Bell v Anor v Unimin Australia Ltd [2010] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Bell & Anor v Unimin Australia Ltd [2010] QMC 001 PARTIES: GRAHAM BELL (complainant/ respondent) WILLIAM GORDON (complainant/ respondent) v UNIMIN AUSTRALIA LTD (defendant/ applicant) FILE NO/S: MAG245636/09(1); MAG245626/09(6); MAG113031/10(7) DIVISION: Magistrates Courts PROCEEDING: Application to strike out charge ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 23 December 2010 DELIVERED AT: Brisbane HEARING DATE: 7 September 2010; 12 November 2010 MAGISTRATE: Lee G ORDER: The application to strike out or permanently stay one complaint charging the applicant with an offence under the Integrated Planning Act 1997 and one complaint charging the applicant with an offence under the Environmental Protection Act 1994 is refused CATCHWORDS: CRIMINAL LAW - Summary offences – two complaints issued under the Justices Act 1886 – whether plead elements of offence – whether adequately plead essential factual ingredients of offence – whether complaints are so defective that they should be either struck out or permanently stayed. COUNSEL: SOLICITORS: [1] This is an application by Unimin Australia Limited (Unimin) to quash or strike out complaints issued pursuant to the Justices Act 1886 (the JA) charging it with certain -- 1 of 24 -- 2 offences. In the alternative, the application seeks the complaints be permanently stayed1. There are two grounds for the application. The first is that the charges are insufficient in law to found the jurisdiction of this court because they fail to plead essential factual ingredients to each of the offences2. The second ground is that if Unimin is unsuccessful on the first ground, the complaints are an abuse of process3. The hearing of the application on the second ground has been adjourned pending the outcome of the first ground. [2] Pursuant to orders made 14 July 2010, the parties filed and served written submissions4 and the application was set down, and heard, on 7 September 2010. Upon my invitation, further written submissions on Cohen v. Macefield Pty Ltd [2010] QCA 95 (Cohen) and Broome v. Chenoweth (1946) 73 CLR 583 were received from Unimin dated 14 September 2010 and the complainants dated 21 September 2010. On 14 October 2010 Boddice J. delivered judgement in NK Collins Industries Pty Ltd v. President of the Industrial Court of Queensland et al [2010] QSC 373. Among other things, that case considered the application of Kirk v. Industrial Relations Commission of New South Wales et al (2010) 239 CLR 531; (2010) HCA 1. The parties requested the opportunity of making further submissions in the light of that case. Further written submissions were received from Unimin dated 27 October 2010 and from the complainants dated 11 November 2010. The matter was further mentioned in court on 12 November 2010. [3] There are three complaints each charging Unimin with an offence under section 4.3.1 Integrated Planning Act 1997 (IPA)5, section 427(1) Environmental Protection Act 1994 (EPA) and section 53 Forestry Act 1959 (FA) respectively as follows: Complaint 1 1 Paragraph 1.1 submissions for the defendant dated 2 August 2010 (―Unimin’s first submissions‖) ; 2 Paragraph 4 Unimin’s first submissions; 3 Paragraph 5 Unimin’s first submissions; 4 Unimin’s first submissions; submissions for Complaint (undated); Unimin’s submissions in reply dated 24 August 2010 (―Unimin’s reply‖); 5 Repealed by and replaced with the Sustainable Planning Act 2009 (Q’ld) from 18 December 2009; -- 2 of 24 -- 3 On dates unknown on or between 4 October 2005 and 18 December 2008 at North Stradbroke Island …Unimin…did, in contravention of section 4.3.1. Integrated Planning Act 1997, carry out assessable development without an effective Development Permit for the development PARTICULARS 1. Assessable development: Making a material change of use of premises for an environmentally relevant activity, namely extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year And the offence came to the complainant’s knowledge on the 1st day of December 20096. Complaint 2 On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 427(1) of the Environmental Protection Act 1994, carry out a level 1 chapter 4 activity, not being a registered operator for the activity and not acting under a Registration Certificate for the activity PARTICULARS 1. Level 1 chapter 4 activity: extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year And the offence came to the complainant’s knowledge on the 1st day of December 20097. Complaint 3 On dates unknown on or between 3 December 2003 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 53 of the Forestry Act 1959, get quarry material on lands, the property of the Crown, that were included in a lease or other entitlement granted under the Mineral Resources Act 1989 otherwise than in accordance with a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959, the Mineral Resources Act 1989 or another Act. And the offence came to the knowledge of the complainant on 3 December 20098. 6 Section 4.4.10 IPA provided ―In a complaint starting a proceeding a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter‖. 7 Section 490(6) EPA provides ―In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter‖. 