Cowie v Perth Demolition Company Pty Ltd [No 2]
[2020] WASC 136
•1 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COWIE -v- PERTH DEMOLITION COMPANY PTY LTD [No 2] [2020] WASC 136
CORAM: HILL J
HEARD: 19 MARCH 2020
DELIVERED : 1 MAY 2020
FILE NO/S: SJA 1113 of 2019
BETWEEN: STUART DAVID COWIE
Appellant
AND
PERTH DEMOLITION COMPANY PTY LTD
First Respondent
ANDREW MCDONALD
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T HALL
File Number : FR 2993 - 2998 of 2018
FR 2973 - 2978 of 2018
Catchwords:
Criminal law - Appeal from magistrate - Appeal against acquittal - Whether error of law - Leave to appeal allowed
Criminal law - Corporate criminal liability - Vicarious criminal responsibility - Scope of employment - Responsibility for acts done by employee - Whether within scope of employment
Environmental law - Unlawful dumping of waste on area which public has access - Whether offence gives rise to vicarious liability
Legislation:
Criminal Appeals Act 2004 (WA)
Environmental Protection Act 1986 (WA), s 49A(3)
Result:
Leave to appeal granted
Appeal allowed
The matter be remitted to the Magistrates Court
Representation:
Counsel:
| Appellant | : | S J Keighery & E C I Fearis |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Solicitors:
| Appellant | : | State Solicitor's Office |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Case(s) referred to in decision(s):
Black Range Tin v Shoobert [1973] WAR 131
Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98
Cowie v Shark Lake Food Group Pty Ltd [2019] WASC 43
Deatons Pty Ltd v Flew (1949) 79 CLR 370
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust trading as Property People [2012] WASC 271
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715
HILL J:
This appeal principally concerns whether a company and its sole director are vicariously criminally liable for the acts of one of the company's employees. In broad terms, one of the first respondent's employees on three separate occasions on the same date illegally dumped building rubble and kept the cash he had been given for the tip fees for its legal disposal.
The first respondent was charged with three offences of discharging or abandoning the building rubble in breach of the Environmental Protection Act 1986 (WA) (Act) on the basis that it was vicariously liable for the acts of its employee. In the alternative, the first respondent was alleged to have caused or allowed the building rubble to be discharged or abandoned. The second respondent's liability was said to arise as a consequence of him being the sole director of the first respondent.
On 5 August 2019, following a trial in the Magistrates Court, the respondents were acquitted of all charges. The appellant seeks leave to appeal against the acquittals.
Notice of appeal and leave to appeal
The appellant filed its notice of appeal on 2 September 2019, which was within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
There are six grounds of appeal in the notice of appeal. All of the grounds of appeal concern the acquittal of the first respondent. Specifically, the grounds for appeal are that:
(1)The learned magistrate erred in law in applying the incorrect legal test to determine whether the first respondent was vicariously criminally responsible for the relevant acts of its employee.
(2)The learned magistrate erred in fact and law in failing to find that the relevant acts of the employee were within the scope of his employment with the first respondent and that as a result, the first respondent had discharged or abandoned the solid waste.
(3)The learned magistrate erred in fact and law in failing to convict the first respondent of the primary charges.
(4)The learned magistrate erred in law by failing to adequately disclose the basis of his decision to acquit the respondents of the alternative charges.
(5)The learned magistrate erred in fact and law in failing to find that the first respondent caused the solid waste to be discharged or abandoned.
(6)As a result, the learned magistrate erred in fact and law in failing to convict the first respondent of the alternative charges on the basis that the first respondent caused the solid waste to be discharged or abandoned.
The respondents were served with the notice of appeal on 2 and 3 October 2019 respectively. On 29 October 2019, the second respondent was granted an extension of time within which to file a notice of intention but did not file a notice within the extended time, or at all. As a consequence, the second respondent was not entitled to and did not participate in the hearing of the appeal.
