M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd

WARD P and MITCHELMORE JA: We agree with the orders proposed by Preston CJ of LEC broadly for the reasons his Honour has given. We make only the following observation as to the summons for judicial review filed by the applicant. As noted by Preston CJ of LEC, the grounds of review raised by that summons overlap substantially with the grounds of appeal filed after the judicial review summons. Apart from the unsatisfactory stance adopted by the applicant in unnecessarily bringing two proceedings where one, the appeal under s 5F of the Criminal Appeal Act 1912 (NSW) would have sufficed (to which Preston CJ of LEC refers), a stance which replicates the earlier duplicated proceedings that the applicant brought in this Court, there may be a question as to whether judicial review of the decisions of the primary judge (as a judge of a superior Court) was available and, if so, on what bases (see Kovacevic v Queanbeyan City Council [2016] NSWCA 346 at [98] (Beazley ACJ, Leeming JA, Payne JA)). The position in respect of judges of this Court is clear (see Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8] (Meagher JA, Gleeson JA, Simpson JA), the Court citing among other authority Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36] (Basten JA, Campbell JA, Handley AJA)). This question was not argued and, given the outcome of the s 5F appeal, it is unnecessary here to explore it. In that regard, the conclusion that various grounds of review have been made out is premised on the assumption (not tested) that judicial review was available.

PRESTON CJ of LEC: At the core of the applications by M. & S. Investments (NSW) Pty Ltd (M&S), one a summons for judicial review to the Court of Appeal and the other an appeal under s 5F of the Criminal Appeal Act 1912 (NSW) to the Court of Criminal Appeal, lies a concern about a defect in the summonses prosecuting one company and four individuals (the defendants). M&S commenced proceedings by summonses filed on 8 September 2021, charging the defendants with each committing an offence against s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Section 144AAA of the POEO Act provides:

The defect in each summons was stating that the offence was committed at a time before the POEO Act was amended to add the provision, s 144AAA, that created the offence. The summons stated the offence was committed on “a day or days in the period 1 September 2016 to 17 November 2016.” Section 144AAA did not commence until 25 January 2019.

Both M&S and the defendants took action to address this defect in the summonses. M&S applied, by notice of motion, to amend the summonses to change the date to be 30 August 2019, a date after s 144AAA commenced operation. The defendants applied, by notice of motion, to quash the summonses.

Both sets of motions were heard by the primary judge, Pain J. On 20 October 2023, the primary judge dismissed each of the summonses. The primary judge dealt with the defendants’ motions to dismiss the summonses for the formal defect that the summonses do not disclose an offence known to the law before the primary judge dealt with M&S’s motion to amend the summonses to cure the defect of stating wrongly the time of commission of the offence. The primary judge ordered that each defendant’s motion be granted and the summons against them be dismissed “as it does not disclose any offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred” (at [47]).

M&S seeks, by the two applications, to review and appeal this decision of the primary judge. Although the applications express the grounds of review and appeal slightly differently, and in various ways, the grounds may be grouped as challenges that the primary judge erred in law in:

It is sufficient, in order to deal with M&S’s various grounds of review and appeal, to focus on the primary judge’s decision that the effect of wrongly stating in the summonses the time at which the offence against s 144AAA was committed caused the summonses to be nullities and her attendant decision not to allow M&S to amend the summonses because they were nullities and the proposed amendment of the date of commission of the offence would result in the defendants not committing an offence against s 144AAA.

Before dealing with the grounds of review and appeal, it is necessary to address M&S’s application for leave to file a notice of appeal after the expiry of the filing period, under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Although M&S gave the defendants notice on 2 November 2023 before the expiry of the applicable period for filing a notice of appeal (14 days) after the primary judge’s decision on 20 October 2022, that it would challenge the primary judge’s decision by judicial review, it did not file the notice of appeal under s 5F within that period of 14 days. M&S filed its s 5F notice of appeal on 21 December 2023 and commenced the judicial review proceedings on 10 January 2024. The defendants did not oppose this Court giving leave to M&S to file the notice of appeal after the expiry of the filing period. The grounds of appeal overlapped substantially with the grounds of review and would be dealt with together. In the circumstances, leave should be given to file the notice of appeal after the expiry of the filing period.