8 Section 95(g) FA provides ―the averment in any complaint of the date on which the -- 3 of 24 -- 4 PARTICULARS 1. Get: dig, gather, remove, convert, or obtain 2. Quarry material: sand that is not a mineral within the meaning of the Mineral Resources Act 1989 3. Lands, the property of the Crown, included in a lease or other entitlement granted under the Mineral Resources Act 1989: Mining Leases 1108, 1124, 1132 and 7064 4. Without authority: there did not exist any permit, lease, licence, agreement or contract to get the quarry material. [4] Complaints 1 and 2 were made by Graham Bell on 1 December 2009 and filed in the court on 4 December 2009. Complaint 3 was made by William Gordon on 4 June 2010 and filed 8 June 2010. [5] In respect of the first ground in this application, Unimin seeks Complaints 1 & 2 be either struck out or permanently stayed because they are insufficient in law to found the jurisdiction of this court as they fail to plead essential factual ingredients of those offences. Unimin now does not pursue this ground in respect of Complaint 3 and in fact draws on the substance of Complaint 3 in attempting to show that Complaints 1 & 2 are irretrievably defective9. [6] The limitation period for starting all three proceedings is generally one year after the commission of the offences10. For the IPA (complaint 1) and FA (complaint 3) offences, an alternative limitation period is six months after the offence comes to the knowledge of the complainant11. For the EPA offence (complaint 2), an alternative limitation period is one year after the offence comes to the complainant’s knowledge but within two years after the commission of the offence12. This matter was not the primary point fought in this application. While not expressing any concluded view on the limitation issue which may be the subject of submissions at a later time, in the context of this being raised commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter‖; 9 Unimin’s reply – paras 1.24 & 1.25; Unimin’s submissions dated 27 October 2010 – para 7; 10 See section 4.4.2(a) IPA, section 497 (a) EPA, and section 88(4) FA; 11 See section 4.4.2(b) IPA and section 88(4) FA; 12 See section 497(b) EPA; -- 4 of 24 -- 5 during oral submissions and after having regard to Cohen, submissions for the complainants are that the limitation period starts at the end date of a continuing offence and that these charges are continuing in nature13. [7] The provisions of the Justices Act 1886 (the JA) apply to proceedings conducted in a summary way for all three offences: see section 4.4.1 IPA, section 497 EPA and section 88(3) FA. Sections 42 to 51 in Part 4 (General Procedure) of the JA deal with complaints. In general terms section 42 JA provides that all proceedings be commenced by a complaint in writing. Relevantly subsections 43 (1) (b), (2) provide that, subject to immaterial exceptions, there must only be one matter of complaint in a complaint. Subsection 47(1) JA, cited later in these reasons, provides for what is a sufficient description of an offence. Section 48 JA provides for the power to amend a complaint under certain conditions. [8] It is useful to first consider the legislative provisions creating each offence in complaints 1 & 2 made by complainant Graham Bell. Statutory Schemes for the Offences The IPA [9] Section 4.3.1 of the IPA [reprint 10A] (now repealed14) is contained in Division 1 (Development offences), in Part 3 (Development offences, notices and orders) of Chapter 4 (Appeals, offences and enforcement). It provides: 4.3.1 Carrying out assessable development without permit (1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty—1665 penalty units. (2) Subsection (1)— (a) applies subject to sections 4.3.6, 4.3.6A and 4.3.6B; and (b) does not apply to development carried out under section 3.5.21A(4). (3) Despite subsection (1), the maximum penalty is 17000 13 Paragraph 21 complainant’s submissions dated 11 November 2010; 14 By section 764 Sustainability Planning Act 2009 with effect from 18 December 2009; -- 5 of 24 -- 6 penalty units if the assessable development is— (a) the demolition of a building identified in a planning scheme as a building of cultural heritage significance; or (b) on a Queensland heritage place or local heritage place. [10] Sections 4.3.6, 4.3.6A and 4.3.6B provide for exemptions in certain circumstances not presently relevant. Section 3.5.21A (4), regarding the lapsing of approvals for developments not completed, also appears to be not relevant to this application. [11] The basic elements of that offence are ―a person‖ must not ―carry out assessable development‖ unless there is an ―effective development permit for the development‖. [12] ―Development‖ is defined in section 1.3.2 IPA paragraphs (a) to (e)15. For example, paragraph (c) provides ―carrying out operational work‖ and ―operational work‖ is defined in section 1.3.5 IPA16 as including extracting sand from where it naturally occurs. Paragraph (e) in section 1.3.2 IPA defines ―development‖ as ―making a material change of use of premises‖ which is itself defined in section 1.3.5 IPA paragraphs (a) to (e). By reference to the particulars in complaint 1 cited above, it appears that the meaning in paragraph (e) of section 1.3.2 IPA is relied on by the complainant. [13] The meaning of the phrase ―assessable development‖ is derived by reference to a number of provisions in the IPA. There are three meanings found in Schedule 10 of the IPA the first being ―development stated in schedule 8, part 1(Assessable development)‖17. If the context permits, for an offence under section 4.3.1, the meaning can be expanded to the meaning given in section 6.1.1 of the IPA18. This does not appear to apply for present purposes. [14] Item 1 (For an environmentally relevant activity19), Table 220 (Material change of use of premises) in Part 1 (Assessable development) Schedule 8 of IPA provides a definition of 15 In Division 2 (Key definitions), Part 3 (Interpretation) in Chapter 1 of IPA; 16 In Division 3 (Supporting definitions and key explanations for key definitions), Part 3 (Interpretation) in Chapter 1 of IPA; 17 The exception that it is modified under section 2.5B.63 does not appear to be relevant here; the second and third meanings in Schedule 10 don’t appear relevant; 18 See section 4.3.1A of the IPA in Division 1 (Development offences), Part 3 (Development offences, notices and orders) in Chapter 4 (Appeals, offences and enforcement) of IPA; 19 ERA; -- 6 of 24 -- 7 `―assessable development‖ which appears applicable here. There are a total of 11 items in Table 2 dealing with premises used for a variety of purposes not presently relevant e.g. brothels (item 2), railways (item 10) and wild river areas (item 11). For this case Item 1 in Table 2 provides: Table 2: Material change of use of premises For an environmentally relevant activity 1 Making a material change of use of premises for an environmentally relevant activity, other than— (a) a mining activity; or (b) a chapter 5A activity; or (c) a mobile and temporary environmentally