The first respondent is being wound up in insolvency as a consequence of orders made by the Federal Court of Australia on 20 August 2019. The liquidator of the first respondent indicated he neither consented nor objected to the appeal proceedings, nor did he intend to participate in the proceedings.[2] Pursuant to orders made by Justice Allanson on 16 December 2019, the appellant was granted leave to commence these proceedings against the first respondent nunc pro tunc.[3]
[2] Affidavit of Edward Clarence Indran Fearis dated 25 September 2019 [10], 'EF8'.
[3] Pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA) and s 471B of the Corporations Act 2001 (Cth).
The appellant requires leave to appeal.[4] Leave to appeal must not be given unless the ground has a rational and logical prospect of succeeding.[5] Pursuant to orders made by Principal Registrar Strk on 30 January 2020, the application for leave to appeal was heard together with the appeal.
[4] Criminal Appeals Act 2004 (WA), s 9(1).
[5] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
In considering this appeal, it is not appropriate for this court to scrutinise the reasons for decision of the learned magistrate with a fine tooth comb or with an eye keenly attuned to identify error.[6] As this court has previously recognised, this is because magistrates are required to perform their important role in a different time frame to that which applies in this court.
[6] Strahan v Brennan [2014] WASC 190 [90].
Factual background
Most of the essential facts were not in dispute before the learned magistrate and were the subject of a statement of agreed facts.[7]
[7] Exhibit 1.
The first respondent is a demolition company that operates in the Perth metropolitan area. As at the date of the offences, the second respondent was its sole director.
In 2015, the first respondent was retained by the owners of 2A and 2B Armstrong Road Applecross (Properties) to demolish the buildings then located on the Properties and to remove the building rubble resulting from the demolition. Between 9 and 13 May 2006, the first respondent carried out the demolition work.
The second respondent gave a driver, who had been engaged by the first respondent to dispose of the building rubble, 'tip money' (in cash) and instructed him to dispose of the building rubble at the Brajkovich recycling facility located at 958 Rockingham Road, Henderson (Recycling Facility). The 'tip money' given to the driver was specifically for this purpose, that is, to pay for the disposal of the rubble at the Recycling Facility.
The building rubble was not disposed of at the Recycling Facility. Instead, on 11 May 2016, the driver using a truck provided to him by the first respondent, dumped the building rubble at three separate locations, namely Muriel Court, Cockburn Central, Park Street, Cockburn Central and North Lake Road, Bibra Lake. It was not in dispute that the dumping of the building rubble at each of these locations was done without the knowledge or consent of the respondents.
At the trial before the learned magistrate, the respondents accepted that the building rubble dumped at each of these locations was 'waste' within the meaning of s 3(1) of the Act and that the places where it was dumped were places to which the public had access.
At the trial, the prosecution called two witnesses, both employees of the Department of Water and Environmental Regulation. The respondents called five witnesses including the driver who dumped the three truckloads of waste.
The driver of the truck gave evidence that he took the money he was given for tip fees, pocketed it for himself and dumped the loads of building rubble. His evidence was that the second respondent did not know he was doing this. The learned magistrate was satisfied beyond reasonable doubt that this is what happened.[8]
[8] Reasons for decision [48].
Prosecution case at trial
The critical issue the prosecution had to establish beyond reasonable doubt to make out the primary charges was whether the first respondent was vicariously liable for the acts of its driver.[9]
[9] ts 16.
At trial, the prosecution opened its case on the basis that the acts of the driver fell within the scope of the task he had been instructed to do even though the task was undertaken in an unauthorised way.[10]
[10] ts 19.
In respect of the alternative charges, the critical issue was whether the first respondent acted in a specific way in causing or allowing the waste to be discharged or abandoned.[11] At trial, the prosecution submitted that the first respondent allowed the waste to be discharged or abandoned as it allowed the waste to leave the properties and did not care whether it was disposed of legally.[12] Alternatively, the prosecution contended that the first respondent caused the waste to be discharged or abandoned because it was the first respondent's instruction to the driver to dispose of the rubble which led to the driver dumping the building rubble.[13]
[11] ts 17.
[12] ts 84.
[13] ts 84 - 85.
Respondents' case at trial
The respondents, who appeared in person at the trial, denied they were liable on any of the charges. In essence, the respondents submitted that the second respondent had given an instruction to an employee of the first respondent to dispose of the waste at the Recycling Facility and had given the driver money to do this correctly. The employee then changed his mind without any further instruction from the second respondent.