The accepted defect in the summonses was specifying, as the date on which the offence charged (being the offence against s 144AAA of the POEO Act) was said to have been committed, a day or days (in the period from 1 September 2016 to 17 November 2016) which preceded the date on which the provision creating the offence, s 144AAA, came into operation (25 January 2019). When that was appreciated, M&S made its application to amend the date. The “wrong” statement in the summonses of the date on which the offence was committed did not, however, cause the summonses to be nullities. There are two reasons.

The first reason flows from two statutory provisions. The first is that s 16(1) of the Criminal Procedure Act, which provides that an indictment, which by s 15(2) of the Criminal Procedure Act includes “any process or document by which criminal proceedings are commenced”, such as the summons by which these proceedings were commenced, was not “bad, insufficient, void, erroneous or defective” on the ground that:

The second is s 16(2) of the Criminal Procedure Act, which provides:

The general rule is that a statement in an indictment or other process by which criminal proceedings are commenced, including a summons, of the date on which the offence was committed is not a “material matter, unless it is actually an essential part of the alleged offence”: R v Dossi (1918) 13 Cr App R 158 at 159; Regina v VHP, NSW Court of Criminal Appeal (Gleeson CJ, Handley JA and Studdert J), 20 August 1997, p 15; WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 at [43], [124], [125], [132], [164].

In Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646 at [24] (DPP (NSW) v Knight), Whealy J quoted the statement in Halsbury’s Laws of England that time is of the essence of the offence in four circumstances: first, when an act is criminal only if done within a certain time of some other act or event; second, when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; third, when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and fourth, when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.

For the offence of s 144AAA of the POEO Act, the date on which the offence was committed is not an element of the offence or an essential ingredient in the first three categories referred to in DPP (NSW) v Knight where time is of the essence of the offence. The date on which the offence was committed is relevant to when the proceedings for an offence against s 144AAA may be commenced (see s 216 of the POEO Act), but that was not relevant for the offence charged in the summonses and for the amendment of the date on which the date the offence was stated to be committed.

In these circumstances, for the purposes of s 16(1)(g) of the Criminal Procedure Act, it cannot be said for the offence against s 144AAA charged in the summonses that “time is an essential ingredient”. Accordingly, the summonses are not “bad, insufficient, void, erroneous or defective” for stating the time at which the offence was committed “wrongly” or “imperfectly”.

In so far as the summonses stated the offence to be committed on a day prior to the provision creating the offence coming into operation, the summonses may be viewed as stating the offence to have committed on an “impossible day”, but by dint of s 16(1)(h), the summonses are not “bad, insufficient, void, erroneous of defective” by so doing.

By s 16(2) of the Criminal Procedure Act, objection could not be taken by the defendants or allowed by the primary judge to the summonses on the grounds of “any alleged defect” in the summonses “in substance or in form” or “any variance” between the summonses and the evidence that may be adduced at the trial. In Bennett v Daniels (1912) 12 SR (NSW) 134 at 138, Jordan CJ held that:

Sections 20 and 21 of the Criminal Procedure Act are the equivalent powers currently available to amend the summonses and s 40(4) is the power to allow an adjournment of the proceedings.

The wrong statement in the summonses of the date on which the offence against s144AAA was committed can be regarded as a defect of substance within s 16(2)(a) of the Criminal Procedure Act. Once the error became apparent, the proper course was for M&S to apply to amend, and for the primary judge to give leave to amend, the summonses to state correctly the date on which the prosecutor alleged the offence was committed: see Reg v Justelius at 479.

The second reason is that contrary to the primary judge’s finding, the summonses did disclose an offence known to law, and so were not nullities for failing to do so. The offence against s 144AAA of the POEO Act is an offence known to the law. It does not lose that character because the summonses wrongly stated that the offence was committed on a date prior to the coming into operation of the stated provision creating the offence. That date of commission of the offence may have been “an impossible day” on which to commit the offence, but that did not make the offence stated to have been committed one that is now not known to the law.

In these circumstances, the primary judge erred in upholding the defendants’ motion and in dismissing the summonses as not disclosing an offence known to law. To this extent, ground 3(a) of the judicial review summons and ground 1(a) of the s 5F appeal are made out. The orders dismissing the summonses should be set aside.