relevant activity; or (d) an environmentally relevant activity, or aspects of an environmentally relevant activity, for which a code of environmental compliance has been made under a regulation under the Environmental Protection Act 1994; or (e) in an urban development area. [15] Definitions are to be found from various sources. ―Material change of use‖ has a range of meanings provided for in section 1.3.5 of IPA from paragraphs (a) to (e) with alternative meanings within each of those paragraphs. While it is apparent that some of those meanings are not relevant here, it remains unclear precisely which of those other provisions the complainant relies on. [16] ―Premises‖ is defined in Schedule 10 of IPA as including ―land‖ whether or not a building is situated thereon. [17] ―Environmentally relevant activity‖ is, by virtue of Schedule 10 of IPA, defined in section 18 of EPA21 as follows: 18 Meaning of environmentally relevant activity An environmentally relevant activity is— (a) an agricultural ERA as defined under section 75; or (b) a mining activity as defined under section 147; or (c) a chapter 5A activity as defined under section 309A; or (d) another activity prescribed under section 19 as an 20 There are five tables in Part 1 Schedule 8 IPA – the others appear not relevant - Table 1 (Building works), Table 3 (Reconfiguring a lot), Table 4 (Operational works) and Table 5 (Various aspects of development); 21 In Subdivision 4 (Environmentally relevant activities), Division 2 (Key concepts), Part 3 (Interpretation) in Chapter 1 of EPA; -- 7 of 24 -- 8 environmentally relevant activity. [18] The effect of the pleadings in Complaint 1 is that the activities in paragraphs (a) to (e) in Item 1 Table 2 in Part 1 of Schedule 8 IPA simply do not apply and provided that the activity is an ―environmentally relevant activity‖ as defined by regulation pursuant to section 19 EPA, then it is an ―assessable development‖: section 18(d) EPA. [19] The Environmental Protection Regulation 1998 (the 1998 regulations) made pursuant to section 19 EPA was repealed and replaced by the Environmental Protection Regulation 2008 (the 2008 regulations) with effect from 1 January 200922. The period of the charge in complaint 1 indicates that the 1998 regulations apply and I shall for present purposes refer to those. The last version is Reprint 7C. [20] A range of prescribed environmentally relevant activities are set out in Schedule 1 (Prescribed environmentally relevant activities and amounts for annual fees) of the 1998 regulations23: section 4 of the 1998 regulations (Levels 1 and 2 prescribed environmentally relevant activities)24. [21] For this case, what appears to be the relevant activity specified in Schedule 1 of the 1998 regulations is item 20 under the heading ―Extractive activities‖: Environmentally relevant activity Level Amount for particular annual fees $ 20 Extracting rock or other material—extracting rock (other than rock mined in block or slab form for building purposes), sand (other than foundry sand), clay (other than clay used for its ceramic properties, kaolin or bentonite), gravel, loam or other material (other than gravel, loam or other material under a mining tenement or petroleum authority) from a pit or quarry using plant or equipment having a design capacity of— (a) not more than 5000t a year . . . . . . . . . 2 nil 22 Both the 1998 and 2008 regulations made pursuant to section 19 of EPA; 23 It is divided into a number of broad categories of activities e.g. ―Food Processing‖ (items 29 to 37) & ―Waste Management‖ (items 75 to 85) as well as ―Extractive activities‖ (items 19 to 22); 24 In Part 2 (Environmentally relevant activities) of the 1998 regulations; -- 8 of 24 -- 9 (b) 5000t or more, but less than 100000t, a year . . . . . . 1 3 960.00 (c) 100000t or more a year . . . . . . . . . . . . 1 4 880.00 (my emphasis) The emphasised words reflect the wording of the particulars in complaint 1. [22] For the purposes of item 20 in Schedule 1 ―Extracting‖ is defined in Schedule 9 of the 1998 regulations as not including certain activities which do not appear relevant here. ―Foundry sand‖ and ―sand‖ are not defined. [23] If, for example, the activity was ―mining activity‖ as defined in section 147 of EPA25, then the activity would not be an ―assessable development‖ under Item 1(a) in Table 2 of Schedule 8 IPA cited above. ―Mining activity‖ is any one or more of those activities specified in paragraphs (a) to (f) of subsection 147(2) of EPA that is authorised to take place on land, the subject of a mining lease, pursuant to the Mineral Resources Act 198926. One such activity is mining under the Mineral Resources Act 1989: section 147(2) (a) of EPA. Generally, mining leases are granted under Part 7 Mineral Resources Act 1989 for eligible persons to mine minerals27. Section 6(2) (b) of the Mineral Resources Act 1989 provides that ―Foundry sand‖ is a mineral. Sections 6(2) (j) and 6(3) (b) in combination provide that ―silica sand‖ is only a mineral if mined for use for its chemical properties. Also, section 6 (3) (d) provides, among other things, that sand to be used or to be supplied for use as sand is not a mineral. ―Foundry sand‖, ―silica sand‖ and ―sand‖ are not defined. [24] Finally, section 3.1.4 of IPA28 provides the obligation to obtain a ―development permit‖ for ―assessable development‖. Section 3.1.5(3) of IPA provides that a ―development permit‖ authorises ―Assessable development‖ to the extent and conditions stated therein. The EPA [25] Section 427 (1) of EPA29 provides: 25 In Division 2 (Key definitions for ch 5), Part 1 (Preliminary) in Chapter 5 (Environmental authorities for mining activities) of EPA; 26 See definition of ―mining tenement‖ in Schedule (Dictionary) of Mineral Resources Act 1989; 27 Section 234 (1) Mineral Resources Act 1989; 28 In Part 1 (Preliminary) of Chapter 3 (Integrated development assessment system (IDAS)) of IPA; -- 9 of 24 -- 10 427 Only registered operators may carry out chapter 4 activities (1) A person must not carry out a chapter 4 activity, unless the person is a registered operator for the activity or is acting under a registration certificate for the