McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367

McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367

The Court held that the summons did not disclose the essential factual ingredient of the act of polluting, and this was required for validity of the charge; a judge is not required to be satisfied of a prima facie case before making an order under s41(1) Land and Environment Court Act 1979; procedural irregularities in service did not invalidate the proceedings with respect to Part 75 rule 9.

Parties
Defendant: McConnell Dowell Constructors (Aust) Pty Limited; Prosecutor: Environment Protection Authority
Jurisdiction
Australia
Judgment Date
13 September 2000
Procedural Posture
Criminal Stated Case / Appeal From Land and Environment Court to Court of Criminal Appeal on Questions of Law
Outcome
The Court answered: 3(ii) Yes; 3(vi) No with respect to Part 75 rule 9, otherwise decline to answer; 4(i) Yes; all other questions, Decline to Answer.
Legal Topics
Jurisdiction of Court of Criminal Appeal, Questions of Law Under S5 AE Criminal Appeal Act 1912, Particulars in Criminal Summons, Vicarious Liability for Environmental Offence, Requirements for Coercive Orders Under Land and Environment Court Act 1979
Criminal Law Environmental Law Procedure Jurisdiction of Court of Criminal Appeal Questions of Law Under S5 AE Criminal Appeal Act 1912 Particulars in Criminal Summons Vicarious Liability for Environmental Offence Requirements for Coercive Orders Under Land and Environment Court Act 1979

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Parties

McConnell Dowell Constructors (Aust) Pty Limited

Defendant

Environment Protection Authority

Prosecutor

Procedural Posture

Criminal Stated Case / Appeal From Land and Environment Court to Court of Criminal Appeal on Questions of Law

Legal Issues

  1. 1 Whether the consent of the Director-General is reviewable by the court
  2. 2 Whether the summons disclosed all essential ingredients of the offence
  3. 3 Whether there must be judicial satisfaction of a prima facie case before making an order under s41 Land and Environment Court Act 1979

Ratio Decidendi

The Court held that the summons did not disclose the essential factual ingredient of the act of polluting, and this was required for validity of the charge; a judge is not required to be satisfied of a prima facie case before making an order under s41(1) Land and Environment Court Act 1979; procedural irregularities in service did not invalidate the proceedings with respect to Part 75 rule 9.

Court Disposition

The Court answered: 3(ii) Yes; 3(vi) No with respect to Part 75 rule 9, otherwise decline to answer; 4(i) Yes; all other questions, Decline to Answer.

Orders

  • The Summons did not disclose the essential act constituting the offence.
  • No requirement for satisfaction of a prima facie case under s41(1) Land and Environment Court Act 1979.