The primary judge decided not to give leave to M&S to amend the summonses to change the date for four reasons:

The first reason is in error as the summonses were not nullities, for the reasons given above. The second reason is correct, but not an answer to why amendment of the summons should not be allowed. Section 68(2) of the LEC Act, on which M&S sought to rely to amend the summonses, did not apply as the wrong statement in the summonses of the date on which the offence was committed was not “a failure to comply with the requirements of [the LEC] Act or of the [Land and Environment Court] rules”. The only provision of the LEC Act relied on by M&S was s 21(a), which vests the Court with jurisdiction to hear and dispose of “proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997.” Proceedings for an offence against s 144AAA are brought under s 219, which is in Part 8.2 of the POEO Act. But neither s 21(a) of the LEC Act nor Part 8.2 of the POEO Act made the jurisdiction of the Court to hear and dispose of those proceedings dependent on a correct statement in the summons commencing the proceedings for an offence against s 144AAA of the date on which the offence was committed. Hence, there was no failure of M&S to comply with the procedural requirements of the LEC Act or the rules which could be treated as an irregularity and which does not nullify the proceedings: see Epacris Pty Ltd v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 at [29].

However, that did not mean that the court below did not have power to allow M&S to amend the summonses to change the date on which the offences were committed. The Land and Environment Court, like all courts, has power, under ss 20 and 21 of the Criminal Procedure Act, to allow amendment of the summonses to change the date on which the offences were committed. Those provisions, within Pt 2 of Ch 2 of the Criminal Procedure Act, “apply to all criminal offences in all courts to the extent that those provisions are capable of being applied: Criminal Procedure Act, s 15(1)”: Epacris Pty Ltd v Director-General, Department of Natural Resources at [80]. The primary judge erred in not considering exercising these provisions to allow the amendment sought by M&S.

The third reason was in error as it misunderstood M&S’s argument concerning the offence against s 144AAA. M&S argued that s 144AAA creates a positive obligation to dispose of asbestos waste at a place that can lawfully receive the waste, not a negative obligation not to dispose of asbestos waste at a place that cannot lawfully receive the waste. M&S argued that disobedience of this positive obligation “is a continuing act giving a cause of complaint de die in diem”, citing Cook v Cook (1923) 33 CLR 369 at 375. A continuing act of disobedience of the positive obligation to dispose of the waste at a place that can lawfully receive the waste gives a cause of complaint from day-to-day whilst this obligation is being disobeyed: see Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; [2001] NSWLEC 41 at [38].

M&S argued that, although the defendants may have disposed of asbestos waste off the site at which it was generated at a place that could not lawfully receive the waste in 2016, on 30 August 2019, being the date of commission of the offence to which M&S wished to change the summonses, the defendants continued to disobey the obligation imposed by s 144AAA by “omitting” to dispose of the waste at a place that can lawfully receive the waste.

The primary judge misunderstood M&S’s argument, finding that by virtue of the definition of “dispose” in s 144AAA(2), s 144AAA(1) is directed to “positive acts” of disposal not omissions (at [42]). That finding denied M&S the opportunity to run its case at trial that the defendants committed the offence against s 144AAA by, on 30 August 2019, omitting to dispose of the waste at a place that can lawfully receive the waste. M&S may or may not discharge at the trial the criminal burden of proving that the defendants did commit the offence against s 144AAA in that way. But as the case was at least arguable, the primary judge should not have foreclosed the opportunity for M&S to endeavour to do so.

The fourth reason concerned two discretionary considerations raised by the defendants. The first was a repetition of the argument that there was no action of the defendants on 30 August 2019 which amounted to the disposal of asbestos waste. That may be so, but that was not M&S’s case. M&S’s case was that on 30 August 2019 the defendants continued to disobey the obligation imposed by s 144AAA to dispose of the waste at a place that can lawfully receive the waste.

The second consideration was that M&S had put no evidence before the judge in 2021 when leave to bring the proceedings was sought and obtained that disposal of waste occurred in 2019, rather than in 2016. That also may be so, but it was not material. M&S’s argument was that an offence against s 144AAA may be committed by an act of disposal of asbestos waste at a place that cannot lawfully receive the waste, which act occurred in 2016, as well as by an omission to dispose of asbestos waste at a place that can lawfully receive the waste, as M&S argues occurred on 30 August 2019. The fact that leave was sought and obtained to bring the proceedings against the defendants charging them with committing the offence against s 144AAA on the first basis does not mean that the summonses should not be allowed to be amended to charge the defendants for committing the offence against s 144AAA on the second basis. The offence charged remains the same; only the basis on which the defendants are alleged to have committed that offence changes, by reason of the date on which they committed the offence changing.