activity. Maximum penalty—400 penalty units. (2) This section is subject to section 73T. [26] In general terms section 73T provides that section 427 does not apply in circumstances where an activity that was originally not a chapter 4 activity later becomes a chapter 4 activity due to a change in law. [27] The elements of an offence under section 427(1) EPA are ―a person‖ must not ―carry out‖ a ―chapter 4 activity‖ unless the person is a ―registered operator‖ or acting under a ―registration certificate‖. [28] ―Chapter 4 activity‖ is defined in schedule 4 of EPA: chapter 4 activity means an environmentally relevant activity, other than an agricultural ERA, a mining activity or a chapter 5A activity. [29] Again, ―environmentally relevant activity‖ is defined in section 18 of EPA30: 18 Meaning of environmentally relevant activity An environmentally relevant activity is— (a) an agricultural ERA as defined under section 75; or (b) a mining activity as defined under section 147; or (c) a chapter 5A activity as defined under section 309A; or (d) another activity prescribed under section 19 as an environmentally relevant activity. [30] Having regard to the definition of ―chapter 4 activity‖ and to section 427 creating the offence, Agricultural ERAs (defined in section 75 of EPA31), mining activities (defined in section 147 of EPA32), and chapter 5A activities33 are not relevant. Therefore, to be a 29 In Division 1 (Offences), Part 1 (Offences relating to environmentally relevant activities) in Chapter 8 (General environmental offences) of EPA; 30 In Subdivision 4 (Environmentally relevant activities), Division 2 (Key concepts), Part 3 (Interpretation) in Chapter 1 of EPA; 31 In Part 1 (Preliminary) of Chapter 4A (Great Barrier Reef protection measures) of EPA; 32 In Division 2 (Key definitions for ch 5), Part (Preliminary) of Chapter 5 (Environmental authorities for mining activities of EPA; -- 10 of 24 -- 11 ―chapter 4 activity‖ on the basis of being an ―environmentally relevant activity‖ in this case, the activity must be an activity prescribed by regulation under section 19 EPA: section 18 (d) EPA. Again, I note that the Environmental Protection Regulation 1998 (the 1998 regulations) was repealed and replaced by the Environmental Protection Regulation 2008 (the 2008 regulations) with effect from 1 January 200934. The period of the charge in complaint 2 indicates that the 1998 regulations apply and I shall for present purposes refer to those. The last version is Reprint 7C. [31] Chapter 4 activities are prescribed in Schedule 135 (Prescribed environmentally relevant activities and amounts for annual fees) of the 1998 regulations: section 4 of the 1998 regulations (Levels 1 and 2 prescribed environmentally relevant activities)36. In pleading a Level 1 Chapter 4 activity in complaint 2, it appears the complainant relies on the 1998 regulations. The 1998 regulations, unlike the 2008 regulations37, specify which Chapter 4 activities are Level 1 and 2. [32] Again, what appears to be the relevant activity specified in Schedule 1 of the 1998 regulations is item 20 under the heading ―Extractive activities‖: Environmentally relevant activity Level Amount for particular annual fees $ 20 Extracting rock or other material—extracting rock (other than rock mined in block or slab form for building purposes), sand (other than foundry sand), clay (other than clay used for its ceramic properties, kaolin or bentonite), gravel, loam or other material (other than gravel, loam or other material under a mining tenement or petroleum authority) from a pit 33 Section 309A in Part 1 (Preliminary) of Chapter 5A (Other environmental authorities) of EPA – greenhouse gas storage and petroleum activities; 34 Both the 1998 and 2008 regulations made pursuant to section 19 of EPA; 35 Schedule 1 is divided into a number of broad categories of activities e.g. ―Food Processing‖ (items 29 to 37) & ―Waste Management‖ (items 75 to 85) as well as ―Extractive activities‖; 36 In Part 2 (Environmentally relevant activities) of the 1998 regulations; 37 Where there are references to extraction of material including sand in increasing quantities – ―threshold‖ amounts - attracting ―Aggregate environment score[s]‖; -- 11 of 24 -- 12 or quarry using plant or equipment having a design capacity of— (a) not more than 5000t a year . . . . . . . . . 2 nil (b) 5000t or more, but less than 100000t, a year . . . . . . 1 3 960.00 (c) 100000t or more a year . . . . . . . . . . . . 1 4 880.00 (my emphasis) The emphasised words reflect the wording of the particulars in complaint 2. [33] As referred to earlier, for the purposes of item 20 in Schedule 1, ―Extracting‖ is defined in Schedule 9 of the 1998 regulations as not including certain activities which do not appear relevant here. Again, ―foundry sand‖ and ―sand‖ are not defined. [34] The phrase ―Registered operator‖ in section 427(1) EPA is defined in Schedule 4 of EPA: registered operator means the holder of a registration certificate, for a chapter 4 activity, issued under section 73F and in force. [35] Finally, upon application a registration certificate can be issued under sections 73D & 73F of the EPA in relation to Chapter 4 activities38. Chapter 4 of EPA (Development approvals and registration (other than for mining or Chapter 5A activities) provides for, among other things, the criteria for the granting of development applications for Chapter 4 activities. Submissions and Discussion [36] General principles stated by various courts regarding sufficiency of complaints are generally not disputed. What is disputed is the application of those principles to this case39. [37] A number of cases were cited in this application. Among those include Johnson v. Miller (1937) 59 CLR 467, John L Pty Ltd v. Attorney General (NSW) (1987) 163 CLR 508, Smith v. Moody [1903] 1 KB 56, S v. The Queen (1989) 168 CLR 266, Lodhi v. R [2006] 199 FLR 303; [2006] NSWCCA 121, Taylor v. Environment Protection Authority (2000) 50 NSWLR 48, Kirk Group Holdings Pty Ltd v. WorkCover Authority of New South 38 In Part 2 (Registration) of Chapter 4 (Development approvals and registration (other than for mining and Chapter 5 A