M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2); M & S Investments (NSW) Pty Ltd v Boutros; M & S Investments (NSW) Pty Ltd v Carbone; M & S Investments (NSW) Pty Ltd v Carbone; M & S Investments (NSW) Pty Ltd v Boutros [2023] NSWLEC 111

M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2); M & S Investments (NSW) Pty Ltd v Boutros; M & S Investments (NSW) Pty Ltd v Carbone; M & S Investments (NSW) Pty Ltd v Carbone; M & S Investments (NSW) Pty Ltd v Boutros [2023] NSWLEC 111

The original summonses were a nullity because they alleged breaches of a statutory provision (s 144AAA of the Protection of the Environment Operations Act 1997 (NSW)) that did not exist at the time of the conduct particularised (2016), and this is a fundamental defect not capable of cure by amendment. Accordingly, all charges must be quashed and dismissed, and proposed amendments refused.

Parties
Prosecutor: M & S Investments (NSW) Pty Ltd; First Defendant: Affordable Demolitions And Excavations Pty Ltd; Second Defendant: Chalita Boutros; Fourth Defendant: Angela Carbone; Fifth Defendant: Domenic Carbone; Sixth Defendant: Rimon Boutros
Jurisdiction
Australia
Judgment Date
20 October 2023
Procedural Posture
Private Prosecution (summary Criminal Proceedings) / Notice of Motion to Quash and Dismiss, Application to Amend Summonses
Outcome
All five charges quashed and dismissed as a nullity; Prosecutor's application to amend refused; costs ordered in favour of Defendants.
Legal Topics
Practice and Procedure, Jurisdiction, Indictment Quashed as Nullity, Amendment of Summonses, Unlawful Disposal of Asbestos Waste, Costs in Criminal Proceedings
Criminal Law Environmental Law Procedure Practice and Procedure Jurisdiction Indictment Quashed as Nullity Amendment of Summonses Unlawful Disposal of Asbestos Waste +1 more

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Parties

M & S Investments (NSW) Pty Ltd

Prosecutor

Affordable Demolitions And Excavations Pty Ltd

First Defendant

Chalita Boutros

Second Defendant

Angela Carbone

Fourth Defendant

Domenic Carbone

Fifth Defendant

Rimon Boutros

Sixth Defendant

Procedural Posture

Private Prosecution (summary Criminal Proceedings) / Notice of Motion to Quash and Dismiss, Application to Amend Summonses

Legal Issues

  1. 1 Whether summonses can be amended to correct a fundamental defect where the alleged offence did not exist at the time of the relevant facts
  2. 2 Whether the original charges are a nullity or merely defective
  3. 3 Whether s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) is a continuing offence

Ratio Decidendi

The original summonses were a nullity because they alleged breaches of a statutory provision (s 144AAA of the Protection of the Environment Operations Act 1997 (NSW)) that did not exist at the time of the conduct particularised (2016), and this is a fundamental defect not capable of cure by amendment. Accordingly, all charges must be quashed and dismissed, and proposed amendments refused.

Court Disposition

All five charges quashed and dismissed as a nullity; Prosecutor's application to amend refused; costs ordered in favour of Defendants.

Orders

  • Summonses against all Defendants dismissed as they do not disclose an offence known to law.
  • Prosecutor to pay Defendants' costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed.