Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2011] NSWLEC 36 Hearing dates: 11 March 2011 Decision date: 11 March 2011 Before: Biscoe J Decision: Defendant's notice of motion of 25 February 2011 is dismissed. The costs of the notice of motion will be the defendant's costs in the substantive proceedings. Catchwords: Practice and procedure - criminal proceedings - particulars of charge Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Moolarben Coal Operations Pty Ltd (Defendant) Representation: Counsel: Mr D Jordan (Prosecutor) Mr J A Ayling SC (Defendant) Solicitors: Department of Environment, Climate Change and Water (Prosecutor) Sparke Helmore (Defendant) File Number(s): 50042 of 2010 Judgment 1Before the Court is a notice of motion by the defendant, Moolarben Coal Operations Pty Ltd, that the prosecutor, Environmental Protection Authority, answer the defendant's request for further and better particulars within 14 days. 2The summons alleges an offence against (s 121) of the Protection of the Environment (Operations) Act 1997 and includes the following particulars: C. Manner of contravention: (a) the Defendant was the occupier of premises at or from which the pollution occurred; and/or (b) the Defendant removed or caused the removal of a barrier culver in an earthen dam wall across Bora Creek, resulting in the Pollutants entering the Waters. 3The defendant's solicitors, Sparke Helmore, requested further and better particulars in a letter of 7 February 2011 (annexure C to the affidavit of Kelly O'Mullane of 25 February 2011). 4The prosecutor's answer to that request is in a letter of 16 February 2011 from the Department of Environment Climate Change and Water to Sparke Helmore (annexure D to the affidavit). The point of contention which has arisen concerns the following on page 2 of this letter: For the purposes of paragraph 1C(a) of the summons it is not necessary for the prosecutor to particularise how the pollution occurred. Paragraph 1C(a) in effect notifies the defendant that the prosecutor will, if necessary, rely upon s 257 and s 258 of the Act to prove the offence. In proving the offence via this basis we consider that it is not necessary to prove how the pollution occurred and therefore in this context your request for further and better particulars is not appropriate. Nevertheless, we are happy to advise that in respect of the legal basis referred to in paragraph 1C(a) of the summons by which the prosecutor can prove the offence, the prosecutor's case is that the Pollutant entered Waters on the removal of a barrier from a culvert in the earthen dam wall situated across Bora Creek (on your client's premises). 5The defendant is concerned that this response was not in terms of particulars being provided. Rather, the response was that the particulars requested did not have to be provided but that the prosecutor was advising what its position was in a way where it would not be bound in the same way as it would be bound if it provided the information by way of particulars. 6The prosecutor acknowledges before me that it is bound by that response in the same way as it would be bound if it had acknowledged that it was providing particulars. The defendant is content with that concession and accordingly there is no need to make any order on the notice of motion. Accordingly, the notice of motion is dismissed. The costs of the notice of motion will be the defendant's costs in the substantive proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2011