Environment Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39

Environment Protection Authority v Eastern Creek Operations Pty Limited (No 2) [2021] NSWLEC 39

The Court has the power, following a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW), to summarily dismiss charges where the foundational statutory notice is found invalid, consistent with the wide remedial discretion given by that section and related provisions; there is no legislative prohibition nor contrary precedent. However, in this case, before making such an order, the Court directed that a case be stated to the Court of Criminal Appeal as requested by the EPA under s 5AE(1) of the Criminal Appeal Act 1912 (NSW).

Parties
Prosecutor: Environment Protection Authority; Defendant: Eastern Creek Operations Pty Limited
Jurisdiction
Australia
Judgment Date
30 April 2021
Procedural Posture
Criminal Summary Proceedings / Ruling on Appropriate Final Orders After Preliminary Hearing and Submission of a Case Stated to the Court of Criminal Appeal
Outcome
Case stated; question of law submitted to the Court of Criminal Appeal
Legal Topics
Preliminary Hearing Powers, Summary Dismissal, Case Stated, Validity of Statutory Notice, Jurisdiction of Land and Environment Court, Orders and Determinations During Summary Proceedings
Criminal Law Environmental Law Procedure Preliminary Hearing Powers Summary Dismissal Case Stated Validity of Statutory Notice Jurisdiction of Land and Environment Court +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Environment Protection Authority

Prosecutor

Eastern Creek Operations Pty Limited

Defendant

Procedural Posture

Criminal Summary Proceedings / Ruling on Appropriate Final Orders After Preliminary Hearing and Submission of a Case Stated to the Court of Criminal Appeal

Legal Issues

  1. 1 Whether the Court has the power to summarily dismiss charges following a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW)
  2. 2 Whether the alternative is to make an interlocutory finding enabling the prosecution to seek appeal rights under s 5F of the Criminal Appeal Act 1912 (NSW)
  3. 3 Effect of invalidity of a statutory notice on the criminal charge

Ratio Decidendi

The Court has the power, following a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW), to summarily dismiss charges where the foundational statutory notice is found invalid, consistent with the wide remedial discretion given by that section and related provisions; there is no legislative prohibition nor contrary precedent. However, in this case, before making such an order, the Court directed that a case be stated to the Court of Criminal Appeal as requested by the EPA under s 5AE(1) of the Criminal Appeal Act 1912 (NSW).

Court Disposition

Case stated; question of law submitted to the Court of Criminal Appeal

Orders

  • In accordance with s 5AE(1) of the Criminal Appeal Act 1912 (NSW), the Court submits the question of law as contained in the draft stated case, as amended, which is at annexure A to the affidavit of Elizabeth Emily Spain dated 4 February 2021 to the Court of Criminal Appeal for determination.