Environment Protection Authority v Eastern Creek Operations Pty Limited

1. [1]

   MACFARLAN JA: The Environment Protection Authority (“the EPA”) seeks leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a ruling made by Pain J in the Land and Environment Court (“LEC”) that a Notice issued by the EPA, purportedly pursuant to s 191 of the Protection of the Environment Operations Act 1997 (NSW) (the “POEO Act”), to Eastern Creek Operations Pty Limited (“Eastern Creek”) is invalid. The ruling was made in the course of two Class 5 proceedings brought by the EPA against Eastern Creek charging Eastern Creek with offences in connection with the Notice.

2. [2]

   Contrary to Eastern Creek’s submissions, I have concluded that the ruling constitutes an “interlocutory judgment or order” against which the EPA is entitled to seek leave to appeal under s 5F(3)(a), that leave to appeal should be granted and that the appeal should be allowed on the basis that the Notice was validly issued. In these circumstances it is unnecessary to deal with a case stated to this Court by the LEC on the application of the EPA concerning the powers of the LEC to summarily dispose of Class 5 proceedings. This question does not arise because, as the Notice is valid, there is no reason to conclude that the proceedings must fail and therefore be summarily dismissed.

Protection of the Environment Administration Act 1991 (NSW)

1. [3]

   The EPA is constituted by s 5 of the Protection of the Environment Administration Act 1991 (NSW) (the “POEA Act”) as a statutory body representing the Crown. By reason of s 13A of the Interpretation Act 1987 (NSW) the EPA thus has the status, privileges and immunities of the Crown.

2. [4]

   Under s 6 of the POEA Act the objectives of the EPA are stated to include the following:

3. [5]

   Section 7(2) states that the general responsibilities of the EPA include:

4. [6]

   Section 8 states that the general powers of the EPA include powers to:

5. [7]

   Section 9(1) is in the following terms:

6. [8]

   Under ss 29 and 30 the EPA is empowered to establish advisory committees to advise it on such matters as it determines.

Protection of the Environment Operations Act 1997 (NSW)

1. [9]

   Section 3 of the POEO Act states that its objects include:

2. [10]

   Chapter 3 of the Act is concerned with environment protection licences. It includes s 48 which requires licences to be held for the carrying on of certain activities identified in Schedule 1 to the Act, the effect being to require the activities of Eastern Creek, to which reference is made below, to have been the subject of a licence or licences.

3. [11]

   Chapter 7 of the Act is entitled “Investigation” and includes the following provisions:

4. [12]

   Section 211 creates offences in relation to non-compliance with requirements under Chapter 7 and in relation to the provision of false and misleading information.

Protection of the Environment Operations (Waste) Regulation 2014

1. [13]

   Part 9 of this Regulation (the “PEOW Regulation”), in which cll 91 to 96 are contained, empowers the EPA to issue exemptions in relation to resource recovery and to issue orders in relation to the supply of resource recovery waste.

FACTUAL BACKGROUND

1. [14]

   On 14 February 2003 the EPA issued a licence under the POEO Act to Eastern Creek authorising it to undertake a range of activities, including waste processing, resource recovery and composting, at its facility in the suburb of Eastern Creek. Between 2010 and 2018, operations at the facility included the sorting and processing of waste into an organic-based output known as mixed waste organic outputs (“MWOO”).

2. [15]

   Commencing in March 2010 the EPA issued orders and exemptions to Eastern Creek, and to certain consumers, permitting MWOO to be used as a soil amendment for agricultural purposes, forestry and mine site rehabilitation. The last relevant statutory instruments, both revoked on 26 October 2018, were entitled “The organic outputs derived from mixed waste order 2014” (“the Order”) and “The organic outputs derived from mixed waste exemption 2014” (“the Exemption”).

3. [16]

   In September 2017 the EPA formed a Technical Advisory Committee (“TAC”) under s 29 of the POEA Act (see [8] above) to advise it on various technical topics. On 24 May 2018 the TAC delivered its final report to the EPA which found, inter alia, that MWOO contained chemical contaminants which raised “significant concern” for the environment and human health.

4. [17]

   In August and September 2018 there were a number of communications between representatives of the EPA and Eastern Creek. For the purposes of disposition of the present appeal proceedings, it is sufficient to refer to the following.

5. [18]

   By email of 17 August 2018 the EPA’s Chief Executive Officer, Ms Anissa Levy, invited various industry representatives to a meeting to be held at the offices of the EPA on 22 August 2018. Mr Nathan Lopez, Eastern Creek’s Chief Executive Officer, was identified in the invitation as a “required attendee”. The email indicated that the purpose of the meeting was to “continue the discussion around the Alternative Waste Technologies (AWT) research findings” and requested the intended participants to “prepare some information for this meeting regarding your stakeholders as well as details of the land application of your mixed waste organic outputs”. Details of what was required in this respect were given including identification of the land to which MWOO had been applied.

6. [19]

   On 11 September 2018 Mr Lopez and Eastern Creek’s Chairman, Mr David Singh, wrote a letter to the EPA entitled “Response to TAC recommendations concerning Mixed Waste Organic Output (MWOO)”. The letter included the following:

7. [20]

   On 24 September 2018 the Notice referred to at [1] above was issued by the EPA to Eastern Creek.

8. [21]

   On 26 October 2018 the EPA revoked the Order and the Exemption.

THE NOTICE TO PROVIDE INFORMATION AND/OR RECORDS

1. [22]

   The subject Notice was dated 24 September 2018 and stated that it was issued under s 191 of the POEO Act. It required a response by 28 September 2018 and relevantly stated:

THE PRIMARY JUDGMENT

1. [23]

   By notices of motion filed in the LEC on 29 May 2020 Eastern Creek sought orders for the dismissal, prior to trial, of the EPA’s two summonses charging it with offences arising out of EPA’s service of the Notice. The basis for the dismissal sought was said to be invalidity of the Notice.

2. [24]

   By judgment of 22 December 2020, Pain J determined that the Notice was deficient in failing “to indicate the matter in connection with which it was necessary or appropriate to require production of the information and records sought” ([2020] NSWLEC 182 at [92]). Her Honour concluded that “the EPA has not discharged its onus of proof of demonstrating that the Notice is valid” but did not make any formal orders pending further submissions by the parties.

3. [25]

   Her Honour reviewed a number of authorities, including D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374, Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 and Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39, and observed at [82]:

4. [26]

   Her Honour said that she did not consider that evidence of surrounding circumstances relied upon by the EPA elucidated the terms of the Notice. She expressed the following further views about the Notice:

5. [27]

   As the parties did not agree what formal orders should be made by her Honour to give effect to her judgment of 22 December 2020, her Honour received further submissions and delivered a further judgment, on 30 April 2021 ([2021] NSWLEC 39). Her Honour acknowledged in that judgment that the effect of her earlier finding that the Notice is invalid meant that both of the EPA’s charges against Eastern Creek must fail (at [28]) and indicated that, if she had the power to do so, she would make orders for summary dismissal of both charges (at [47]). As the existence of that power was in issue, her Honour stated a case to this Court on that question without making any formal orders in relation to the charges.

The principles to be applied

1. [28]

   In Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67 the High Court was concerned with a notice purportedly issued under s 264 of the Income Tax Assessment Act 1936 (Cth) requiring information to be furnished and documents to be produced. Gibbs ACJ said at 525 that, for validity, such a notice must not only “identify with sufficient clarity the documents which are required to be produced… it must show to the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require”. His Honour said that in some cases “the very description of the documents… may be enough to show that the notice is within the power conferred by the section”.

2. [29]

   Gibbs ACJ’s observations were applied by the Full Federal Court in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368; [1982] FCA 17 at 374. The Court continued at 375:

3. [30]

   The “matters” in s 155(1) to which the Court referred included “matter[s] that [constitute], or may constitute, a contravention of this Act [the Trade Practices Act 1974 (Cth)]”.

4. [31]

   These principles were again applied by the Full Federal Court in SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, which was another case concerned with a notice purportedly issued under s 155(1) of the Trade Practices Act 1974 (Cth). In that case, Fisher and French JJ added the following at 370:

5. [32]

   These principles were adopted and applied by this Court in D’Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374 which was concerned with a notice purportedly issued by an authorised officer under s 193 of the POEO Act (see [11] above). The notice referred to a report of dead native birds in the vicinity of the addressee’s premises and to an inspection of the premises in an immediately succeeding period of about five days in which baits and numerous dead birds were located. The notice stated that the EPA’s authorised officer was “further investigating the suspected misuse of pesticides at the premises and requires details of the persons who visited, worked and/or used pesticide(s) at the premises” (at [35]). The notice then indicated that details of this type were required in relation to much broader periods of time than encompassed by the report of dead birds and subsequent inspection.

6. [33]

   Young JA noted that the notice dealt with “misuse of pesticides on the premises generally” and did not specify what pesticide was the subject of the investigation or specify the substance of the suspected misuse, quoting at [52] the following interchange with counsel that occurred during the course of the hearing:

7. [34]

   His Honour found that the notice was invalid “as it failed to indicate to the addressee the matter with which it was concerned” (at [55]). Sackville AJA (with whom Campbell JA agreed) agreed generally with Young JA’s reasons, stating at [105]:

8. [35]

   Sackville AJA emphasised the “wide range of information” sought in relation to extended periods, including for “a period of up to eight months before the apparent poisoning of the birds”. His Honour asked rhetorically what was the “matter” to which information concerning any measures taken “to eradicate, manage or otherwise mitigate the effect of pests without using any pesticides” during that extended period related.

9. [36]

   Finally, I refer to Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94 at 175 where the Full Federal Court stated that “[n]otices are to be reasonably, not preciously, construed and the terms used in notices will ordinarily take their meaning from the commercial circumstances in which the notices are given” (see also Pyneboard at 375).

The validity of the Notice

1. [37]

   The Notice indicated near its outset that it sought the provision of records and information for the purpose of an investigation (see the words “as part of this investigation” in the second paragraph). In the first paragraph it identified that investigation as one “into the potential risk to the environment and human health of land applying… MWOO”.

