverse costs consequences.
The decision to withdraw the remaining charges was made “on public interest grounds” with explicit reference to part 6.2.4 of the Prosecution Guidelines. While that part is directed to the commencement of proceedings, the factors listed thereat are also relevant to the maintenance of any prosecution and it can be readily understood how withdrawing the charges having regard to one, some, or all of those factors would be in the public interest. To discontinue the prosecutions based on any or all of those considerations does not, in my view, render the conduct of the proceedings prior to that point improper and no inference to the contrary can be drawn. To reiterate, as at 1 July 2024 WaterNSW had expert evidence upon which it was entitled to rely to the effect that the ephemeral drainage lines at Sites C and D constituted “watercourses”. There was nothing improper about its conduct on this basis.
Section 257D(1)(c) of the CPA requires Kiangatha and Natale to effectively show that WaterNSW unreasonably or improperly failed to investigate any relevant matter that suggested that either defendant might not be guilty (the first limb), or that the proceedings ought not to have been brought (the second limb).
The argument that s 257D(1)(c) enlivened an entitlement of the defendants to costs may be rejected on a number of bases. Turning to the first limb of the provision, there was no evidence that suggested that anyone other than Kiangatha and Natale were responsible for the acts giving rise to the alleged offences. For example, correspondence between Natale to Lund and George Shortis (co-director of Kiangatha) make it beyond any doubt that Natale directed Lund to undertake the works and indicated where the road was to be located. This was confirmed in an interview with Lund, invoices from RTKM to Kiangatha, and the recorded interview with Costigan. Natale was also present on the property when the works were being carried out by him.
With respect to the second limb, the defendants repeated their arguments above in relation to s 257D(1)(a) of the CPA, insofar as they submitted that WaterNSW had failed to properly or reasonably investigate whether the ephemeral drainage lines were “waters” for the purpose of s 120 of the POEOA.
But in addition to the insurmountable hurdles identified above in relation to s 257D(1)(a) – which are presently repeated – the defendants must also establish that WaterNSW was aware or ought reasonably to have been aware that proceedings should not have been brought because the ephemeral drainage lines were not “waters” as statutorily defined. It has not discharged its burden of proof in this regard. Again, the focus of the enquiry is the investigation, and not the cogency of the evidence presented at the hearing.
At no point during the investigation was WaterNSW alerted to the fact that the ephemeral drainage lines may not constitute “waters”; it was only during the hearing that the issue emerged. Given the nature and extent of the evidence that it gathered and relied upon (described above) in order to commence the proceedings, including from two aquatic experts, no criticism can be made of the manner in which WaterNSW investigated the alleged offences. It should be recalled that Sites A through to D were not identified until some years later.
In short, at the time that the proceedings were commenced there was no reason that WaterNSW was aware of, or ought to have been aware of, to suggest that the proceedings ought not have been brought.
