Land and Environment Court of New South Wales CITATION : EPA v Patrick Distribution Pty Limited [2005] NSWLEC 433 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Patrick Distribution Pty Limited FILE NUMBER(S) : 50001 of 2005 CORAM: Talbot J KEY ISSUES: Prosecution :- application for stay of proceedings. Land and Environment Court Rules 1996 LEGISLATION CITED: Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998 Duncan and Another v Crews and Others (2001) 161 FLR 250 ; CASES CITED: Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; Jago v The District Court of New South Wales And Others (1999) 168 CLR 23 DATES OF HEARING: 04/08/2005 DATE OF JUDGMENT: 08/09/2005 PROSECUTOR Mr S J Rushton SC SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Ms P E McDonald (Barrister) SOLICITORS Blake Dawson Waldron JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 9 August 2005 50001 of 2005 EPA v Patrick Distribution Pty Limited JUDGMENT 1 Talbot J: Patrick Distribution Pty Limited ("the defendant") has filed a Notice of Motion seeking an order permanently staying the proceedings. 2 By summons issued on 17 February 2005, it is alleged that on 25 February 2004 on the Great Western Highway at the foot of the pass from Mount Victoria to Little Hartley the defendant, as prime contractor, used a vehicle to transport dangerous goods when the vehicle did not comply with chapter 8 of the Australian Code for the Transport of Dangerous Goods by Road and Rail ("the ADG Code") contrary to subregulation 8.3 of the Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998. Regulation 8.3 provides that a prime contractor must not use a vehicle to transport dangerous goods by road unless the vehicle and its equipment comply with chapter 8 of the ADG Code. Paragraph 8.1.1(1)(b) requires that a vehicle used to transport dangerous goods must be free of any defect that is likely to create a risk in transporting the goods. 3 The evidence of the prosecutor includes an affidavit sworn 15 March 2005 by Robert Stait, a Roads and Traffic Authority ("RTA") inspector. The affidavit annexes a statement prepared by Mr Stait on 25 August 2004. The statement prepared by Mr Stait includes observations made by him at the RTA Mount Boyce Heavy Vehicle Checking Station on 28 February 2004. The observations relate to the condition of tyres and brake linings. The evidence of Mr Stait is for the purpose of establishing that there was insufficient tread depth on certain tyres of the trailer and that the left rear and right centre brake linings on the trailer were excessively worn. 4 Following service of the summons and the evidence of Mr Stait the defendant's solicitors made an enquiry from the prosecutor as to the present whereabouts of the vehicle. On 15 April 2005 the solicitor for the Environment Protection Authority ("the prosecutor") advised the defendant's solicitors that she understood the last known location of the subject vehicle was Royans Smash Repairs, 17-23 Alfred Road Chipping Norton and that advice was expected from the vehicle's insurer as to its current location. Subsequently, by letter dated 12 May 2005 the solicitor for the prosecutor advised that the prime mover bearing a South Australian registration plate was bought by Universal Truck Wreckers of 56 Mitchell Street Shepparton, Victoria on 29 September 2004 and that the trailer bearing a NSW registration plate was returned to the trailer's owner Mr Robert Douglas. The last known address of Mr Douglas in Kempsey was supplied. 5 It is common ground that the vehicle was never owned or under the control of the defendant nor was it ever seized or placed into the possession of the prosecutor. 6 It is the defendant's case that it is now unable to arrange an inspection of the vehicle by an expert in order to meet the evidence of Mr Stait and to enable the defendant to otherwise properly prepare for the trial. It is submitted that the claimed loss of the vehicle substantially prejudices the defendant in the following ways:- (a) The Defendant is not able to lead its own evidence concerning the condition of the vehicle; (b) The Defendant is not able to test properly and rebut the evidence of the Prosecutor concerning the condition of the vehicle. It is no answer to say that the Defendant can cross-examine Mr Stait (see Inspector Robert Apps v Clark Equipment Pty Ltd, unreported judgment of Chief Magistrate Miller, 4 August 1999). (c) The Defendant is not able to lead expert evidence on whether the vehicle was defective in the manner alleged by the Prosecutor. (d) The Defendant is not able to lead expert evidence on how, if at all, any defects of the vehicle at the relevant time may have affected the operation of the vehicle. (e) In deciding how to plead the charge, the Defendant is not able to form an independent view on its culpability. 7 The following facts are the subject of an agreed statement:- 1. The vehicle that is the subject of the charge (Vehicle) was involved in a traffic accident (Accident) near Little Hartley on the Great Western Highway on 25 February 2004 at approximately 11.20pm. 2. Shortly after the Accident the Great Western Highway was closed to members of the general public in both directions until approximately 2.45am on 28 Febaruy 2004. 