2. [38]

   As was acknowledged by the EPA in the course of the hearing in this Court, the grammar of the last few words of this statement leaves much to be desired. In its context nevertheless the phrase clearly conveys the meaning that the investigation is into the risks of “applying” MWOO to land. The word “applying” (and the other variants of it used in the Notice such as in the expressions “applied to land” and “application site”) clearly conveys the meaning of use of MWOO in some fashion in relation to land. This is the sense in which it is used in the Order referred to at [15] (which employs the expressions “application to land” and “land application”) and in Eastern Creek’s letter of 11 September 2018 (see [19] above), although it is not necessary to rely on such extrinsic material to ascertain the meaning of the Notice. Its meaning is apparent on its face.

3. [39]

   Eastern Creek did not contend, nor could it reasonably have done so, that the investigation so described was not within the powers of the EPA, bearing in mind the EPA’s objectives, responsibilities and powers under the POEA Act (see [4]-[8] above) and its objects and powers under the POEO Act (see [9]-[12] above) and the PEOW Regulation (see [13] above).

4. [40]

   Moreover the Notice made clear that the investigation was continuing, by stating that the records and information were required “as part of this investigation” and using the expression “[t]he EPA is investigating” under the headings “Background” and “Matter/s to which this notice relates”.

5. [41]

   The description of the investigation as “an investigation into the potential risk to the environment and human health” of the use of MWOO to land (at three places in the Notice) indicated that the investigation was a broad one insofar as potential risks were concerned. The EPA did not need to list the gamut of ways in which the environment or human health might be affected, or have been affected, by the use of MWOO in relation to land as that was the very matter it was investigating.

6. [42]

   Equally the EPA was justified in seeking information and records relating to a period of years during which Eastern Creek had undoubtedly been involved in operations that led to the application of MWOO to land. Eastern Creek’s licence, referred to in the Notice, assumed the existence of such operations. In any event these were well known to both the issuer and recipient of the Notice and thus able to be taken into account in considering the sufficiency of the terms of the Notice.

7. [43]

   The possibility of MWOO’s application to land giving rise to risks to the environment and to human health cannot be doubted, especially in light of the TAC report’s findings (see [16] above). Those risks and their consequences were therefore a proper subject of investigation in relation to use of MWOO throughout the period identified in the Notice bearing in mind the EPA’s statutory responsibilities and powers.

8. [44]

   The present case is distinguishable from D’Anastasi where, as Young JA put it, there was a “suspected misuse” of pesticides or, as Sackville AJA put it, an “apparent poisoning of the birds” (at [7] and [108]). In those circumstances, the recipient was entitled to be told in the notice, inter alia, what pesticide was the subject of the investigation and why information and documents related to any more than the dead birds that were discovered were required. Pesticides have a commonly accepted utilitarian value, when used properly. That an unidentified type of pesticide may have been misused on one, or a limited number of occasions, did not of itself suggest the likelihood of misuses on other occasions.

9. [45]

   In the present case, it is not however a question of misuse of MWOO (because there is no suggestion to this Court that its use did not occur in accordance with the statutory Order and Exemption) but a concern that authorised use may have given rise to risks to the environment and to human health. In that circumstance, a report finding that MWOO raises “significant concern” for the environment and human health would necessarily give rise to a concern justifying investigation that it may have caused such harm on all or at least many occasions on which it was used. It may be that the investigation will reveal that MWOO can be used in particular ways that do not give rise to harm but, whether that is or is not so, that is a proper subject for investigation.

10. [46]

    Furthermore, the gathering by the EPA of information as to how MWOO had been used in the past was a proper part of the investigation described in the Notice because, if the investigation revealed that use of MWOO was, and had been, harmful to the environment or to human health, it was well within the EPA’s remit to identify, and attempt to deal with, the consequences of its use in the community, including by advising stakeholders who had used MWOO of the outcome of its investigation and assisting those stakeholders to eliminate or lessen the harm that might have occurred. The information and records it sought by the Notice were plainly conducive to that occurring. As Gibbs ACJ observed in Federal Commissioner of Taxation v ANZ, the nature of information or documents sought in the Notice may elucidate the purpose of them being sought (see [28] above).

11. [47]

    In this Court Eastern Creek submitted that the omission of the following from the Notice “strongly militates in favour of the conclusion that the Notice is invalid”:

12. [48]

    That detail was however unnecessary where many of the risks described were obvious ones to be investigated and the list is not one that Eastern Creek in any event suggests could, or should, have been exhaustive.

13. [49]

    In addition to relying on D’Anastasi, with which I have dealt above, Eastern Creek relied on appeal on Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 where, in the context of subsisting criminal proceedings against the applicant concerning excavations to his land, the applicant was given a notice by the prosecutor to attend to answer questions “about the over excavation”. Preston CJ of the LEC found that the matter in relation to which questions were to be answered was not sufficiently described by this expression. Unlike this case, that case was concerned with a specific occurrence which could, and should have been, identified with precision to afford the applicant procedural fairness by giving him notice of the matter about which he was to be asked questions. Zhang does not assist in resolving the present case which, as I have described, is concerned with a Notice issued for the purposes of a necessarily generalised investigation.

14. [50]

    Eastern Creek further submitted that the Notice was deficient because it did not equate the matter with which it was concerned to one “relating to [the EPA’s] responsibilities or functions under [the POEO Act]” (see the terms of s 191(1) of the Act). As I have indicated, the Notice however stated that Eastern Creek was required to provide identified information and records for the purposes of an ongoing investigation into the potential risk “to the environment and human health” of applying MWOO to land. Such an investigation clearly relates to the EPA’s responsibilities and functions under the Act. Section 184 sets out the various purposes for which the power to issue a notice under s 191 may be exercised, including to “protect the environment” and to “obtain information or records for purposes connected with the administration” of the Act. The objects of the Act, including to “protect… the environment” and to “reduce risks to human health”, further fortify this finding (see s 3). As well, these provisions must be considered against the background of the POEA Act (see [3]-[8] above) which constituted the EPA and was enacted prior to the POEO Act.

15. [51]

    For these reasons, I do not, with respect, agree with the primary judge’s conclusion that the Notice is invalid. Her Honour’s essential reason for her conclusion, stated in [84] of her judgment (see [26] above), was that the Notice “does not specify in any meaningful way the matter the subject of the Notice for the purposes of s 191”. For the reasons I have given, I consider that it does. I note that her Honour referred in [89] of her judgment also to the Notice being “impermissibly wide in scope” but I further note that, as acknowledged by Eastern Creek in both its written and oral submissions on appeal, it does not challenge the Notice on the ground of oppression, that is, that it was oppressively wide in its scope or required compliance within an unreasonably short time.

16. [52]

    Finally, I note that both parties appeared to be in agreement on appeal that paragraph 1(o) of the Notice was defective but could be severed from it.

PROCEDURAL CONSIDERATIONS

1. [53]

   As indicated earlier, the EPA seeks to bring the issue of the validity of the Notice before this Court on appeal, by leave, under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Potentially relevant parts of that section are as follows:

2. [54]

   I note that the EPA seeks leave to appeal under subsection (3)(a). Whilst the EPA represents the Crown and has the rights of the Crown (see [3] above), no appeal is brought under subsection (2) by the Attorney-General or the Director of Public Prosecutions. The only difference between the rights conferred by subsections (2) and (3) is, relevantly for present purposes, that leave to appeal is not required under subsection (2). As I have in any event concluded that the present case is a suitable one for the grant of leave, the absence of an appeal under subsection (2) is not of any significance.

Whether “an interlocutory judgment or order”

1. [55]

   As noted above, the issue of validity of the Notice was brought before the LEC by way of formal notices of motion filed by Eastern Creek. After the Court received substantial written and oral submissions, the primary judge addressed the issue in a careful and detailed fashion in her 45-page judgment. Her Honour concluded that the Notice is invalid but stopped short of making any consequential order, to enable the parties to first address her on “appropriate relief and costs”.

2. [56]

   In this Court, Eastern Creek contended that in these circumstances the primary judge had not given or made any “judgment or order” in relation to which the EPA would be granted leave to appeal under s 5F(3). If her Honour’s determination was a “judgment or order”, it was clearly interlocutory as it did not dispose of the prosecutions.

3. [57]

   There have been many cases in which the meaning of “interlocutory judgment or order” has been considered. It is convenient to first undertake a brief survey of the more important of them.

4. [58]

   In R v Steffan (1993) 30 NSWLR 633 the applicant had been charged with offences of bribing a Commonwealth officer. Relevant conversations had been recorded, according to the applicant, illegally. The conversations were the bases of two of the charges against the applicant but it does not appear from the judgment that they were the only evidence then available to the prosecutor such that the prosecutions would fail if the recordings were ruled inadmissible. The trial judge ruled that they were prima facie admissible. The applicant sought to challenge that decision by seeking leave to appeal under s 5F. This Court however ruled that the determination below did not constitute “an interlocutory judgment or order”. The Court observed at 636:

5. [59]

   Three points should be made about Steffan. First, it was concerned with a ruling on the admissibility of evidence which was, at least on the basis of s 5F in its present terms, arguably distinct from an “interlocutory judgment or order” on other questions. A ruling on the admissibility of evidence is dealt with separately in s 5F(3A) (see [53] above). In the present case the determination in question is only, in a limited sense, concerned with the admissibility of evidence. More fundamentally, the existence of a (valid) notice is an element of the charges, as it is non-compliance with it and false or misleading conduct in relation to it that are the gravamen of the alleged offences.

6. [60]

   Secondly, the incongruity, perceived by the Court in Steffan, of entering a ruling on the admissibility of evidence in the records of the Court (see [58] above) is not present in the current case where the finding of invalidity of the Notice can readily and sensibly be reflected in a declaration or injunctive order.

7. [61]

   Thirdly, the Court in Steffan recognised that “some procedural matters (such as an application for a change of venue or for a separate trial) would usually produce an interlocutory order…” (at 636D).