Section 257D(1)(d) of the CPA provides for an award of costs where, because of exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
In their various sets of written submissions the defendants submitted that exceptional circumstances existed warranting a costs order in their favour on the following bases:
(a) even if water pollution was established, it was the Stop Work Orders that precluded Kiangatha and Natale from installing sediment controls. This would have provided Kiangatha, at least, with a defence to the allegation of water pollution insofar as it lost the management and control of the property and was not the occupier to the land for the purpose of s 120(1) of the POEOA; (b) the commencement by WaterNSW of the proceedings by duplicitous summonses; (c) the commencement of proceedings without proper investigation of the location, nature, and character of the ephemeral drainage lines and “watercourses” relied upon to found the charges; (d) failure to identify offences known to law on the basis that the ephemeral drainage lines were not “waters” for the purpose of s 120 of the POEOA; (e) failure to commission an appropriate expert to opine on whether the ephemeral drainage lines were “watercourses” until Macleod was engaged on 19 May 2023; (f) failure to confirm that the ephemeral drainage lines were not “waters” because they were not “watercourses” until 26 May 2023 when the Macleod Report was served; (g) confirming that the ephemeral drainage lines at Sites C and D were “watercourses” on 4 October 2023, when in answer to a question from Pritchard J as to how the identified ephemeral drainage lines fit within the definition of “waters” in the POEOA, counsel for WaterNSW replied by saying that they were a “natural or artificial watercourse”; (h) failure to identify Sites A, B, C and D until 7 May 2021; (i) conducting proceedings beyond the grant of leave by the Court of Criminal Appeal in Kiangatha CCA (see the orders at [72(4)]) to particularise a single offence in relation to each summons held to be duplicitous by “gathering fresh surveying and aerial photographic evidence in April 2021, expanding beyond the affidavits filed at the outset in support of the Summonses”. This was said to be procedurally unfair; (j) the delay caused by WaterNSW’s conduct in, having commenced the proceedings in 2018, opposing the first duplicity challenges both at first instance and on appeal, opposing the second challenge both at first instance and on appeal, opposing the separate question application, pursuing directions for the exchange of evidence and the listing of the matters for hearing, and then ultimately withdrawing the remaining charges in relation to Sites C and D on 19 July 2024; (k) the continuation of proceedings by the filing of amended summonses that charged offences at new locations (Sites A to D) which were therefore new charges that were time-barred; (l) the cumulative and consequential effect of the matters in (a) – (k) upon the duration of the proceedings and the concomitant increase in costs suffered by the defendants; (m) the absence of any actual or likely impact of the sediment on the receiving environment alleged to constitute the pollution of waters giving rise to a de minimis defence. At its highest, the Hancock Report relied upon by WaterNSW posited only the possibility of sediment impact, otherwise it provided no evidence of any material impact to the water ecology or habitat of Murdering Creek or the Cox’s River. This was consistent with the Nanson Report (“the submission”); (n) the abandonment of the proceedings in relation to Sites A and B on 31 July 2023, more than four and a half years after proceedings were commenced by WaterNSW; and (o) the abandonment of the proceedings with respect to Sites C and D, more than five and a half years after their commencement and after they had been fixed for hearing.
(a) the issuing of the Stop Work Orders would not have provided a defence to what were strict liability charges under s 120 of the POEOA. The defendants did not refer to any defence under ss 121 or 122 of that Act that was relevant or applicable. At its very highest, this could have been a factor which the Court took into consideration in sentencing Kiangatha and Natale; (b) I agree with WaterNSW that there is no authority that supports the proposition that because the defendants were successful on the duplicity appeal this in and of itself warrants exceptional circumstances relating to the conduct of the proceedings by the prosecutor; (c) the issue of whether the location of ephemeral drainage lines and whether they constituted “waters” for the purpose of s 120 of the POEOA did not arise until after the duplicity issue was resolved. That is, it was not apparent to the prosecutor when the prosecution was commenced; (d) the discussion above is repeated. Furthermore, as Pritchard J held in Kiangatha (No 3), the question of whether the offences were known to law was a matter for the trial judge. The amended summonses were withdrawn before this occurred; (e) WaterNSW engaged Macleod after the duplicity issue was resolved and it was ordered to elect where the pollution of waters was alleged to have occurred. It was not until this moment that issue of whether the ephemeral drainage lines were “watercourses”, and therefore “waters”, was enlivened. In my view, WaterNSW acted with sufficient dispatch in engaging Macleod to opine on this question; (f) the explanation provided above at (c) to (e) is repeated; (g) the defendants emphasised that although the Macleod Report was served on them on 26 May 2023, opining that the landscape features at Sites A and B were not “watercourses”, WaterNSW nevertheless identified the ephemeral drainage lines at Sites C and D as such (either “natural or artificial”) on 4 October 2023 before Pritchard J. The application of s 257D(1)(d) of the CPA to the chronology of events surrounding the withdrawal of the amended summonses in relation to Sites A and B does not give rise to an award of costs in favour of the defendants. While the delay between the Board’s decision to withdraw the charges and the communication of this fact to the defendants was improper, the delay was not so egregious as to amount to exceptional circumstances.
