M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

Fill material identified as waste with polluting risk came to the attention of relevant authorised officers (Vo and Monte) by at least 25 July 2017. As these officers were validly authorised under POEOA, and the limitation period for prescribed offences is three years from when such evidence is known, all summonses except those relating to s 144AAA (unlawful disposal of asbestos waste) were brought out of time and must be struck out. Summonses under s 144AAA were within time, as evidence (Aargus report detecting asbestos) only arose in August 2019.

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Class 5 Private Prosecution – Environmental Offences / Determination of Notices of Motion Seeking Permanent Stay/strike Out/dismissal of Summonses on Limitation/statute Bar Grounds
Outcome
Summonses under POEOA ss 115, 142A, 143, and 144 were struck out and proceedings dismissed as statute barred (except for s 144AAA asbestos offences). Summonses under s 144AAA proceed. Costs of dismissed proceedings awarded to defendants, liberty granted for further costs submissions.
Legal Topics
['limitation of Actions' 'statutory Interpretation' 'waste Disposal Offences' 'continuing Offences' 'private Prosecution' 'asbestos Waste' 'time Limits for Prosecution']
['environmental Law' 'criminal Procedure'] ['limitation of Actions' 'statutory Interpretation' 'waste Disposal Offences' 'continuing Offences' 'private Prosecution' 'asbestos Waste' 'time Limits for Prosecution']

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Procedural Posture

Class 5 Private Prosecution – Environmental Offences / Determination of Notices of Motion Seeking Permanent Stay/strike Out/dismissal of Summonses on Limitation/statute Bar Grounds

Legal Issues

  1. 1 ['Whether the summonses for environmental offences were commenced within the time limits under s 216(2) of the Protection of the Environment Operations Act 1997 (POEOA)' "Who is a 'relevant authorised officer' for s 216(2) POEOA purposes" "What constitutes 'evidence of the alleged offence' under s 216(2) POEOA" 'Whether pollution of land under s 142A POEOA is a continuing offence for limitation purposes']

Ratio Decidendi

Fill material identified as waste with polluting risk came to the attention of relevant authorised officers (Vo and Monte) by at least 25 July 2017. As these officers were validly authorised under POEOA, and the limitation period for prescribed offences is three years from when such evidence is known, all summonses except those relating to s 144AAA (unlawful disposal of asbestos waste) were brought out of time and must be struck out. Summonses under s 144AAA were within time, as evidence (Aargus report detecting asbestos) only arose in August 2019.

Court Disposition

Summonses under POEOA ss 115, 142A, 143, and 144 were struck out and proceedings dismissed as statute barred (except for s 144AAA asbestos offences). Summonses under s 144AAA proceed. Costs of dismissed proceedings awarded to defendants, liberty granted for further costs submissions.

Orders

  • ['Summonses in matters 2021/261150, 2021/261151, 2021/261152, 2021/261154, 2021/261155, 2021/261156, 2021/261163, 2021/261164, 2021/261165, 2021/261166, 2021/261168, 2021/261169, 2021/261170, 2021/261171, 2021/261173, 2021/261174 and 2021/261175 are struck out and proceedings dismissed' 'Notices of motion in...