Environment Protection Authority v McMurray [2024] NSWCCA 160

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v McMurray [2024] NSWCCA 160 Hearing dates: 27 June 2024 Decision date: 22 August 2024 Before: White JA at [1]; Mitchelmore JA at [2]; Preston CJ of LEC at [3]. Decision: (1) The answer to question 1 stated in CCA proceeding 2024/84188 is "yes". (2) Question 2 stated in the CCA proceeding is unnecessary to answer. (3) Order 1 made by the Land and Environment Court on 7 February 2024 dismissing the appeal is set aside. (4) In its place, the appeal to the Land and Environment Court is upheld. (5) The order of the Local Court made on 12 May 2023 permanently staying the proceedings is set aside. (6) Judicial review proceeding 2024/99713 is dismissed. Catchwords: CRIMINAL PROCEEDINGS – Stated question – question of law arising on appeal to Land and Environment Court – offence attracting special executive liability – cause place to be used as waste facility without lawful authority – law providing for special executive liability of executives for offence by corporation – offence committed by local council – liability of general manager of council – law applies to and in respect of council in same way as applies to and in respect of corporation – whether special executive liability law applies to and in respect of council – whether law applies to and in respect of general manager Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 42B Criminal Appeal Act 1912 (NSW), ss 5BA, 56A Local Government Act 1993 (NSW), s 220 Local Government Amendment (Legal Status) Act 2008 (NSW) Interpretation Act 1987 (NSW), s 34 Protection of the Environment Operations Act 1997 (NSW), ss 144, 169 Cases Cited: Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 Hoxton Park Residences Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156; [2011] NSWCA 363 Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209 Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45; [1989] HCA 24 Category: Principal judgment Parties: Environment Protection Authority (Applicant) Phillip Anthony McMurray (Respondent) Representation: Counsel: R Lancaster SC with Mr R Coffey (Applicant) T Howard SC with Mr M Fraser (Respondent)