The same can be said of the withdrawal of the summonses for Sites C and D. As discussed above, while WaterNSW ought to have reviewed whether it remained in the public interest to continue to prosecute the offences alleged to have occurred at Sites C and D earlier than it did, although improper, the delay does not amount to exceptional circumstances;
(h) again, it was not until the duplicity issue was resolved that WaterNSW were able to identify Sites A to D. There was no appreciable delay by it in doing so after being put to an election; (i) the criticism that WaterNSW exceeded the grant of leave afforded to it by the Court of Criminal Appeal in Kiangatha CCA cannot be established. The order (at [72(4)]) stated as follows:
(4) In lieu thereof it is ordered that further proceedings on each summons are stayed until the respondent elects and particularises in relation to each summons a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which the respondent will proceed.
In order to particularise a single offence upon which WaterNSW was to proceed it required the additional evidence complained of by the defendants. After a contested hearing, where it may be presumed that this complaint was similarly raised, leave was granted by Robson J in Kiangatha *(*No 2) to file the amended summonses. The leave was unsuccessfully challenged on appeal by the defendants in Kiangatha CCA (No 2). The suggestion that the locations identified in the amended summonses were different from the locations previously specified in the original summonses was rejected by the Court of Criminal Appeal (at [66]-[68]). There is no basis whatsoever for this Court, on this application, to traverse the findings made by Robson J in Kiangatha (No 2);
(j) the Court repeats the reasoning above in (b). Furthermore, it should be noted that it was the defendants who unsuccessfully opposed the application by WaterNSW to amend the summonses, both at first instance and on appeal, and failed in their application to have the Court order a separate question. There was no delay occasioned by the conduct of WaterNSW in this regard that would warrant the imposition of a costs order against it; (k) the charges in the amended summonses were not new charges, they were the result of the election by WaterNSW consequent upon the Court of Criminal Appeal finding that the original summonses were duplicitous. The amended summonses were accompanied with GPS coordinates and aerial photographs to precisely identify the locations of Sites A to D. The amended charges were, as Robson J found in Kiangatha (No 2) which was undisturbed on appeal (Kiangatha CCA (No 2)), within the factual matrix of the original charges. The offences were therefore not time-barred when presented in the amended summonses; (l) I do not accept that the cumulative effect of the factors at (a) – (k) gives rise to exceptional circumstances under s 257D(1)(d) of the CPA. All of them have been rejected. The sum of their parts is not greater than their whole, which in this instance is a nullity; (m) assuming that the Court has understood the de minimis submission correctly, it can have no relevance to the issue of liability. An offence against s 120 of the POEOA is a strict liability offence with no prescribed level of pollution or harm to the environment being an element of the offence. The defences in ss 121 and 122 of the POEOA are not applicable. Given the very wide definitions ascribed to the terms “water pollution or pollution of waters” and “waters”, evidence contained in the Hancock Report positing only the possibility of sediment impact was, if proven beyond reasonable doubt, sufficient. Whether or not there was any material impact to the water ecology or habitat of Murdering Creek or the Cox’s River, was not a matter that WaterNSW was required to demonstrate at this stage of the proceedings. In my view, therefore, no de minimis defence was available to the defendants and even if it was, this would have been a matter for the trial judge; (n) the Court repeats its reasons and findings above under the heading “The proceedings were conducted improperly” at [205]-[214]. In my opinion, from 27 June 2023, exceptional circumstances existed that justify the making of a costs order in Kiangatha and Natale’s favour from that date onward in respect of the proceedings relating to Sites A and B; and (o) however, for the reasons set out above at [215]-[225], I do not find that WaterNSW is liable for Kiangatha and Natale’s costs in respect of the proceedings relating to Sites C and D.
Kiangatha and Natale sought the payment of their costs on an indemnity basis.
Even assuming that the Court has the power to order the costs payable under the CPA to an accused person on an indemnity basis, the conduct of WaterNSW was not such that the order ought to be made for the reasons set out above, and I decline to do so.
Given my conclusion that the costs provisions of the CPA are largely inapplicable to Kiangatha’s and Natale’s claim for the payment of the entirety of the costs of the proceedings by WaterNSW, it is necessary to determine the costs certificate issue.
