Barbara Filipowski v Gyeong Ryong

[1998] NSWLEC 24

Land and Environment Court

of New South Wales

CITATION:	BARBARA FILIPOWSKI v GYEONG RYONG [1998] NSWLEC 24
PARTIES:	BARBARA FILIPOWSKI v GYEONG RYONG
FILE NUMBER(S):	50076 & 50077 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Marine Pollution Act 1987 Land & Environment Court Act 1979 Justices Act 1902 Ports Corporatisation and Waterways Management Act 1995 Crimes Act 1900
CASES CITED:	Connelly v DPP [1964] 2 All ER 401; SPCC v Tallow Products Pty Limited (1992) 29 NSWLR 517; Beazley JA in Cogente Pty Limited v Doe (NSW Court of Appeal, 16 March 1998); Morrison v Mafi & Shipping Corporation of Polynesia Limited, Bignold J, 50079 and 50080 of 1996
DATES OF HEARING:	2 March 1998
DATE OF JUDGMENT:	04/23/1998
LEGAL REPRESENTATIVES:	Mr R Forster QC with Mr A L Hill N/A

JUDGMENT:

Introduction

In these Class 5 proceedings the Prosecutor alleges that Adriatic Tankers Shipping Company was relevantly the owner, and Gyeong Ryong relevantly the Master, of a ship known as “Hegg” when, on 12 December 1994, there was allegedly a discharge of a liquid substance into “State waters”, namely the water of White Bay wharf in the port of Sydney, in contravention of s 18(1) of the Marine Pollution Act 1987 (“MPA”). These proceedings were commenced by summonses dated 23 July 1997 and returnable on 29 August 1997, and there has been no appearance in these proceedings by or on behalf of the defendants, at any stage up to and including the hearing.

The two matters were heard together with the evidence in each to be evidence also in the other.

Earlier Proceedings

Earlier summonses in respect of the same incident were filed on 8 March 1996, being proceedings Nos.50020-21, which were brought in the name of another Prosecutor but against the same defendants.

At no stage was there an appearance by either defendant in those proceedings, and when they came on for hearing on 1 August 1996 before His Honour, Mr Justice Talbot, it appears that virtually all the same evidence was adduced, in the absence of the two defendants, before Talbot J, as was recently adduced again before me.

The transcript of that hearing was not made available, but His Honour reserved his decision, and his judgment dated 7 August 1996 was tendered as Exhibit P2 in the hearing of these matters.

There are some relevant comments in His Honour’s judgment dealing with the events which followed the reporting and discovery of the incident on 12 December 1994. His Honour says at p 7:

“Here, service is a fundamental element in attracting the jurisdiction of the Court. Having regard to the serious consequences for the defendants, it becomes essential for the Court to be satisfied that the originating process has been properly brought to the attention of the accused or has been otherwise served according to an Act. On the balance of probabilities, this has not been done”.

His Honour continued:

“After having regard to the whole of the evidence now before it, the Court is not satisfied that due service has been affected (sic) on either defendant.

Notwithstanding communication of the Court’s apprehension as to whether satisfactory service had been proved, the Prosecutor nevertheless elected to proceed in the absence of the defendants and tendered the whole of the evidence by affidavit. No individual witness was called to give oral evidence.

At the conclusion of the evidence and submissions, the Prosecutor was advised that judgment would be reserved to enable the Court to reflect upon the service issue. No application was made by the Prosecutor other than for leave to bring in a bill of costs within 7 days. The Court has been left in a position where a determination will be made with the final outcome depending upon whether or not due service has been proved.

The Court is not satisfied that either defendant has been served in the prescribed manner.

The summons, in both cases, will be dismissed. The question of costs does not arise”.

Mr Forster QC, for the Prosecutor on this occasion, submitted that no question of autrefois acquit arises, as Talbot J disposed of the proceedings before him simply on the basis that he was not satisfied that there had been due service of the relevant summons and other documents upon the defendants.

The important thing to note in respect of His Honour’s reasons is that although the proceedings before him were determined on the basis that service had not been proved, His Honour had before him all the evidence on which the Prosecutor intended to rely in respect of the substantive charges.