Neither matter was a valid discretionary reason for the primary judge not to allow the amendment of the date on which the offence was committed.

In these circumstances, the primary judge erred in deciding to dismiss M&S’s notice of motion seeking leave to amend the summonses. The orders dismissing the notice of motion should be set aside. To this extent, grounds 3(b), (c), (d) and (e) of the judicial review summons and grounds 1(b), (c), (d) and (e) of the s 5F appeal should be upheld.

In light of this decision to set aside the orders of the primary judge dismissing the summonses and dismissing M&S’s notice of motion for amendment of the summonses, it is unnecessary to determine the other grounds of review and appeal. In particular, it is unnecessary to decide ground 2 of the judicial review summons that the primary judge denied M&S procedural fairness.

The primary judge’s orders in each of the proceedings against the defendants upholding each defendant’s notice of motion that the summons be dismissed as not disclosing an offence known to law and dismissing the summons should be set aside. There is no need to remit the matter to the court below as there is no other order that can be made other than to dismiss the defendants’ notices of motion to dismiss the summonses.

The primary judge’s orders in each proceedings to dismiss M&S’s notice of motion to amend the summons should be set aside. In this case, however, there is a need to remit the matter to the court below to redetermine M&S’s notice of motion to amend each summons.

M&S sought an exclusionary remitter order that the notices of motion be heard by a judge other than the primary judge, Pain J. M&S submitted that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the re-determination of M&S’s notice of motion to amend the summonses, citing well-known authorities on apprehended bias, such as Ebner v Official Trustee In Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. The only basis for that submission was the claim, which founded ground 2 of the judicial review summons, that the primary judge had denied M&S procedural fairness in the hearing of the defendants’ notices of motion to dismiss the summonses. Because M&S’s applications to review and appeal the primary judge’s decisions have been upheld on other grounds, it is unnecessary to decide the ground of procedural fairness.

But that does not mean that M&S’s application for an exclusionary remitter order cannot be disposed of. No conduct of the primary judge in not acceding to M&S’s application for an adjournment and instead in hearing the defendants’ notices of motion to dismiss the summonses could give rise to a reasonable apprehension of bias, in accordance with the test established by the authorities, that the primary judge might not bring an impartial mind to the resolution on remitter of M&S’s notice of motion to amend the summonses that the primary judge is required to decide according to law and the reasons of this Court.

This is not a case where there is a reasonable apprehension that the primary judge will decide M&S’s notice of motion adversely to M&S or that the primary judge will not decide the case impartially in the sense that she has pre-judged the questions raised by the notice of motion: see Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339; [2003] NSWCA 189 at [22], [23]. The case for an exclusionary remitter order is not made out.

M&S sought an order setting aside the costs orders made by the primary judge. In each proceedings, the primary judge ordered M&S to pay the defendant’s costs pursuant to s 257C of the Criminal Procedure Act as agreed or assessed. Those orders were dependent on the primary judge’s decision to dismiss the proceedings (see s 257C(1)). As this Court will set aside the primary judge’s orders dismissing the proceedings, it is appropriate to set aside the attendant costs order.

M&S also sought an order that, if successful in the judicial review proceedings, the defendants’ pay its costs of those proceedings. It did not seek an order for costs if successful in the s 5F appeal.

The defendants submitted that no order as to costs should be made in the judicial review proceedings as they were unnecessary. The grounds of the judicial review summons overlapped substantially with the grounds of the s 5F appeal. The only additional grounds raised in the judicial review summons were one concerning the court below lacking power to dismiss the proceedings under s 17 of the Criminal Procedure Act and another claiming a denial of procedural fairness. Those grounds could have been raised in the s 5F appeal. Bringing two proceedings where one would have sufficed justifies not making an order for costs in the judicial review proceedings.

I agree that the judicial review proceedings were unnecessary. The s 5F appeal was a sufficient vehicle to raise the grounds of challenge to the primary judge’s decisions to dismiss the summonses and not allow amendment of the summonses. That is demonstrated by this Court’s determination of the two applications, it being unnecessary to decide the two additional grounds raised in the judicial review summons but not in the s 5F notice of appeal. In these circumstances, no order as to costs should be made in the judicial review proceedings. No order for costs is sought in the s 5F appeal.

The orders I propose the court make are: