Environment Protection Authority v Truegain Pty Ltd

1. [1]

   LEEMING JA: The Environment Protection Authority (EPA) seeks leave to appeal, pursuant to s 5F of the Criminal Appeal Act 1912, in respect of three interlocutory decisions made by Lloyd AJ on 16 March, 20 March and 18 April 2012. No application appears to have been made for certification that the judgments were proper ones for determination on appeal (cf s 5F(3)(b)), and so leave is required. It seems that no orders were made until the third decision, so that no extension of time is required pursuant to r 5B of the Criminal Appeal Rules 1952. The Court was told that no further steps have been taken in the prosecution since April 2012.

2. [2]

   The principal submission made by the EPA, by grounds 1-10 of its application for leave to appeal, is that the primary judge erred in determining that the summons filed in Class 5 of the jurisdiction of the Land and Environment Court suffered from duplicity. (The EPA’s written and oral submissions did not address individual grounds, and these reasons follow the same course.) The EPA also challenges an order of costs against it.

3. [3]

   In my opinion, the EPA’s summons was duplicitous, substantially for the reasons given by the primary judge. However, I respectfully disagree that s 68 of the Land and Environment Court Act 1979 (LEC Act) authorised the ordering of costs in that Court’s summary jurisdiction, prior to the determination of the prosecution. In my opinion, there should be a grant of leave, the costs order should be set aside, but the appeal otherwise dismissed.

The commencement of the prosecution

1. [4]

   The EPA claimed by its summons filed 3 June 2011 that the respondent (Truegain) had committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act), which is in these terms:

2. [5]

   It was common ground that Truegain was the holder of Environment Protection Licence 7638 (Licence) which authorised the carrying out of “scheduled activities” at premises occupied by it at Rutherford. The relevant scheduled activity authorised was “Waste processing (non-thermal treatment)”. Section 48(2) of the POEO Act makes it an offence to carry on a scheduled activity without holding a licence which authorises that activity. Scheduled activities are listed in Schedule 1, within which clause 41 is headed “Waste processing (non-thermal treatment)”; it will be necessary to return to the detail of that clause below.

3. [6]

   The summons alleged that Truegain was the holder of a licence, a condition of which was contravened by a person “between about 2 June 2010 and about 9 July 2010”. The condition said to have been contravened was condition O1.1, which was in these terms:

4. [7]

   The summons alleged that Truegain failed to carry out its licensed activities in a competent manner in that:

5. [8]

   It will be seen that particulars (i) and (ii) involved treatment and storage within the same paragraph, particulars (iv) and (v) although separate paragraphs, were to the same effect, and particulars (iii) and (vi) were capable of extending to both treatment and storage.

6. [9]

   The summons stated that evidence of the offence first came to the attention of an authorised officer on 6 June 2010. The POEO Act contains its own time limits. It requires prosecutions for an offence under s 64 to be commenced “within but not later than” 12 months after the date on which it is alleged to have been committed: s 216(1). However, s 216(2) authorises the commencement of proceedings for an alleged offence under, inter alia, s 64, “within but not later than” 12 months after the date on which evidence of the offence first came to the attention of any relevant authorised officer. By filing its summons on Friday 3 June 2011, the EPA did not commence its prosecution until the last possible day.

The request for and provision of particulars

1. [10]

   In the months after its prosecution commenced, the EPA served a prosecution brief comprising some thirty affidavits including from its own officers, Truegain employees, officers from Fire Rescue NSW and a senior planner at Maitland City Council. There ensued a series of correspondence and procedural hearings, directed to obtaining further particulars as to the “manner of breach” set out in the summons. On 19 September 2011 the EPA served an expert report of Mr Wayne Davis, and on 14 December 2011 the EPA supplied a draft “Statement of Agreed Facts” of 254 paragraphs extending over 33 pages identifying what on their face were a series of events in which untreated liquids were discharged into the environment, contrary to the conditions on Truegain’s permit. The EPA contended that those documents amounted to the particulars sought by Truegain.

2. [11]

   Truegain’s solicitor did not agree. He responded:

Truegain’s motion

1. [12]

   By motion dated 20 February 2012, Truegain sought an order that the EPA provide the particulars requested in its letter dated 8 November 2011. Rather than oppose that motion, the EPA supplied particulars by letters dated 24 and 28 February 2012. Those particulars led to Truegain filing an amended motion on 1 March that the proceedings be dismissed or stayed on the basis that the charge was duplicitous.

2. [13]

   The letters of 24 and 28 February comprised 18 single spaced pages providing further particulars of the “Manner of breach” particulars in the summons. They are not easy to read, and, having regard to the course the prosecution subsequently took, it is not necessary to summarise them completely in these reasons; I merely summarise two, by way of example. The particulars refer to the Trade Waste Tank (TWT) and the Waste Water Treatment Plant (WWTP) located on Truegain’s premises.

3. [14]

   First, the “failure to adequately treat liquid waste at the premises” was said to have taken place at “the area(s) in which the TWT is located” and “the area(s) associated with the WWTP” by processing the contents of the TWT when it contained sewerage, something not permitted under the Licence. It was said that treated water could only be pumped to sewer in accordance with limits set by a separate permit issued by Hunter Water Corporation, and that those limits had been exceeded in the period 2 June to 9 July 2010. It was also said that there had been a failure to report an overflow from the TWT “being an incident causing or threatening material environmental harm to the environment” (thereby picking up the language of s 148 of the POEO Act) and bypassing water and/or flow meters on the TWT so that not all water discharged to the sewer had been recorded. It was further said that there had been a failure to install or maintain a tank farm for the WWTP, a failure to bund the TWT, a failure to utilise the filtration system installed at the WWTP and reprocessing the contents of the TWT through the WWTP and half a dozen other failings. It might be thought that some matters summarised above could not constitute a failure adequately to treat liquid waste; neverthless, those were the particulars provided.

4. [15]

   Secondly, the further particulars given of “failing to adequately store liquid waste at the premises” stated that the complaint related to the entire premises, that there had been non-compliances with further conditions of the licence, namely O5.1 (which required installing bunding around above ground tanks or else putting in place an alternative spill containment system), O5.2 (which required the licensee to ensure that suitable measures (eg high/low alarms, control valves with interlock control, one way-valves) were installed on all tanks, ponds or clarifiers and associated pipes and hoses to prevent spillage of waste and L1.1 (which required the licensee to comply with s 120 of the POEO Act) and then set out some thirteen requirements (such as ensuring that only properly qualified operators were working on the WWTP, ensuring that bunds at the premises are not used for storage, reinstating the filtration system installed at the WWTP and implementing a system of management for rainwater at the premises). Once again, some of these might be thought not readily to answer the description of inadequately storing liquid waste, but those were the particulars provided.

5. [16]

   It will be seen immediately that some of the particulars of the contravention were acts in fact undertaken by Truegain and its officers and employees on particular days, or alternatively throughout the period, others (in fact, the majority) were omissions. The acts and omissions related to different parts of the licensed premises. It was also alleged expressly that there were contraventions of other licence conditions (O5.1, O5.2 and L1.1). Condition L1.1 made it a condition of the licence that Truegain comply with s 120 of the POEO Act. Section 120 makes it an offence for a person to pollute any waters; s 122 provides for a defence if the pollution was regulated by an environmental protection licence whose conditions were not contravened, and s 123 imposes a penalty not exceeding $1,000,000 in the case of a corporation.

The First reasons

1. [17]

   In commendably short submissions four pages long, junior counsel for Truegain identified, by reference to the particulars, seventeen different ways in which the offence was said to have been committed, in twelve different places on Truegain’s premises. The submission identified four conditions of the licence, separate offences of polluting waters in breach of s 120 of the Act, separate offences of carrying out the processing, the movement, the storing, the treatment of waste, the storing of waste, the processing of waste, the reprocessing of waste and the disposal of waste incompetently, and failing itself to comply with the licence in breach of s 64 of the Act, and failing to ensure that persons associated with it complied with the licence in breach of s 64 of the Act. The twelve different places at which the offence was said to have been committed included the TWT, the WWTP, the underground storage tank, various bunds adjacent to the oil/water separator, the tank farms, the sheds and the shipping containers. The submission concluded:

2. [18]

   Central to what was advanced by the EPA in the Court below and in this Court was the submission that:

3. [19]

   The EPA stated that in the event that the summons was duplicitous, there was no power to dismiss it but the Court “may, however, cause the indictment to be amended to remove the defect” (paragraph 7). It was also said that:

4. [20]

   In his reasons given on 16 March 2012: [2012] NSWLEC 41 (First reasons) his Honour summarised (at [8]) 17 acts which Truegain had contended amounted to separate offences alleged under a single charge. It is sufficient for the purposes of this appeal to reproduce only some of them below:

5. [21]

   His Honour said at [9] that:

6. [22]

   After a helpful and concise analysis of the law, his Honour accepted that the offence created by s 64 could encompass a course of conduct (at [37]). His Honour referred to the penalty provisions which included provision for both a single penalty and a further penalty “in the case of a continuing offence”. His Honour said (at [39]) that:

7. [23]

   His Honour concluded that there was actual duplicity, by the allegations of contravention of more than one licence condition, whereas the offence created by s 64 was committed if any one condition was breached (at [46]). His Honour also held that the acts or omissions said to contravene other statutory provisions ((ii)-(iv) and (vii)-(viii)) were duplicitous for the same reason (at [48]). His Honour held that with the possible exception of (v) and (vi), the balance was also duplicitous. He said (at [49]) (emphasis in original):

8. [24]

   Finally, his Honour concluded (at [51]) that any defence Truegain might have might well be different in respect of each of the various failures particularised. His Honour held that the summons as amplified by the particulars was duplicitous, although not incurably bad. He said that the prosecutor could elect, prior to trial, which of the matters alleged in the particulars it proposed to pursue.

Further particulars and the Second reasons

1. [25]

   Thereafter, the EPA provided three pages described as “particulars to amended summons” which were confined to the “failure to adequately store liquid waste at the Premises” and the “failure to adequately treat liquid waste at the Premises”. Although it is long, it represents the ultimate way in which the EPA, after a hearing on duplicity and with the benefit of the reasons of the primary judge, proposed to advance its prosecution for a single charge of a serious environmental offence, and is set out in full in an annexure to these reasons.

2. [26]

   It will be seen that the EPA, in elaborate detail, identified both storage and treatment separately within the single charge, and particularised different acts and omissions on different days in respect of different areas of the premises so as to make good the allegations of inadequate storage and treatment.

3. [27]

   The matter returned to the primary judge on 20 March 2012, when Truegain maintained that the amended particulars continued to disclose duplicity. Despite the way in which the amended particulars were drafted, distinguishing storage from treatment, the EPA submitted that the storage of materials on site was part of the treatment of waste received, when decanting was occurring. When pressed in relation to the proposition that there were times when liquids were being stored with nothing happening to them, the EPA’s response was one which, in my opinion, illustrated the underlying problem (Transcript 20.03.12, 10.46-48, emphasis added):

4. [28]

   His Honour dealt with the dispute immediately (Second reasons) and said ([2012] NSWLEC 55 at [5]-[9]):

The Third reasons

1. [29]

   Finally, by a reserved judgment (Third reasons) following a hearing on 21 March 2012, the primary judge required the prosecutor to amend its summons by deleting the particulars on which it would no longer rely, and pay the defendant’s costs thrown away by the reason of the amendment, such costs including the costs of the motions already determined and referred to above: [2012] NSWLEC 78 at [11]-[12].

