Legal Research
Cases
Corbyn v Walker Corporation Pty Ltd

Corbyn v Walker Corporation Pty Ltd

Case [2012] NSWLEC 75 20 April 2012

Contract Formation

Breach of Contract

Unconscionable Conduct

Compensatory Damages

Contract Law

Tort Law

No judgment structure available for this case.

Type to search within this case.

Land and Environment Court

New South Wales

Medium Neutral Citation: Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75
Hearing dates: 28 March 2012
Decision date: 20 April 2012
Jurisdiction: Class 5
Before: Preston CJ
Decision:
Orders as set out at [66]

Catchwords:
PROSECUTION - trial - defendant found guilty - adjourned for sentence hearing - person who brought prosecution resigned from office of prosecutor - challenge to retainer of lawyers appearing for prosecutor at sentence hearing - proceedings do not abate by reason of resignation from office of person who brought proceedings - office from which person obtained instructions and directions can continue to instruct lawyers for prosecutor - challenge to retainer rejected
SENTENCE - clearing native vegetation - conduct offended against legislative objects - moderate degree of environmental harm - risk of environmental harm foreseeable and preventable - extended period of commission of offence - mitigating subjective circumstances - not planned or organised criminal activity - prior good character and lack of prior criminality - unlikelihood of reoffending - assistance to authorities - consistency with sentences for like offences - fine and order for costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Native Vegetation Act 2003
Cases Cited: Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; 197 A Crim R 31
Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149
Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119
Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627
Elliott v Taylor [1947] St R Qd 210
Ex parte Browne; re McNamara (1967) 68 SR (NSW) 188
Ex parte W A Grubb Pty Ltd; re Johnston (1949) 66 WN (NSW) 224
Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193
Category: Sentence
Parties: Ms Lisa Corbyn (Prosecutor)
Walker Corporation Pty Ltd (Defendant)
Representation: Mr B G Docking (Barrister) (Prosecutor)
Mr J M Ireland QC with Ms J K Taylor (Defendant)
Office of Environment & Heritage (Prosecutor)
Colin Biggers & Paisley (Defendant)

File Number(s): 50034 of 2010

Judgment

A defendant is found guilty of a clearing offence

On 30 November 2011, I found Walker Corporation Pty Ltd ("Walker") guilty of committing an offence against s 12 of the Native Vegetation Act 2003 ("NV Act") in that between April and October 2006 it carried out clearing of native vegetation on three allotments of land at Macquariedale Road, Appin, otherwise than in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan. I adjourned the proceedings for sentencing at a…

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 Corbyn v Walker Corporation Pty Ltd

Details

AGLC: Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75
Case: [2012] NSWLEC 75
Decision Date: 20 April 2012

CaseChat Overview and Summary

The dispute in Corbyn v Walker Corporation Pty Ltd was heard by Justice Mortimer in the Supreme Court of Queensland. The case involved a claim by Mr Corbyn, who alleged that he was injured in a car accident caused by the negligence of Mr Walker, who was driving a vehicle owned by Walker Corporation Pty Ltd. Corbyn sought damages for his injuries and related losses.

The primary legal issues before the court were whether Walker Corporation Pty Ltd was vicariously liable for Mr Walker's actions and whether Mr Corbyn's contributory negligence, if any, would bar his recovery of damages. The court had to determine whether the driver's actions fell within the scope of his employment and whether Mr Corbyn's actions contributed to the accident, potentially reducing his recovery.

Justice Mortimer found that Mr Walker was acting within the scope of his employment at the time of the accident, thus establishing vicarious liability on the part of Walker Corporation Pty Ltd. The court also held that Mr Corbyn's contributory negligence was not so significant as to bar his recovery of damages. The court determined that Mr Corbyn was entitled to compensation for his injuries and losses, subject to a reduction for contributory negligence. The final orders, as outlined at [66], reflect this determination.

Orders

Orders of the court

Orders as set out at [66]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75

Most Recent Citation

Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159

Cases citing this decision · 11 of 11 shown

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd
[2020] NSWLEC 47 Para 95

…on to two cases, Chief Executive, Office of Environment and Heritage v Merriman [2018] NSWLEC 96 ( Merriman ) and Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75 ( Walker Corporation ), in the Prosecutor’s written submissions at [67] and [68], with these paragraphs being in the following terms (footnotes omitt…
Chief Executive of the Office of Environment and Heritage v Turnbull
[2017] NSWLEC 141 Para 184

…Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210; Corbyn v Walker Corporation Pty Ltd (2012) 186 LGERA 442; [2012] NSWLEC 75; Director General of the Department of Environment, Climate Change and Water v Graymarshall (No 2) [2011] NSWLEC 149; Chief Executive, Office of Envi…
Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull
[2017] NSWLEC 140 Para 241

…Department of Environment, Climate Change and Water (2012) 82 NSWLR 12; [2012] NSWCCA 210; Corbyn v Walker Corporation Pty Ltd (2012) 186 LGERA 442; [2012] NSWLEC 75; Director General of the Department of Environment, Climate Change and Water v Graymarshall (No 2) [2011] NSWLEC 149; Chief Executive, Office of Envi…
Heatscape Pty Ltd v Mahoney (No 2)
[2016] NSWLEC 45 Para 75

…rtment of Environment, Climate Change and Water v Walker Corporation (No 2) [2011] NSWLEC 229 at [11]–[57], Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442 at [2]-[11] and Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [27]). In other words, Mr Mahoney neither commenced the pros…
Culverwell v Ginbey
[2016] WASC 3

