M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17

M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17

The instrument of delegation under the Local Government Act did not appoint the individuals as authorised officers for the purposes of the POEO Act, as the statutory powers under the two Acts are distinct and non-interchangeable; therefore, the limitation period commenced only when evidence came to the attention of the properly appointed authorised officer, and the proceeding was not time-barred.

Jurisdiction
Australia
Judgment Date
07 February 2024
Procedural Posture
Appeal and Judicial Review / Court of Appeal Judgment
Outcome
Partially allowed: Appeal against Pepper J's decision upheld; leave to appeal Pain J's decision refused; various costs orders made.
Legal Topics
['waste Disposal Offences' 'time Limitation/limitation Period' 'appointment of Authorised Officers' 'delegation of Council Functions' 'subpoenas and Procedural Fairness']
['environment and Planning' 'criminal Law' 'civil Procedure'] ['waste Disposal Offences' 'time Limitation/limitation Period' 'appointment of Authorised Officers' 'delegation of Council Functions' 'subpoenas and Procedural Fairness']

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Procedural Posture

Appeal and Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether individuals were properly appointed as authorised officers under the Protection of the Environment Operations Act 1997 (NSW)' 'Whether proceedings were commenced within the statutory limitation period' 'Whether the primary judge erred in statutory construction of authority appointment and delegation' 'Whether the subpoena was validly set aside as premature or overly broad']

Ratio Decidendi

The instrument of delegation under the Local Government Act did not appoint the individuals as authorised officers for the purposes of the POEO Act, as the statutory powers under the two Acts are distinct and non-interchangeable; therefore, the limitation period commenced only when evidence came to the attention of the properly appointed authorised officer, and the proceeding was not time-barred.

Court Disposition

Partially allowed: Appeal against Pepper J's decision upheld; leave to appeal Pain J's decision refused; various costs orders made.

Orders

  • ["Dismiss the fourth respondent's applications to dismiss the appellant's applications for leave to appeal against the decisions of Pepper J and Pain J." 'Give leave to the appellant to adduce the additional evidence identified in the affidavit of Mr Zipkis of 29 June 2023.' 'Give leave to the appellant to appeal...