Who has a right to make a complaint? District Court of Queensland dismisses an appeal that sought to stay a prosecution with respect to offences committed under the Environmental Protection Act 1994

In brief

The case of United Petroleum Pty Ltd v Sargent [2019] QDC 93 concerned an appeal commenced by a petrol station company (Company) against the decision of the Magistrates Court to dismiss the Company's application to permanently stay a prosecution commenced against it by a public officer (Public Officer) of the Department of Environment and Heritage (Department), as it then was, with respect to alleged offences under the Environmental Protection Act 1994 (EPA).

The Company argued that the complaint brought by the Public Officer was out of time under section 497(b) of the EPA and that the Public Officer was not a complainant for the purposes of section 42(1) of the Justices Act 1886 (Justices Act). The Public Officer argued that the appeal ought not be heard as the Court did not have jurisdiction under section 222 of the Justices Act.

The Court found that the Company had a right to appeal the decision of the Magistrates Court under section 222 of the Justices Act. Consequently, the Court heard the appeal and found that the complaint made by the Public Officer was in accordance with section 497(b) of the EPA and not made out of time, and that the Public Officer had a right to make the complaint under section 42(1) of the Justices Act.

Background

The Company was building a new service station in Doonan, Queensland. The site was listed on the Environment Management Register. The Department was contacted by the Sunshine Coast Regional Council with respect to an alleged contamination incident. In August 2013, representatives of the Department attended the site and identified high environmental risks. Accordingly, an environmental protection order was issued against the Company, and a subsequent complaint was lodged against the Company by the Public Officer in October 2014.

A prosecution was commenced in the Magistrates Court in 2016, and in September 2018 the Company alleged that the continuation of the prosecution was an abuse of process and made an application to the Magistrates Court to permanently stay the prosecution. The Magistrates Court dismissed the Company's application, and the Company relevantly appealed the decision.

Issues

The Court considered the following issues:

• whether the Court was precluded from hearing the appeal;

• whether the time to commence the prosecution had expired;

• whether the Public Officer is not a "complainant" under section 42(1) of the Justices Act; and

• whether the Public Officer had the requisite knowledge.

Court found that it had jurisdiction to hear the appeal

The Company submitted that the application before the Magistrates Court concerned the deposition of the complaint made by the Public Officer, and following which, related to an order deposed of the complaint itself. The Company submitted that the Magistrates Court order was a final order that dismissed the Company's cause of action not to be prosecuted and therefore it had a right of appeal under section 222 of the Justices Act. 

Section 222 of the Justices Act provides as follows: "if a person feels aggrieved as a complainant, defendant, or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court". 

The Public Officer argued that it was the order of the Magistrates Court, not the relief sought by the Company's application, which precluded the Court from hearing the appeal.

The Public Officer relied on the authority of Schneider v Curtis [1967] Qd R 300 to argue its case. The Public Officer argued that the Queensland Court of Appeal in Paulger v Hall [2003] 2 Qd R 294 had noted that Schneider is the authority for the proposition that no appeal lies under section 222 of the Justices Act from a ruling made on an incidental application during the hearing of the complaint, and that the right of appeal is given only from any order made upon a complaint. Additionally, the Public Officer argued that the Queensland Court of Appeal in Paulger v Hall [2003] 2 Qd R 294 had found that there are several policy grounds for prohibiting the bringing of appeals against interlocutory rulings. 

The Court distinguished the decision in Schneider as the application brought by the Company raised the question of the right of the Company not to be prosecuted. The Court noted that in this instance, it must consider whether an order is final, and in doing so, it must consider whether the order finally determines the rights of the parties in a principal case that is pending against them. The Court found that if an order finally deposes of the parties' substantive rights, then an appeal lies as of right. 

The Court noted that the application brought by the Company raised the question of the right not to be prosecuted and relevantly, the Magistrates Court was required to quash that right. Consequently, the Court found that it is not considered to be a fragmentation of the criminal justice process in circumstances where the order concerned the substantive right of the matter to be determined once and for all. 

The Court accepted the submission made by the Company and held that the order made by the Magistrates Court deposed of the Company's substantive right not to be prosecuted, and therefore the appeal had been competently brought. 

Court found that the complaint brought by the Public Officer was within the limitation period 

The Company argued that the complaint was brought outside of the scope of the limitation period stated in section 497(b) of the EPA, which provides as follows: "A proceeding for an offence against this Act by way of summary proceeding under the Justices Act 1886 must start – (b) within one year after the offence comes to the complainant's knowledge, but within 2 years after the commission of the offence". 

The Court considered when the offences came to the Public Officer's knowledge and when the offences were allegedly committed. 

The alleged offences against the Company involved one charge of material environmental harm and two charges of disposal of contaminated soil under section 438(2) and section 424(1)(a) of the EPA. The Court noted that the offences allegedly occurred between 26 July 2013 and 8 August 2013. 

The Court noted that the Public Officer made a written complaint on 23 October 2014 regarding the alleged offences. The complaint provided that the Public Officer first had knowledge of the alleged offences on 23 October 2013. Consequently, the Court found that the complaint was brought within the limitation period specified under section 497(b) of the EPA.

Court found that the Public Officer is a "complainant" under section 42(1) of the JA

The Company argued that as the Public Officer is a "public officer" acting in their capacity under the EPA, the Public Officer is not a "complainant" acting in a private capacity and therefore contrary to section 42(1) of the Justices Act.

Section 42(1) of the Justices Act provides as follows: "Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant's lawyer or other person authorised in that behalf". 

The Company argued that the Public Officer was acting in a public capacity. The Company argued that the Queensland Court of Appeal had found in Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98 (Dixonbuild Decision) that the Ipswich City Council's "public officer" was acting on behalf of the Council and was precluded from making a complaint in the capacity of an agent under the Local Government Act 2009. The Court distinguished the Dixonbuild Decision from the current proceeding as the Public Officer was not acting as an authorised agent for the Department. Additionally, the Court noted that section 42(1) of the Justices Act does not expressly limit the complainant to be a person pursuing a complaint in a private capacity, and that a "public officer" is permitted to make a complaint under the JA. 

The Company further submitted that the Public Officer was under the direction of the Department, and that it was clear that the "complainant was and is the Department". The Court, however, noted that the Department is not a prescribed entity under the EPA or the JA that has procedural power for the alleged offences, and therefore rejected the Company's argument.

The Public Officer argued that the appeal is "on all fours" with the discussion in Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254 (Cross Country Decision). The Court noted that the Queensland Court of Appeal held in the Cross Country Decision that a "complainant" means "the complainant who brings the proceedings for an offence or offences under [an Act]". Relevantly, the Queensland Court of Appeal found that a complainant is a person who brought a proceeding under an Act, where the complainant had knowledge of the facts sufficient to establish a person's contravention of the Act. Additionally, the Court noted that the Queensland Court of Appeal had found that similar proceedings may be brought by a public officer under the JA. 

The Court accepted the Public Officer's argument and applied the Queensland Court of Appeal's findings in the Cross Country Decision to conclude that the Public Officer is a complainant under section 42(1) of the Justices Act.

Court found that the Public Officer had the requisite knowledge

Lastly, the Court considered whether the Public Officer had the requisite knowledge with respect to the alleged offences. The Court noted that the relevant inquiry is the named complainant's state of mind. The Court found that as it was the Public Officer who brought the complaint, the Public Officer had the requisite knowledge. 

Conclusion

The Court held that the Public Officer is the "complainant" to the complaint made under section 42(1) of the Justices Act and that the complaint was not brought out of time. Consequently, the Court dismissed the appeal.