On this basis, the respondents contended that the first respondent was not vicariously liable for the acts of the driver nor had the first respondent caused or allowed this conduct.
Reasons of the learned magistrate
On 5 August 2019, the learned magistrate delivered reasons for his decision.
In relation to the alleged vicarious criminal responsibility of the first respondent, his Honour found that:[14]
The principle of vicarious liability may certainly apply to employees carrying out tasks within the scope of their employment, even if they contravene instructions and even if in doing so they contravene the law but in my view it is not an absolute principle. It always depends on an analysis of the facts of the particular case. And as stated by Gleeson CJ in Tiger Nominees 'it may become a question of degree'.
The prosecution referred to analogous facts in Tiger Nominees and in particular in Farlodge where in both cases the employers were held to be vicariously liable. In my view, however, there is an important distinguishing feature in this case, one which distinguishes it from Tiger Nominees and Farlodge and that is that in this case, Mr Hamlett, formed an intention to steal from his employer. His evidence was that he was going through a hard time, he needed money to pay for his brother's funeral. For these reasons, Mr Hamlett formed an intention to steal from his employer and having then 'pocketed the money' he could clearly not take the rubble to the recycling facility, as he would be required to pay the fee. Having stolen the tip fee he has then decided to dump the rubble. So the decision to dump the rubble is a by-product of/is coincidental to his decision to steal from his employer. That is critical in this case in my view. Had it been the other way around, had the stealing of the tip fee been a by-product of the decision to dump the rubble then [the first respondent] could be held vicariously liable but on the facts before me in this case, I am not satisfied beyond a reasonable doubt that was the case.
I refer to Justice Tottle at para [27], quoting Vanstone J in Gould v Austral [Tree & Stump Service Pty Ltd]: 'The critical issue is whether what is done by the employee is done for the master's, as opposed to the employee's, purposes'.
On the facts before me, I am satisfied beyond reasonable doubt that what was being done was for not for [the first respondent]'s or [the second respondent]'s purposes but solely for [the driver's] purposes, for his 'selfishness'. Once [the driver] has decided to steal the money from his employer, his actions in dumping the rubble were no longer for his employer's purposes rather he was now acting for his own purposes.
Putting it simply, [the driver] was ripping his employer off. How can he be acting in his employer's interests when he is ripping them off? How can [the first respondent] be held vicariously liable for being ripped off?
[14] Reasons for decision [57] – [61].
In respect of the alternative charges, namely that the respondents caused or allowed the waste to be discharged or abandoned, his Honour's reasons for acquitting the respondents of the alternative charges were as follows:[15]
There is no direct evidence that [the second respondent], as the company's controlling mind, allowed or permitted this to occur. The only evidence the Prosecution relies on to establish the three alternative charges are admissions made in the interview between the inspectors and [the second respondent] on 1 July 2016.
The Prosecutor in his closing address submitted that [the second respondent] made admissions that he 'harboured reservations about the reliability of the driver, that [the second respondent] admitted that Dale was on drugs and that he wouldn't put it past him to dump waste' and that notwithstanding the reservations the company allowed the driver, Dale, in this instance, to handle and dispose of waste.
The prosecution effectively ask the court to draw an inference from these admissions that [the second respondent] and therefore that [the first respondent], caused or allowed the waste to be discharged by drivers pocketing the money and dumping the rubble. Such an inference is in my view not open on the evidence and even if it was there are other inferences equally open in favour of the accused.
[The second respondent's] comments that it was Dale are in my view only conjecture and only made after the fact, after the allegations were made. He never knew it was Dale, rather he put forward that he believed it was Dale, having been told about the allegations and then turning his mind back, trying to assist. As it turns out, he was wrong, it was not Dale. I am satisfied beyond a reasonable doubt that the driver was in fact [the driver].
Further I can't be satisfied beyond a reasonable doubt that it was [the second respondent] in the interview or Mr Wolfant who said that Dale who would have pocketed the money, about hiring employees from gumtree and about employees being druggies because there is conflicting evidence from Mr Peckett and Ms McConigley as to who made those comments.
