Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34

Each of the proposed amended charges was defective for any of five discrete reasons: (1) the charge pleaded was not one known to law (failure to use appropriate statutory language); (2) it was patently duplicitous, combining multiple requirements into a single count; (3) it was latently duplicitous, being based on open-ended requirements; (4) it constituted a fresh charge introduced out of time; (5) it was impermissibly uncertain for lack of specificity. Any one of these defects warranted refusal of leave to file the Amended Summons. The Prosecutor was not permitted a further opportunity to replead, so both proceedings were dismissed.

Jurisdiction
Australia
Judgment Date
16 April 2021
Procedural Posture
Criminal Environmental Prosecution (class 5) / Application for Leave to File Amended Summons; Ruling on Dismissal and Costs
Outcome
Leave to rely on proposed Amended Summons refused; proceedings dismissed; costs reserved.
Legal Topics
['duplicity of Charges' 'uncertainty in Criminal Pleadings' 'amendment of Charges' 'statutory Limitation Period' 'procedural Fairness']
['environmental Law' 'criminal Procedure'] ['duplicity of Charges' 'uncertainty in Criminal Pleadings' 'amendment of Charges' 'statutory Limitation Period' 'procedural Fairness']

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Procedural Posture

Criminal Environmental Prosecution (class 5) / Application for Leave to File Amended Summons; Ruling on Dismissal and Costs

Legal Issues

  1. 1 ['Whether the proposed Amended Summons pleads a charge known to law' 'Whether the charge is patently duplicitous' 'Whether the charge is latently duplicitous' 'Whether the amended charge constitutes a fresh charge out of time' 'Whether the charge is impermissibly uncertain']

Ratio Decidendi

Each of the proposed amended charges was defective for any of five discrete reasons: (1) the charge pleaded was not one known to law (failure to use appropriate statutory language); (2) it was patently duplicitous, combining multiple requirements into a single count; (3) it was latently duplicitous, being based on open-ended requirements; (4) it constituted a fresh charge introduced out of time; (5) it was impermissibly uncertain for lack of specificity. Any one of these defects warranted refusal of leave to file the Amended Summons. The Prosecutor was not permitted a further opportunity to replead, so both proceedings were dismissed.

Court Disposition

Leave to rely on proposed Amended Summons refused; proceedings dismissed; costs reserved.

Orders

  • ["Prosecutor's Notice of Motion of 22 June 2020, as amended on 10 December 2020, is refused (in both matters);" 'The proceedings are dismissed (in both matters);' 'Costs are reserved (in both matters);' 'The exhibits are returned (in both matters).']