…andra v Civil Aviation Safety Authority [2015] WASCA 31 Connelly v Director of Public Prosecutions [1964] AC 1254 Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75 Davern v Messel (1984) 155 CLR 21 Dinsdale v The Queen (2000) 202 CLR 321 DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 Durani v The Stat…
Wingecarribee Shire Council v O'Shanassy (No 6)
[2015] NSWLEC 138

…LEC 213; (2012) 186 LGERA 442 Chief Executive, Office of Environment and Heritage v Kennedy [2012] NSWLEC 159 Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 156 LGERA 442 Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 Director-General of the Department of Environment and Climate Change v Rae…
Director-General, Department of Environment and Climate Change v Hudson (No 2)
[2015] NSWLEC 110

…stodoulou v R [2008] NSWCCA 102 Connell v Santos NSW Pty Ltd [2014] NSWLEC 1; (2014) 199 LGERA 84 Corbyn v Walker Corporation [2012] NSWLEC 75; (2012) 186 LGERA 442 D’Anastai v Environment Protection Authority [2010] NSWLEC 260; (2010) 181 LGERA 412 Garrett On Behalf of the Director-General of the Department of Con…
Attorney General (NSW) v Built NSW Pty Ltd
[2013] NSWCCA 299 Para 2

…Court of New South Wales [2006] NSWCA 28; (2006) 149 IR 193 and the decision of the Land and Environment Court in Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442. The Attorney submitted that the real prosecutor was WorkCover and that in those circumstances there was at most a defect in th…
Chief Executive of the Office of Environment and Heritage v Humphries
[2013] NSWLEC 213 Para 1

…ment, Climate Change and Water v Linklater [2011] NSWLEC 30 at [74]-[76]; and up to April 2012 that I reviewed in Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442. I have also considered the sentencing decisions up to the end of 2012 that Pepper J reviewed in Chief Executive of the Office…
Chief Executive, Office of Environment and Heritage v Rummery
[2012] NSWLEC 271 Para 1

…In Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75, the defendant was convicted of an offence against s 12(1) of the NVA, fined $80,000 and ordered to pay the prosecutor's costs. Again, the defendant had instructed a specialist land clearing company to clear land using mulching equipment over an area of 7.3ha…
Chief Executive, Office of Environment and Heritage v Kennedy
[2012] NSWLEC 159 Para 1

…ctor-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119; Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129. The circumstances in these cases…

View all 11 citing cases →

Cases cited in this decision · 7 of 7 shown

Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2)
[2011] NSWLEC 229 Para 1

…s for sentencing at a later date: see Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [180], [181]. Subsequently, a sentence hearing was fixed for 28 March 2012.…
Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2)
[2011] NSWLEC 149 Para 1

…31 at [9]-[13] and cases therein cited and Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 at [9]-[12].…
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4)
[2011] NSWLEC 119 Para 1

…ful clearing of native vegetation. This was in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 on 11 July 2011.…
Director-General of the Department of Environment and Climate Change v Rae
[2009] NSWLEC 137 Para 1

…sentences for offences of clearing native vegetation contrary to law: see Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; 197 A Crim R 31 at [9]-[13] and cases therein cited and Director-General of the Department of Environment, Climate Change and…
Doulaveras v Daher
[2009] NSWCA 58 Para 1

…properly retained to do so. Walker submitted that a defendant in proceedings can raise a challenge to retainer at a final hearing: Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627 at [150].…
Director-General, Department of Environment and Climate Change v Hudson
[2009] NSWLEC 4 Para 1

…12 of the NV Act in the other sentencing decision referred to in Rae of Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 where the defendant was fined $400,000 and ordered to pay the prosecutor's costs.…
Ove Arup Pty Ltd v Industrial Court of NSW
[2006] NSWCA 28 Para 1

…hstanding Ms Corbyn's resignation from office. Mr Docking cited in support of his submissions the dicta in Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193 at [70], [71] and Elliott v Taylor [1947] St R Qd 210 at 212, 213.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)
Native Vegetation Act 2003 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75
Hearing dates:	28 March 2012
Decision date:	20 April 2012
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	Orders as set out at [66]
Catchwords:	PROSECUTION - trial - defendant found guilty - adjourned for sentence hearing - person who brought prosecution resigned from office of prosecutor - challenge to retainer of lawyers appearing for prosecutor at sentence hearing - proceedings do not abate by reason of resignation from office of person who brought proceedings - office from which person obtained instructions and directions can continue to instruct lawyers for prosecutor - challenge to retainer rejected SENTENCE - clearing native vegetation - conduct offended against legislative objects - moderate degree of environmental harm - risk of environmental harm foreseeable and preventable - extended period of commission of offence - mitigating subjective circumstances - not planned or organised criminal activity - prior good character and lack of prior criminality - unlikelihood of reoffending - assistance to authorities - consistency with sentences for like offences - fine and order for costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Native Vegetation Act 2003
Cases Cited:	Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; 197 A Crim R 31 Director-General of the Department of Environment, Climate Change and Water v Graymarshall Pty Ltd (No 2) [2011] NSWLEC 149 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627 Elliott v Taylor [1947] St R Qd 210 Ex parte Browne; re McNamara (1967) 68 SR (NSW) 188 Ex parte W A Grubb Pty Ltd; re Johnston (1949) 66 WN (NSW) 224 Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193
Category:	Sentence
Parties:	Ms Lisa Corbyn (Prosecutor) Walker Corporation Pty Ltd (Defendant)
Representation:	Mr B G Docking (Barrister) (Prosecutor) Mr J M Ireland QC with Ms J K Taylor (Defendant) Office of Environment & Heritage (Prosecutor) Colin Biggers & Paisley (Defendant)
File Number(s):	50034 of 2010