activities)) of EPA; 39 See paragraph 2 complainant’s first submissions; -- 12 of 24 -- 13 Wales (2010) 239 CLR 531 (Kirk), and NK Collins Industries Pty Ltd v. President of the Industrial Court of Queensland and Peter Vincent Twigg [2010] QSC 373 per Boddice J. (delivered 14 October 2010) (Collins). [38] In considering Kirk, Collins at [17] conveniently summarises the statements of principle reflected in most of the cases cited above (footnotes omitted): [17] A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge. Essential particulars include ―the time, place and manner of the defendant’s acts or omissions‖. This requirement is consistent with the definition of ―offence‖ in the Criminal Code (Qld) as it is the ―act or omission which renders the person doing the act or omission liable to punishment‖ which is ―an offence‖. [39] The reference to the Criminal Code (Qld) is to section 2. [40] And later at [24] & [25] of Collins (footnotes omitted): [24] There is a distinction between a complaint which is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and a complaint which identifies the ―essential factual ingredients‖ of the offence but requires further particularisation so as to ensure that a defendant can properly prepare a defence. The former is defective and liable to be struck out as being insufficient in law. The latter is a valid complaint but may be subject to further particularisation. [25] To be valid, a complaint must at least condescend to identify the essential factual ingredients of the actual offence, although practical difficulties result from the fact that there is no ―technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent … to save the information‖. [41] Collins was concerned with an offence under sections 24(1) and 28(1) of the Workplace Health and Safety Act 1995 (Q’ld). As submitted for Unimin at paragraph [2.6] of its submissions dated 27 October 2010, Boddice J. at [18] noted that the complaint in that case disclosed the legal elements of the offence as well as the essential factual ingredients. Of course that relates to an offence under different legislation to the present case. I agree with the complainant’s submissions that Unimin’s reference to the fact that -- 13 of 24 -- 14 the particulars in the Collins complaint are far more extensive40 is not helpful in the present case41. [42] The above remarks in Collins reflect statements made by the majority judgement in Kirk. For example, in referring to Johnson v. Miller and John L Pty Ltd v. Attorney General (NSW), at [26] (footnotes omitted): [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v. Attorney General (NSW) .., it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information …‖must at the least condescend to identifying the essential factual ingredients of the actual offence‖. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v. Miller, Dixon J considered that an information must specify ―the time, place and manner of the defendant’s acts or omissions‖. McTiernan J referred to the requirements of ―fair information and reasonable particularity as to the nature of the offence charged‖. [43] And later in Kirk at [29] (footnotes omitted): [29] Section 11 of the Criminal Procedure Act 1986 (NSW) provided that the description of any offence in the words of an Act creating the offence ―is sufficient in law‖. In Smith v. Moody, it was held that such a provision did not dispense with the common law rule … a statutory provision like that made by s. 11 of the Criminal Procedure Act 1986 ―relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant’s acts or omissions‖. [44] The cognate provision in Queensland referred to in the previous passage is section 47(1) of the Justices Act 1886 which provides: 47 What is sufficient description of offence (1) The description of any offence in the words of the Act, order, 40 Paragraphs 2.6 & 2.7 submissions for Unimin dated 27 October 2010; 41 Paragraphs 8, 9 & 10 submissions for complainant dated 11 November 2010; -- 14 of 24 -- 15 by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law. [45] It is submitted for Unimin that complaints 1 & 2 fail to disclose the ―essential factual ingredients‖ for each offence charged so much so that the complaints are a nullity so that the court does not have jurisdiction. In referring to the above principles, Nettle JA (with whom the other members of the Victorian Court of Appeal agreed) in R v. ACR Roofing Pty Ltd (2004) 11 VR 187 said: ..It goes further than the identification of a cause of action or the juridical basis of alleged criminal liability. It is concerned with the identification of the issues to be determined at trial … [46] It was submitted for Unimin42 that the pleading of ―essential factual ingredients‖ performs a range of other purposes beyond informing the defendant of the case to be met – (a) Informing the court of the nature of the alleged offence; (b) Informing the court of the manner in which the alleged offence is said to have been committed; (c) Allowing the court to rule upon whether the alleged offences have been committed; (d) Providing a basis upon which the court can make rulings on the admissibility of evidence; (e) Avoiding difficulties where the prosecution seeks to lead evidence of multiple offences answering the description of the offence charged; and (f) Ensuring that any pleas of autrefois acquit or autrefois convict are not precluded. [47] Practical application of all these principles is demonstrated in the cases themselves. As Boddice J. noted in Collins, each case will depend on its own facts and the specific legislation. [48] In Johnson v. Miller, there was an allegation against a licensee under liquor legislation that a certain person came out of the licensed premises during specified hours. Thirty men were seen to come out of the premises. The complainant refused to particularise 42 Paragraph 4.3 submissions for Unimin dated 2 August 2010; -- 15 of 24 -- 16 which of those persons was said to be the ―certain person‖ in the charge. The court dismissed the complaint on the grounds it was defective in substance and the accused was prejudiced by the defect. The complainant submits that