8. [62]

   In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 the trial judge had made an order under s 138 of the Evidence Act 1995 (NSW) excluding all of the prosecution evidence on the basis that it resulted from illegal or improper conduct of the police. In addition to making an order that the evidence be excluded, the trial judge made a consequential order that further proceedings be stayed. The Crown argued that even without the order staying proceedings, the trial judge’s ruling constituted an “interlocutory judgment or order” within the meaning of s 5F. Gleeson CJ (with whom Meagher JA and Bruce J agreed) stated that in a number of cases, including Steffan, there were judicial statements to the effect that “generally speaking, a ruling on the admissibility of evidence, before or during a trial, is not a judgment or order within the meaning of s 5F”. However, his Honour further noted at 303 that in Steffan the Court of Criminal Appeal “said that there may well be a ‘rare case’ where a ruling on evidence, because it formed the basis of a stay of proceedings, could be the principal legal issue to be determined [on] a s 5F appeal”. Having referred to authorities seeking to distinguish between different types of judicial rulings, his Honour said that “[i]t is the character of the question, and the effect of the decision, that makes the difference” and continued at 303:

9. [63]

   The present case is in my view analogous. As I have said earlier, Pain J’s ruling was not on a question of evidence as such. Although it would have the consequence of excluding evidence, it related to the fundamental basis of the prosecutions. As in Bozatsis, the primary judge “was, in substance, refusing to permit the Crown to seek to make a case against the appellants”. In Bozatsis, Gleeson CJ noted at 302 that it was not in dispute that an order granting a permanent stay of proceedings is generally an interlocutory order within the meaning of s 5F. However, the trial judge’s stay order was not regarded as critical to this Court’s finding as it was merely the consequence of the ruling made under s 138. His following discussion and conclusion were directed therefore at the matter that was in dispute, namely, whether the exclusion of the evidence constituted such judgment or order, irrespective of the grant of the stay.

10. [64]

    In the present case, Eastern Creek placed particular reliance on this Court’s decisions in R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373 and R v Kanaan [2003] NSWCCA 396. In Cheng the Court found that the trial judge’s ruling that the accused had no case to answer was not an “interlocutory judgment or order” within the meaning of s 5F. Spigelman CJ (with whom Dunford and Kirby JJ agreed) distinguished Bozatsis on the basis that the effect of the trial judge’s ruling in that case was to refuse to permit the Crown “to seek to make a case” at all whereas in Cheng the Crown made a case but it was found to be deficient (at [14] and [15]). His Honour considered that there was a close relationship between the trial judge’s no case to answer decision and a verdict of acquittal and that the principle that the Crown (subject to any statutory exceptions) cannot appeal from a verdict of acquittal is fundamental and longstanding. As a result, his Honour held at [32] to [34] that, in the absence of any clear contrary indication by parliament, s 5F(2) should not be construed so as to interfere with that fundamental principle. Cheng does not therefore assist Eastern Creek in the present case because Pain J’s determination that the Notice is invalid occurred at a preliminary hearing, prior to any trial, and consequently the EPA was unable “to seek to make its case” at a trial. Moreover, it cannot be said that there is a “close relationship” between a preliminary determination concerning the invalidity of a notice and a verdict of acquittal.

11. [65]

    In Kanaan the trial judge heard submissions from counsel as to whether the evidence that the Crown proposed to lead at trial was capable of proving the offence charged. His Honour concluded that it was not and added “and I am mindful to empanel a jury and to order an acquittal” (sic). Instead, at the request of the Crown, he adjourned the case to allow the Crown to seek leave to appeal under s 5F. Hodgson JA (with whom Hulme and Hidden JJ agreed) referred to Bozatsis and said that in that case “Gleeson CJ stated that, in order to constitute a judgment or order, even an interlocutory judgment or order, there must be a measure of finality so that it requires a decision of an appellate Court to reverse it” (at [7]). His Honour found that there was “nothing of that nature” in the case before him and that, as a result, there was no relevant judgment or order.

12. [66]

    It is arguable that this approach failed to reflect the substance of the trial judge’s conclusion which was in effect a ruling fatal to the Crown’s case. In any event, the legislation under which Pain J’s conclusion of the Notice’s invalidity was given gives a greater measure of finality to that conclusion. Her Honour was conducting a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW) (rendered applicable to the present proceedings by s 247A of the Act). Section 247G(5) provides:

13. [67]

    In R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 the Court found that a determination concerning the joinder or severance of counts was an “interlocutory judgment or order” for the purposes of s 5F. Wood CJ at CL (with whom Meagher JA and Bell J agreed) referred to the distinction between determinations falling within the ambit of that expression and those not doing so:

14. [68]

    Support for the EPA’s application under s 5F in the present case is to be found in R v RAG [2006] NSWCCA 343 in which the Crown was held to be entitled to seek leave to appeal against the trial judge’s ruling that a child complainant was not competent to give unsworn evidence (see s 13(2) of the Evidence Act 1995 (NSW)). Latham J (with whom McClellan CJ at CL and Johnson J agreed) concluded at [15]:

15. [69]

    In Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 the accused pleaded guilty to two offences involving the supply of a large commercial quantity of a prohibited drug. For the purposes of his sentencing hearing, he issued a subpoena to the Commissioner of Police. The sentencing judge ordered production of the documents, rejecting a claim of public interest immunity. On a s 5F appeal brought by the Attorney General to this Court, Basten JA (with whom Hoeben JA and McCallum J agreed) found that there was an “interlocutory judgment or order” from which the Attorney General was entitled to appeal. His Honour said at [25]:

16. [70]

    In Tran v The Queen [2017] NSWCCA 93 this Court found that a ruling of the trial judge declining to uphold an objection by the accused’s father giving evidence as a witness for the prosecution (see s 18(2) of the Evidence Act) was an interlocutory “judgment or order” for the purposes of s 5F. The Court followed the decision in RAG which was regarded as applicable.

17. [71]

    RAG was also followed in SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314 in which the trial judge declined to revoke the appointment of a speech pathologist as a witness intermediary in respect of a child complainant in criminal proceedings. This Court held that the practical legal effect of the appointment was that the evidence of the witness could not be taken in the absence of the intermediary. The Court at [40] accepted that “whether a decision or determination by a trial judge amounts to an interlocutory ‘order’ capable of grounding an appeal under s 5F(2) or (3) requires a consideration of the ‘character and [legal] effect of the decision’ rather than the precise words used by the judicial officer”. The Court referred to R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 304 and Nicholson v R [2017] NSWCCA 38 at [49]. The Court also referred to the passage from R v F (2002) 129 A Crim R 126; [2020] NSWCCA 125 at [11] quoted in [67] above which included the reference to a “judgment” being a ruling that determines the proceedings “or at least an identifiable part of them, and [is] capable of entry in the records of the Court”.

18. [72]

    In light of these authorities, I consider that Pain J’s determination that the Notice is invalid was an “interlocutory judgment or order” for the purposes of s 5F(3). The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing. As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour’s conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not in my view of significance. The determination was well capable of being reflected in the Court records consistently with “ordinary usage” (Steffan at 636), just as the outcome of a dispute concerning a subpoena may be a notation such as “subpoena set aside” or “access to documents produced under subpoena granted”. It was unlike a simple ruling on the admissibility of evidence which is not, as Steffan at 636 points out, ordinarily entered in the records of the Court. Not only was the determination capable of being translated into a formal order, but for the EPA’s request that she state a case concerning her power to enter summary judgment (see [27] above), her Honour would have entered summary judgment. Whether summary judgment or some other order, such as an acquittal after trial, was appropriate was beside the present point. To preclude a challenge under s 5F(3)(a) to her Honour’s determination that the Notice is invalid would in my view be impermissibly to prefer form over substance.

19. [73]

    Further, as I have earlier pointed out, the determination that the Notice is invalid was not as such a ruling on the admissibility of evidence, although it would undoubtedly have evidentiary consequences. Essentially it was a determination that the purported legal command (that is, the Notice) upon which the prosecutions were founded is invalid. It had sufficient finality because it would stand unless the prosecutions proceeded to trial and the trial judge formed a different view.

20. [74]

    Whilst acknowledging, as was pointed out in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [92], that orders are different from reasons for judgment, substance and not mere form is to prevail in this context (see for example DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [4] and [6] per Spigelman CJ).

Whether leave to appeal should be granted

1. [75]

   In light of my conclusion that, contrary to the view of the primary judge, the Notice is valid, leave to appeal should be granted. The primary judge’s determination, if it stands, effectively puts an end to the prosecutions which are brought by the EPA in its capacity as a protector of the environment and health of the community.

Whether the appeal should be allowed

1. [76]

   For the reasons I have given, the Notice is valid. As a result, the appeal should be allowed.

CONCLUSION AND ORDERS

1. [77]

   In light of my conclusion that the Notice is valid, it is unnecessary to determine the question submitted to this Court, on EPA’s application, by way of case stated. That concerns the powers of the LEC to summarily dismiss proceedings. As there would not, on my view, be any basis for summary judgment, the issue raised by the case stated would better be determined when they would be dispositive of proceedings in this Court.

2. [78]

   As no conclusion has been reached about the merits of the stated case and as it was arguably unnecessary for the EPA to seek to have it submitted for determination by this Court, I consider that no order be made for the costs of the stated case proceedings.

3. [79]

   So far as first instance costs in both proceedings are concerned, it appears that no orders have yet been made. Such costs orders should be left for the primary judge to make, taking into account the terms of this judgment, if the parties cannot agree on the appropriate orders.

4. [80]

   For the reasons I have given, I propose the following orders:

   1. (1)

      Grant leave under s 5F(3)(a) of the Criminal Appeal Act to appeal against the Land and Environment Court’s determination by judgment or order of 22 December 2020 that the Notice dated 24 September 2018 issued by the Environment Protection Authority to Eastern Creek Operations Pty Limited is invalid.

   2. (2)

      Allow the appeal.

   3. (3)

      Declare that the Notice is valid.

   4. (4)

      Notices of motion filed by Eastern Creek Operations Pty Limited in the Land and Environment Court on 29 May 2020 dismissed.

   5. (5)

      Order Eastern Creek Operations Pty Limited to pay the Environmental Protection Authority’s costs of the proceedings in this Court.

   6. (6)

      Decline to answer the question of law submitted by case stated filed on 13 May 2021.

   7. (7)

      Make no orders as to the costs of the case stated proceedings in the Court of Criminal Appeal.

5. [81]

   FULLERTON J: This Court’s jurisdiction to determine the Environment Protection Authority’s (“the EPA”) application for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) depends upon whether the decisions identified by the EPA in its notice of appeal constitute an “interlocutory judgment or order”.

6. [82]

   That issue was the subject of competing submissions in this Court on the EPA’s application for leave to appeal under s 5F(3)(a). Having considered those submissions at length, I have come to a different conclusion to that of Macfarlan JA.

7. [83]

   The order I propose in dealing with the application for leave under s 5F(3)(a) is:

   1. (1)

      The application is dismissed.

8. [84]

   In those circumstances, it is necessary to address the question of law submitted by the primary judge pursuant to s 5AE(1) of the Criminal Appeal Act. I will return to consider that question after setting out my reasons for dismissing the application for leave to appeal the primary judge’s decision under s 5F(3)(a).

Background

1. [85]

   The factual background to the EPA commencing summary criminal proceedings in the Land and Environment Court (“the LEC”) for offences committed contrary to ss 211(1) and 211(2) of the Protection of the Environment Operations Act 1997 (NSW) (“the POEO Act”), each alleging non-compliance with a statutory notice issued under s 191 of the POEO Act (“the Notice”), has been summarised by Macfarlan JA and does not require repetition by me.

2. [86]

   However, in resolving the question whether the EPA’s application for leave to appeal under s 5F(3) is competent, and even if it is competent whether leave should be granted to permit the EPA to agitate the grounds of appeal which challenge the primary judge’s decision as to the validity of the Notice, I have found it necessary to review the circumstances in which the primary judge was invited to determine that question, including the power she exercised in doing so and the attitude of the parties when she embarked upon that exercise. It is also necessary to consider what the parties submitted at various times in the court below were the legal consequences of either a finding of invalidity, as contended for by the respondent, or a finding of validity, as contended for by the EPA, and how the primary judge dealt with those submissions.

The procedural history of the proceedings

1. [87]

   On 25 October 2019, by the service of two summonses the EPA commenced proceedings in the Class 5 jurisdiction of the LEC permitting the Court to hear and dispose of proceedings brought under Parts 8.2 and 8.3 of the POEO Act.

2. [88]

   The first summons alleged an offence contrary to s 211(1) of the POEO Act constituted by the respondent failing, without reasonable excuse, to comply with a Notice issued by the EPA on 24 September 2018 (as varied by the service of a variation notice on 28 September 2018) to provide specified information and/or records. The requirement the respondent allegedly failed to comply with was particularised as failing to provide all test data of mixed waste organic output (MWOO) produced at the premises in a specified period, [1] including any additional sampling and testing as specified in paragraph 1(j) of the Notice.

3. [89]

   The second summons alleged an offence contrary to s 211(2) of the POEO Act constituted by the respondent furnishing information in purported compliance with the Notice knowing that the information was misleading in a material respect. That information was particularised as information it had provided in response to paragraph 1(j) of the Notice, namely an incomplete set of test data and an incomplete set of test reports for MWOO produced at the premises in the specified period.

4. [90]

   On 29 May 2020, the respondent filed a notice of motion in both proceedings relevantly seeking an order that the summonses be dismissed. The sole basis upon which that order was sought was that the Notice (as varied by the variation notice) was invalid. [2]

5. [91]

   The notice of motion was listed for a two-day hearing before Pain J on 26 and 27 November 2020, and convened as a preliminary hearing pursuant to Div 2A of the Criminal Procedure Act 1986 (NSW).

6. [92]

   Both parties filed detailed written submissions addressing the issues raised by the respondent’s notice of motion. Extensive affidavit evidence was tendered. [3]

7. [93]

   On the afternoon of 25 November 2020, the EPA advised the respondent by letter that it was of the preliminary view that the summonses could not be dismissed at a preliminary hearing and could only be dismissed after a trial had been convened and concluded. [4] The following day the EPA’s counsel made the following submission:

8. [94]

   Precisely what the EPA’s senior counsel intended by the words “they are” (the binary options to which she had earlier referred) and “preserve appeal rights” is not clear. However, given the context in which counsel made that submission, she could not conceivably be taken to have been referring to “preserving” the opportunity for the EPA to make an application for leave to appeal her Honour’s finding on invalidity as an “interlocutory judgment or order” pursuant to s 5F(3)(a) of the Criminal Appeal Act.

9. [95]

   Further, by that submission, the EPA must be taken to have accepted that the respondent’s notice of motion raised an issue capable of being determined as a preliminary matter in the proceedings pursuant to s 247G(2) and ss 247G(3)(f) and (g) under Division 2A of Criminal Procedure Act. That Division relevantly provides as follows:

10. [96]

    While the EPA’s position prior to the commencement of the preliminary hearing was that the Court did not have jurisdiction to summarily dismiss a summary prosecution (that being the only relief sought by the respondent’s notice of motion, save for an order for costs), it did not oppose the motion being heard on the stated basis that in the event that the Notice was found to be invalid, and that the prosecutions could not succeed for that reason, “what needs to happen” is that the EPA would either withdraw the summonses or proceed to a hearing and for the respondent to be acquitted. [6]

11. [97]

    With the EPA’s analysis of the preliminary hearing due to be embarked upon as expressed at that time and in that way, the legal status, characterisation or effect of a finding that the Notice was invalid, or whether such a finding might constitute an “interlocutory judgment or order” susceptible to an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act, did not arise. As importantly perhaps, there was no question of the respondent reconsidering whether it should seek a ruling on the validity of the Notice before a final hearing of the summonses. Were the issue as to the validity of the Notice to be reserved to a final hearing, a finding of invalidity by the presiding judge would inevitably have resulted in the summonses being dismissed and acquittals entered as final orders. At that time, of course, the presiding judge might have been invited by the EPA to state a case pursuant to s 5AE(1) of the Criminal Appeal Act or the EPA may have wished to consider approaching the Office Of the Director of Public Prosecutions (ODPP) or the Attorney General to lodge an appeal under s 5C of the Criminal Appeal Act or s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). [7]

The decision on the question of validity (the respondent’s notice of motion)

1. [98]

   On 22 December 2020, after a two-day hearing in which I am satisfied the EPA was afforded every opportunity to persuade Pain J that the Notice was validly issued, including by the tender of the full complement of evidence relevant to that question and extensive written and oral submissions, her Honour published her reasons for concluding that the EPA had not discharged that onus.

2. [99]

   As to what orders should be made in disposition of the respondent’s notices of motion, where it was common ground that in light of her Honour’s ruling the EPA could not make out its case, her Honour said:

3. [100]

   The following day, the EPA advised the respondent in writing that it was considering what it described as “the soundness of Pain J’s reasons with a view to determining whether the EPA will appeal the decision once formal orders are made”. [8] Again it is not clear what “appeal” the EPA was considering at that time. I note, however, that the EPA had earlier submitted that “the summonses should not be dismissed but, rather, the Court should make findings [as to the validity of the Notice] giving the EPA the opportunity to consider whether to withdraw the proceedings” and, noting that course “preserves the EPA’s appeal rights”, I am unable to accept the EPA’s submission in this Court that senior counsel for the EPA had consistently advanced the submission in the Court below that the primary judge’s decision on invalidity “may have been enough to create an appeal right (under s 5F of the Criminal Appeal Act) but out of an abundance of caution a determination or finding should formally have been made” so that it could be entered into the Court’s records.

4. [101]

   That submission was not advanced in the court below until after the primary judge delivered her reasons on the validity issue and submissions were filed as to the orders she should make in the final disposition of the respondent’s notice of motion and in accordance with the timetable set by the primary judge.

5. [102]

   On 4 February 2021, the EPA filed a notice of motion seeking a declaration that the Notice was invalid as ultra vires s 191(1) of the POEO Act. In the accompanying submissions, the EPA made it clear that it sought that specie of order “so that there is a formal order accompanying your Honour’s reasons for judgment that is capable of entry into the records of the Court and in respect of which the EPA can apply for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act”. This was the first occasion the EPA had referred to an application for leave to appeal under s 5F(3)(a) of the Criminal Appeal Act. In the same notice of motion, the EPA also sought an order that in the event that the primary judge concluded the summonses should be dismissed (the submission maintained by the respondent) she should submit a question of law to this Court under s 5AE of the Criminal Appeal Act as to whether she had the power to summarily dismiss either of the summonses in a preliminary hearing convened under the Criminal Procedure Act.

6. [103]

   The respondent opposed the grant of a declaration of invalidity. It submitted that given her Honour’s reasons for concluding the Notice was invalid she should dismiss the summonses, there being no residual basis upon which the offences could be proved to the criminal standard. As to whether her Honour should state a case in the terms sought by the EPA, the respondent acknowledged (correctly) it could not resist her Honour doing so given the operation of s 5AE of the Criminal Appeal Act.

7. [104]

   That section provides:

8. [105]

   The respondent also proposed the following alternative course: rather than her Honour stating a case which would entail the incurring of further costs, she should list the summonses for hearing before her at which time the respondent would enter pleas of not guilty, the EPA would offer no further evidence, at which time the summonses would be dismissed, or the EPA would withdraw the charges. Ironically, this was consistent with the course initially proposed by the EPA.

The decision on finding orders (the EPA’s notice of motion)

1. [106]

   On the day listed for the hearing of the EPA’s notice of motion, an amended notice of motion was filed, with leave, where the order for declaratory relief [9] was abandoned and the following orders were sought:

2. [107]

   Senior counsel for the EPA submitted to Pain J:

3. [108]

   Further, in response to Pain J’s question as to why the EPA sought a formal finding or determination of invalidity, [11] senior counsel submitted:

4. [109]

   Later, the EPA’s senior counsel submitted:

5. [110]

   After hearing the submissions of the parties both as to the form of the final orders disposing of the respondent’s notice of motion and the orders the EPA sought in its notice of motion, Pain J published her reasons the effect of which was to refuse the first order sought by the EPA, having reasoned to the conclusion that she had the power to dismiss the summonses and that she intended to make orders to that effect. Although she made that clear, she said she would state a case in the terms sought by the EPA as the alternate relief it sought under its notice of motion.

6. [111]

   In her published reasons, the primary judge considered the competing submissions of the parties. [14]

7. [112]

   In addressing the EPA’s submissions, she referred to the seminal passage in R v Steffan (1993) 30 NSWLR 633 (cited by the EPA) where, at 635-636 (as her Honour described it), the Court gave guidance as to the factors inherent in the characterisation of a judgment or order as interlocutory.

8. [113]

   In further consideration of the EPA’s notice of motion, her Honour noted the EPA’s submission that what it described as the collateral attack on the validity of the Notice had occurred under the process provided for in Div 2A of the Criminal Procedure Act. Her Honour went on to note that the EPA submitted that a preliminary hearing was a process limited to the purposes specified in s 247B(1)(b), being case management purposes, and further that s 247G(2) is a further limiting provision allowing for the making of “orders, determinations or findings … as appropriate for the efficient management and conduct of the proceedings”. In the EPA’s submission, neither s 247G(3)(f) nor (g) extends to permit the making of an order for the summary dismissal of proceedings. The EPA submitted that that construction is further supported by the operation of s 247G(5) and s 247W since if a matter is summarily dismissed after a preliminary hearing, self-evidently, it cannot proceed to trial.