That clearly raises in the Court’s mind the possibility of res judicata and/or autrefois acquit , even though the Court on this occasion:

(i) has reason to be satisfied that service was appropriately effected, and

(ii) has before it cogent evidence that the prosecution is well founded.

On the basis of the evidence presented on an ex parte basis on this occasion, the Court believes that a conviction should be recorded and a substantial penalty imposed. However, justice requires that the Court, before acting upon that belief, consider the complication caused by the presentation of the same evidence on the earlier occasion.

Autrefois acquit is a defence that must be specifically pleaded. See Connelly v DPP [1964] 2 All ER 401; R V Wilkes (1948) 77 CLR 511 per Dixon J at 578-9; R v Dodd (1991) 56 AcrimR 451. It is available only in charges brought on indictment, but in summary proceedings an analogous plea based on the rule against double jeopardy is appropriate. SPCC v Tallow Products Pty Limited (1992) 29 NSWLR 517.

As the first prosecution in this matter failed solely on the issue of service, it could perhaps be argued that such a defence would fail, the Court never having dealt with the merits of the charge. In any event, no one appeared to plead any defence to these charges, and the Court cannot enter a plea akin to autrefois acquit on behalf of the defendants in their absence.

On the earlier occasion, despite hearing all the evidence, Talbot J determined the matter before him only on the “threshold” question of due service. His judgment mentioned the substantive evidence, but made no findings on it.

It is a long established principle that if the Trial Judge does not deal in his or her judgment with a particular issue, it cannot raise an issue estoppel or a res judicata point, even if the Trial Judge heard the full argument. (This principle was recently restated by Beazley JA in Cogente Pty Limited v Doe (NSW Court of Appeal, 16 March 1998).

I have, therefore, come to the conclusion that this second set of prosecutions may proceed, and I turn now to the substance of the charges and the conduct of these proceedings.

The Proceedings

Section 18(1) of the MPA provides for penalties of 2,000 penalty units for a natural person and 10,000 penalty units for a body corporate convicted of the “discharge of a liquid substance, or of a mixture containing a liquid substance, being a substance or mixture carried as cargo or part cargo in bulk … into State waters”.

The section provides for both the Master and the Owner “and any other person whose act caused the discharge” to be liable for such penalties.

None of the exceptions provided in the later sub-sections of s 18 apply in this case.

The relevant summonses were issued on 23 July 1997, and Timothy James Lipscombe , a Solicitor employed by the firm acting for the Prosecutor, attended the offices of Patrick Sleigh Shipping Agencies Pty Limited on Thursday 31 July 1997 at 2.44pm and spoke to Mr Royce Brain, the Finance Manager. Mr Brain accepted service of the Class 5 Order, the Class 5 Summons and 18 supporting affidavits sworn between 11 June 1997 and 18 July 1997, in respect of each of the two matters now before the Court.

There was no appearance by the defendants, or on their behalf, when the summonses were returnable, on 29 August 1997, and various directions were given. The Prosecutor was directed to advise Patrick Sleigh Shipping Agency Pty Limited of those directions and the matter was called over on both 4 and 18 November 1997 with no appearance on behalf of the defendants. The hearing was then fixed for 2 March 1997.

Lisa Maree Peterson

has filed several affidavits and the thrust of her evidence is as follows:

· on 12 February 1998 she faxed a letter to Patrick Sleigh Shipping Agency Pty Limited advising that the matter had been listed for hearing on 2 March 1998 and urging that, in their own interests, the owners and Captain of the vessel should be represented.

· On Friday 13 February and Tuesday 24 February 1998 she conducted searches of the records of the Australian Securities Commission and found a company registration in the name of Patrick Sleigh Shipping Agencies Pty Limited, but none in respect of anything confusingly similar, including business names.

· On Wednesday 25 February at 4.25pm she attended the offices of Patrick Sleigh Shipping Co Pty Limited at level 14, 309 Kent Street, and had a conversation with Mr Brain who admitted it was the registered office and

accepted service of some further documents enclosed with a letter addressed to the company, those documents being further affidavits filed in the matters.

Exhibit P1 is a copy of a letter from Abbott Tout Solicitors to Patrick Sleigh Shipping Agencies Pty Limited dated 12 November 1997 informing the company of the listing of the matter for callover on 18 November 1997and recommending that the owners and Captain be warned of the risk of a penalty being imposed at a hearing in their absence.