2. [30]

   His Honour held that s 68 of the LEC Act was a source of power to make an order for costs. His Honour found that s 257C of the Criminal Procedure Act 1986 did not exclude the operation of s 68, which applied in proceedings in the Court’s Class 5 (criminal) jurisdiction: at [18]. His Honour referred to Wakool Shire Council v Garrision Cattle Feeders Pty Ltd [2010] NSWLEC 199; (2010) 177 LGERA 282, where a prosecutor’s summons was found to be bad for duplicity, and the prosecutor was ordered to pay the defendant’s costs, although there was no reference to s 68 in that decision: at [19]. His Honour found that it was not necessary to find that exceptional circumstances relating to the conduct of the proceedings existed before costs could be awarded, in contrast with s 257D of the Criminal Procedure Act: at [22]. However if s 257D were to apply, then his Honour found that it was just and reasonable to order the EPA to pay Truegain’s costs: at [25].

Duplicity

1. [31]

   Archbold states (Archbold, Criminal Pleading, Evidence and Practice (2013) Sweet & Maxwell) at [1-216] that:

2. [32]

   That passage (from an earlier edition of Archbold) was cited by Toohey J in S v The Queen (1989) 168 CLR 266 at 280-281 and by Adamson J (with the agreement of Hoeben CJ at CL and Davies J) in Chapman v R [2013] NSWCCA 91 at [19].

3. [33]

   In Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323 at [46], Maxwell P, Weinberg JA and Kyrou AJA said that:

4. [34]

   That “basic rule” is sufficient for the purpose of resolving this appeal. It finds support in Walsh v Tattersall (1996) 188 CLR 77 at 104 (Kirby J); S v The Queen at 280-281 (Toohey J); R v WWS [2009] VSCA 125; (2009) 22 VR 559 at [14], and in many other decisions, including R v Abdollahi (No 12) [2013] NSWSC 485 at [8].

5. [35]

   As noted above, the EPA’s response was, in essence, to contend that there was but one offence charged, to which all of the factual matters particularised contributed. It was not suggested by the EPA that the basis of Truegain’s complaint was not available. But, notwithstanding the agreement of the parties, it is necessary to say something of the background to the principle on which Truegain relied, in order to bring to account three considerations relevant to the disposition of this appeal. The first is that it will be seen that the rule relating to duplicity is a product of judge-made law and statute law, and it is necessary to bear in mind the statutory influences in order to determine its scope and content. The second is that the vices to which the rule is addressed emerge from earlier decisions, such that it will be seen that what the EPA seeks to achieve, and which the primary judge, in my opinion rightly, found could not be achieved, was contrary to a central element of the rule. The third is that one of the statutory provisions long ago enacted to ameliorate the nineteenth century excesses of the principle is relevant to the final grounds of the appeal (relating to the power to order costs).

6. [36]

   In S v The Queen, Gaudron and McHugh JJ at 284 traced the rule against duplicity to the seventeenth century, described by Kirby J as a time when there was “severe technicality and precision with respect to pleadings generally”: Walsh v Tattersall at 105. The rule was originally formulated with reference to indictments, but it was part of the suite of ways in which the Court of King’s Bench, by the middle of the nineteenth century, quashed by certiorari convictions in the exercise of summary jurisdiction, in the manner summarised by Jordan CJ in Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 165-167, who concluded that:

7. [37]

   The legislation to which Sir Frederick Jordan referred was one of Sir John Jervis’ Acts, the Summary Jurisdiction Act 1848 (11 and 12 Vic c 43), adopted in 1850 in New South Wales (by Act 14 Vic No 43) as well as in other Australian colonies. Thereafter the question arose whether duplicity continued to be available as a basis for attack upon complaints or other originating process in the exercise of summary jurisdiction. The position was described by Griffith CJ in Hedberg v Woodhall (1913) 15 CLR 531 at 534-535 in respect of the Tasmanian legislation:

8. [38]

   Rodgers v Richards [1892] 1 QB 555 and Hedberg v Woodhall might be considered to be highly technical objections. In Rodgers the defendants were charged with a single offence of unlawful “use” of a place for dog fighting and “did encourage and assist” at the fighting of such dogs. The complaint in Hedberg v Woodhall charged the defendant with having undersized flounders in his “possession” or “control”. Both were cases which called for a less extreme response than dismissal - either the provision of particulars confining the charge, or requiring the prosecutor to elect between the various offences embraced by the charge, or permitting the prosecutor to amend. When, eventually, courts exercising summary jurisdiction became empowered to take any of those three courses, the rule against duplicity became not so much a basis for quashing an originating process (or a conviction based upon it) as a means to identify when one or more of those powers was to be exercised.

9. [39]

   The New South Wales provisions, formerly found in ss 30 and 65 of the Justices Act 1902, are now found in s 16(2) of the Criminal Procedure Act which is to be read together with the power to amend in s 21 (noting that “indictment” is defined to include “any other process or document by which criminal proceedings are commenced”: see s 15(2)):

10. [40]

    The course of Australian authority in the century following Hedberg v Woodhall confirms that the doctrine of duplicity continues to apply in the exercise of summary jurisdiction. That was, in my opinion, implicit in what was said by Mahoney JA in De Romanis v Sibraa [1977] 2 NSWLR 264 at 291, and on any view was explicitly held by Gleeson CJ (with the agreement of Priestley and Meagher JJA) in Stanton v Abernathy (1990) 19 NSWLR 656 at 667-671, both cases having referred to the early twentieth century decisions. The legislative history was set out by Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 515-518, and in J Hunter, “Prosecutors’ Pleadings and the Rule Against Duplicity” (1980) 3 UNSW Law Journal 248. As Basten JA observed in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [122]:

11. [41]

    As Griffith CJ had indicated (Hedberg v Woodhall at 534), it had become necessary for an accused person to identify a defect which went “to the merits” of the case. An influential example of a duplicitous information which went to the merits was Johnson v Miller (1937) 59 CLR 467. It was an offence in South Australia to be a licensee of premises which a person was found on or seen coming out from on a Sunday morning. A complainant proposed to lead evidence that there had been some thirty men seen coming out from the premises, but laid a complaint before a special magistrate charging a single offence on the basis that “certain persons” had been seen. That was amended to “a certain person”. The complainant refused to provide particulars of the men. A majority of the Court overturned the decisions of the South Australian Supreme Court and upheld the special magistrate’s dismissal of the complaint.