…
In my view the admissions, if any, made in the interview are of little weight and they certainly do not prove beyond a reasonable doubt or infer that [the first respondent] caused or allowed waste to be discharged or abandoned.
[15] Reasons for decision [65] – [69], [71].
As a consequence of finding the first respondent not guilty of each of the charges it faced, it followed that his Honour found the second respondent not guilty of all charges.
Statutory background
Section 49A(3) of the Act provides that:
A person who discharges or abandons, or causes or allows to be discharged or abandoned, any solid or liquid waste on or in any place, other than water to which the public has access, commits an offence.
Pursuant to s 118 of the Act, if a body corporate commits an offence under the Act, a person who is a director of the body corporate is taken to have committed the same offence unless the person proves that:
(a)the person did not know, and could not reasonably be expected to have known, that the offence was being committed; or
(b)the person -
(i)was not in a position to influence the conduct of the body corporate in relation to the commission of the offence; or
(ii)being in such a position, used all due diligence and reasonable precautions to prevent the commission of the offence;
or
(c)the body corporate would not have been found guilty of the offence by reason of being able to establish a defence available to it under this Act.
Section 4A of the Act makes plain that the object of the Act is to protect the environment of Western Australia taking account of the five principles set out in that section. These principles include the polluter pays principle – namely, that those who generate pollution and waste should bear the cost of its containment, avoidance or abatement - and the principle that all reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment.
Vicarious criminal responsibility
The history of the development of the vicarious criminal responsibility was summarised by Tottle J in Cowie v Shark Lake Food Group Pty Ltd.[16]
[16] Cowie v Shark Lake Food Group Pty Ltd [2019] WASC 43 [17] - [29].
The following principles can be gleaned from this summary:
(a)in considering whether a particular statute imposes vicarious criminal responsibility on a principal, it is necessary to consider whether or not the legislature has, expressly or by necessary implication, created a criminal offence for which a principal can be found vicariously responsible for the acts of another;[17]
[17] Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, 718 - 719.
(b)vicarious criminal responsibility is usually imposed for the same policy reasons as strict or absolute liability is imposed;[18]
(c)if vicarious criminal responsibility is imposed, the relevant consideration is whether the act of the employee is an improper or unauthorised mode of doing something the employee was employed to do, or whether it is conduct which is outside the scope of the employee's employment or an independent act;[19]
(d)a distinction is drawn between instructions which limit the scope of an employee's duties and those which regulate the employee's conduct in performing those duties;[20]
(e)an employer may be liable for:
(i)acts of an employee even if an employee acts contrary to express instructions;[21]
(ii)the intentional and criminal wrongdoing of an employee which is engaged in solely for the benefit of the employee; liability will depend on what the employee has been employed to do on behalf of the employer;[22]
(f)it is necessary for the court to consider whether there was a sufficient connection or a close connection between the wrongful conduct and the employee's duties and whether it is possible to conclude that the wrongful conduct was in the course of the employee's employment, albeit an improper mode of carrying out the duties;[23]
(g)the matter must be looked at broadly by asking 'what was the job the employee was engaged to do by their employer?'.[24]
[18] Tiger Nominees Pty Ltd v State Pollution Control Commission, 720.
[19] Tiger Nominees Pty Ltd v State Pollution Control Commission, 720 - 721.
[20] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 [40].
[21] Cowie v Shark Lake Food Group Pty Ltd [23].
[22] New South Wales v Lepore [43], [47].
[23] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust trading as Property People [2012] WASC 271 [299].
[24] Black Range Tin v Shoobert [1973] WAR 131, 134 ‑ 135 (Hale J, Jackson CJ & Wickham J agreeing).
The approach of the court to a question as to whether a criminal act by an employee is within the course of their employment was demonstrated by the High Court in Deatons Pty Ltd v Flew.[25] In that case, the question was whether an assault by a barmaid, by throwing a glass at a customer, was committed in the course of her employment. Williams J said:[26]
The damage to the plaintiff was done by the glass. A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a mode, although an improper mode, of answering his request for a glass of beer.
