Barbara Filipowski v Gerard Ethell - [1998] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION: BARBARA FILIPOWSKI v. GERARD ETHELL [1998] NSWLEC 25

PARTIES: BARBARA FILIPOWSKI v. GERARD ETHELL

FILE NUMBER(S): 50015, 50016 & 50017 of 1998

CORAM: Pearlman J

KEY ISSUES: :-

LEGISLATION CITED: Land and Environment Court Act 1979 s 43
Land and Environment Court Rules 1996 Pt 10, r 1
Marine Pollution Act 1987 ss 27(1), 28(1)
Ports Corporatisation and Waterways Management Act 1995 sch 4, 4.14(5)

CASES CITED: R v O'Neill (1979) 2 NSWLR 582 at 588;
R v Chin (1984) 157 CLR 671 at 676;
R v Altham (1992) 62 A Crim R 126 at 127;
Vella v The Queen (1990) 2 WAR 537;
Gouldham v R (1970) WAR 119;
Hornsby Shire Council v Winsloe (Bignold J, 20 August 1998, unreported at paras 18-30;
Environment Protection Authority v Genkem Pty Ltd (1992) 79 LGERA 47;
see Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197;
Ex parte Lovell; Re Buckley and Anor (1938) 38 SR 153;
Johnson v Miller (1937) 59 CLR 467 ;
Broome v Chenoweth (1946) 73 CLR 583

DATES OF HEARING: 10 September 1998

DATE OF JUDGMENT:
10/27/1998

LEGAL REPRESENTATIVES:
Mr A L Hill, Barrister
Mr B W Larkin, Barrister

JUDGMENT:

Introduction

1. Three prosecutions have been brought under the Marine Pollution Act 1987 arising out of an incident where a substance known as nonyl phenol escaped into the waters of Port Botany during a discharge of cargo from a vessel to the terminal. The defendants, Terminals Pty Ltd (Terminals) and Mr G Ethell have respectively pleaded guilty to the charges against them.

2. Upon the pleas of guilty being entered, the proceedings were set down for a hearing on penalty and costs, and, by leave, the three proceedings were heard together. The hearing concluded and judgment was, and still is, reserved.

3. However, since then, two issues have arisen. First, the defendants seek to re-open their case in order to lead evidence about the amount of the discharge. Secondly, a question has arisen as to a possible defect in the charge relating to the prosecution of Mr Ethell under s 28(1) of the Marine Pollution Act.

4. I deal with each of these issues in turn.

Re-opening the case

5. At the commencement of the hearing, counsel for the defendants advised the Court that the parties had reached an agreement that the amount of nonyl phenol which discharged into the waters of Port Botany was 60 litres. The hearing proceeded on the basis of that agreement, and, in particular, the evidence adduced by the prosecution as to the environmental harm occasioned by the discharge was based on an understanding that 60 litres had escaped into the waters.

6. By notice of motion, the defendants now seek orders which will:

(a) permit them to resile from the agreement as to 60 litres; and

(b) re-open their case in order to tender a Sydney Ports Corporation Marine Response Report Form (the Report Form)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbara Filipowski v Gerard Ethell

Details

AGLC: Barbara Filipowski v Gerard Ethell [1998] NSWLEC 25
Case: [1998] NSWLEC 25
Decision Date: 10/27/1998

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a case involving Barbara Filipowski against Gerard Ethell and Terminals Pty Ltd, arising from an incident where nonyl phenol, a pollutant, was discharged into Port Botany during cargo operations. The defendants pleaded guilty to charges under the Marine Pollution Act 1987, and the hearing focused on determining penalties and costs. Two key issues arose: the defendants sought to reopen their case to present evidence regarding the quantity of the discharge, and a potential defect in the charge against Mr. Ethell under section 28(1) of the Marine Pollution Act was identified. Pearlman J addressed the defendants' request to re-open their case to present evidence about the quantity of the discharge. Despite the defendants' initial agreement on a 60-litre discharge amount, they sought to present a different estimate from a Sydney Ports Corporation Marine Response Report. The prosecution did not object to the withdrawal of the 60-litre agreement but opposed allowing the defendants to present the Report without permitting the prosecution to rebut it. The court found that the amount of discharge was critical to penalty determination and that fairness dictated allowing both parties to present evidence on the issue. Pearlman J granted leave for both parties to present evidence on the discharge quantity, ensuring a fair and informed penalty decision. Regarding the charge defect, the court found that the charge against Mr. Ethell incorrectly referred to reporting to "the Board" instead of "the Minister," an essential element of the offence. The court considered whether the defect could be remedied by amendment but concluded that since the charge did not disclose an offence known to the law, it could not be amended. Consequently, the court struck out the proceedings against Mr. Ethell and dismissed the summons, ordering the prosecutor to pay the defendant's costs.

Orders