this does not mean that the complaints in the current case are defective. It was a case in which the complainant refused to give particulars. The offence, under section 209(1) Licensing Act 1932-1935 (S.A.) was an offence involving a discrete event and not a continuing offence. It provided: Any licensee …out of whose licensed premises any person is seen coming during any Sunday …except between [certain times] …shall be guilty of an offence ….unless he proves [various things] [49] In John L. Pty Ltd v. The Attorney General (NSW), the charge was under section 32(1) of the Consumer Protection Act 1969 (NSW): Any person who publishes or causes to be published any statement which – (a) is intended or apparently intended to promote the supply or use of goods or services or the disposal of interests in land; and (b) is to his knowledge false or misleading in any material particular, is guilty of an offence against this Act. [50] A motor vehicle dealer advertised in a newspaper offering free petrol to every customer buying a car during a limited period over a certain price. The information did not disclose the ―material particular‖ that was alleged to be knowingly false or misleading. By majority, the High court held that the information was defective because it failed to identify the ―material particular‖ in which the statement was said to be false or misleading. By reference to the provision creating the offence, ―material particular‖ is an essential element of that offence. [51] In coming to that view after citing cases such as Johnson v. Miller and Smith v. Moody, the majority judgment in John L Pty Ltd focussed on the essential factual ingredients ―of the actual offence‖. I agree with the complainants’ submissions that that case turned on the failure to plead an essential element of that offence and that in the present case all -- 16 of 24 -- 17 elements have been adequately pleaded so that the complaints are not void43. Further, the offence in John L Pty Ltd was an offence involving a discrete event and was not a continuing offence. [52] Again, in Smith v. Moody, there was a failure to plead an essential element of an offence under section 7 of the Conspiracy and Protection of Property Act 1875 (UK): Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority …injures his property … shall, on conviction thereof by a Court of Summary Jurisdiction …be liable either to pay a penalty … [53] The element not pleaded was the identification of the property said to be injured. It was in that context that Lord Alverstone CJ referred to ―the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given in indictments and convictions‖44. Wills J made similar remarks. Again, the offence in Smith v. Moody was an offence involving a discrete event and was not a continuing offence. [54] S v. The Queen (1989) 168 CLR 266 involved three counts of incest allegedly committed over a three year period. The counts as pleaded did not distinguish between each offence and from other similar acts over that period. I agree with the complainant’s submissions that that case involved three discrete events constituting each charge. The allegation was not for a continuing offence such as maintaining an unlawful sexual relationship and this affected the outcome of that case. No such problem arises in the present case because Unimin has been charged with continuing offences. I agree. The statements of principle in S v. The Queen referred to in submissions for Unimin must be seen in that context. [55] It is submitted for Unimin that complaints 1 & 2 do not contain sufficient detail to distinguish between differing mining leases and differing mining operations within those leases and fail to identify a raft of factual matters such as sand, the method of extraction, 43 Paragraph 15 complainant’s first submissions; 44 [1902] KB 56 at 60; -- 17 of 24 -- 18 the place of extraction, the pit or quarry the sand is said to be extracted from, the plant said to be used and the design capacity of the plant45. [56] The factual detail that Unimin says needs to be pleaded for a complaint to be valid are plainly not, in my view, elements of the offences under IPA and EPA. Further, in the context of determining the validity of the complaints, I do not consider them to be essential factual ingredients of the offences having regard to the provisions creating those offences i.e. section 4.3.1 IPA and section 427 EPA [57] For example, the element in the EPA offence of ―chapter 4 activity‖ in this case must only be those environmentally relevant activities prescribed by regulation under section 19 EPA by the combined effect of the definition of ―chapter 4 activity‖ in schedule 4 of EPA and section 18 EPA providing for the definition of ―environmentally relevant activity‖ (cited earlier in these reasons). By reference to those provisions it is clear on the face of the complaint the ―chapter 4 activity‖ in this case does not include a ―mining activity‖ or a ―chapter 5A activity‖46. ―Mining activity‖ is defined in section 147 EPA as an activity that is authorised to take place on land, the subject of a mining lease, pursuant to the Mineral Resources Act 1989. Clearly, the allegation in the complaint about a ―chapter 4 activity‖ does not include ―mining activity‖ as defined. The factual allegation in the complaint of a ―chapter 4 activity‖ not being a mining activity is the activity of actual ―extract[ion] of sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100000t or more a year‖. Therefore, details of distinguishing between differing mining leases that presumably have been issued to Unimin pursuant to the Mineral Resources Act 1989 and differing mining operations within those leases are not essential factual ingredients to this offence. [58] The position, as it appears to me, is the same in respect of the IPA offence. This is because ―assessable development‖ depends of the meaning of ―environmentally relevant activity‖ as defined in section 18 EPA. It excludes a range of activities from being environmentally relevant activities including ―mining activity‖ as defined by section 147 EPA and includes those activities prescribed by regulation under