3. A HAZMAT response team attended the Accident site and comprised members of the NSW Police, the NSW Fire Brigade, the Roads and Traffic Authority, the NSW Ambulance Service and the EPA. An emergency response team from the Defendant also attended the Accident site to provide assistance to the HAZMAT response team. Mr Robert Leckie and Mr Ron Rae formed part of the team from the Defendant. 4. The vehicle was removed from the Accident site prior the Great Western Highway being reopened to the public. 5. The prosecutor did not take possession of the Vehicle or any tyre or brake pad on the Vehicle after the Accident occurred. 6. The Prosecutor was not present at the inspection of the Vehicle and the Mt Boyce Heavy Vehicle Checking Station on 28 February 2004. 8 The evidence further discloses that employees of the defendant attended at the site of the accident during the HAZMAT and recovery operation. Patrick staff were permitted to approach parked vehicles incidental to the accident so as to drive them out of the "hot zone" on the day of the accident. Patrick staff were not permitted to approach the subject vehicle until after nightfall and only then to shrinkwrap pallets of recovered freight. 9 There is no evidence one way or the other in relation to two important aspects. Firstly, the evidence does not show whether the defendant or its solicitors were given notice of the proposed charge before the summons was issued and served in February 2005. Secondly, there is no evidence of the result of enquiries made as to the actual whereabouts of the vehicle following advice given to the defendant by the prosecutor's solicitor in April and May 2005. I am therefore not able to say whether the defendant could have taken the opportunity to check the vehicle at any time following the inspection by Mr Stait or at least after he provided his statement to the EPA in August 2004, nor am I aware of the result of any investigation carried out, if any, following the advice given in April and May of this year. 10 The defendant bears a heavy onus to justify the extraordinary remedy of a permanent stay which the authorities make clear must only be used in the most exceptional circumstances (Jago v The District Court of New South Wales And Others (1999) 168 CLR 23). As Mason CJ said in Jago at 33:- …the touchstone in every case is fairness [and] the test which must be applied involves a balancing process, for the interests of the accessed cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. 11 In the same case Brennan J pointed out at p 47 that there is a responsibility cast on the trial judge to avoid unfairness to either party and that the responsibility is discharged by controlling the procedures of the trial by "adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer." The difficulties in relation to a trial by jury do not arise in the present case. The court does not discharge the duty to ensure not only a fair trial but to prevent an abuse of process by abdication of the obligation to hear the case. 12 There is no allegation of default or impropriety on the part of the prosecution other than the suggestion that it could have informed the defendant earlier that the charge would be brought in the form that it appears in the summons. I do not know what steps were taken in that regard nor therefore am I able to determine what steps the defendant could have taken to overcome the prejudice which it now asserts. 13 I am not satisfied that the defendant will necessarily be unable to meet the case relying as it does on the evidence of Mr Stait. After cross examination of the prosecutor's witness, a number of courses may be open to the defendant such as a submission of no case to answer, an application for adjournment to take further instructions in relation to the expert evidence or to call its own expert to give evidence in the case of the defence. Furthermore, the refusal of an application for a stay of the proceedings at this point will not, depending on the circumstances, be a bar to making a further application during the course of the trial. The mere fact that evidence has become unavailable otherwise than by the fault of the parties does not of itself generally justify a stay of proceedings (Duncan and Another v Crews and Others (2001) 161 FLR 250 and the authorities cited at the foot of p 257) 14 Based on the evidence made available to me and accepting that there is power under the Land and Environment Court Rules and an inherent power to grant a stay (Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217) I am not prepared to do so at this stage. I am not satisfied that the defendant has discharged the necessary onus that establishes that an unfair trial will be inevitable in the circumstances or that there will be an abuse of process. Orders 1. Notice of Motion dated 24 May 2005 dismissed. 2. Exhibits may be returned. 3. Any question of costs reserved. 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