9. [114]

   Finally, the primary judge noted the EPA’s submitted position that there was no alternate right of appeal available to it to challenge the ruling on validity since s 107 of the Crimes (Appeal and Review) Act only applies to acquittals (and none had been entered) and only on a question of law (and the primary judge’s finding of invalidity involved a question of mixed fact and law).

10. [115]

    The primary judge noted that it was the respondent’s submission that not only does s 247G confer power to dismiss a summons following a preliminary hearing (with s 247G(3)(f) making that plain), but ss 22 and 23 of the Land and Environment Court Act 1979 (NSW) are also sources of power, with s 22 conferring a wide power to grant remedies and s 23 conferring broad powers to make orders as the Court sees fit. Those sections provide as follows:

11. [116]

    Further, the respondent submitted that no relevant common law principles prevent the dismissal of a summons following a preliminary hearing and finally, that contrary to the submission of the EPA it would be open for the EPA to approach the ODPP or the Attorney General to bring an appeal under s 107(1)(c) on the question of law that is inherent in her Honour’s finding of invalidity.

12. [117]

    Section 107(1)(c) of the Crimes (Appeal and Review) Act provides:

13. [118]

    After considering the competing submissions of the parties, the primary judge posed the question for determination as she saw it as follows:

14. [119]

    After construing the operation of s 247G and giving it a purposive construction in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, the primary judge determined that she did have the power to summarily dismiss the summonses after a preliminary hearing, convened in this case on the filing of the respondent’s notice of motion. She also resolved to the view that, in those circumstances, she had a choice as to whether she would make the “orders or determinations” sought by the EPA to facilitate an application for leave to appeal under s 5F(3). In the result, the primary judge determined that she would not make that order, however, since she intended to make orders for the summary dismissal of both charges, she would state a case under s 5AE of the Criminal Appeal Act in the terms the EPA sought in its notice of motion and at its request.

The parties’ submissions in this Court

1. [120]

   In the Notice of Appeal, Environmental Protection Authority v Eastern Creek Operations Pty Limited [2020] NSWLEC 182 (referred to as “judgment 1”), when read together with Environmental Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39 (referred to as “judgment 2”), identified as “the interlocutory judgment”, was the subject of the application for leave to appeal under s 5F(3)(a). [15] No application is made for leave to appeal “judgment 2”. That is, apparently in acknowledgement of the fact that her Honour’s conclusion that she “would make orders for summary dismissal in relation to both charges” cannot be characterised as an interlocutory judgment or order.

2. [121]

   The EPA submitted that what it characterised as the primary judge’s finding (or determination) in judgment 1 that the statutory Notice was invalid determined an identifiable or separate part of the proceedings capable of being entered into the records of the Court and which could not later be modified or reversed by the trial judge. The EPA submitted that, characterised in that way, the finding of invalidity was a finding (or determination) that has the characteristic of finality in the proceedings between the parties and which, consistent with the authorities relied upon by the EPA in its submissions, qualified the ruling on invalidity as an interlocutory judgment and, accordingly, within the jurisdiction of this Court to review under s 5F(3) with leave.

3. [122]

   The respondent submitted that although her Honour’s reasons for dealing with the notices of motion filed by both parties are published as judgments (and accorded a citation in that form for reporting purposes), properly construed, they do no more than to constitute the formal delivery of her Honour’s reasons.

4. [123]

   To my thinking, it remains unclear how the primary judge’s effective refusal to make a “finding or determination” that the Notice was invalid, at the instance of the EPA by its notice of motion, can form part of her reasons for earlier concluding the Notice was invalid, and even less so, how the second judgment serves either to convert the first judgment into an “interlocutory judgment or order”, or even how it might operate to inform the characterisation or effect of the first judgment as “interlocutory”.

5. [124]

   In the respondent’s submission, the first set of reasons address the question underlying the relief sought by its notice of motion. Those reasons address the basis upon which the primary judge concluded the EPA had failed to discharge the onus of proving the Notice was valid, incidentally, but importantly, the sole ground upon which the respondent sought an order that the summonses be dismissed which, if made, would constitute a final order.

6. [125]

   In the respondent’s further submission, the second set of reasons address the question reserved after the hearing of its notice of motion and the issues raised by the EPA’s amended notice of motion. In that judgment, her Honour declined to make a “determination or finding” of invalidity sought by the EPA having concluded that she would make orders for the dismissal of both summonses. The primary judge accepted however that since the EPA also sought, by its amended notice of motion, that she state a case on the question whether she had power to dismiss the summonses, the respondent’s notice of motion was not able to be finalised by the making of final orders until the determination of the stated case.

7. [126]

   Analysed in that way, the respondent submitted that irrespective of whether the “judgments” are read separately or, as the EPA contends, when they are read together, the decision on invalidity does not constitute an “interlocutory judgment or order” because it does not constitute a formal order or judicial act despite her Honour’s detailed reasons for arriving at that conclusion. For that reason, the respondent submitted the EPA’s application for leave to appeal under s 5F is incompetent and that the only remaining question is for this Court to address the question of law submitted by way of a case stated under s 5AE of the Criminal Appeal Act.

Consideration

1. [127]

   It has been repeatedly observed by the collected authorities to which the parties have referred extensively in their submissions that there is no bright line distinguishing interlocutory judgments or orders on the one hand from rulings, with or without detailed reasons, that do not constitute judgments or orders on the other. [16] It is also clear beyond question having regard to those authorities, and others, that no appeal under s 5F lies from a judge’s reasons for making an order or giving a ruling. [17]

2. [128]

   In R v Bozatsis (1997) 97 A Crim R 296, after referring to the judgment of Sheller JA in Lethlean v R (1995) 83 A Crim R 197, Gleeson CJ said as follows:

3. [129]

   In Turnbull v R [2016] NSWCCA 109, RA Hulme J identified a number of factors that informed the question at issue in that case, namely whether a pre-trial ruling on the scope of the partial defence of extreme provocation in a murder trial, a ruling which involved the trial judge construing the amendment to s 23 of the Crimes Act, albeit without a complete appreciation of all of the evidence that may bear upon that issue, including the evidence which may have been relied upon by the accused, constituted an interlocutory judgment or order amenable to appeal under s 5F(3) of the Criminal Appeal Act.

4. [130]

   After referencing the close consideration his Honour had earlier given to a number of authorities in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244, which also concerned whether the ruling of a trial judge concerning the statutory construction of “mutilates” in s 45 of the Crimes Act was amenable to appeal under s 5F(3), he observed that the fact that a ruling on a question of law is made pretrial is not a relevant consideration when considering whether the substance or effect of the ruling renders it amenable to an appeal or application for leave to appeal under s 5F. Neither is the importance of the matter under consideration or its significance to the issues likely to arise in trial a relevant consideration. [18] Additionally, the fact that the effect of the ruling in question might lead to the prosecution failing to make a case, does not of itself convert that ruling into an interlocutory judgment or order for the purposes of an appeal under s 5F(3).

5. [131]

   The imperative that this Court should have regard to the substance and not the form of the ruling or decision under consideration in determining whether it is amenable to an application for leave to appeal under s 5F(3) does not, however, derogate from the need to also critically examine the effect of the decision under consideration and to determine, referable to that factor, whether it is interlocutory. A decision or ruling that is a final order or, I would add, an order that has that effect, is not susceptible to review under s 5F(2) or (3).

6. [132]

   In this case, as I see it, significance attaches to the fact that if the ruling on the validity of the Notice was made in the course of the summary hearing of the summonses, an appeal under s 5F(3) could not have been brought, and the EPA would have been obliged to seek a review of that ruling and its consequences by other appeal routes. The fact that the question of validity was raised in a preliminary hearing does not alter that fact.

7. [133]

   It is that defining feature of the present case that distinguishes it from the cases relied upon by the EPA where a decision of a trial judge has been found to be an interlocutory judgment and order susceptible to an appeal under s 5F. While it can be said that the finding of invalidity had, in one sense, the requisite element of finality by resolving an issue in the proceedings in a binding manner, it was not a finding that determined “an identifiable or separate part of the proceedings”. In my view, the proper characterisation of that finding is that it, in effect, operated as a final order and that, save for the EPA inviting her Honour not to order that the summonses be dismissed, the finding of invalidity would have had that effect. Although on one view it was a decision made in the proceedings at a preliminary stage and not in a final hearing, in this case that is not a relevant consideration and even less a determining factor in the characterisation of the ruling as “interlocutory”.

8. [134]

   Furthermore, as I have sought to highlight by my review of the various procedural steps through which these proceedings have passed, the EPA acquiesced in a process where the validity of the Notice was openly challenged in a preliminary hearing in the course of which it had every opportunity to meet that challenge and to discharge the onus imposed upon it of proving validity as a matter fundamental to proof of the respondent’s guilt to the criminal standard. That feature of this case distinguishes Bozatsis, the decision upon which the EPA placed significant reliance in seeking to persuade this Court that the primary judge’s decision was susceptible to review as being interlocutory in the relevant sense. In Bozatsis, at a pretrial hearing the trial judge ruled as inadmissible all the prosecution evidence pursuant to s 138 of the Evidence Act 1995 (NSW). This Court considered that decision was, in substance, an order refusing to permit the Crown to seek to make a case against the appellants and interlocutory for that reason. In this case, the EPA was not refused the opportunity to make a case. To the contrary; it made its case. The fact that the EPA did not have an opportunity to make its case in proof of the other elements of the offences is wholly immaterial in circumstances where it was common ground that an invalidly issued Notice meant that acquittals on both offences were inevitable.

9. [135]

   In addition, in this case the primary judge gave what I consider should be properly characterised as detailed reasons for concluding the EPA had failed to discharge the onus of proving the Notice was validly issued. I am not persuaded that those reasons, in the context in which they were delivered, constitute or amount to a judicial act capable of being formally entered in the Court’s records. In my view, there is force in the respondent’s submission in this Court that it was only after those reasons were delivered following the preliminary hearing convened upon the filing of the respondent’s notice of motion, a process as I have repeatedly said, in which the EPA acquiesced and actively participated, that the EPA sought to categorise those reasons as an “interlocutory judgment” in order to seek to make the case in this Court that the finding of invalidity should be vacated. The EPA sought to achieve that outcome by seeking an order in its notice of motion, the terms of which were designed solely to facilitate that objective.

