Ashton Valley Fresh Pty Ltd v Dolan

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SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

ASHTON VALLEY FRESH PTY LTD v DOLAN

[2021] SASC 44

Judgment of the Honourable Justice Lovell  

3 May 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE

ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - DEFENCES

ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - LIABILITY - LIABILITY FOR ACTS OF OTHERS

ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION - OFFENCES - LIABILITY - OFFENCES OF STRICT LIABILITY

In August 2014, Environmental Protection Agency officers identified a pollutant in Deep Creek emanating from a natural drainage line that ran off the appellant's property. The appellant operated a fruit juicing plant on the property, which included use of a wastewater treatment plant. The appellant was charged with two counts of contravening mandatory provisions of an environmental protection policy, contrary to the Environmental Protection Act 1993 (SA) ('the Act'). Count 1 related to a breach of an obligation not to cause environmental harm (clause 12 of the policy); Count 2 related to a breach of an obligation to maintain certain water quality criteria (clause 13 of the policy). The appellant pleaded not guilty to both counts. At trial, the appellant raised a general defence pursuant to s 124 of the Act, namely that it had taken all reasonable and practicable measures to prevent a contravention of the Act. The appellant submitted that a tap attached to the wastewater treatment plant, later identified as the source of the pollutant discharge, was opened by an employee of the appellant not acting within the scope of his employment. The Trial Judge was not satisfied that the defence was made out; the appellant was convicted on both counts.

The appellant appeals both convictions. The appellant contends that the verdicts were unreasonable or not supported by the evidence, that the Trial Judge erred in interpretation of cl 13 of the Policy and consequently erred in finding Count 2 was established, and erred in holding that the s 124 defence was not made out.

Held, dismissing the appeal:

1. The Trial Judge was correct in the interpretation of cl 13 of the Policy;

2. The Trial Judge was correct in finding that the appellant had not proved the defence under s 124 of the Act on the balance of probabilities;

3. No error has been demonstrated in the approach of the Trial Judge.

Environment Protection Act 1993 (SA) ss 4, 27, 30, 34, 124, 127; Environment Protection (Water Quality) Policy 2003 cls 12, 13; Environment, Resources and Development Court Act 1993 (SA) s 30; Magistrates Court Act 1991 (SA) s 42, referred to.
ASIC v Macks (No 4) [2020] SASC 209; Briginshaw v Briginshaw (1938) 60 CLR 336; Canadian Pacific Railway Co v Lockhart [1942] AC 591; Deaton Pty Ltd v Flew (1949) 79 CLR 370; DL v The Queen (2018) 266 CLR 1; Dolan…

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Details
Case
[2021] SASC 44
Decision Date

CaseChat Overview and Summary

In the case of Ashton Valley Fresh Pty Ltd v Dolan, the appellant was convicted in the Environment, Resources and Development Court for contravening mandatory provisions of the Environment Protection (Water Quality) Policy 2003. The appellant appealed both convictions on multiple grounds, including the trial judge's findings of fact, interpretation of the Policy, and the application of the statutory defence. The primary legal issues before the court were whether the trial judge erred in his interpretation of the Policy, whether the appellant had proven the statutory defence on the balance of probabilities, and if there were any errors in the trial judge's approach. The court found that the trial judge's interpretation of the Policy was correct, and that the appellant had not proven the statutory defence. The court also found no error in the trial judge's approach, reasoning, or findings of fact. The appeal was dismissed, and the original convictions upheld.

The court held that the trial judge's interpretation of clause 13 of the Policy was correct and that the appellant had not proven the defence under section 124 of the Environmental Protection Act 1993 on the balance of probabilities. The court also found that there was no error in the trial judge's approach, reasoning, or findings of fact. The appeal was dismissed, and the original convictions upheld. The court found that the appellant had not established that an employee acted on a frolic of their own and turned on the tap, and that the trial judge's reasoning process was sufficient. The court also found that the trial judge was required to consider the balance of the s 124 defence, irrespective of how the discharge occurred. The appellant had not taken all reasonable and practicable measures to prevent the contraventions.