Exhibit P3 is a bundle of documents establishing a chain of delegation from the Minister for Ports through to the “Secretary and legal counsel of Sydney Ports Corporation”, currently the Prosecutor Barbara Filipowski, under which she is clearly vested with the authority to bring prosecutions such as these.

The Prosecutor relies on the Ports Corporatisation and Waterways Management Act 1995, s 3(1), for bringing the MPA within the scope of that Act; s 103 for authorising “any person” to bring any proceedings for an offence against such legislation; schedule 4, paragraph 4.15[5] for establishing a chain of delegation from the Minister to a relevant officer; s 24 for giving the Minister general responsibility for the protection of the environment in connection with the use of vessels in State waters; and s 27 for giving the Minister power to delegate any of his functions other than the power of delegation itself.

Filipowski is described in some of the documents as general counsel, but is now legal counsel of the relevant Ports Corporation.

On the question of service, s 57 of the MPA provides that, notwithstanding s 63 of the Justices Act 1902 [which requires personal service in most cases], any summons which could be served on the owner or the Master of a ship in respect

of an offence against the MPA may be served by serving it on the agent of the ship, in any manner in which it might have been served on the owner or Master under that section, and a summons served on an agent shall be deemed to have been served on the owner or Master or the ship.

As the Corporations Law s 220(1) requires a corporation to be served by “leaving” or “sending … by post” documents to the registered office of a company, I am satisfied that, pursuant to the application of s 57, the owner and Master in these proceedings are appropriately deemed to have been served.

The Land & Environment Court Act 1979 (“LECA”) s 48 authorises the Court “on proof of due service” to “proceed to hear and determine the case … in the absence of the defendant”.

There is clear evidence in the affidavit of Stig Edward Johansson of 12 June 1997 that at the relevant time Adriatic Tankers Shipping Company was the owner, Patrick Sleigh Agencies Pty Limited the agent, and Gyeong Ryong the Master of the “Hegg”, and I so find.

Jennifer Anne Dewitt , a long-standing employee of Sydney Ports Corporation and its predecessors, deposes to the booking of arrivals and departures of ships in and from Sydney ports, and annexes to her affidavit of 25 February 1998 various computer records confirming the nomination of Patrick Sleigh Shipping Agencies Pty Limited as the agent, the arrival date as 11 December 1994 and expected date of departure as 13 December 1994, securing at No.6 berth at 1926 hours on 11 December 1994, the clearing of the berth at 0753 on 13 December 1994, and no change in the agency arrangement during that time.

I am satisfied that the agent of the “Hegg” at the relevant times was Patrick Sleigh Shipping Agencies Pty Limited, Level 14, 309 Kent Street, Sydney.

The Corporation’s records also indicate that one of the nominated representatives of Patrick Sleigh Shipping Agency is Mr Chris Oliver.

The Evidence of Relevant Facts

John Charles Champion , an employee of Sydney Ports Corporation, a former naval officer, has access to the computer records for arrivals and departures. His affidavit corroborates the evidence that the “Hegg” engaged Patrick Sleigh and arrived and left port as earlier stated.

The elements of the offence itself are the discharge of a liquid substance from the ship, the carrying of the substance as cargo, the discharge of the substance into State waters, and the identity of the defendants as owner and/or Master.

The Prosecutor relies upon s 34(1)(e), (h) and (i) of the MPA regarding proof of “matter or place … within the jurisdiction of the Board”, the fact of the person being the Master, and the fact that the defendant was the owner of the ship in question.

Stig Edward Johansson is a Ports Officer with Sydney Ports Authority and has long experience as a seaman and as a port official.

His affidavit of 12 June 1997 is the key evidence of the relevant facts and he deposes as follows.

At 0630 hours on 12 December 1994, he carried out a routine inspection of No.6 berth White Bay and saw the vessel “Hegg” berthed portside to the wharf transferring vegetable oil to road tankers.

Having returned to Sydney Ports Authority offices he received a radio call at 0910 hours and returned to No.6 berth White Bay where he saw what appeared to be “a heavy oily substance approximately 3-5 metres in width and stretching for some 70 metres on the surface of the waters of White Bay” in the vicinity of the bow of the “Hegg” and drifting east. The substance “had a yellowish green appearance”. The “Hegg” was still transferring vegetable oil to the road tankers. On boarding the vessel he observed that the crew were engaged in an oil spill mop up operation on the starboard side of the vessel being the opposite side of the vessel from the wharf.