Conclusion

1. [136]

   I am not persuaded that the application for leave to appeal pursuant to s 5F(3)(a) is competent. Even were I in error in reasoning to that conclusion, I would refuse leave.

Consideration of the stated case

1. [137]

   On 12 May 2021, the primary judge, Pain J, submitted the following question of law to this Court for determination under s 5AE(1) of the Criminal Appeal Act:

2. [138]

   The specific question raised by the stated case concerns whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in Ch 4 Pt 5 Div 2A of the Criminal Procedure Act has the power to summarily dismiss a summons having found a statutory notice to be invalid and where a valid notice is an element of the criminal charge laid by the service of the summons. The more general question is whether a superior court has the power to dismiss a summary prosecution prior to a final hearing.

3. [139]

   The EPA submitted that the specific question was appropriate for referral to this Court under s 5AE(1) of the Criminal Appeal Act, not least because of the three cases decided in the LEC, where an order for summary dismissal has been made following a preliminary hearing, none addressed, in a principled way, whether such an order was within power and where there is otherwise no binding decision on that question. [19]

4. [140]

   The EPA submitted that each of the decisions was wrongly decided.

5. [141]

   The respondent submitted to the contrary. The respondent submitted that each of the decided cases concerned whether an administrative act upon which a criminal charge depended for its legal sufficiency was valid, and in each case an order was made dismissing the summons supported by the primary judge’s reasons for taking that approach.

6. [142]

   The respondent did not seek to persuade the Court that the question raised by the stated case was not one appropriate for this Court to decide in the exercise of the Court’s discretion under s 5AE(2). The respondent submitted that an answer to the question will have implications not only for all summary prosecutions in the LEC and specified prosecutions in the District Court, [20] but also for the wide range of summary prosecutions which may be commenced in the Supreme Court where the case management provisions in Ch 4 Pt 5 Div 2A of the Criminal Procedure Act apply. [21]

7. [143]

   I am satisfied that the question raised by the case stated is a pure question of law and should be answered. [22] I am of that view despite the submitted position of the EPA that in the event that the question raised by the stated case is answered in the negative (the proposition for which it contends) and if the application for leave to appeal the primary judge’s ruling on the validity of the Notice under s 5F(3) is refused (as I propose it should be) the EPA will either withdraw both summons prior to a final hearing, or the matters will proceed to a final hearing in accordance with the procedures in Ch 4 Pt 5 Div 3 of Criminal Procedure Act at which time both summons will inevitably be dismissed there being no evidence to support proof of the statutory offence charged in each summons to the criminal standard.

8. [144]

   The parties were invited by the Court to furnish additional submissions as to whether, in the event that both summonses were dismissed at a final hearing, the EPA had any residual right to appeal that order. I am of the view that the issue of appeal rights under either s 107 of the Crimes (Appeal and Review) Act or s 5C of the Criminal Appeal Act does not have a direct bearing on the question raised by the stated case so as to require separate consideration of the submissions filed by the parties.

The EPA’s submissions on the stated case

1. [145]

   Given the focus by both parties on the operation of s 247G of the Criminal Procedure Act, it is useful to set out the relevant subsections of that section in full.

2. [146]

   Sections 247G(2), (3) and (4) provide:

3. [147]

   The EPA submitted that despite the breadth of power conferred under s 247G(2), it does not extend to orders that would bring validly commenced proceedings to an end in circumstances where other provisions of the Criminal Appeal Act specifically provide for how that might occur. The EPA submitted that, properly understood, the power under s 247G(2) is directed at “case management within a proceeding”. [23]

4. [148]

   The EPA submitted that it is notable that s 247G(3) makes no express provision for a judge presiding over a preliminary hearing to order that a summons be dismissed. The EPA accepted that while that was not determinative of the issue raised by the stated case it was nonetheless relevant in construing the power that is granted under s 247G(2). The EPA also submitted that s 247G(4) does not broaden the powers under s 247G(2) but it is facultative in the sense that it confirms the court can exercise all or any of the powers granted under subs (2) of its own motion.

5. [149]

   The EPA submitted that there are five factors which inform the operation of Div 2A of the Criminal Procedure Act, which compel the conclusion that in the context in which s 247G(2) operates within the overall structure of the Criminal Procedure Act, it is not a source of power entitling a judge who presides over a preliminary hearing to summarily dismiss a criminal prosecution commenced by summons. The EPA submitted that, in combination, those five factors dictate that the answer to the question raised by the stated case should be “no”.

6. [150]

   The five contextual factors identified by the EPA can be summarised as follows.

7. [151]

   First, as the heading to Div 2A makes clear, s 247G is concerned with “case management”, providing a source of power for the Court to take a range of actions in the interests of securing case management objectives and preliminary disclosure by the parties, the primary purpose being to “reduce delays in proceedings”, not to bring proceedings to an end. The EPA submitted that s 247B(1) makes that statutory purpose explicit:

8. [152]

   Secondly, s 247G distinguishes between orders (and other actions) available to a judge presiding over a preliminary hearing and orders (and other actions) available to the “presiding judge”, defined in s 247C(1) to mean the judge presiding at the hearing of the proceedings (emphasis applied in the EPA’s submissions). [24]

9. [153]

   The EPA further submitted that when read together, ss 247G(5) and 247W operate to make it clear that “orders, determinations or findings made or rulings given in a preliminary hearing” by a judge under s 247G(2) are in nature “provisional” and not “final”. The EPA submitted that that construction is further supported by the operation of ss 247G(7)-(9). Those subsections provide as follows:

10. [154]

    Thirdly, the EPA emphasised that an order dismissing a summons is not a preliminary order (defined in s 247W(4) as “any order made by a Judge, before the commencement of a trial sentence hearing, in proceedings to which this Division applies”) but a final order that may only be made by a presiding judge.

11. [155]

    Fourthly, the EPA submitted that further support for construing actions taken by a judge presiding over a preliminary hearing as exclusively pre-trial actions is found in s 247G(5), which is analogous to s 139(5) of the Criminal Procedure Act where a criminal prosecution is on indictment.

12. [156]

    Section 247G(5) provides:

13. [157]

    Section 139(5) provides:

14. [158]

    The EPA submitted that s 247G(3)(f), which is an express provision to “hear and determine a submission that the case should not proceed to trial” (and which is in relevantly similar terms to s 139(5)), [25] should not be construed as providing a source of power to order the summary dismissal of a summons, absent a fatal defect in the charge that is not susceptible to the saving provisions and powers of amendment under ss 16, 17(2), 20 and 21 of the Criminal Procedure Act.

15. [159]

    The EPA submitted that, despite the express power in s 139(3)(f) of the Criminal Procedure Act allowing a judge to hear and determine an application that a prosecution on indictment should not proceed to a trial, it is a “doubtful proposition that a judge may dismiss an indictment or a charge on indictment” [26] other than in the very limited circumstances where there is a “fatal defect” in the charge as framed such that no offence known to law is disclosed, or where the charge, as framed, is insufficient to invoke the jurisdiction of the court for other reasons.

16. [160]

    The EPA submitted that John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 is authority for the proposition that the power to order that a summons be summarily dismissed is to be exercised only where the information before the court is insufficient to properly invoke the jurisdiction of the court. [27]

17. [161]

    The line of authority cited by the EPA in support of that proposition [28] was also advanced in support of the further submission that the same very limited circumstances obtain where a superior court exercising summary jurisdiction is invited to summarily dismiss criminal proceedings. In that context, the EPA referred, by way of example, to where there is a fundamental defect in the offence charged by summons such that, assuming no objection is taken to the hearing of the summons and it proceeds to a hearing on its merits and the offence is found proved, a conviction cannot legally stand. [29]

18. [162]

    The EPA cited other examples of cases in that category as including the failure to properly plead an offence (Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517 per Mahoney JA) or to charge an offence known to law (Attorney General of NSW v Built NSW Pty Ltd [2013] NSWCCA 299 at [13]-[138] per Bathurst CJ (with Beazley P and Hoeben CJ at CL agreeing)); the failure to lay the charge before a court of competent jurisdiction (R v Dabhade [1992] All ER 769 at 799 per Wright J) or by a particular person or in a particular form (Boral at 515; Built at [107]; R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281).

19. [163]

    The EPA went on to submit that where there is a fundamental defect in a charge to which an accused can take issue, but the issue is not raised, the “discharge or acquittal” of the accused following a hearing will not afford a bar to a subsequent prosecution. Although speaking in relation to the principles concerning double jeopardy, and citing G Spencer Bower, A Turner and K Handley, The Doctrine of Res Judicata (3rd ed, 1996, Butterworths) at 32, in Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 at [14], Gleeson CJ, Heydon and Crennan JJ endorsed the following statement:

20. [164]

    The EPA submitted that none of the cases to which it referred the Court turned on a consideration of the sufficiency of the evidence the prosecution proposed to rely upon in proof of guilt, or upon the sufficiency of the evidence available to support the charge, although an analysis of the evidence may assist in disclosing a fatal defect in the charge. [30]

21. [165]

    Fifthly, the EPA submitted that to construe s 247G(2) as a source of power to make an order for summary dismissal is inconsistent with the statutory scheme in the Criminal Procedure Act which distinguishes between Div 2A, which is concerned with pre-trial procedures, and Div 3, which is concerned with trial procedures. The EPA submitted that save only for where the prosecutor fails to appear at the hearing of the summons, thereby empowering the court to discharge a defendant, [31] the only way for validly commenced summary proceedings to be brought to finality without a trial is for the prosecution to withdraw the summons or for the court to make an order that the proceedings be permanently stayed. In all other circumstances, where both the prosecutor and the defendant appear on the day and at the time and place listed for the determination of proceedings for a summary offence, the court is obliged to proceed and to hear and determine the matter, including by strictly adhering to the procedural steps that are inherent in a summary hearing, inter alia, hearing the evidence, confirming that the prosecution has adduced all the evidence upon which it relies in proof of guilt and, where appropriate, ruling on any no case submission the defendant may advance. [32]

22. [166]

    The EPA submitted that the orders Pain J proposes to make in the present proceedings will amount to a determination that the charge laid in each of the summonses cannot be proved to the criminal standard in the absence of a final hearing convened under Div 3 of the Criminal Procedure Act, the only forum where that issue arises for determination.

