Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW [2022] NSWCCA 280

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW [2022] NSWCCA 280 Hearing dates: 10 August 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Ward P at [1] Davies J at [2] Button J at [87] Decision: Refuse leave to appeal Catchwords: CRIME – appeals – Land and Environment Court – s 5F of the Criminal Appeal Act 1912 (NSW) – applicants charged with two offences against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – offences relate to pollution of water during construction of dirt road on applicants' property – where primary judge granted leave to respondent to amend summonses – where applicants alleged amended summonses changed the location of the offences by substituting new locations – where amended summonses were based on aerial inspection of applicants' property by a drone – use of statutory powers to inspect during criminal proceedings – whether the advantage obtained by prosecutor in using statutory powers amounted to a contempt of court - where judgment concerned interlocutory decision concerning practice and procedure – principle of restraint from interference by appellate court – whether factual findings of primary judge regarding location of offences were open to the judge – leave to appeal refused Legislation Cited: Civil Procedure Act 2005 (NSW) s 21 Clean Waters Act 1970 s 29 Criminal Appeal Act 1912 (NSW) s 5F Criminal Procedure Act 1986 (NSW) ss 20, 21 Interpretation Act 1987 (NSW) s 35 Land and Environment Court Act 1979 (NSW) s 68 Protection of the Environment Operations Act 1997 (NSW) ss 120, 169, 184, 196, 198, 216 Cases Cited: Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 DSJ v R; NS v R [2014] NSWCCA 77 Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1 NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252 R v Matovski (1989) 15 NSWLR 720 Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2022] NSWLEC 6 Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185 Texts Cited: Nil Category: Principal judgment Parties: Kiangatha Holdings Pty Limited (Applicant) Laurence Natale (Applicant) Water NSW (Respondent) Representation: Counsel: C R Ireland (Applicants) M Wright SC with Z Shahnawaz (Respondent)