The CCC Act is an alternative to the statutory regime set out in the CPA. It permits the Court, if it is minded to make an order for costs as a compensatory measure, to do so by way of a costs certificate. A costs certificate entitles a defendant to seek payment of their costs from the Director-General of the Attorney General’s Department, which is payable from the Consolidated Fund.
In respect of when a certificate may be granted, the following provisions of the CCC Act are applicable:
2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and—
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,
grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
The scheme applies to the present circumstances, that is, where proceedings are terminated “after the commencement of a trial in the proceedings”, or withdrawn (s 2 of the CCC Act). A “trial” includes “preliminary proceedings” (s 2 of the CCC Act and JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228; (2014) 87 NSWLR 320 at [35]-[40]).
Section 3(1)(a) of the CCC Act requires a hypothetical exercise where the Court must consider all of the relevant facts before it and attribute knowledge of those facts to the prosecution at the time of instituting the proceedings against the defendant. It does not necessitate an enquiry into the reasonableness of the conduct of the prosecution throughout the proceedings.
In Higgins v The Queen (No 2) [2022] NSWCCA 82, the defendant had his appeal quashed by the Court of Criminal Appeal and he made an application under s 2 of the CCC Act for a costs certificate. The Court explained the operation of the CCC Act as follows (at [5]-[10]):
5 The Costs Act provides one means by which a defendant to criminal proceedings can recover legal costs where they are successful in those proceedings. Its purpose is to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings, but without casting any criticism on police or prosecutors: Steven Alan Cox v R (No 2) [2017] NSWCCA 129 at [4(3)]; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 561-562 (Kirby P, Meagher and Handley JJA agreeing).
6 The Act establishes a two-stage process by which the defendant first applies to the Court for a certificate, and then applies to the Director-General for payment of costs incurred in the proceedings to which the certificate relates.
7 Sections 2 and 3 of the Act govern the first stage relating to the granting of a certificate by the Court. …
8 A certificate is not to be granted unless the Court is satisfied as to each of the matters specified in s 3(1), namely that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all of the relevant facts, and that any act or omission of the defendant which contributed to the initiation or continuation of the proceedings was reasonable. The applicant bears the onus of satisfying the Court to this effect: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36(d)].
9 The phrase “all the relevant facts” as employed at s 3(1)(a) is relevantly defined in s 3A…
10 The task of the Court, in relation to s 3(1)(a), is to answer a hypothetical question addressed to evidence of “all of the relevant facts”, whether those facts were discovered before the applicant’s arrest and committal, after his committal and before trial, during the trial, or afterwards admitted under s 3A: Allerton at 559-560; Beatson v R [2015] NSWCCA 17 at [10].
32 For present purposes three matters referred to in that conclusion bear emphasis. First, this was a case where the Court was embarking upon its own independent assessment of the evidence as required by the Criminal Appeal Act 1912 (NSW). The fact that the verdict was unreasonable within the meaning of s 6(1) of that Act does not necessarily mean that the institution of the proceedings was not reasonable. Secondly, the Court concluded that “there is evidence upon which the [tribunal of fact] might have convicted”. Thirdly, despite the existence of that evidence, this was one of those rare cases where an acquittal should be entered. In an historical child sexual assault case, where the essential issues could properly be characterised as word against word, and despite the considerable hurdles facing a successful prosecution, it was not a case where we are satisfied that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all of the relevant facts.
36 The following principles can be extracted from the authorities dealing with applications for a s 2 certificate:
(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;
(b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); however it is “always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal”: Manley , per Wood CJ at CL (at [4]), per Sully J (at [49]);
(c) The “institution of proceedings” in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton (at 558);
(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);
(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 – 560); the judicial officer considering an application must find what, within the Act, were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, “it would not have been reasonable to institute [them]”; an applicant for a certificate must succeed on both the “facts issue” and the “reasonableness issue”: Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 – 135) per Kirby P;
(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 – 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 – 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);
(g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [14], however the factors set out in (h) – (n) have been identified as germane;
(h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282;
(i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: McFarlane ; app. Manley per Wood CJ at CL (at [12]);
(k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O’Brien J agreed; cf Manning JA (at 85));
(l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J;
(m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26], [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported);
(n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the “unsafe and unsatisfactory” ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]);
(o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing);
(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]);
(q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]);
(r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J.