23. [167]

    In short, the EPA submitted that applying the rules of statutory construction and in accordance with settled authority, an order for a summary dismissal of a summons is beyond the scope of the powers conferred by Ch 4 Pt 5 Div 2A of the Criminal Procedure Act and, more specifically, beyond the case management powers in s 247G. The EPA submitted that an order for summary dismissal at the conclusion of a preliminary hearing would, of itself, amount to an error of law, inter alia by failing to accord procedural fairness to the EPA as prosecutor.

24. [168]

    Finally, the EPA submitted that recourse to extrinsic materials also support the construction of s 247G(2) for which it contends.

25. [169]

    Division 2A of Pt 5 of Ch 4 of the Criminal Procedure Act was introduced by the Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW) (“the Amending Act”). The Explanatory Memorandum identified the object of the amendment as being to make provision:

26. [170]

    In the Agreement in Principle Statement, [33] the then Attorney General, Mr Greg Smith, indicated that the purpose of a preliminary hearing was not to bring an end to the proceedings but to focus them:

27. [171]

    The Attorney General also said:

The respondent’s submissions on the stated case

1. [172]

   In support of the stated case being answered by the Court in the affirmative, the respondent submitted that none of the five contextual features or “considerations” [35] upon which the EPA relied in support of the statutory construction of s 247G(2) for which it contended were compelling in circumstances where, as here, the offences charged by summons cannot be proved to the criminal standard because the EPA, as the prosecutor, is unable to establish the issue of a valid Notice; a condition of legal (criminal) liability in the defendant.

2. [173]

   The respondent submitted that the breadth of the statutory language in s 247G(2) leaves no room to doubt that the legislature intended that the powers conferred on a superior court as introduced by the Amending Act in 2012 are such that the court may, in its discretion, do any or all of the following actions in the management and conduct of summary proceedings:

3. [174]

   In the respondent’s submission, this Court should treat an order directed to the efficient conduct of proceedings as a more expansive concept than an order (or other actions) for the “management of proceedings”.

4. [175]

   The respondent emphasised that the heading of Div 2A, which is to be taken to be part of the Act, [36] is not limited to case management provisions but, as the full heading reads, “case management provisions and other provisions to reduce delays in proceedings”. The respondent submitted that that heading (cited for emphasis in its submissions in full) not only derogates from the EPA’s submission that the powers conferred by s 247G(2) should be construed as limited to procedural steps taken for the purpose of case management, but it also identifies the reduction of delay as one of the statutory objectives of the operation of Div 2A. The respondent submitted that to require a superior court to engage in the futile exercise of listing a matter for a further hearing following an order made in a preliminary hearing after a full hearing on the merits as to whether a critical aspect of the prosecution’s case can be established, a listing which would inevitably result in the matter not actually proceeding to a final hearing (either because the summonses are withdrawn by the prosecutor or an order for dismissal was not opposed), would increase rather than reduce delay in the efficient dispatch of proceedings before a court in exercising summary jurisdiction.

5. [176]

   The respondent submitted that it is a distraction to construe the breadth of the court’s powers under s 247G(2) to an exclusive list of “orders, determinations findings or rulings” by reference to the word “preliminary” in the way contended for by the EPA or that the powers are limited to “case management purposes”. The respondent submitted that, properly understood, the use of the word “preliminary” is merely a “temporal indicator” which, of itself, does not mandate that matters of substance cannot be determined to finality at a preliminary hearing; neither does it oblige the court to list a matter for a final hearing when there is no utility in doing so. The respondent submitted that were the powers conferred under s 247G(2) intended by the legislature to be “exclusive” and “provisional” in the sense contended for by the EPA, the power in s 247G would have been expressly confined in that way.

6. [177]

   The respondent submitted that the same analysis applies to the EPA’s third contextual feature or consideration, with the definition of a preliminary order in s 247W(4) not carrying with it the implication that only procedural matters may be determined in a preliminary hearing. In the respondent’s submission, there is no warrant for confining the breadth of the power in s 247G(2) in that way.

7. [178]

   In addressing the second contextual feature or consideration advanced by the EPA, the respondent submitted that rather than ss 247G(5) and 247W operating to make it clear that “orders, determinations or findings made or rulings given in a preliminary hearing are “provisional” (a construction which the EPA submitted is further emphasised by the operation of ss 247G(7)-(9)), an alternate construction is more persuasive. Rather than those sections underscoring the provisional or tentative nature of “orders, determinations, findings and rulings” made under s 247G(2), such that, irrespective of the actions taken at a preliminary hearing, every matter must proceed to be listed for a final hearing (even where the prosecution will inevitably fail), when construed together, ss 247G(5), 247W and 247G(7)-(9) operate to make it clear that such actions taken at a preliminary hearing are, in the ordinary course, binding on the presiding judge in order to avoid the expense and delay involved in relitigating matters susceptible to resolution pre-trial.

8. [179]

   The respondent addressed the EPA’s fourth contextual feature or consideration at some length. That submission concerned the operation of s 247G(3)(f) of the Criminal Procedure Act and, more broadly, whether it should be construed as excluding the power to summarily dismiss proceedings prosecuted by summons.

9. [180]

   The respondent submitted that the EPA’s construction of s 247G(3)(f) as having only a limited operation has no textual foundation and should not be limited by reference to particular circumstances which are not encompassed by the express words of the section. In support of that construction, the respondent cited Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 421; [1994] HCA 54 where, at 421, the High Court stated in a unanimous judgment (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ):

10. [181]

    The respondent was also critical of the EPA offering no rationale as to why s 247G(3)(f) should be interpreted as a source of power to make a broad range of orders, including (on the EPA’s preferred analysis) both a temporary and permanent stay of proceedings; an order dismissing a summons on account of a fatal defect in the charge to which the savings provisions and powers of amendment under the Act do not apply; and where a summons was not laid before a court of competent jurisdiction or by a properly authorised person or in a particular form, but not an order for summary dismissal where a condition of criminal liability cannot be established.

11. [182]

    The respondent submitted that even were a limitation on the breadth of power in s 247G(3)(f) to be implied, the summonses in the present case suffer from a specie of fundamental defect since the Notice with which the respondent is alleged to have failed to comply has been found to be invalid. On that analysis, the respondent submitted that both summonses are fundamentally and fatally defective, there being no offence of failing to comply with a defective notice and a summons alleging a failure to comply with a void or defective statutory notice is incapable of invoking the Court’s summary jurisdiction.

12. [183]

    Finally, the respondent submitted that the authorities upon which the EPA relied in support of a confined or limited construction of s 247G(3)(f) do not, on a proper analysis, support the proposition for which the EPA contended. The respondent submitted that in none of the cases to which the EPA referred was the Court concerned to articulate the boundaries of a statutory power to dismiss a summary prosecution prior to trial.

13. [184]

    The EPA cited John L Pty Ltd v Attorney-General (NSW) as authority for the proposition that the power to dismiss summary proceedings “exists only where the information laid before the Court is insufficient to properly invoke the jurisdiction of the Court”. [37] The respondent submitted that John L is not authority for that broad proposition.

14. [185]

    In that case, the High Court heard an appeal from a decision of this Court allowing an appeal against final orders made by Yeldham J in a summary prosecution which had not proceeded to a hearing on the merits. His Honour had held that the failure of the information charging the offence to identify a material particular invalidated the information. His Honour made orders that the information be dismissed, the summons be struck out and the proceedings be dismissed. A preliminary question arose as to whether the appeal to this Court under s 5C of the Criminal Appeal Act was competent. That section provides:

15. [186]

    Mason CJ, Deane and Dawson JJ concluded that the reference to an information being “quashed” in the first limb of s 5C should be construed as comprehending a decision to dismiss an information on the ground that it was insufficient to invoke the jurisdiction of the court. [38] Their Honours were also satisfied that the failure of the information to identify a material particular was a fundamental defect and, as such, was insufficient to found proceedings against the appellant unless it was cured or overcome by statutory provision. [39] Their Honours concluded that s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) (the equivalent provision to s 16(2) of the Criminal Procedure Act) did not preclude objection being taken to the insufficiency of the information, as the relevant information was under and for the purposes of a different and subsequent statute. It followed that Yeldham J was correct to make the orders he did.

16. [187]

    The respondent submitted the High Court in John L did not set out to confine or limit the circumstances where summary proceedings may be dismissed prior to trial whether by reference to statute or at common law. The Court was addressing the particular question raised before it. The majority concluded that an information will be “quashed” within the meaning of s 5C of the Criminal Appeal Act where it was dismissed because it failed to invoke the jurisdiction of the Court. That conclusion does not carry with it an implication that summary proceedings may only be dismissed where the initiating process failed to invoke the Court’s jurisdiction.

17. [188]

    The respondent also submitted that there is no common law principle precluding or preventing the dismissal of a summons prior to a hearing convened under Ch 4 Div 3 of the Criminal Procedure Act. In that regard, the respondent emphasised the following passage in Munday v Gill (1930) 44 CLR 38; [1930] HCA 20 at 86 which distinguishes between summary proceedings and a trial on indictment:

18. [189]

    The EPA’s submissions in reply took issue with the respondent’s citation of Munday v Gill to the extent that the respondent intended to submit that the extract it cited is authority for the proposition that summary proceedings may be dismissed at any time to achieve “speedy justice” or “expedience”. I do not understand the respondent to have advanced that submission. Rather, I understand the respondent’s submission to be that Munday v Gill is consistent with the extrinsic materials to which reference has been made, where the operation of Div 2A was intended, in part, to ensure the court’s time and the resources of the parties are committed to resolving matters genuinely in dispute.

19. [190]

    The respondent addressed the EPA’s reliance on Island Maritime in the following way. The respondent emphasised that in that case the question was whether the appellants were entitled to a permanent stay of a second summons on the basis of a plea in bar (autrefois acquit) or because of an abuse of process where the primary judge hearing the first summons was satisfied the appellants had no case to answer in circumstances where the relevant part of the statute under which the charge was laid did not apply to the offending conduct. [40]

20. [191]

    In the course of finding against the appellants, Gleeson CJ, Heydon and Crennan JJ cited the passage extracted by the respondent at [163] ante. The respondent submitted that the EPA’s interpretation of that passage as limited to those cases where a deficiency of evidence amounts to a “fundamental defect” is not justified.