He observed that oil was “visible around the well deck on the starboard side contained just below the fishplate” and that “some of the vegetable oil had gone over the fishplate and down the side of the vessel into the water of White Bay”.

The crew was scooping up oil in 20 litre drums and dumping it into the starboard slop tank. Oil was visible along the starboard side of the vessel and on the tank top itself. He also saw signs of oil in the aft well deck.

He introduced himself to the Master and asked him to cease transfer operations until he was satisfied that no further oil from the decks would spill into the water. The Master said to him clearly in English “we are shutting down” and transfer operations ceased at 0950 hours. The Master agreed to be interviewed and to the taking of oil samples and photographs.

Mr Johansson deposes to taking 5 samples, labelling them, and produces evidence of them being transferred through 3 other officers to the Port Authority’s analyst.

Several photographs are annexed to Johansson’s affidavit and clearer copies of them are in evidence as Exhibit P4 . They depict sawdust being used to clean up some liquid substance on the deck and they show also the relevant tank top and hose that was being used to transfer the vegetable oil from the vessel’s tank to the road tankers.

Mr Chris Oliver arrived at the vessel at approximately 1000 hours and arranged for a legal representative to attend. The legal representative relieved Mr Oliver and an interview took place at 1230 hours, during the course of which the relevant admissions were made by Captain Ryong as to his own role and the ownership and agency arrangements.

The Third Mate was apparently in charge of the loading operation and he admitted to the Captain that he became aware of oil pollutant on the deck area at approximately 0926 hours. Mop up operations began immediately, but nobody notified the Port Authority. During the course of the interview, the Captain provided the following information:

· “We were transferring soy bean oil from one starboard wing tank to road tankers ashore along one centre cargo line to starboard forward manifold to starboard aft manifold via flexi jump over hose this line to port aft manifold to then being transferred to road tankers ashore”.

· He answered “yes” to the proposition that “the starboard centre tank had oil on the outside of the tank top, was this tank the cause of the oil spill on your deck”.

· He explained that the centre starboard tank lid was open because they had to “take ullage from the tank tops”. There was no oil being transferred in this particular tank and it was not being monitored.

· When asked to explain the reason for the particular tank overflowing and discharging oil onto the deck, the Captain said “apparently one of the crew men opened the drop valve to one centre starboard tank while discharging from one starboard wing tank along one centre line it allowed oil to fill one centre starboard tank via the drop valve”. The drop and other valves are worked manually.

In terms of s 18 of the MPA I am satisfied that soy bean oil was at the relevant time being carried as cargo by the “Hegg”, and was discharged from its tank onto the deck.

The other affidavit evidence may be briefly summarised:

· Antonio Nicholas Francis has retired from Sydney Ports Corporation where he had worked since 16 May 1977. On 13 December 1994 he was on duty as Operations Superintendent and boarded the “Hegg” at 0645 hours to “pick up the letter of undertaking”. He saw the representative of Patrick Sleigh stamp a document and initial it over an amendment of the month. The vessel “Hegg” sailed approximately 30 minutes after he left. The document was an authority and undertaking allegedly signed by the Captain nominating and authorising Mr Simon Francis Liddy of Ebsworth & Ebsworth to accept service of process and appear on behalf of the Captain in any proceeding which may be instituted in respect of the discharge. Alexis Cahalan of Ebsworth & Ebsworth signed the undertaking to accept such service.

· Johansson saw “a heavy oily substance … had a yellowish green appearance”. He refers to it as vegetable oil, but gives no evidence of identification.

· Ernest Joseph Ian Scott Sinclair , an employee of the Waterways Authority deposes that at 0900 hours on 12 December 1994 “from approximately one hundred metres as I approached the vessel ‘Hegg’” he saw “a yellow substance coming out of the aft scupper on the foredeck of the starboard side … into the water of White Bay”. He called by radio the Port Operation Communication Tower. He saw the yellow liquid spreading across the surface of the water. It looked like “a yellow oily substance” and formed “an oily slick on the waters surface”. “To me the substance looked like a vegetable oil and not a mineral oil.” During 20 years at sea he had been on board vessels which had carried both mineral and vegetable oil.