12. [42]

    As initially formulated, the complaint was duplicitous. As amended, duplicity was cured, because it only charged a single offence, but it continued to be bad because it was no longer possible for the defendant to know the particular offence he was called upon to answer. Strictly speaking, Johnson is not a decision on duplicity, but given its procedural history, it contains useful statements of the effect and purpose of the principle.

13. [43]

    One aspect on which Dixon and Evatt JJ placed considerable weight (and which anticipates precisely what it seems the EPA was and is seeking to achieve in its prosecution), was the need to know what evidence is admissible. Dixon J said at 487:

14. [44]

    Evatt J said at 497-498:

15. [45]

    There are other purposes vindicated by the rules relating to duplicity, many of which were identified by Gaudron and McHugh JJ in S v The Queen at 284-286. But for present purposes, it is not necessary to go beyond what Dixon and Evatt JJ described as “so important a rule” and the “fundamental rights” in the passages extracted above.

16. [46]

    To return to the Land and Environment Court in 2012, ss 16(2) and 21 of the Criminal Procedure Act applied by reason of s 15(1) (“This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with”). Those modern counterparts, together with the power to order particulars, enabled the Land and Environment Court to deal with duplicity in the exercise of its Class 5 summary jurisdiction.

17. [47]

    The application of the doctrine of duplicity is relatively straightforward when the elements of the offence are discrete, such as persons coming out of licensed premises on a Sunday morning (Johnson v Miller) or child sexual assault (S v The Queen) or wilfully demanding or recovering irrecoverable rent in rent-controlled premises in Iannella v French (1968) 119 CLR 84. Even so, as Dixon J observed in Johnson at 483, questions could arise as to whether the facts said to constitute the offence were “repetitions, not continuations” of the offence.

18. [48]

    It has long been the case that where acts formed part of the same transaction or criminal enterprise, they could be charged in a single count. The classic example, given by Viscount Reading CJ in Parker v Sutherland (1917) 86 LJKB 1052 at 1054, is keeping a brothel or keeping a gaming house. A single criminal enterprise has been said to exist in cases under former s 29D of the Crimes Act 1914 (Cth) which created an indictable offence where “a person … defrauds the Commonwealth”, such as R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373 (nine fraudulent childcare fee relief claims submitted) and Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 318 (31 fraudulent claims for sole parent pension), decisions which were considered in Calleija v R [2012] NSWCCA 37.

19. [49]

    In Director of Public Prosecutions v Merriman [1973] AC 584 at 607, Lord Diplock said that had been the practice since the eighteenth century. In the United Kingdom that is now reflected in r 14.2(2) of the Criminal Procedure Rules 2011, whereby “More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission”: see Archbold at 91. However, in Walsh v Tattersall, where a more relaxed approach was contended for, Kirby J said (at 110) that “A strict approach has been consistently applied by this Court from Johnson v Miller through Iannella v French and up to S v The Queen”. Gaudron and Gummow JJ decided the case on the basis that a statute making it an offence to “obtain by dishonest means any payment or other benefit under this Act” created a separate offence each time any payment or benefit was received, but that is consistent with the strict approach favoured by Kirby J.

20. [50]

    Thus the general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity they should be separately charged. Kirby J explained in Walsh v Tattersall at 107:

21. [51]

    The question whether a statute attached criminality to an on-going criminal enterprise, as opposed to a particular act, is inevitably a question of construction. Hence, as Basten JA said in Rockdale Beef at [97]:

22. [52]

    The principles were stated by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [9] and endorsed in Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [131]:

23. [53]

    In the present case, the elements of the offence are (a) holding a licence and (b) any person contravening a condition of that licence. Section 64(2) creates a defence in certain circumstances where a person other than the holder of the licence causes the contravention of the condition.

24. [54]

    Here the condition of the Licence said to have been contravened was a condition that “Licensed activities must be carried out in a competent manner”. The “Licensed activities” included the “scheduled activity” specified in cl 41 of Schedule 1 as “Waste processing (non-thermal treatment)”. Clause 41 applied to five activities (non-thermal treatment of general waste, non-thermal treatment of hazardous and other waste, non-thermal treatment of liquid waste, non-thermal treatment of waste oil and non-thermal-treatment of waste tyres), each of which was defined as meaning “the receiving of [relevant waste]…and [its] processing otherwise than by thermal treatment”. Each of those activities became a “scheduled activity” under cl 41(3) of Schedule 1 to the POEO Act if it met certain criteria as to scale; in each case, one of those criteria was that the given activity “involves having on site at any time more than [the prescribed quantity] of [relevant waste]. Thus, the statutory definition and criteria that determine whether an activity is a “scheduled activity” look to receipt, “having on site” (i.e. storage) and processing.