[25] Deatons Pty Ltd v Flew (1949) 79 CLR 370.
[26] Deatons Pty Ltd v Flew, 386.
Disposition of appeal
Ground 1 - Legal test for determination of vicarious criminal responsibility
It was an agreed fact at the trial before the learned magistrate that the employee of the first respondent had discharged or abandoned solid waste on three places to which the public had access. The primary question before his Honour was whether the first respondent was vicariously liable for the acts of its employee.
Without specifically considering this issue, the learned magistrate appeared to proceed on the basis that the offence created by s 49A(3) of the Act was one for which the first respondent could be held to be vicariously criminally responsible.[27]
[27] Reasons for decision [58].
For the following reasons, I consider that the offence created by s 49A(3) of the Act is a criminal offence for which a principal can be vicariously liable for the acts of its employees. First, as noted above, the purpose of the Act is, inter alia, to protect the environment of Western Australia in accordance with the principles outlined in the Act. Second, the purpose of s 49A of the Act is to ensure that the discharge or abandonment of waste only occurs at authorised places and does not allow the dumping of waste at other places to which the public has access. In order to ensure that the statutory purpose of this section is fulfilled, it is necessary that principals be liable for the acts of their employees. Third, in many circumstances, the person who carries out the discharge or abandonment of the waste will not be the person that created the waste. In many cases, employees will be asked to carry out this work on behalf of their employer. Fourth, the Act is regulatory legislation which is generally considered to give rise to criminal vicarious liability.
This view is consistent with the decision of Tottle J in Cowie v Shark Lake Food Group in relation to a regulation made under the Act, although it was not necessary for Tottle J to specifically consider this.[28]
[28] Cowie v Shark Lake Food Group [17].
In my view, the learned magistrate misdirected himself as to the applicable legal test for the determination of vicarious liability. The error arises from the focus by his Honour on the act of the employee in stealing the money rather than the act which was the subject of the charges, namely the illegal dumping of the waste. This is clear from his Honour's statement that:[29]
In my view, however, there is an important distinguishing feature in this case, one which distinguishes it from Tiger Nominees and Farlodge and that is that in this case, Mr Hamlett, formed an intention to steal from his employer.
[29] Reasons for decision [58].
The learned magistrate then went on to state:[30]
[T]he decision to dump the rubble is a by-product of / is coincidental to his decision to steal from his employer. That is critical in this case in my view. Had it been the other way around, had the stealing of the tip fee been a by-product of the decision to dump the rubble then [the first respondent] could be held vicariously liable.
[30] Reasons for decisions [58].
As summarised above, the authorities make clear that the focus must be on what the employee is employed to do and whether, even if the employee is acting in contravention of express instructions, the task being undertaken is within the nature of the tasks the employee is employed to undertake.
In this case, the relevant question for his Honour was what the driver was employed to do and whether the instruction that the waste be taken to the Recycling Facility limited the scope of the driver's employment or whether this instruction dealt only with how he should perform the task that fell within the scope of his employment.
The learned magistrate did not consider what the scope of the driver's employment was. Rather his Honour concluded that the driver formed an intention to steal from his employer and, as a consequence of that decision, was required to dump the rubble. This demonstrates the error in the approach of his Honour. His Honour focused on the driver's acts in stealing the tip money and not on whether nature of the act – the disposal of building rubble – was so far removed from the act the driver was employed to perform that it fell outside the scope of his employment.
It follows that in focussing on what the intention of the driver was, the learned magistrate did not determine what the driver was employed to do or whether the driver was acting within the scope of his employment.
It is correct that if the driver's conduct was outside the scope of his employment, the first respondent is not vicariously liable for this conduct. It is not in dispute that the driver departed completely from the instruction he was given. However a complete departure from the expected process for completing a task does not mean that an employee has acted outside the scope of his employment. It is necessary to consider whether the employee has merely used an unauthorised or improper mode of doing something which he is employed to do.
I am satisfied that the learned magistrate misdirected himself as to the correct test for determining the vicarious criminal responsibility of the first respondent and that ground 1 has been made out.
