Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [2001] NSWLEC 136

Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [2001] NSWLEC 136

Section 43 applied to the summons because the summons was the application under s 41. The omitted specification of the acts or omissions constituting the act of polluting was an essential factual ingredient, not an essential legal element, and any objection to that defect was disallowed by s 43. The omission of facts concerning the defendant's relationship with its subcontractor was not an omission of an ingredient of the offence. Although there had been significant delay in furnishing further and better particulars, the prosecutor's explanation was accepted and the defendant showed no prejudice or unfairness sufficient to justify a permanent stay.

Jurisdiction
Australia
Judgment Date
29 June 2001
Procedural Posture
Class 5 Criminal Proceedings Alleging Pollution of Waters Contrary to S 16(1) of the Clean Waters Act 1970 / Defendant's Notice of Motion Seeking That the Summons Be Struck Out as Invalid Or, Alternatively, That the Proceedings Be Permanently Stayed
Outcome
Defendant's notice of motion dismissed; question of costs reserved.
Legal Topics
['defective Summons' 'land and Environment Court Act 1979 S 43' 'essential Factual Ingredients of Offence' 'vicarious Liability' 'permanent Stay of Criminal Proceedings' 'delay' 'abuse of Process']
['environmental Law' 'criminal Procedure' 'practice and Procedure'] ['defective Summons' 'land and Environment Court Act 1979 S 43' 'essential Factual Ingredients of Offence' 'vicarious Liability' 'permanent Stay of Criminal Proceedings' 'delay' 'abuse of Process']

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Procedural Posture

Class 5 Criminal Proceedings Alleging Pollution of Waters Contrary to S 16(1) of the Clean Waters Act 1970 / Defendant's Notice of Motion Seeking That the Summons Be Struck Out as Invalid Or, Alternatively, That the Proceedings Be Permanently Stayed

Legal Issues

  1. 1 ['Whether s 43 of the Land and Environment Court Act 1979 applies to a summons commencing Class 5 proceedings.' 'Whether omission from the summons of the conduct said to constitute the act of polluting was a defect curable by s 43.' "Whether the prosecutor's alleged failure to specify matters concerning vicarious liability made the summons incurably defective." 'Whether delay and failure to provide particulars justified a permanent stay of the criminal proceedings as an abuse of process.']

Ratio Decidendi

Section 43 applied to the summons because the summons was the application under s 41. The omitted specification of the acts or omissions constituting the act of polluting was an essential factual ingredient, not an essential legal element, and any objection to that defect was disallowed by s 43. The omission of facts concerning the defendant's relationship with its subcontractor was not an omission of an ingredient of the offence. Although there had been significant delay in furnishing further and better particulars, the prosecutor's explanation was accepted and the defendant showed no prejudice or unfairness sufficient to justify a permanent stay.

Court Disposition

Defendant's notice of motion dismissed; question of costs reserved.

Orders

  • ["The defendant's notice of motion filed on 15 January 2001 is dismissed." 'I reserve the question of costs.']