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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 17 Hearing dates: 14 December 2023 Date of orders: 7 February 2024 Decision date: 07 February 2024 Before: Ward P at [1]; Mitchelmore JA at [37]; Preston CJ of LEC at [38] Decision: (1) 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. (2) Give leave to the appellant to adduce the additional evidence identified in the affidavit of Mr Zipkis of 29 June 2023. (3) Give leave to the appellant to appeal against the decision of Pepper J of 16 June 2023. (4) Uphold the appeal against the decision of Pepper J. (5) Dismiss the summons for judicial review of the decision of Pepper J as being unnecessary having regard to the Court's decision to uphold the appeal against the decision of Pepper J. (6) Refuse leave to appeal against the decision of Pain J of 28 April 2023. (7) Dismiss the summons for judicial review of the decision of Pain J. (8) Order the respondents to pay the appellant's costs of the two proceedings to appeal and review the decision of Pepper J. (9) Order the appellant to pay the fourth respondent's costs of the two proceedings to appeal and review the decision of Pain J. Catchwords: ENVIRONMENT AND PLANNING – offences - waste disposal – pollution of land – time for commencement of proceedings – when evidence first came to attention of authorised officer – whether individuals appointed as authorised officers – proceedings dismissed as time-barred – appeal – misconstruction of applicable statute for appointment of authorised officers APPEAL – dismissal of proceedings for offences as time-barred – when evidence first came to attention of relevant authorised officer – whether individuals appointed as authorised officers – instrument of delegation of functions to individuals – delegation of functions not appointment as authorised officer – misconstruction of applicable statute for appointment of authorised officer - misdirection by consideration of non-applicable statute delegating functions – conflation of different statutory powers LIMITATION OF ACTIONS – limitation period for commencement of proceedings for offences – when evidence of offence first came to attention of authorised officer – appointment of authorised officer – delegation of functions not appointment as authorised officer Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1999 (NSW), s 227(1) Land and Environment Court Act 1979 (NSW), s 68 Land and Environment Court Rules 2007 (NSW), r 5.2(1) Local Government Act 1993 (NSW), s 378 Protection of the Environment Operations Act 1997 (NSW), ss 191, 15, 142A, 143, 144, 144AAA, 184, 187, 188, 216, 219, Pt 7.2, Dictionary Supreme Court Act 1970 (NSW), ss 65, 69 Supreme Court Rules (NSW) 1970, Pt 75. r 3(1)(g) Uniform Civil Procedure Rules (NSW) 2005, r 33.4 Cases Cited: Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; [2001] NSWLEC 41 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd (No 2) [2023] NSWLEC 87 M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 Ralph Lauren 57 Pty Ltd v Byron Shire Council (2014) 199 LGERA 424; [2014] NSWCA 107 Sydney Refractive Surgery Centre Pty Ltd v Beaumont [2003] NSWSC 688 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 Category: Principal judgment Parties: M. & S. Investments (NSW) Pty Ltd (Appellant) Affordable Demolitions & Excavations Pty Ltd (First Respondent) Chalita Boutros (Second Respondent) Angela Carbone (Third Respondent) Domenic Carbone (Fourth Respondent) Rimon Boutros (Fifth Respondent) Representation: Counsel: R Tripodi (Appellant) No appearance (First, Second and Fifth Respondents) R Coffey (Third Respondent) P Boncardo (Fourth Respondent)