Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013] NSWLEC 99

Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013] NSWLEC 99

The amendment was not necessary in the interests of justice because it would significantly enlarge the factual scope of the proceedings by incorporating different product campaigns, including campaigns processed in a different part of the factory, so that the substance of the charge would no longer be based on the same facts. The EPA had made a forensic decision to frame the charge around the April/May F&G plant campaigns, gave no cogent explanation for the late application, and had no expert evidence supporting the expanded charge period, making the amendment futile and potentially unfair to Du Pont.

Jurisdiction
Australia
Judgment Date
02 July 2013
Procedural Posture
Class 5 Prosecution for Land Pollution Pursuant to S 142 a of the Protection of the Environment Operations Act 1997 / Interlocutory Application by the Prosecutor to Amend the Summons and Particulars at the Commencement of the Second Week of a Four Week Hearing
Outcome
Application to amend summons dismissed.
Legal Topics
['amendment of Summons' 'amendment of Particulars' 'land Pollution' 'charge Period' 'prejudice to Defendant' 'futility of Amendment' 'interests of Justice']
['criminal Procedure' 'environmental Law' 'land and Environment Court Procedure'] ['amendment of Summons' 'amendment of Particulars' 'land Pollution' 'charge Period' 'prejudice to Defendant' 'futility of Amendment' 'interests of Justice']

Case Brief

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Procedural Posture

Class 5 Prosecution for Land Pollution Pursuant to S 142 a of the Protection of the Environment Operations Act 1997 / Interlocutory Application by the Prosecutor to Amend the Summons and Particulars at the Commencement of the Second Week of a Four Week Hearing

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to amend the particulars of the summons by replacing the charge period 4 April 2011 to 18 May 2011 with 1 February 2011 to 30 October 2011.' 'Whether the proposed amendment would change the substance of the charge or merely alter a particular of the offence.' 'Whether the proposed amendment would be futile because of the absence of expert evidence supporting the expanded charge period.' 'Whether the lateness of the application and potential unfairness to the defendant warranted refusal of the amendment.']

Ratio Decidendi

The amendment was not necessary in the interests of justice because it would significantly enlarge the factual scope of the proceedings by incorporating different product campaigns, including campaigns processed in a different part of the factory, so that the substance of the charge would no longer be based on the same facts. The EPA had made a forensic decision to frame the charge around the April/May F&G plant campaigns, gave no cogent explanation for the late application, and had no expert evidence supporting the expanded charge period, making the amendment futile and potentially unfair to Du Pont.

Court Disposition

Application to amend summons dismissed.

Orders

  • ['The application to amend must be dismissed.' 'The exhibits are to be returned.']