There is no “single bright line test” as to when it is unreasonable for a prosecutor to institute proceedings (Beatson v R [2015] NSWCCA 17 at [14]). Nevertheless, where there is expert or highly technical evidence from which it is apparent that the prosecution case was incapable of making out the elements of the offence then it is more likely that the requisite affirmative opinion may be formed by the Court that it was unreasonable for the prosecution to have been commenced (Beatson at [14]).
Kiangatha and Natale submitted that the mere fact of the withdrawal of the amended summonses prior to the commencement of their final hearing was “confirmatory” of the conclusion that it was not reasonable for WaterNSW to have commenced the proceedings. This contention cannot be accepted for the reasons already provided earlier in the judgment.
It is also an incorrect statement of the test to be applied. Rather, the Court must decide whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings. The task demands that the Court:
(a) first, find what were “all the relevant facts”; (b) second, assume that the prosecution was in possession of evidence of these facts; and (c) third, determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute them.
An applicant for a certificate must succeed on both the facts issue and the reasonableness issue.
At the risk of over-simplification, the basal relevant facts were four-fold:
(a) first, the initial summonses were duplicitous and WaterNSW was required to make an election and amend the summonses, which it did, nominating the ephemeral drainage lines at Sites A, B, C and D; (b) second, in respect of two (Sites A and B) of the four sites the subject of the charges, the ephemeral drainage lines could not, on the prosecutor’s own expert evidence (the Macleod Report), constitute a “watercourse”, and therefore, “waters” for the purpose of the offence created by s 120 of the POEOA. In other words, an essential element of the charge could not be proved beyond reasonable doubt; (c) third, in relation to the remaining two sites (Sites C and D), Macleod opined that the ephemeral drainage lines at these Sites could constitute a “watercourse”; and (d) fourth, this was contradicted by the Nanson Report, who also noted that distinguishing between Sites A and B and Sites C and D was difficult.
Commencing with the proceedings referable to Sites A and B, assuming that WaterNSW was in possession of evidence of these facts, had WaterNSW charged Kiangatha and Natale with the offences as particularised in the amended summonses and had it been in receipt of the Macleod Report at the time it commenced the proceedings, there is no doubt whatsoever that the institution of these proceedings was unreasonable. A costs certificate should therefore be granted in relation to the proceedings the subject of the amended summonses referable to Sites A and B, namely, proceedings 2018/295910 and 2018/295912.
The same result cannot, however, in my opinion, be arrived at in relation to the commencement of proceedings with respect to the ephemeral drainage lines at Sites C and D. It was not unreasonable for WaterNSW to have instituted these proceedings given Macleod’s expert evidence that the ephemeral drainage lines constituted a “watercourse” for those Sites. The mere fact that the defendants had contrary evidence did not render the commencement of the proceedings unreasonable. This is so notwithstanding the similarity of the Sites and irrespective of WaterNSW’s decision to withdraw the remaining amended summonses on public interest grounds. The defendants cannot extrapolate from the decision to withdraw the proceedings on this ground, or at all, a finding that the proceedings were instituted unreasonably. At the time that the summonses were filed, assuming that WaterNSW had evidence of the relevant facts, it was entirely reasonable for it to charge Kiangatha and Natale having regard to the expert evidence. No cost certificate ought to be granted in respect of the amended summonses in proceedings 2018/295909 and 2018/295911.
Kiangatha and Natale have enjoyed only partial success in respect of the notices of motion for costs. That is, they have succeeded in obtaining an award of costs in their favour in respect of Sites A and B (proceedings 2018/295910 and 2018/295912), but not Sites C and D (proceedings 2018/295909 and 2018/295911).
As a consequence, in the exercise of my discretion, I am of the opinion that in relation to the costs of the motions, costs orders should also be made in their favour reflecting this. That is, in respect of Sites A and B (proceedings 2018/295910 and 2018/295912), Kiangatha and Natale should be awarded their costs of the motions on an ordinary basis.
There appears to be no power, however, to award costs in favour of WaterNSW in respect of the costs motion for Sites C and D (proceedings 2018/295909 and 2018/295911) under s 257B of the CPA, and therefore, each party is to bear their own costs in respect of those proceedings.
The formal orders of the Court are therefore as follows:
pursuant to s 257C(1) of the Cri**minal Procedure Act 1986 in proceedings 2018/295910 the prosecutor is to pay the defendant’s costs from 28 June 2023 onwards, as calculated in accordance with s 257G(b) of that Act on an ordinary basis;
pursuant to s 257C(1) of the Criminal Procedure Act 1986 in proceedings 2018/295912 the prosecutor is to pay the defendant’s costs from 28 June 2023 onwards, as calculated in accordance with s 257G(b) of that Act on an ordinary basis;
a costs certificate is granted to the defendant under s 2(1) of the Costs in Criminal Cases Act 1967 in relation to proceedings 2018/295910, that certificate to specify that in the opinion of the Court it would not have been reasonable to institute proceedings under s 120 of the Protection of the Environment Operations Act 1997, if the prosecutor had before the proceedings were instituted, been in possession of evidence of all of the relevant facts;
a costs certificate is granted to the defendant under s 2(1) of the Costs in Criminal Cases Act 1967 in relation to proceedings 2018/295912, that certificate to specify that in the opinion of the Court it would not have been reasonable to institute proceedings under s 120 of the Protection of the Environment Operations Act 1997, if the prosecutor had before the proceedings were instituted, been in possession of evidence of all of the relevant facts;
pursuant to s 257C(1) of the Criminal Procedure Act 1986 the prosecutor is to pay the defendant’s costs of the costs motion in proceedings 2018/295910, as calculated in accordance with s 257G(b) of that Act on an ordinary basis; and
pursuant to s 257C(1) of the Criminal Procedure Act 1986 the prosecutor is to pay the defendant’s costs of the costs motion in proceedings 2018/295912, as calculated in accordance with s 257G(b) of that Act on an ordinary basis;
the notice of motion filed on 22 August 2024 in proceedings 2018/295909 is dismissed with no order as to costs; and
the notice of motion filed on 22 August 2024 in proceedings 2018/295911 is dismissed with no order as to costs.
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(1999) 103 LGERA 434
(2014) 87 NSWLR 320
(1992) 43 IR 257
(1968) 118 CLR 468
(2015) 212 LGERA 222
(2009) 165 LGERA 6
(1978) 140 CLR 470
(2010) 181 LGERA 352
(1989) 15 NSWLR 720
(1991) 24 NSWLR 550
(1995) 35 NSWLR 738
(2000) 49 NSWLR 203
WaterNSW also obtained an expert report from aquatic ecologist Dr Hancock who undertook a site inspection on 8 August 2018. The report was dated 30 August 2018.
A further three inspections were conducted by officers of WaterNSW on the property prior to filing the charges.
It is therefore not correct to assert, as Kiangatha and Natale do, that the Stein and Draper affidavits were the only available evidence to WaterNSW when the charges were filed.
In 2013 the Sydney Catchment Authority advised that the site had river frontage to the Cox’s River and that construction on the land could have major impacts on water quality and that this was a major constraint on the proposed development.
In JD v Director of Public Prosecutions [2000] NSWSC 1092 the Supreme Court emphasised that whether or not an investigation was “unreasonable” depends upon the quality of the evidence gathered by the prosecutor, including the enquiries that have been made and those that have not (at [28]).