25. [55]

    In the present case, the critical element of the offence alleged was the failure to carry out “waste processing (non-thermal treatment) in a competent manner”. It is plain that the non-thermal treatment of waste includes both the storage and processing of waste. Indeed that was express on the face of the Licence and, even if that were not so, those are elements required by the POEO Act to be present. It is plain that waste may be stored incompetently and processed incompetently. It is plain to my mind that doing either of those things incompetently would amount to a breach of the condition of the Licence.

26. [56]

    When one turns to the “Particulars to Amended Summons”, supplied after the benefit of a hearing and reasons, it is clear that the EPA chose to advance, under the one charge, separate claims that there was incompetent storage and incompetent treatment (a distinction resembling the statutory distinction between storage and processing). In my opinion, those particulars disclosed more than one offence.

27. [57]

    First, there was said to be storage which was not competently carried out on six days within a period of some three and a half weeks (2, 3, 14-16 and 18 June), whilst there was said to be treatment which was not competently carried out on six days (3, 4, 22, 28, 29 June and 1 July) in a similar period, all save one of which are different days. Secondly, the storage was said to have been carried out other than competently at seven places on the premises, while the treatment was said to be carried out other than competently at three places on the premises. That reflects the obvious facts that waste was stored in places other than where it was treated, and its competent storage involves quite different acts and omissions from its competent treatment. For example, it is not alleged that there was any incompetent treatment of waste on 18 June (although it is alleged that waste was discharged on that date constituting storage which was not competent). And it is not alleged that there was any incompetent storage of waste on 1 July, although waste is said to have been incompetently treated on that day. However, it seems equally obvious that incompetent storage could constitute a breach of condition considered alone, as may incompetent treatment. Test the matter this way: it is not the case, in my opinion, that the charge would inevitably fail unless both the storage and the treatment particulars were made out.

28. [58]

    The EPA submitted (written submissions, paragraph 60) that:

29. [59]

    It may be accepted that the scheduled activity of “Waste processing (non-thermal treatment)” was one of the licensed activities, and that all aspects of it, including “treatment, storage, processing, reprocessing, transport and disposal of the waste generated by” the licensed activity were required to be carried out in a competent manner. But in my opinion, in circumstances where as here what is to be carried out competently are different (albeit related) activities, one of which is storage, another of which is treatment, the fact that the condition deals with that conduct collectively is not to the point. The element of the offence is the contravention of the condition. But the condition, no differently from the Act, refers in terms to both storage and treatment. A contravention will occur when treatment is undertaken other than competently, and a contravention will also occur when storage is undertaken other than competently. In other words, it is not necessary in order to breach a condition requiring the carrying out of a scheduled activity competently to store waste incompetently and to process waste incompetently.

30. [60]

    In an attempt to defend its submission that there was but a single offence, the EPA advanced submissions which involved what, to my mind, amounts to an exceedingly fine distinction. One example is found in paragraph 74 of its written submissions:

31. [61]

    However, as Windeyer J said in Iannella v French at 106:

32. [62]

    The EPA also submitted (paragraph 78):

33. [63]

    I do not agree. The question is one of construction of the statute. Section 64 penalises conduct which contravenes a licence condition. In my opinion, the primary judge was right to conclude that a failure to treat adequately, and a failure to store adequately, give rise to separate and discrete omissions which independently give rise to an offence.

34. [64]

    As was said (in a different context) in this Court by Miles J, with Street CJ agreeing, in R v Manwaring [1983] 2 NSWLR 82 at 88, a decision which this Court said was “instructive” in Davis v R [2006] NSWCCA 392 at [45]:

35. [65]

    So too here. Section 64 brings all forms of contraventions of licence conditions into a single section. But that merely requires one to turn to the conditions of the licence alleged to have been contravened. Although the prosecutor has relied only on a contravention of condition O.1, that of itself cannot in my view be determinative of the question of duplicity. The question is one of substance, not form, and as soon as one considers the activities which are authorised by the Licence and which are particularised by the prosecutor, one can immediately see the distinct conduct (both acts and omissions) which suffices to constitute an offence.

36. [66]

    I would reach that conclusion unassisted by authority. However, authority is not lacking. As the primary judge pointed out, Chugg v Pacific Dunlop Ltd [1988] VR 411 concerned an information based on the obligation on an employer to “provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health”, and the particulars identified several acts and omissions. Fullagar J held the information duplicitous. Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 concerned the New South Wales counterpart. Hill J said that many of the acts and omissions identified as failures were “disparate in nature and content”, and involved “different items of plant, different systems of work, different operations and procedures, different locations on the premises, … [and] different risks of danger to different employees” (at 179). His Honour said that the gist of the offence was each act or omission which breached the obligation to ensure the health, safety and welfare of an employer’s employees. Hungerford J also found that the disparate acts amounted to more than one offence.

37. [67]

    As the primary judge noted at [31]-[33] of his First reasons, a new section was inserted into the legislation following Boral Gas expressly overriding the doctrine of duplicity. That provision was later moved to s 31(1) of the Occupational Health and Safety Act 2000, which provided:

38. [68]

    When that provision was considered in John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338; (2010) 202 IR 82, Spigelman CJ said at [71]:

39. [69]

    The primary judge referred to Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361, which was about a procedural ruling in the course of a prosecution. It was relied on by the EPA, however, for its apparent endorsement (necessarily obiter) of the proposition that a prosecution based on a single offence comprising a failure to maintain industrial plant installed on premises in an efficient condition contrary to a licence condition could be particularised by reference to five separate items of equipment, on the basis that the sewerage treatment plant was “a single entity wherein the free flow of liquids is interrupted by individual items of plant” (at 362). Gleeson CJ said (at 363) that:

40. [70]