section 19 EPA: see 45 Paragraph 4.26 Unimin’s submissions dated2 August 2010; 46 Section 309A EPA - Chapter 5A activities are greenhouse gas storage activities and petroleum activities; -- 18 of 24 -- 19 Item 1 Table 2 Part 1 Schedule 8 of IPA cited earlier in these reasons. The activity alleged in the complaint as an environmentally relevant activity in accordance with the regulations is the ―extract[ion] of sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100000t or more a year‖. [59] It was submitted for Unimin that the complaint in respect of the EPA offence does not plead details of whether section 73T applies or not. It will be recalled that if section 73T applies, then section 427 does not apply. In my view, the complainant is not required to expressly plead that. It is not an element of the offence and is not an essential factual ingredient to an offence under section 427. To the contrary, the pleading as it stands clearly alleges that section 427 does apply. [60] In short, I agree with the ultimate submissions for the complainants dated 11 November 2010 to the effect that complaints 1 & 2 in this case sufficiently set out the nature of each offence and the essential factual ingredients and that they are not ―a nullity‖. Apart from that, I think that Unimin is entitled to further and better particulars in respect of the IPA offence which I will refer to later. [61] For the EPA offence, the complaint makes it clear that Unimin extracted sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100000t or more per year ―and that it did so on unknown dates between 3 December 2003 and 18 December 2008 at North Stradbroke Island, and that it did it when it was not a registered operator and not acting under a registration certificate for that activity‖47. [62] For the IPA offence, again the complaint sets out the nature of the offence and the essential factual ingredients. I agree that the allegation on the face of the complaint is clear that Unimin extracted sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100000t or more per year which is the material change in use of premises and which was carried out on North Stradbroke Island on or between 4 October 2005 and 18 December 2008 without an effective development 47 Paragraphs 13 to 17 submissions for the complainant dated 11 November 2010; -- 19 of 24 -- 20 permit. I agree with the complainant’s submissions48. Without conceding the requirement of doing so, the complainants have nevertheless, in its submissions dated 11 November 2010, provided further particulars in relation to the premises as being the land described as Mining Leases 1108, 1124, 1132 and 706449. Also, further particulars were provided as to the description of sand alleged to have been extracted i.e. B Grade silica sand50. [63] The result is that I find that complaints 1 & 2 are not a ―nullity‖ so as to deny this court jurisdiction. There is no neat formula to apply. Each case is to be determined according to its own peculiar circumstances. [64] It seems to me, as submitted for the complainants51, this conclusion is supported by dicta of Dixon J. (as he then was) in Broome v. Chenoweth (1946) 73 CLR 583; [1946] HCA 53 on appeal from the Victorian Supreme Court which reviewed a decision of a magistrate. In that case the defendant was charged a second time with a Commonwealth tax offence in the context of a previous complaint having been discontinued without a hearing on the merits and a plea of double jeopardy by the defendant. In considering the power of amendment Dixon J. said52: Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically, it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to law. Such a case may not be covered by the power of amendment. [65] Complaints 1 & 2 in the current case clearly allege charges known to law. Submissions for Unimin concede that complaints 1 & 2 contain bald statements of an offence but say 48 Paragraphs 18 to 20 submissions for the complainant dated 11 November 2010; 49 Paragraph 20(a) submissions for the complainant dated 11 November 2010; 50 Paragraph 20(d) submissions for the complainant dated 11 November 2010; 51 Paragraphs 9 to 13 submissions for the complainant dated 21 September 2010; 52 At page 9 of 11 [1946] HCA 53; similar remarks were echoed by Lord Parker C.J. in Hutchinson (Cinemas) Ltd v. Tyson (1970) 134 J.P. 202; -- 20 of 24 -- 21 that they lack essential factual ingredients rendering them incurably defective53. In my view, any defect in them can be adequately remedied either by amendment or by the provision of particulars. [66] I am of the view however that Unimin is entitled to particulars in relation to the IPA offence. I note, for example, that ―material change of use‖ is a phrase used in the definition of ―development‖ (s 1.3.2(e) IPA) and also, ―assessable development‖ (schedule 8 Part 1 IPA). I refer to the above discussion of the statutory scheme. By section 1.3.5 of the IPA ―material change of use‖ has a range of different meanings: material change of use, of premises, means— (a) generally— (i) the start of a new use of the premises; or (ii) the re-establishment on the premises of a use that has been abandoned; or (iii) a material change in the intensity or scale of the use of the premises; or (b) for administering IDAS under the Environmental Protection Act 1994 for environmentally relevant activities (other than for a mining activity, a chapter 5A activity or a mobile and temporary environmentally relevant activity)— (i) the start of a new environmentally relevant activity on the premises; or (ii) an increase in the threshold of an environmentally relevant activity on the premises; or (iii) the re-establishment on the premises of an environmentally relevant activity that has been abandoned; or (iv) a material change in the intensity or scale of an environmentally relevant activity on the premises; or (c) the continuation of an environmentally relevant activity on the premises if— (i) an approval for the activity ceases to have effect because of the operation of the Environmental Protection Act 1994, section 619(2)(e) or 624(2)(b); or (ii) there is no development approval for the activity and