· Collin Charles McLean , a Sydney Ports Corporation employee, deposes to clean up operations on 13 December 1994 on board the “Poolya” using oil containment boom and oil absorbent pads. He and a fellow employee Gibson retrieved the pads and boom from the water, cleaned the equipment and placed the pads in bins.

· Ross Bradley Gibson worked on the “Poolya” on 13 December 1994 with McLean and corroborates his evidence. He completed an appropriate worksheet on that date.

· Gustaaf Adolf Gulicher is a former employee of Sydney Ports Corporation and was the shift engineer for Sydney Ports Authority on 12 December 1994. He recalls going on Sydney Ports vessel “OS3N” to No.6 wharf where he saw “a fairly thick light brown yellow oily substance” on the surface of the

water near the “Hegg”. He and another officer laid the oil containment boom and used the propeller action of the vessel to break up those patches that were not contained within the boom area. He later assisted Sydney Ports Authority personnel with the oil skimming equipment recovering the substance from the oil boom containment area for the rest of his shift.

· Reginald Morris Oehlman is a retired Sydney Ports Corporation officer who commenced duty at 1800 hours on 12 December 1994 and went to No.6 aboard the “Poolya”. He observed the boom area containing “a yellow oily substance” and saw the absorbing pads and the “Hegg”. He and other crew members of the “Poolya” removed the pads and replaced them with fresh ones. They also readjusted the oil containment boom to further confine the yellow oily substance.

· Kevin Rosser , a Sydney Ports Corporation employee, came on shift at 1830 hours on 12 December 1994 and went with Shift Master, W West, to No.6 wharf at White Bay aboard the “Poolya” or the “Investigator”. He saw “a yellow gold oily substance which I believed to be vegetable oil” not only on the water surface but on the rock face of the wharf area. He noticed the oil containment boom and placed absorbent pads over the substance. He also cleaned up the wharf area because of the oily substance on the concrete surface at the end of No.6 wharf. He retrieved oil absorbent pads “full of the yellow gold oily substance”. He and West went back to No.6 on 13 December 1994 at about dawn. He saw that the pads had absorbed most of the yellow oily substance within the boomed area of the surface. He helped put oil absorbing pads on the patches that remained within the boomed area and was relieved at 0630 on 13 December 1994.

· William Michael West was Sydney Ports Authority Shift Master on 12 December 1994. He was called to duty at 1200, instead of the rostered 1830 hours, and took the “Poolya” to No.6 with fellow officers Lowe and Fox. He saw within the boomed area a “heavy sheen of yellow oily substance which looked like vegetable oil to me” and observed the “OS3N” (river truck) standing by near the boomed area. He was primarily concerned with getting the oil spill recovery equipment off the “Poolya” onto the wharf so that the yellow oily substance could be skimmed off the water and pumped into road tankers. While the oil skimmer was functioning he and his colleagues threw oil absorbing pads and the boom into the boom area. When the skimmer ceased they recovered the pads and boom and replaced them with fresh pads and boom. After a change of shift between 1745 hours and 1830 hours, he returned to No.6 and picked up the oil skimmer equipment, replaced the oil absorbent pads and shortened the oil containment boom. They then returned to headquarters to clean up the oil recovery equipment. At 2200 hours on 12 December he returned to No.6 on an authority vessel to check the boom and the area in it. He returned on another vessel at 0500 hours on 13 December when he recovered pads and replaced them.

· West annexes to his affidavit of 12 June 1997 his Shift Master’s log. He verified that approximately 10.5 tonnes of oil and water mixture had been recovered from the boom area and in his log he estimated 500 litres of vegetable oil had been spilt from the vessel.

· Roderick Quentin Rush is an employee of Sydney Ports Corporation and was on duty on 12 December 1994. He loaded the oil skimmer just prior to midday and went on the “Poolya” to No. 6 wharf where he observed the boom and “a thick yellow oil substance”. He unloaded the oil skimmer with other personnel and connected the hoses to a road tanker. He worked on the

skimmer operation until almost the end of his shift at 1830 hours and observed oil absorbent mats being thrown by other personnel into the boomed area. He and other personnel readjusted and shortened the oil containment boom.

