Cum v Nightingale [1989] NSWLEC 127 (3 November 1989) [1989] NSWLEC 152

Cum v Nightingale [1989] NSWLEC 127 (3 November 1989) [1989] NSWLEC 152

The summons and s. 41 order, although not using the statutory language of s. 16 of the Clean Waters Act 1970, sufficiently identified the ingredients of an offence of deemed pollution under s. 16(2)(a). The challenge based on duplicity also failed because s. 41 could operate in respect of a plurality of offences and the summons and order could be regarded as containing two separate counts or separate summonses and orders for the two offences charged.

Jurisdiction
Australia
Judgment Date
03 November 1989
Procedural Posture
Environmental Offence Prosecution Under the Clean Waters Act 1970 / Defendant's Notice of Motion to Dismiss the Summons and S. 41 Order
Outcome
Defendant's Notice of Motion dismissed.
Legal Topics
['clean Waters Act Pollution Offences' 'sufficiency of Summons and S. 41 Order' 'defects in Substance or Form' 'duplicity' 'land and Environment Court Jurisdiction']
['environmental Law' 'criminal Procedure' 'statutory Interpretation'] ['clean Waters Act Pollution Offences' 'sufficiency of Summons and S. 41 Order' 'defects in Substance or Form' 'duplicity' 'land and Environment Court Jurisdiction']

Case Brief

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Procedural Posture

Environmental Offence Prosecution Under the Clean Waters Act 1970 / Defendant's Notice of Motion to Dismiss the Summons and S. 41 Order

Legal Issues

  1. 1 ['Whether the summons and the order made pursuant to s. 41 of the Land and Environment Court Act 1979 disclosed any offence against the Clean Waters Act 1970.' 'Whether the summons and s. 41 order were defective or void because they alleged two offences against the Defendant.' 'Whether s. 43 of the Land and Environment Court Act 1979 would overcome a defect in substance in the s. 41 order.']

Ratio Decidendi

The summons and s. 41 order, although not using the statutory language of s. 16 of the Clean Waters Act 1970, sufficiently identified the ingredients of an offence of deemed pollution under s. 16(2)(a). The challenge based on duplicity also failed because s. 41 could operate in respect of a plurality of offences and the summons and order could be regarded as containing two separate counts or separate summonses and orders for the two offences charged.

Court Disposition

Defendant's Notice of Motion dismissed.

Orders

  • ["The Defendant's Notice of Motion be dismissed."]