EPA v Land and Environment Court of NSW & Anor [2004] NSWCA 50

Reported Decision : 144 A Crim R 198 134 LGERA 140

New South Wales Court of Appeal

CITATION : EPA v Land and Environment Court of NSW & Anor [2004] NSWCA 50 HEARING DATE(S) : 10 February 2004 JUDGMENT DATE : 11 March 2004

JUDGMENT OF : Meagher JA at 1; Santow JA at 2; Tobias JA at 3 DECISION : a) Declare that upon the proper construction of s 5AE of the Criminal Appeal Act 1912, and in the events which have happened, the First Opponent had no jurisdiction to dismiss the Summons in proceedings No. 50003 of 2003 (the proceedings) on 10 October 2003.; b) Order that the record of the proceedings be removed into the Court of Appeal and that the decision and orders of Justice Talbot given and made on 10 October 2003 be quashed.; c) Order that the proceedings be remitted to Justice Talbot for consideration according to law of the application by the Claimant that his Honour state questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.; d) Order that the Second Opponent pay the costs of the Summons in the Court of Appeal and the costs of that part of the proceedings in the Land and Environment Court as related to the application by the Claimant to Justice Talbot to state a case on questions of law pursuant to s 5AE(1) of the Criminal Appeal Act 1912.

CATCHWORDS : PRACTICE & PROCEDURE, stated case, completion of proceedings, when a verdict of acquittal occurs, proposed order of acquittal, double jeopardy, Criminal Appeal Act s5AE(1), "any question of law arising at or in reference to the proceedings", abuse of process, delay in stating case until findings and indication of acquittal made, unfair oppression, jurisdictional error, certiorari. - STATUTES, interpretation, headings, ambiguity. Protection of the Environment Operations Act 1997 Criminal Appeal Act 1912 Justices Act, s 125(1) LEGISLATION CITED : Land and Environment Court Act 1979 Land and Environment Court Rules Criminal Procedure Act Federal Court of Australia Act 1976 R v Cheng (1999) 48 NSWLR 616 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 R v Garnet Thomas (1974) 1 NSWLR 702 Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R Ward v Williams (1955) 92 CLR 496 at 511-512 Environmental Protection Authority v Cooke (1996) 90 LGERA 61 Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 R v Madden (1995) 82 A Crim R 367 Davern v Messel (1984) 155 CLR 21 CASES CITED : Benson v Northern Ireland Road Transport Board [1942] AC 520 Thompson v Mastertouch TV Service Pty Limited (No. 3), R v Tryone County Justices Reg v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 Byron Shire Council v C J Vigen & Anor [1999] NSWLEC 198 Registrar, Court of Appeal v Craven (No. 2) (1995) 80 A Crim R 272 The King (Hastings) v Justices of Galway [1906] 2 I.R. 499 Glover v MacDougall (1976) 2 NSWLR 359 Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Jago v District Court (NSW) (1989) 168 CLR 23 PARTIES : Environment Protection Authority Land and Environment Court of New South Wales FILE NUMBER(S) : CA 40907/03 A : Mr D A Buchanan SC / Mr T G Howard COUNSEL : 1 Opp: No submitting appearance 2 Opp: Mr C Leggat / Ms L Tucker A: Mr S Garrett, EPA, Sydney SOLICITORS : 1 Opp: No submitting appearance 2 Opp: Mr C Shaw, Phillips Fox