Orders

Orders of the court

Held, dismissing the appeal:

1. The Trial Judge was correct in the interpretation of cl 13 of the Policy;

2. The Trial Judge was correct in finding that the appellant had not proved the defence under s 124 of the Act on the balance of probabilities;

3. No error has been demonstrated in the approach of the Trial Judge.

Background

Background to the litigation

Following the discovery of a pollutant flowing from the land of Ashton Valley Fresh Pty Ltd (“the appellant”) into a waterway, the appellant was charged with two counts of contravening mandatory provisions of an environmental protection policy, contrary to s 34(2) of the Environmental Protection Act 1993 (SA) (“the Act”). The appellant pleaded not guilty to both charges. After a trial lasting eight days in the Environment, Resources and Development Court (“ERD Court”), Durrant DCJ convicted the appellant on both counts. The appellant appeals both convictions.Background Deep Creek flows through a valley near Ashton, a small township located in the Adelaide Hills. A natural drainage line enters Deep Creek from a hillside on the land occupied by the appellant. At the relevant time, the land at 376A and 376B Lobethal Road, Ashton was owned by Mr Antonio (“Tony”) Ceravolo and Mrs Sandra Ceravolo (“the Property”). Two companies conducted business on the Property. R Ceravolo & Co Pty Ltd, trading as Ceravolo Orchards, conducted a business growing and packaging fruit for sale. The appellant operated a fruit juice processing plant, which began operation in about 2007. At about 1pm on 29 August 2014, Mr Goonan, the principal scientific officer of water quality employed by the Environment Protection Agency (“EPA”), was inspecting Deep Creek with a colleague Mr Packer. Mr Goonan inspected both upstream and downstream of a natural drainage line entering Deep Creek. Mr Goonan observed at that inspection that Deep Creek was “flowing clear”. Mr Goonan decided to take samples of the water and returned to the car to obtain appropriate sampling bottles. On their return to Deep Creek, at about 1.50pm, Mr Goonan observed changes to the water of Deep Creek. He noticed a discharge emanating from the drainage line. Upstream from the junction of Deep Creek and the drainage line Mr Goonan observed that Deep Creek remained clear. From the drainage line Mr Goonan observed, and noted, a “turbid, green-brown opaque discharge” that had a “strong organic odour”. He collected a number of water samples from Deep Creek. Later investigations established that the discharge came from the Property. Subsequent laboratory testing of the collected samples established that the discharge had affected the water quality of Deep Creek. The respondent laid charges against the appellant alleging breaches of the Environment Protection (Water Quality) Policy 2003 (“the Policy”). At trial, the appellant accepted that the pollutant discharge came from the Property. Accordingly, much of the background evidence was not in dispute. The evidence established that a wastewater treatment plant (“the WWTP”) was built on the property to process and treat raw wastewater created as part of the apple juicing process. The system involved pumping raw wastewater from the fruit juice processing plant (“the juicing plant”) through a PVC pipe to the WWTP. The system also processed water from the packing shed. The WWPT was located close to, but uphill from, the juicing plant. The pipe that carried the wastewater to the WWTP ran from the juicing plant, under a road way, and up the side of, and into the WWTP. Self-evidently the raw wastewater had to be pumped to the WWTP. A tap, about which there was much evidence, was affixed to this pipe on the outside of the WWTP. The tap, when the pumping of the raw wastewater to the WWTP occurred, was meant to be in a position allowing the raw wastewater to enter the WWTP. The tap could be turned such that the flow to the WWTP was stopped. If the tap was in that position, and the pumping continued, raw wastewater would flow through to the tap, and be diverted from entering the WWTP and into an open drain on the outside of the WWTP. If the pump remained on and the tap open, the discharge, as occurred here, would eventually run into Deep Creek.