There can be no serious suggestion that the investigation that WaterNSW undertook prior to commencing the proceedings was somehow deficient such that it was “improper” or “unreasonable” for the purpose of s 257D(1)(a) of the CPA. This is not a case where no, scant, or even inadequate investigation was undertaken prior to the filing of the charges such as, for example, failing to interview a key witness (Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [21]). As expressly stated, s 257D(1)(a) is directed to the investigation only and not to the sufficiency of the evidence presented at trial (A1 Professional at [19]). The evidence discloses that in these proceedings the investigation was carried out thoroughly and, in my view, properly and reasonably.
More importantly, as was observed in Environment**al and Earth Sciences Pty Ltd v Environment Protection Authority [1999] NSWCCA 192; (1999) 103 LGERA 434 the definition of “waters” is very wide and it is difficult to conceive of any waters that are not within the definition (at [60]). Accordingly, the question of whether the ephemeral drainage lines leading to Murdering Creek were “watercourses” and fell within the statutory definition of “waters” was ultimately a question of fact (or at the very least mixed fact and law) for the trial judge to determine after having heard the evidence presented during the final hearing (Environment**al and Earth S**ciences at [61] and Kiangatha (No 3) at [85] per Pritchard J).
Having said this, WaterNSW was not precluded from relying upon the observations of its investigating officers and the other experts engaged by it for the purpose of determining whether or not to commence proceedings and in this instance it did not contravene s 257D(1)(a) of the CPA in doing so.
I accept the submissions of WaterNSW that the defendants are unable to demonstrate that the investigation was unreasonable or improper pursuant to s 257D(1)(a) of the CPA.
That competing evidential positions and contestable constructions of the law can now, with the benefit of hindsight, be identified by the defendants does not transmogrify the initiation of the proceedings to those without reasonable cause. These legal and factual contests were not evident to WaterNSW when the summonses were filed.
I therefore find that the proceedings were not initiated without reasonable cause.
As soon as the Board had determined to withdraw the amended summonses it should have communicated this as soon as reasonably practicable to Kiangatha and Natale. This did not occur.
I therefore find that from 28 June 2023 onwards (the day after the Board resolution), the proceedings with respect to Sites A and B were improperly conducted by WaterNSW and that it should pay Kiangatha’s and Natale’s costs of those proceedings from that date onwards.
In relation to the withdrawal of Sites C and D, the defendants submitted that because there was no material difference between Sites A and B and Sites C and D, the amended summonses in respect of the latter Sites should have been withdrawn at the same time, or at the very least, shortly thereafter. WaterNSW’s failure to do so amounted to improper conduct.
In this regard it relied upon the Nanson Report, the Meyer evidence and its letter to WaterNSW on 7 September 2023, requesting that the amended summonses relating to Sites C and D be withdrawn. Reference was made to part 6.2.4 of the Prosecution Guidelines. The correspondence was followed up by another letter dated 22 September 2023 to WaterNSW. No response was received.
On 2 February 2024 the trials for the amended summonses in relation to Sites C and D were set down and thereafter the parties prepared for a hearing listed in November 2024. This preparation included the filing of their respective ss 247J and 247K notices and the filing of further lay and expert evidence by the defendants
In this context it is relevant to note the following sequence of events:
WaterNSW can be criticised for failing to respond in a timely manner, or at all, to the various letters sent to it by the defendants requesting its withdrawal of the amended summonses in relation to Sites C and D. This is especially the case after the Nanson and Meyer evidence was served upon it and Kiangatha and Natale renewed their plea to have the amended summonses withdrawn on 5 April 2024 in light of this evidence, and having regard to the similarity between the four sites. In my view, it behoved WaterNSW, as the prosecutor to, at the very least, respond to the 5 April and 8 May 2024 letters prior to 1 July 2024.
However, while it is arguable that the receipt of the defendants’ expert evidence was operative in WaterNSW’s decision to discontinue the proceedings in relation to Sites C and D, this alone does not mean that the prosecution was conducted improperly by the prosecutor. It is entirely possible that had those proceedings been maintained, that Macleod’s evidence would have been preferred and Kiangatha and Natale would have been convicted in respect of those Sites.
I therefore find that from 6 April 2024 onwards, WaterNSW did not act improperly in the conduct of the prosecution with respect to Sites C and D.