Environment Protection Authority v Central Coast Council [2020] NSWLEC 157

Environment Protection Authority v Central Coast Council [2020] NSWLEC 157

The evidence (par 11 of Inspector Folitarik's affidavit) did not satisfy s 87(1)(b) of the Evidence Act because there was no proper basis to find the speaker, Mr McDermott, was authorised to make admissions on behalf of the Council or that the representation was made within the scope of his employment. The link between the statement and any requisite authority or scope of employment was too tenuous and unsubstantiated, rendering the evidence inadmissible as an admission by the Council. Consequently, related evidence in Mrs Terry’s affidavit was also excluded.

Parties
Prosecutor: Environment Protection Authority; Defendant: Central Coast Council
Jurisdiction
Australia
Judgment Date
19 November 2020
Procedural Posture
Criminal Prosecution (environmental Offence) / Voir Dire Ruling on Admissibility of Evidence
Outcome
Contested evidence excluded
Legal Topics
Admissibility of Admissions, Hearsay, Employment and Authority, Pesticides Regulation
Evidence Environmental Law Admissibility of Admissions Hearsay Employment and Authority Pesticides Regulation

Case Brief

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Parties

Environment Protection Authority

Prosecutor

Central Coast Council

Defendant

Procedural Posture

Criminal Prosecution (environmental Offence) / Voir Dire Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether statements made to Inspector Folitarik were admissible as admissions by the Council under s 87(1)(b) Evidence Act 1995 (NSW)
  2. 2 Whether Mr McDermott had authority or acted within the scope of his employment in making the statements
  3. 3 Whether Mrs Terry’s affidavit could be relied upon if Inspector Folitarik’s was excluded

Ratio Decidendi

The evidence (par 11 of Inspector Folitarik's affidavit) did not satisfy s 87(1)(b) of the Evidence Act because there was no proper basis to find the speaker, Mr McDermott, was authorised to make admissions on behalf of the Council or that the representation was made within the scope of his employment. The link between the statement and any requisite authority or scope of employment was too tenuous and unsubstantiated, rendering the evidence inadmissible as an admission by the Council. Consequently, related evidence in Mrs Terry’s affidavit was also excluded.

Court Disposition

Contested evidence excluded

Orders

  • Paragraph 11 of Inspector Folitarik’s affidavit is rejected as evidence of an admission by the Council.
  • Second sentence of paragraph 16 of Mrs Terry’s affidavit is also rejected.