Evidence

Evidence Before The Court

The task confronting the Trial Judge in assessing the evidence was whether he could feel an “actual persuasion” that Vincenzo, an employee of the appellant company, acted on a frolic of his own and turned on the tap. In assessing the evidence, the Trial Judge was required to have regard to what was a serious allegation against Vincenzo. That is, without authorisation, and for no obvious reason, or none that could be determined, Vincenzo discharged a large quantity of raw wastewater into the open drain of his employer. Such an act, if proved against him, may have led to his dismissal.The evidence The prosecution called witnesses to establish what they observed on 29 August 2014 and conversations they had with Tony on that day and subsequently. In addition, the prosecution tendered photographs, plans and various documents. The appellant called evidence from Joseph and Joyce in addition to tendering various documents including the SOP for the WWTP. Vincenzo was not called by either party to give evidence. Tony was not called by the appellant. There was no direct evidence at trial as to who turned the tap on or for what reason. The appellant relied upon inferences to be drawn from the whole of the evidence. In particular, the appellant relied on the following matters to establish that Vincenzo opened the tap and was unauthorised in doing so: ·on 1 September 2014, that is two days after the incident, Vincenzo was removed from operating the WWTP;·Vincenzo was being retrained in other areas; ·Vincenzo’s employment was terminated because of a work incident occurring on 29 November 2014;·following the discharge on 29 August 2014, the appellant changed the methodology by which solids were removed from the WWTP and bunded an area on the other side of the shed from the tap at significant expense. That is, the appellant had taken corrective action to address what it believed to the site of the discharge an action inconsistent with a knowing and intentional act of the appellant;·the appellant would have taken steps to remove the evidence of the discharge under the tap before the EPA attended on 18 September 2014 if it had authorised or otherwise known of the deliberate turning on of the tap;·the advantageous uses the appellant could make of treated water for irrigation;·the lack of motive for the appellant, or its employees, to turn the tap on in all of the circumstances. The appellant contended that the Trial Judge erred in making various findings and further only considered some but not all of these matters. While it is correct that the Trial Judge did not deal with all of the arguments put forward by the appellant, a fair reading of his reasons demonstrate that he dealt with the most significant arguments, although he did not resolve them all. Although a trial judge should deal with the substantial issues and arguments, it is not necessary for a trial judge to resolve every issue that arises during the course of a trial.[10][10] DL v The Queen (2018) 266 CLR 1 at [130]–[131].

Decision

Reasons for decision

Further, there was a motive for the appellant to avoid using the WWTP, namely cost. The appellant, through the evidence of Joseph and Joyce, established that, in terms of the appellant’s overall costs, running the WWTP was a small amount – almost negligible. The cost savings were certainly small. However, it was still a cost. The respondent pointed to the packing shed water not being treated as an example of the appellant perhaps not saving much but still embarking on a cost saving exercise.Conclusion on Ground 3 It was against the background of all of those matters that the Trial Judge had to consider whether the appellant had established that Vincenzo had opened the tap and did so on a “frolic of his own”. There were competing inferences open in this case. There was evidence from which the appellant could draw support for its defence but there was contrary evidence. The Trial Judge, as discussed, accepted that there was some evidence to support the appellant’s position. However, he specifically rejected some of the major points raised by the appellant to support the inference that Vincenzo opened the tap. It was open for him to do so. The appellant had to prove that Vincenzo was acting on a frolic of his own and needed to do so on the balance of probabilities. The evidence needed to make the Trial Judge feel an “actual persuasion” of its occurrence or existence before it could be found. Given the competing inferences as to what may have occurred and why, it was open to the Trial Judge to form the view he did. It was open to the Trial Judge to find that the evidence did not persuade him on the balance of probabilities that Vincenzo turned on the tap while acting on a frolic of his own. No error has been established in the reasoning of the Trial Judge. Further, the Trial Judge sufficiently exposed his reasoning process. No error has been demonstrated in the approach of the Trial Judge. I dismiss this ground of appeal.Ground 4 In the event that he was wrong in his finding and that the evidence did establish that Vincenzo intentionally and without authorisation opened the tap, the Trial Judge went on to consider whether the appellant “took all reasonable and practicable measures to prevent the contraventions”. I have earlier in these reasons discussed the relationship between s 124 and s 127. Contrary to the way the case was fought before the Trial Judge, I have found the fact that an employee may have acted within the scope of their actual, usual or ostensible authority does not mean the defence under s 124(1) is rendered nugatory simply because the company will be fixed with an intentional act of the employee. If an employee acts within the scope of their duties but does so in an unapproved manner, the defence is still available. The Trial Judge, irrespective of his finding, was in my view required to consider the balance of the s 124 defence. That is did the appellant take “all reasonable and practicable measures to prevent the contraventions” no matter how the discharge occurred.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.