Posted on April 18, 2018 by Katie Mortimer

Hypothetical proceedings no excuse for non-compliance with a notice

The Land and Environment Court (‘Court‘) recently considered whether the Environment Protection Authority (‘EPA‘) should be required to provide an undertaking that any information provided by a Company’s Director and Managers (‘Applicants‘) in response to a notice to answer questions under s203 of the Protection of the Environment Operations Act 1997 (‘Act‘) would not be used against the Applicants.

The Court also examined whether a person contravenes the Act if they fail to nominate a place and time to answer questions as required by a s203 notice.


The EPA was investigating the unlawful transportation and disposal of waste. As part of that investigation it issued notices to the Applicants under s203 of the Act (‘Notices‘) that required the Applicant’s to either nominate a place and time to attend and answer questions, OR to attend at a specified place and time to answer questions.

The Applicants were a Director, Operations Manager, and Accounts Manager of a company the subject of the EPA investigation.

Challenge to the Notices 

The Applicants did not comply with the Notices, but commenced class 4 proceedings seeking that the Court declare:

  1. any information the Applicants provided on objection on the ground of self-incrimination would not be admissible for the purpose of any prosecution of the Applicants under s169 of the Act, or alternatively
  2. upon proper construction of s211 of the Act, the applicants had a lawful excuse under s211 to refuse to answer questions required in the Notices, where the Applicants were in jeopardy of future prosecution under s169 and the EPA refused to provide an undertaking that any answers would not be used against them in a future prosecution.

The hypothetical prosecution

The Applicant’s feared a prosecution under s169 of the Act. Under s169, as a director and persons concerned in the management of the company, if the company contravened a provision of the Act attracting special executive liability, the Applicants would be taken to have contravened the same provision, unless they could establish:

  1. they were not in a position to influence the conduct in relation to the contravention, or
  2. if they were in such a position, they used all due diligence to prevent the contravention.

Self-incrimination in hypothetical proceedings is not an excuse 

As the Applicants had not been charged, and there was no prosecution pending under the Act, the Court found that it was not a lawful excuse for the Applicants to refuse to attend a specified place and time to answer questions because they apprehended their answers ‘may be used directly against them in future special executive liability criminal proceedings‘.

If the Applicants had been charged with a special executive liability offence, the Court commented that it may have been a lawful excuse. However, no concluded view could be formed from the ‘hypothetical circumstances‘.

In this respect, the Court drew on established authority that a court will not ‘give advisory opinions on a hypothetical state of facts, nor give hypothetical decisions which depend upon facts to be established in the future‘.

If the Applicants were later charged and prosecuted, then at that stage they would be entitled to seek the relevant evidence from their answers not be admitted in criminal proceedings.

No requirement to nominate a place and time 

In its cross summons, the EPA alleged that the Applicants had breached the Notices in 2 ways:

  1. by failing to nominate a place and time to answer questions, AND
  2. by not complying with a requirement to attend at a specified place and time to answer questions.

The Court found that the Applicants had not breached the Notices, and therefore the Act, by failing to nominate a place and time to answer questions.

Relevantly, s203(6) of the Act provides:

‘(6)  The place and time at which a person may be required to attend under subsection (5) is to be:

(a)  a place or time nominated by the person, or

(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.’

The Court interpreted s203(5) and (6) of the Act as requiring a Notice to provide an opportunity for a person to nominate a place and time, and if that person fails to do so, or nominates an unreasonable time, (Molesworth AJ used the example of ‘midnight on Christmas day in Antarctica’), it is then that the default step of attending at a specified time is enlivened.

The opportunity to nominate, provides fairness to the notified person. The Court found it would therefore be strange to hold that person liable for a breach of the Act, ‘by not taking up an opportunity provided to the person “for the purposes of fairness”‘.

The Court’s findings provide guidance as to how notices to require answers under s203 of the Act should be drafted. In our view, the rationale of the Court extends to the drafting of s9.23 notices (previous s119k) under the Environmental Planning and Assessment Act 1979, given s9.23 uses the same terms.

The Court’s comments that it was ‘pragmatic’ for the EPA to provide a ‘default’ specified time and date in the Notices, may be an approach other investigative authorities wish to adopt.

The undertakings sought from the EPA

The EPA argued its refusal to give undertakings was justified as:

  1. it could not fetter its statutory power to investigate [at 62],
  2. it could not speculate on what the Applicant’s answers would be in advance, in a way that would ‘improperly fetter its statutory powers and obligations to investigate‘ [at 63], and
  3. it would not further ‘the purpose of investigating compliance with legislation to protect the environment‘.

It is common that a person directed to answer questions by notice, will request an assurance that any information is not used against them. Any response to such a request needs careful consideration.

In relation to the EPA’s refusal to give undertakings, the Court found this was not a valid reason for the Applicants to refuse to comply with the Notices.

Read the judgment in full here: Fordham v Environment Protection Authority [2018] NSWLEC 28.

If you wish to discuss the issues raised in this post, or the drafting of investigative notices generally, please contact Carlo Zoppo, Partner on 8235 9705 or by email at