Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97

Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97

The majority (Fullerton and Lonergan JJ) held that the finding of invalidity was, in effect, a final order and not interlocutory, disallowing leave to appeal. However, on the case stated, the Court determined that a judge presiding over a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW) does have the power to summarily dismiss a summary prosecution after finding a statutory notice, forming an element of the charge, to be invalid. Macfarlan JA, dissenting, held the ruling was interlocutory, leave should be granted, and the appeal allowed as the Notice was valid.

Parties
Applicant: Environment Protection Authority; Respondent: Eastern Creek Operations Pty Limited
Jurisdiction
Australia
Judgment Date
13 May 2022
Procedural Posture
Appeal and Case Stated in Criminal Proceedings / Court of Criminal Appeal Decision on Application for Leave to Appeal and Determination of Case Stated
Outcome
In the s 5F proceedings: Leave to appeal dismissed (majority); In the case stated: Question answered in affirmative (majority).
Legal Topics
Interlocutory Appeals, Validity of Statutory Notices, Summary Dismissal of Proceedings, Jurisdiction of Superior Courts in Summary Proceedings
Criminal Law Environmental Law Criminal Procedure Interlocutory Appeals Validity of Statutory Notices Summary Dismissal of Proceedings Jurisdiction of Superior Courts in Summary Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Environment Protection Authority

Applicant

Eastern Creek Operations Pty Limited

Respondent

Procedural Posture

Appeal and Case Stated in Criminal Proceedings / Court of Criminal Appeal Decision on Application for Leave to Appeal and Determination of Case Stated

Legal Issues

  1. 1 Whether the notice issued under s 191 of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act) was valid
  2. 2 Whether the finding of invalidity of the notice by the primary judge was an 'interlocutory judgment or order' as required for an appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
  3. 3 Whether, by way of case stated, a judge presiding over a preliminary hearing under the Criminal Procedure Act 1986 (NSW) has power to summarily dismiss a summary prosecution after finding a statutory notice, which is an element of the charge, to be invalid

Ratio Decidendi

The majority (Fullerton and Lonergan JJ) held that the finding of invalidity was, in effect, a final order and not interlocutory, disallowing leave to appeal. However, on the case stated, the Court determined that a judge presiding over a preliminary hearing under s 247G of the Criminal Procedure Act 1986 (NSW) does have the power to summarily dismiss a summary prosecution after finding a statutory notice, forming an element of the charge, to be invalid. Macfarlan JA, dissenting, held the ruling was interlocutory, leave should be granted, and the appeal allowed as the Notice was valid.

Court Disposition

In the s 5F proceedings: Leave to appeal dismissed (majority); In the case stated: Question answered in affirmative (majority).

Orders

  • The application for leave to appeal is dismissed.
  • Answer the stated case question in the affirmative.