    Each case turns on the elements of the offence the subject of the charge. In Sydney Water, the charge was failure to maintain industrial plant in an efficient condition. There may or may not have been a factual dispute as to whether the five items were separate items of plant, although from their nature (certain penstocks, certain penstock controls, an item called “7 - Section Siphon and stopboards”, a particular raw sewerage pump and electrical control equipment which powered that pump) they would seem to have been closely linked operationally. Likewise, in Hakim v Waterways Authority of NSW [2006] NSWCCA 376; (2006) 149 LGERA 415, the statutory offence was to “make an excavation on, in or under protected land” and the single charge extended to two excavations on the same site, separated in time, and a third excavation immediately following the second. Spigelman CJ held (with the agreement of Grove and Bell JJ) that although it would have been open to lay separate charges (at [82]), there was no reason as a matter of construction for excavation to be narrowly construed (at [87]):

41. [71]

    Likewise, the present case is different from CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 where there was held to be no duplicity in a single charge based on an act which was alleged both to harm the environment and to be likely to harm the environment. As Smart AJ said for the Court at [35]:

42. [72]

    Matters of fact and degree are apt to arise where duplicity is alleged. However, storage is different from treatment, and the storage alleged to have been performed incompetently took place on different days, and with different equipment, from the treatment which is alleged to have been performed incompetently. In the present case, the charge extends to failure to store and failure to treat. Let it be assumed, favourably to the EPA, that all of the machinery and facilities on Truegain’s premises formed a single “entity”. Nevertheless, it is plain on the face of the particulars that the conduct and omissions giving rise to the alleged incompetent storage is different (in time, in location, and in content) from the conduct and omissions giving rise to the alleged incompetent treatment.

43. [73]

    Ultimately, but to my mind revealingly, the EPA complained that (written submissions at paragraph 6) (references omitted):

44. [74]

    In my opinion, that submission tends to expose the true position of the EPA - which is that the full alleged criminality is more serious than the single charge in the summons. That is precisely the vice to which the statements made by Dixon and Evatt JJ extracted above in Johnson v Miller were directed. The EPA’s stance is contrary to what Evatt J said was an “essential part of the concept of justice in criminal cases”. In my opinion, there should be a grant of leave, but grounds 1 to 10 of the EPA’s appeal should be dismissed.

Costs

1. [75]

   It will be recalled that in his Third reasons the primary judge ordered that the summons be amended by deleting the particulars on which the EPA could not rely, and made a costs order against the EPA based on s 68 of the LEC Act.

2. [76]

   It has often been said that traditionally the Crown neither paid nor received costs (see for example Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49 and Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 at [72]), but in truth the situation was far more complex (as is explained in Sir John Simon KC’s argument in Swift & Co v Board of Trade [1926] 2 KB 131 at 137-140 and by Roger Quick and David Garnsworthy, Quick on Costs, Chapter 2). In criminal litigation for summary offences, provision was long ago made by statute for applications for costs following unsuccessful prosecutions: see the review of the legislation of each Australian State and mainland Territory by Dawson J in Latoudis v Casey (1990) 170 CLR 534 at 547-554.

3. [77]

   Although Chancery asserted a power to order costs independently of statute: see Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [33]-[34], this appeal has proceeded on the basis that it was necessary to identify a statutory source of power to award costs in the exercise of criminal jurisdiction. That reflects what was said in Barton v Berman [1980] 1 NSWLR 63 at 67 by Hope JA, with whom Glass JA agreed (“In respect of proceedings upon indictment, there was no statutory provision for costs before the [Costs in Criminal Cases Act 1967] statute, and orders were not made in favour of or against the Crown”) and by Mason CJ’s opening statement in Latoudis at 537 (that the question was what were “the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant”). Nothing in these reasons is directed to whether and when costs might be ordered in the exercise by a superior court of its jurisdiction to guard against abuse of process, as to which (in a civil case) see Partington v Pacific Link Housing Ltd [2013] NSWCA 259 at [63]-[75].

4. [78]

   Subsections 68(1) and (4) of the LEC Act in their current form are as follows (subsections (2) and (3) deal with irregularities and reflect the former s 81 of the Supreme Court Act 1970):

5. [79]

   Subsection 68(1), on which the primary judge relied, has never been amended. Subsection (4) was added in 2007 (by Item 27 of Schedule 6 of the Courts Legislation Amendment Act 2007) at the time the Uniform Civil Procedure Rules became applicable to proceedings in classes 1, 2, 3 and 4 of the Court’s jurisdiction (see Schedule 2, Item 9 of the same Act, and Uniform Civil Procedure Rules (Amendment No 20) 2007, Schedule 1, Item 11).

6. [80]

   Section 68(1) is in materially identical terms to the powers conferred upon the Land and Valuation Court and before it the Land Appeal Court by s 16 of the Land and Valuation Court Act 1921 and s 7 of the Crown Lands (Amending and Declaratory) Act 1912 respectively. Those two courts of course had no summary jurisdiction, and had a general power to order costs (see s 18 of the 1921 Act and s 8(III) of the Crown Lands Act 1889).

7. [81]

   When the Land and Environment Court was created in 1979, s 69(2) conferred a power to order costs, which was not only “[s]ubject to the rules and subject to any other Act”, but which also did not apply to proceedings in Class 5 of the Court's jurisdiction: see s 69(9). Part 4 Division 5 contained “Special provisions respecting Class 5 proceedings (summary jurisdiction)” one of which was s 52(1), which conferred a power to award costs in three circumstances. If the Court convicted a person or made an order pursuant to s 556A of the Crimes Act 1900 it was empowered to order that the person pay costs, and if the Court “makes an order dismissing the charge” then it could order the prosecutor to pay the defendant's costs. Section 52(2) provided that “[t]he amount so ordered to be paid for costs shall in all cases be specified in the conviction or order”. Indeed, in Oshlack at [18], Gaudron and Gummow JJ said, contrasting it with s 69, that “In respect of summary proceedings, s 52 of the [LEC Act] prescribes its own costs regime”. Section 52 was copied verbatim from s 14 of the Supreme Court (Summary Jurisdiction) Act 1967.