· Barry Noel Fox was on duty from 0630 to 1830 on 12 December 1994 and went to No.6 on either the “Poolya” or the “OS3N” on the morning of that date. He saw “a yellow oily substance” on the surface of the water around the eastern end of No.6. He was involved in shortening the oil containment boom to concentrate the substance so that the skimmer could recover it. He recalls the skimmer operating for most of the afternoon. He recalls recovering some of the oil containment boom and bringing it on board the “Poolya”.

· Stewart Charles Blake came on duty at 1830 hours on 11 December and at 0907 on 12 December 1994, took the radio message from Ports Operation Centre, and went to No.6 wharf. On arrival he saw “a bright yellow orange discharge” which appeared to be emanating from the starboard bow of the “Hegg” at the break of the focsle under the mooring catwalk. He was involved in the deployment of the oil containment boom and then boarded the “Hegg” with Johansson where he saw the area from which the yellow substance had come and ensured it was no longer discharging. He then returned to the wharf area to supervise and assist in the clean up until the end of his shift at 1230 hours on 12 December 1994. He observed the yellow substance being recovered by an oil skimmer and pumped into the road tanker. He was relieved by Mr Jeffery.

· Robert Collin Jeffrey is a very experienced Master who was Marine Superintendent on duty from 1230 hours on 12 December 1994. Blake spoke to him on the radio and he went on the “Poolya” to No.6 where he saw “a

bright yellow oily substance floating on the water surface ... contained within an oil containment boom”. He saw the substance from the boomed area pumped into the road tanker and supervised the recovery for 5½ hours. The clean up of the area recovered approximately 98% of the oil that was in the water.

· John Padrug MacDonald Allan is a Shift Master with Sydney Ports Corporation. He remained on duty at the end of his roster at 0630 on 12 December 1994 until 1230 hours. At 0935 hours he received a radio call from Johansson and went aboard the “OS3N” with Fox and another employee to No.6 wharf. “The Sydney Ports Corporation vessel ‘River Truck’ was also present and came with us to White Bay”. He saw an area on the water surface which gave “an appearance of a creamy orange colour and had the texture of melted margarine”. He and other personnel laid the oil containment boom and at 1100 hours he began supervising the loading of oil recovery equipment aboard the “Poolya”. He was relieved by West. He completed his Shift Master’s log before leaving duty on that day and the document attached to his affidavit of 11 June 1997 includes an estimate of 500 litres of vegetable oil. That document appears to be an enlarged photocopy of the right hand half of the document relied upon by West and attached to his affidavit (therefore I have only one estimate of the 500 litres!)

· Desmond Patrick Spurrier was the Shift Engineer at Sydney Ports Authority depot on 12 December 1994 from 1830 hours. He went with West to No.6 wharf on a Sydney Ports Authority vessel and on arrival “saw a yellow buttery type oily substance floating on the surface of the water” boomed off with an oil containment boom. With other personnel he took out absorbent pads from the boom dock area and replaced them.

· Christopher Charles Alsop the Marine Manager of Sydney Ports Corporation swore an affidavit on 18 July 1997. He has a distinguished career and extensive experience in marine pollution matters and has given evidence in other proceedings in this Court. He has estimated the cost to Sydney Ports Corporation of the clean up at a total of $14,626.83 as per details attached to his affidavit. From his technical experience he estimates that 10.5 tonnes of oily water recovered by use of walosep oil skimmer would equate to an oil spill of approximately 500 litres, or half a tonne.

· David Ka Ming Ho is a chemist to whom an employee of Sydney Ports Corporation on 6 July 1995 delivered two samples which I am satisfied were the samples taken by Johansson. He certified that the oil was a soy bean oil. The seals on the samples were intact on receipt and he has issued a certificate pursuant to s 59 of the MPA to that effect.

The Court’s Findings

I am satisfied, on the evidence set out above, and beyond reasonable doubt, that:

· 500 litres of soy bean oil discharged from the “Hegg” into the waters of White Bay within the State of NSW on or about 12 December 1994.

· Adriatic Tankers Shipping Company owned the “Hegg”, and that Gyeong Ryong was, at that date, its Master.