it was, at any time before 4 October 2004, carried out without an environmental authority as 53 Paragraph 4.4 submissions for Unimin dated 14 September 2010; -- 21 of 24 -- 22 required under the Environmental Protection Act 1994; or (e) the continuation of an activity on the premises, after the activity becomes an environmentally relevant activity, if— (i) there is no development approval for the activity; and (ii) the activity was, at any time before it became an environmentally relevant activity, lawfully carried out on the premises while there was no development approval for the activity. [67] It appears to me that Unimin is entitled to know precisely which definition of ―material change of use‖ is being relied on in the IPA complaint and particulars in relation to the definition relied on. ―Material change of use of premises‖ is one definition of ―development‖ in section 1.3.2(e) IPA and is also in the definition of ―assessable development‖ in Item 1, Table 2 in Part 1 Schedule 8 of IPA. Complaint 3 (Forestry Act 1958) [68] While Unimin does not submit that the FA complaint is a ―nullity‖ or ―duplex‖54, I agree with the complainant’s submissions that ―get‖ is the essential element of the offence and that the range of meanings given to ―get‖ in Schedule 3 of the FA does not create separate offences as was held in Cohen v. Macefield Pty Ltd.55 In Cohen, Holmes JA56 (with whom the other members of the Court of Appeal agreed) determined that ―damage or permit to be damaged‖ in the relevant provision57 created two separate offences under vegetation laws. Section 53 of the FA describes two activities that are punishable i.e. ―destroy‖ and ―get‖. Complaint 3 in this case does not plead ―destroy‖. It pleads ―get‖ which is later defined incorporating a number of meanings. Pleading ―get‖ in my view does not create more than one charge under section 53 of the FA despite being attributed a number of meanings in the definitions. It relevantly provides: 53 Interference with forest products on Crown holdings and particular entitlements (1) A person must not— 54 Paragraph 3.2 submissions for Unimin dated 14 September 2010; 55 Paragraph 31 submissions for the complainants dated 11 November 2010; 56 At paragraph [24] citing Romeyko v. Samuels (1972) 2 SASR 529 per Bray C.J. at 552; 57 Section 24(1) Gold Coast City Council Local Law No 6 (Vegetation Management); -- 22 of 24 -- 23 (b) …. (c) destroy a tree, or get other forest products or quarry material, on any lands, the property of the Crown, that are included in a lease or other entitlement granted under the Mining Acts or the GHG Storage Act; or (d) …. otherwise than in accordance with a permit, lease, licence, agreement or contract granted or made under this Act, the Land Act 1962, the Mining Acts, the GHG storage Act or another Act. Maximum penalty— (a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. (my emphasis) [69] ―Get‖ is defined in Schedule 3 of the FA: get, used in relation to any forest products, includes get, win, cut, saw, fell, dig, gather, remove, convert, or obtain; and used in relation to any earth, soil, or quarry material, includes dig, gather, remove, convert, or obtain. (my emphasis) [70] Complaint 3 particularises ―quarry material‖ as not being a mineral under the Mineral Resources Act 1989, ―lands, the property of the Crown, included in a lease or other entitlement granted under the Mineral Resources Act 1989‖ being mining leases 1108, 1124, 1132 and 7064, and ―without authority‖ being the non existence of any permit, lease, licence, agreement or contract to get the quarry material. It is clear that, unlike the offences under the IPA and EPA, these particulars are essential to an offence under section 53 of the FA. [71] The only matter of some dispute for the FA charge in this application is whether Unimin is entitled to particulars of ―get‖ in the light of the definition which is one that ―includes‖ certain meanings i.e. dig, gather, remove, convert, or obtain. It is not an exhaustive definition. [72] I note that some words in the definition of ―get‖ incorporate other words used in the definition as well as ―get‖ itself. For example, the meaning of ―obtain‖ in the Macquarie Concise Dictionary includes ―to come into possession of‖ and ―get or acquire; procure as by effort or request‖. The meaning of ―dig‖ includes ―to obtain or remove by digging‖ -- 23 of 24 -- 24 as well as, for example ―to break up, turn over, or remove earth etc. as with a spade; make an excavation‖. ―Dig‖ is thus a special type of obtaining, removing or getting. The meaning of ―remove‖ includes ―to move from a place or position; take away; take off‖. The meaning of ―gather‖ includes ―to bring (persons, animals or things) together into one company or aggregate‖, ―to get together from various places or sources; collect gradually‖, ―to pick (any crop or natural yield) from its place of growth or formation‖ and ―to pick up piece by piece‖. [73] On the other hand, the meaning of ―convert‖ involves a different concept from the other words in the definition of ―get‖. It includes ―to change into something of different form or properties; transmute; transform‖, ―to cause (a substance) to undergo a chemical change‖ and ―to turn to another or a particular use or purpose; divert from the proper or intended use‖. [74] This is a difficult question given the broad and overlapping meanings of the words used in the definition of ―get‖. I have not heard detailed submissions on this point. I note however, that one word in the definition of ―get‖ stands alone i.e. ―convert‖. Its meaning materially differs from all the other words which, to some degree or other, overlap in their meanings. I will hear the parties further on this question upon a fresh application in the event that they cannot resolve that issue. Conclusion [75] The application to strike out or permanently stay complaints 1 & 2 on the basis that they are a nullity is refused. I will hear the parties if other orders are sought. In the event that Unimin wishes to pursue the second ground of its application i.e. ―abuse of process‖, the matter will need to be listed for hearing in the usual way. -- 24 of 24 --