8. [82]

   The list of matters falling within the Court's Class 5 jurisdiction has expanded since 1979 (from proceedings under six specified Acts in 1979 to seventeen in 2013). However, the Court still hears and disposes of those proceedings “in a summary manner”: s 21. The special provisions in Part 4 Division 5 described above have been replaced by s 41 which provides that “Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court’s jurisdiction”. Part 5 of Chapter 4 of the 1986 Act is headed “Summary jurisdiction of the Supreme Court and other higher courts”. Division 4 within that Part addresses costs. That Division contains provisions which are broadly similar to those originally found in s 52, limiting the circumstances in which a costs order could be made in the exercise of summary criminal jurisdiction. Section 257B permits an order of costs in favour of a prosecutor if the person is convicted or if the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. Section 257C(1) provides that:

9. [83]

   It is clear that ss 257B and 257C(1) closely resemble the power originally conferred by s 52(1).

10. [84]

    Section 257C(2) requires the order either to state the amount of costs, or to have that amount agreed or assessed. That reflects an expansion of the original limitation imposed by s 52(2). Section 257D imposes a limitation upon the order of costs against a prosecutor, the gravamen of which is that the prosecutor was acting unreasonably or improperly or there were some other exceptional circumstances to make a costs order just and reasonable. That represented a clarification of the previous practice, as to which Jacobs JA had said in Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455 at 456, that “I am not sure that past practice has ever been quite consistent on the subject”. Finally, s 257F confers a power to order costs if a matter is adjourned.

11. [85]

    In my opinion, that review of the legislative scheme reveals the following propositions.

12. [86]

    First, when the Court was created in 1979 with both civil and summary criminal jurisdiction, separate provision was made as to costs. The predecessors of that Court only exercised civil jurisdiction and had a single power to order costs. An innovation in 1979 was the conferral of criminal jurisdiction: see B Preston, “Operating an environment court: The experience of the Land and Environment Court of New South Wales” (2008) 25 Environmental and Planning Law Journal 385 at 387. At the same time, the Court was given two separate powers to order costs: the general power under s 69 applicable to all proceedings other than those in Class 5, and the special power in s 52 in respect of proceedings in Class 5 of the Court's jurisdiction. Those powers were distinct: for example, the power under s 52 was limited in that it was necessary for the order to specify the amount of costs, while that under s 69 was not so confined. They were treated as distinct in Oshlack at [18] and [29]. Importantly for present purposes, the power in s 52 turning as it did on the outcome of the trial, was only available when the proceeding had been determined.

13. [87]

    Secondly, the power to order amendments “at any stage of the proceeding” and “upon such terms as to costs or otherwise as the Court thinks fit” was not a separate power to confer costs. It was a power to order amendments which presupposed that, in the event that a term as to costs was imposed, the power to do so would be found elsewhere. As a matter of ordinary language, s 68 was not drafted in a way apt to confer a power relating to costs.

14. [88]

    To construe s 68 as a power relating to costs also sits uneasily with its history, for its source was the power in the Land and Valuation Court where there could never be an occasion to order costs in summary jurisdiction and where there was always a source of power to order costs in civil proceedings elsewhere conferred.

15. [89]

    What is more, to conclude that s 68 constitutes a third source of power to order costs would be to undercut the evident legislative scheme disclosed by the Act as a whole. For the qualified powers in s 52 and s 69 between them applied to every matter within the Court's jurisdiction, and they did so in different terms and subject to different conditions. The position was explained by Spigelman CJ in The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 at [19]:

16. [90]

    The reasoning of French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217 at [31] is to similar effect:

17. [91]

    In the present case, the separateness of the two powers in ss 52 and 69 together applying to the universe of proceedings within the Land and Environment Court's jurisdiction, with each power expressed in different terms and subject to different conditions, is antithetical to the conferral of a general power applicable where an amendment was made. That is to say, there is in my opinion no good reason to identify a third power, in s 68 (which immediately precedes s 69), which was also applicable in civil litigation in relation to costs where there is an amendment, and which was also applicable in the exercise of summary jurisdiction in addition to s 52.

18. [92]

    I am conscious that laws granting powers to a court are construed differently from other legislative grants - they are given “the most liberal construction”, for the reasons given by Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205, which were endorsed by the High Court in Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10]. But in my view the 1979 language is inapt to confer a power, and further any such power would undermine the legislative scheme.

19. [93]

    So far I have considered the position in 1979. The third proposition is that nothing in the subsequent amendments has altered the position. Three things happened in the ensuing decades. The Court's Class 5 jurisdiction was expanded, the special provisions in Part 4 Division 5 of the LEC Act were replaced by Part 5 of Chapter 4 of the Criminal Procedure Act, and the power to order costs in civil proceedings is now found in the Civil Procedure Act 2005, not s 69. (Since the applicability of the Uniform Rules of Civil Procedure and the Civil Procedure Act, the power in matters in classes 1, 2, 3 and 4 is now found in s 98 of that Act.)

20. [94]

    However, none of those changes is apt to confer an additional, free-standing power to order costs. In particular, the inclusion of s 68(4) did not convert s 68(1) to a power to order costs at an interlocutory stage in Class 5 proceedings. Subsection (4) subtracted from the operation of s 68(1) (at a time when the UCPR applied to proceedings in Classes 1, 2, 3 and 4 of the Court’s jurisdiction); it did not convert s 68(1) into a separate source of power to order costs, and it did not undermine the proposition that there continued to be separate sources of power for costs in civil and criminal matters.

