McGerty v Borg [1991] NSWLEC 41 (11 April 1991) [1991] NSWLEC 2

Land and Environment Court of New South Wales

CITATION : McGerty v Borg [1991] NSWLEC 41 (11 April 1991) [1991] NSWLEC 2 PARTIES : McGerty v Borg FILE NUMBER(S) : 50028 of 1990 CORAM: Bignold J KEY ISSUES: :- Clean Waters Act 1970 LEGISLATION CITED: Land and Environment Court Act) 1979 Clean Waters Regulations, 1972 John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508; CASES CITED: Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667; generally Mathews v. Goulburn Wool Processors Proprietary Ltd. (1987) 10 N.S.W.L.R. 419 DATES OF HEARING: DATE OF JUDGMENT: 04/11/1991

LEGAL REPRESENTATIVES:

JUDGMENT: Bignold J.: The Defendant is charged with an offence against s.16 of the Clean Waters Act 1970 in that it is alleged that on 10th August, 1989 he did pollute waters. The charge has been defended.

When the hearing commenced Counsel for the Defendant submitted that the summons was defective because it failed to specify "the waters" alleged to be polluted or to adopt the familiar words of the common law the summons was defective because it "did not specify the time, place and manner of the Defendant's acts or omissions: see John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508.

It is not denied that before the trial the Defendant's solicitors had sought and obtained from the Prosecutor particulars of the offence and those particulars included reference to the waters said to be polluted.

In these circumstances I held that the summons (and the related order under s.41 of the Land and Environment Court Act ) 1979 were not incurably defective and that s.43 of the Land and Environment Court Act operated to avoid any defect in substance in the process - cf. John L. Proprietary Ltd. at pp.529/530 (per Brennan J.) and Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667 et seq, there being no suggestion of any denial of natural justice in the defective process.