21. [192]

    The respondent went further and submitted that even if the passage cited is interpreted in the manner contended for by the EPA, it does not support the conclusion that Pain J has no power to dismiss the summonses in the present case where, as a matter of law, the evidence available to the EPA as prosecutor cannot support a conviction due to a “fundamental defect” in the summonses where, due to the invalidity of the Notice, there is no evidence of a failure to “comply with a requirement” made of the respondent under Ch 7 of the POEO Act within the terms of s 211(1) of the Act and no evidence of a “requirement made” of the respondent under Ch 7 of the POEO Act in purported compliance with which the respondent furnished information knowing it was false or misleading within the terms of s 211(2). Accordingly, it was submitted by that analysis, “as a matter of law the evidence available to the prosecution cannot support a conviction”. [41]

22. [193]

    In Island Maritime, Gleeson CJ, Heydon and Crennan JJ observed that there were three points of view from which it could be seen that the appellants “could have taken a fatal exception” to the summonses such that they were “not lawfully liable to suffer judgment for the offences charged”. First, the first set of summonses were defective on their face, because a charge under s 27(1) of the Marine Pollution Act required an allegation that the discharge of oil from the ship was “in or in connection with a transfer operation”, which was not particularised. Secondly, even if that problem were not seen as fatal, it was plain on the face of the first set of summonses that no conviction for a contravention of s 27(1) could result, because the allegation that there was discharge of oil in State waters brought the circumstances within s 8(1) which, due to another provision, meant that s 27(1) did not apply. [42] Their Honours described the third point of view as follows:

23. [194]

    There is force in the respondent’s submission that in the present case, even if the “form” in which the charge in the summons served did not “reveal” the invalidity of the Notice, by the time that issue had been comprehensively litigated before Pain J in a preliminary hearing, and with the consent of the EPA, and decided by her Honour adverse to the EPA, the only available view of the evidence upon which the EPA as prosecutor relied was that it “negated any possibility of a conviction”. [44]

24. [195]

    I also regard the respondent’s submissions which gave critical focus to the EPA’s fifth contextual consideration as persuasive.

25. [196]

    In countering the EPA’s assertion that the mandatory rules of trial procedure in ss 249-252 in Div 3 of the Criminal Procedure Act and Pt 75 r 11B of the Supreme Court Rules 1970 provide an overwhelming inference for the proposition that a summary prosecution must always proceed to trial, the respondent advanced the following analysis.

26. [197]

    Section 252 provides:

27. [198]

    Properly understood, s 252 requires a superior court to determine proceedings for a summary offence if the matter proceeds to trial and both the prosecutor and the accused person are present. It does not carry with it a mandate that there must always be a trial, nor place any limitation on a superior court’s power to dismiss proceedings for a summary offence prior to trial.

28. [199]

    Part 75 r 11B(1) of the Supreme Court Rules, as applied to proceedings in Class 5 of the LEC’s jurisdiction by rr 5.1 and 5.2(1) of the Land and Environment Court Rules 2007, relevantly provides:

29. [200]

    The Rules are equally as clear in that they only apply where a defendant “appears at the hearing”; has been provided with a written copy of the charges; is read the substance of the relevant s 246(1) order and is asked to enter a plea. The operation of the Rule has no bearing on the question whether a superior court has power to dismiss a summons prior to trial.

30. [201]

    The respondent submitted that it is an established rule of statutory construction that legislation should not be construed so as to take away the jurisdiction of a superior court except by express words or necessary implication. [45] This is a corollary of the seminal rule that legislation which purports to deny a court’s authority to decide matters within its jurisdiction should be clear and express. [46]

31. [202]

    The respondent submitted there is no provision in Ch 4 Pt 5 Div 3 of the Criminal Procedure Act – or any other Act – which expressly provides, or from which it can be necessarily implied, that a superior court only has power to dismiss a summons after the commencement of a hearing.

32. [203]

    The respondent submitted this contrasts with the position with respect to inferior courts. Section 202 of the Criminal Procedure Act, which is contained in Ch 4 Pt 2 Div 3 of that Act (which provides for trial procedures in lower courts), relevantly provides:

33. [204]

    The respondent submitted that the absence of an equivalent provision to s 202 of the Criminal Procedure Act in Ch 4 Pt 5 Div 3 is significant. As Pain J observed in the present proceedings, at [39]: [47]

34. [205]

    The respondent submitted, and I accept, that it is unsurprising that the legislature has drawn a distinction between the summary jurisdiction exercised by superior and by inferior courts in this context in the structure of the Criminal Procedure Act. The jurisdiction and processes of inferior courts exercising criminal jurisdiction are confined by statute. In contrast, superior courts, which have a range of different attributes “relating mainly, though not exclusively, to the actual exercise of the jurisdiction which is vested in the particular court”, [48] are in a position to control their processes.

35. [206]

    In my view, the EPA’s reliance on two authorities in this Court to support the construction of the Criminal Procedure Act for which it contends, namely that a superior court is required to proceed to trial due to the mandatory rules of trial procedure specified in Ch 4 Pt 5 Div 3 of the Criminal Procedure Act, neither of which dealt with the operation of Ch 4 Pt 5 Div 3 of the Criminal Procedure Act or procedural requirements in superior courts, should be distinguished for that reason. In DPP v Ridley [2015] NSWSC 1478, Adamson J allowed an appeal against a decision of a magistrate dismissing a summary charge on a number of grounds, including that the magistrate had failed to comply with s 202(1) of the Criminal Procedure Act (at [64]). In DPP v Elskaf [2012] NSWSC 21, Garling J set out the principles and procedures which apply where there has been a no case submission before a magistrate (at [47]-[48]).

36. [207]

    In my view, neither case provides support for the EPA’s submission that Ch 4 Pt 5 Div 3 of the Criminal Procedure Act requires a superior court to list summary proceedings for trial despite the court having made a finding following a preliminary hearing which negates any possibility of a conviction.

37. [208]

    The EPA submitted that the procedural steps involved in a final hearing, including the hearing of evidence, the closing of the prosecution case and ruling on any no case submission, are all important procedural steps to be taken before a final determination of the charges laid by summons can occur. The EPA submitted that if Pain J were to dismiss the summonses in the present case at a preliminary hearing, she would commit an error of law by denying the EPA as prosecutor procedural fairness.

38. [209]

    In my view, that submission ignores what occurred in these proceedings. Pain J conducted a preliminary hearing on the question of whether the EPA could establish the validity of the statutory Notice, a condition of liability with respect to the charges laid by separate summonses. The EPA filed detailed written submissions on that question and adduced affidavit evidence in support of its claim that the Notice was valid. There was a comprehensive hearing on the merits concerning that question. The submission in this Court that the EPA would be denied procedural fairness if Pain J were to dismiss the summonses prior to a final hearing cannot be sensibly sustained. The EPA had every opportunity to put its case on the validity of the Notice. The fact that the EPA did not have an opportunity to make its case on the other elements of the charges is immaterial in circumstances where the consequence of Pain J’s finding that the Notice was invalid is that both charges must fail.

39. [210]

    Despite the fact that only two of three authorities in the LEC where a summons was dismissed (where a statutory notice order upon which the relevant charge had been found to be invalid) were decided after the Amending Act, and although none of the decisions address the source of power to make the order, I am unable to conclude, as urged by the EPA, that each case was wrongly decided.

40. [211]

    In Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 the respondents were charged with the failure to comply with clean-up notices issued pursuant to s 91 of the POEO Act in a summary prosecution in the LEC. Before going into evidence, the respondents filed a notice of motion seeking an order for the proceedings to be dismissed on the basis identified by McClellan CJ as trial judge that a precondition to the issue of the notices had not been satisfied and that the respondents were denied procedural fairness by the Council’s failure to discharge that obligation. The notices were dismissed. His Honour made the following observation in his costs judgment:

41. [212]

    In Lismore City Council v Ihalainen (2013) 198 LGERA 47; [2013] NSWLEC 149 Pain J was satisfied that the LEC could hear and determine a notice of motion for the dismissal of summary proceeding at a preliminary hearing under s 247G(2) of the Criminal Procedure Act. As with Cauchi the charges alleged a failure to comply with a clean-up notice and again as with Cauchi no notice had been provided to the defendant. In that case her Honour stated:

42. [213]

    In Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156 the defendant, who had been charged with a statutory order issued under the Local Government Act, sought to have the proceedings dismissed prior to entering a plea on the basis of no notice of the order. Although Biscoe J did not refer to Div 2 of the Criminal Procedure Act he was satisfied the order should be made. He stated as follows, at [21]:

Conclusion

1. [214]

   The EPA accepted that Pain J proposes to make orders that each summons be dismissed based on what it described as “a consideration of evidence and the merits of the case”. [51]

2. [215]

   While it is true that the EPA’s ultimate position was that Pain J should have simply made “a finding or determination” of invalidity under s 247G(2) which would take effect, on the EPA’s analysis, as an interlocutory judgment attracting the leave provisions in s 5F(3) of the Criminal Appeal Act (an approach which I have found was not open to the EPA in the particular circumstances of this case), the EPA did not advance the submission on the stated case that the notices of motion upon which the respondent moved for orders for dismissal were incompetent, or that the primary judge should have refused to hear and determine the issue of invalidity as a pre-trial issue and to have listed the matter for a final hearing. Perhaps the EPA determined it could not be heard to make that submission in this Court having consented to a preliminary hearing before the primary judge on the basis of its clear acceptance that an invalid notice would be fatal to its case against the respondent and, it might be inferred, that it also accepted the determination of that issue at an early stage in the proceedings would avoid the costs and the burden of listing the summonses for a final hearing which would be inutile if the finding of invalidity was adverse to it as prosecutor.

3. [216]

   In my view, there is nothing in the construction of s 247G, within the structure of the Criminal Procedure Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing.

4. [217]

   The construction of s 247G(3) advanced by the respondent (in particular s 247G(3)(f) although not only that sub-provision) provides, in my view, a source of power available to a superior court to be exercised in those circumstances. That purposive construction [52] is an endorsement of the legislature’s commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense. [53]

5. [218]

   I would answer the stated case in the affirmative.

6. [219]

   LONERGAN J: I agree with Fullerton J.