21. [95]

    Fourthly, the conferral of power by s 257C, carrying with it conditions as to time (“at the end of proceedings”) and circumstances (satisfaction of one of the circumstances in s 257D) is not to be undermined by construing s 68 so as to yield an independent, unqualified power. In the exercise of the summary jurisdiction of the Land and Environment Court, the Legislature has long made it clear that costs may be ordered, but only if the matter is dismissed. It is easy to discern a legislative policy that those found guilty of offences should not be permitted to obtain costs. It is also easy to discern a legislative policy that the question of unreasonableness or other improper maintenance of a prosecution is to be determined only at the end of the trial (including, perhaps, on different evidence than was adduced at the trial).

22. [96]

    Fifthly, as noted earlier in these reasons when dealing with duplicity, a specific power to amend was and is conferred on all courts exercising summary jurisdiction when a defect has been identified. That power is now found in s 21 of the Criminal Procedure Act. True it is that that power is “in addition to and not in derogation of any other power of the court for the same or similar purposes” (s 21(6)). But in my opinion, that is a further reason why the power under s 68 should not be construed to confer a free-standing power to order costs. (The primary judge did not purport to rely on s 21. For completeness, I note that although s 21 confers power to make “such order as appears necessary”, similar reasoning confines those general words so as not to support a power to order costs in a way which would undermine s 257C.)

23. [97]

    Sixthly, the foregoing accords with principle. Where a prosecutor invokes the judicial power of the State in order to punish a wrongdoer, it has long been the case that costs are addressed separately. “Different considerations arise in criminal proceedings which are brought, not for private ends, but for public purposes”: Latoudis at 557 (Dawson J). Although one must be cautious of arguments based upon a classification of proceedings as either “civil” or “criminal” (cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 at [114]), it is plain that for many years, in relation to the question of costs, the Legislature has enacted different regimes turning upon that classification.

24. [98]

    For those reasons, in my respectful opinion, the primary judge was wrong to conclude that s 68(1) was a separate head of power to order costs (at [18]), and wrong to say that it was not inconsistent with s 257C (at [22]). When the question is one of inconsistency of powers in separate statutes, the first question is one of construction, and not lightly will an earlier, generally worded power be held to cut across a specific, qualified and later power. In my opinion, such statutory power as the Land and Environment Court has to order costs in respect of proceedings in Class 5 of its jurisdiction is regulated by the Criminal Procedure Act. The costs order made in Wakool Shire Council v Garrision Cattle Feeders Pty Ltd is to be regarded as being made per incuriam, as was that made Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 at [35] in reliance on the decision the subject of this appeal: [2012] NSWLEC 78.

25. [99]

    Nothing in these reasons will prevent Truegain from applying for a costs order, at the conclusion of the proceedings, in the event that it can satisfy the elements of ss 257C and 257D, as regularly occurs (see for example Port Macquarie - Hastings Council v Lawlor Services Pty Ltd (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87 and Director-General, NSW Department of Industry & Investment v Coomes [2012] NSWLEC 251).

26. [100]

    That is sufficient to deal with the balance of the appeal. I am conscious that pages 52-54 of the EPA’s excessively long submissions challenge the finding of exceptional circumstances, although nothing was said orally about this (or indeed by the EPA about costs at all). The submissions are outside the issues identified in the notice of appeal. In any event, in my opinion, they should be rejected, and given that they are not dispositive of any aspect of the appeal, I will do so concisely.

27. [101]

    The factual criticisms advanced by the EPA (written submissions, paragraph 158) of the primary judge’s chronology of the prosecutor’s conduct of the proceedings, and my conclusions regarding those criticisms, are as follows:

    1. (1)

       It is said that no order was sought by Truegain for particulars on 7 October 2011. But the first two orders handed to her Honour on that day by junior counsel sought directions for particulars, who also spoke to them (Transcript 2.24).

    2. (2)

       It is said that at no stage did the EPA refuse to supply particulars to Truegain. That submission turns on the propositions that the expert’s report and the 254 paragraph draft statement of agreed facts were particulars. Those propositions are incorrect, in my opinion, self-evidently so.

    3. (3)

       It is said that two slippages of the timetable by the EPA were consented to by Truegain. That appears to be so, but is largely irrelevant: the gravamen of Lloyd AJ’s criticism was the persistent breaches of timetable (as to most of which the EPA has made no submission on the appeal) and the delay in providing particulars.

28. [102]

    In other respects, it is to be regretted that the EPA continued to advance written submissions in this Court that were factually incorrect. Only one was developed in oral submissions. It was said, in writing and orally, that the draft statement of facts was in evidence before the primary judge on the first hearing. But an examination of the transcript and the affidavits which were read makes it plain, as senior counsel for Truegain pointed out - in writing and orally - that that was not so (see 7 March 2012, T4.1-13 and 32.12 (where the EPA read a different affidavit from that annexing the draft statement)). The criticism that “his Honour at no time considered the detailed particulars that had been served upon the respondent in the statement of agreed facts” (paragraph 24 of the EPA’s submissions) is therefore doubly ill-founded: not only does it wrongly assume that the draft statement of agreed facts was particulars, but it also wrongly assumes the draft statement was in evidence before his Honour. The written submissions on factual matters which the EPA did not advance orally were likewise incorrect. Truegain described this aspect of the EPA’s written submissions, in my view accurately, as “replete with errors and omissions”, and identified thirteen factual errors, in each case specifically providing transcript references. Those factual errors should have been corrected by the prosecutor after they had been drawn to its attention by Truegain. However, nothing turns on the way the EPA presented its case on appeal (and in particular, no question of costs can arise in this Court: Criminal Appeal Act, s 17).

29. [103]

    For those reasons, I propose these orders:

30. [104]

    RA HULME J: I agree with Leeming JA.

31. [105]

    BUTTON J: I agree with Leeming JA.