Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 119

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 119 Hearing dates: 22 August 2023 Date of orders: 03 November 2023 Decision date: 03 November 2023 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [211] Catchwords: SUBPOENA – Prosecutor serves subpoena to produce on Defendant – subpoena lists documents sought – Defendant files Notice of Motion seeking to have the subpoena set aside – Defendant seeks to have subpoena set aside on the basis that the documents all result from voluntary environmental audits – Prosecutor provided with the documents subject to a confidentiality undertaking for the purposes of this set-aside application – application made on the basis that the documents are protected documents within the scope of s 181(1) of the Protection of the Environment Operations Act 1997 (POEO Act) – Prosecutor proposes that for documents to have been produced as a consequence of a voluntary environmental audit, the process and purpose to constitute such an audit should comply, generally, with ISO19011: 2018 – Defendant submits process for a voluntary environmental audit, understood in its proper statutory context within Part 6 of the POEO Act, did not need to mimic requirements of ISO19011 – Defendant says documents were produced for the sole purpose of environmental audits – Prosecutor's approach to the concept of voluntary environmental audit too narrow and prescriptive – Defendant's approach is appropriate basis upon which to consider each of the documents set out – examination of the individual documents establishes that all but two were created for the sole purpose of voluntary environmental audits – two documents (being logs describing pipe cam footage) were not documents on their face which were produced for the sole purpose of a voluntary environmental audit – subpoena set aside with respect to the protected documents – Defendant ordered to produce the two pipe cam log documents and any associated documents and video footage to the Prosecutor Legislation Cited: Contaminated Land Management Act 1997 Protection of the Environment Operations Act 1997, Chapter 6 Protection of the Environment Operations (General) Regulation 2009 Protection of the Environment Operations (General) Regulation 2021 Cases Cited: Environment Protection Authority v McMullen [2020] NSWLEC 87 Ex parte MacKaness and Avery Pty Ltd; Re Royce (1943) 43 SR (NSW) 239 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sea Shepherd Australia Ltd v Federal Commissioner of Taxation and Another [2013] FCAFC 68 State of New South Wales v Kaiser [2022] NSWCA 86 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Uber BV v Federal Commissioner of Taxation (2017) 247 FCR 462 Texts Cited: ISO 19011: 2018 Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor and Respondent on the Motion) Sydney Water Corporation (Defendant and Applicant on the Motion) Representation: Counsel: H El-Hage/G Marsden, barristers (Prosecutor and Respondent on the Motion) S Free SC/J Caldwell, barristers (Defendant and Applicant on the Motion)