· at the relevant time, soy bean oil was being carried by the “Hegg” as cargo within the meaning of s 18(1) of the MPA.

· soy bean oils are category D under the schedule to the MPA, connoting that they are among the least harmful of noxious liquid substances that might pollute waters.

· although the “Hegg” did not contact the relevant port authority when the discharge was discovered, it commenced immediately a clean up operation.

· Barbara Filipowski is appropriately authorised to commence prosecutions of this type.

· all documents in support of these two prosecutions, together with correspondence indicating the various listing of the proceedings, have been duly served on Patrick Sleigh Shipping Agencies Pty Limited, which is, in all relevant respects, the agent of the defendants, and, therefore, that the defendants have been properly served with all the necessary documents regarding these matters.

· the defendants having not responded to those documents, nor appeared in person or by representative in the proceedings, the Court may proceed to dispose of the matter, under s 48 of the LECA, despite the earlier dismissal of similar summonses by Talbot J.

· there are no relevant records of any offences by either of these defendants within the State of NSW.

· the relevant State authorities have incurred expenses of $14,626.83 in cleaning up the discharge, and legal costs in bringing these proceedings.

I, therefore, find the Defendants guilty of the charges brought by the Prosecutor, and convict them accordingly.

On the question of penalty, I determine that the Defendants are not entitled to the benefit of s 556A of the Crimes Act 1900.

The only relevant case to which the Court has been referred is the prosecution Morrison v Mafi & Shipping Corporation of Polynesia Limited , Bignold J, 50079 and 50080 of 1996, 8 August 1997 involving a “spill” of coconut oil, relevantly also a category D substance under the MPA.

In this case, there is evidence that approximately 98% of the soy bean oil was recovered.

I am, therefore, not satisfied beyond reasonable doubt that environmental harm ensued from the discharge and I place these offences in a “less serious” category of case.

In the absence of any response to the service of process and subsequent advices, let alone any submissions put to the Court on the question of mitigation, I believe that appropriate penalties for the owner and Master of the ship in these circumstances are $50,000 and $25,000 respectively.

Costs

This matter was heard on 2 March and, there being no appearance by the Defendants, it is obvious that no agreement has been reached in respect of costs of the Prosecutor.

It is appropriate that the Defendants should be ordered to pay the Prosecutor’s just and reasonable costs of the second set of proceedings.

The Court was informed by letter dated 3 March 1998 that the Prosecutor’s costs were:

Solicitors fees $5,000.00

Solicitors disbursements 300.62

Senior Counsel’s fees 15,000.00

Junior Counsel’s fees 11,000.00

$30,300.62 (sic)

Given the fact that the matter proceeded on an ex parte basis, I am not satisfied that retaining Senior Counsel was necessarily justified, nor that the amount claimed for Counsel’s fees is just and reasonable for the purposes of s 52 of the LECA.

Nonetheless, the Prosecutor is entitled to her appropriate costs, and, once determined, the liability for them should be apportioned equally between the defendants.

Accordingly, I will make an order for costs, but refer the issues of quantum to the Registrar for determination in accordance with the LECA and Regulations.

Orders

Accordingly, the orders of the Court will be:

In proceedings 50076 of 1997:

1. The defendant is convicted of the offence charged in the summons.

2. A fine of $25,000 is imposed in respect of that conviction, such sum to be paid to the Court within 28 days.

3. The defendant will reimburse the Prosecutor an amount of $4,875.61 being one-third of the rectification expenses incurred, within 28 days.

4. The defendant will pay half the Prosecutor’s just and reasonable costs in bringing these proceedings and those in matter No.50077of 1997, within 28 days of the determination of their amount by the Registrar in accordance with s.52(2) of the LECA.

In proceedings 50077 of 1997:

1. The defendant is convicted of the offence charged in the summons.

2. A fine of $50,000 is imposed in respect of that conviction, such sum to be paid to the Court within 28 days.

3. The defendant will reimburse the Prosecutor an amount of $9,571.22 being two-thirds of the rectification expenses incurred, within 28 days.

4. The defendant will pay half the Prosecutor’s just and reasonable costs in bringing these proceedings and those in matter No.50076 of 1997, within 28 days of the determination of their amount by the Registrar in accordance with s.52(2) of the LECA.

The exhibits may be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 21 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.