Ground 2 - Whether the first respondent is vicariously criminally liable for the acts of its employee
I now turn to apply the correct test to the agreed facts of this matter.
It was an agreed fact before the learned magistrate that the first respondent employed the driver to dispose of the building waste. He was instructed to take the building waste to the Recycling Facility and was given money to pay the necessary fees at this facility.
For the purpose of this analysis, I accept that the driver departed completely from his instructions and did so intentionally and criminally, solely for his own benefit to enable him to steal the money he had been given.
The task the driver was employed to do by the first respondent was dispose of building waste from the Properties. The instructions provided by the second respondent did not limit the scope of this task but only sought to regulate how the driver should perform this task. For this reason, even though the driver acted in contravention of his express instructions by disposing the waste at the three places set out in the complaints, he was acting within the scope of his employment and undertaking the task he was employed to do. In disposing of the building waste, he was doing precisely what he had been instructed to do by the first respondent. In my view, while the driver's acts were an improper method of undertaking his responsibilities, they were within the scope of what he was employed to do. For this reason, the first respondent is vicariously liable for the acts of its driver.
I am satisfied that the learned magistrate erred in fact and law in failing to find that the first respondent was vicariously criminally liable for the acts of the driver. Accordingly, I am satisfied that grounds 2 and 3 have been made out.
Grounds 4 to 6 - Whether the respondents allowed or caused the waste to be discharged or abandoned
Given my conclusions in respect of grounds 1 to 3 of the appeal, it is unnecessary for me to consider the remaining grounds of appeal. For the sake of completeness, I deal with these grounds briefly below.
In Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2],[31] Hall J considered the meaning of the words 'allow' and 'cause' in relation to s 49(3) of the Act. Relevantly, Hall J held that:[32]
The term 'allow' has at least as wide a meaning as 'permit'. A person permits something if they have knowledge of it and the authority or power to prevent it occurring. The knowledge required may be actual knowledge or knowledge of circumstances such that it could be said that they shut their eyes to the obvious or allowed something to go on not caring whether it occurred or not.
The term 'cause' unlike the term 'allow' does not suggest any requirement of knowledge. It is not necessary to show that an alleged offender intended to cause the pollution or was negligent in failing to prevent the pollution before a court will find that a person caused the pollution. It is sufficient that the pollution arises from some positive act of the defendant. Where the pollution is a result of such process, even where the pollution is a consequence of an occurrence that the defendant could not have foreseen, the defendant will nonetheless be held to have caused the position. The question is not what caused the pollution but whether the identified acts of the defendant caused the pollution. (citations omitted)
[31] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98.
[32] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [95] - [96]
In my view, the use of the words 'allow' and 'cause' have an identical meaning in s 49A(3) of the Act and I adopt his Honour's reasoning.
In his reasons for decision, the learned magistrate focussed on whether the second respondent had allowed the waste to be discharged or abandoned by, in essence, shutting his eyes to the reliability of his employees and whether they may dump the waste rather than disposing of it lawfully. His Honour did not address the question as to whether the conduct of the respondents 'caused' the waste to be discharged or abandoned.
As was noted by Hall J in Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2], it is sufficient if the discharge or abandonment of the waste has arisen from a positive act of the respondents.[33] If the discharge or abandonment occurs as a result of this positive act, even if it occurs as a consequence of a matter that the respondents could not have foreseen, the respondents will be held to have caused the position. The proper question for the court is not what caused the pollution but whether the acts of the respondents caused the pollution.
[33] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [96].
In this case, the first respondent (through the second respondent) gave instructions to the driver to dispose of the building rubble. The illegal dumping of the waste arose from these instructions.
As a consequence, even if I am wrong in relation to whether the first respondent was vicariously criminally liable for the acts of the driver, I would have been satisfied the first respondent should have been convicted of the alternate charges and would have allowed the appeal on these grounds.
Conclusion
For the reasons set out above, I consider that leave should be granted to appeal and the appeal should be allowed.
Counsel for the applicant submitted that if I were to grant leave to appeal and allow the appeal, the appropriate disposition would be to remit the matter to the magistrate to consider first, whether there are any defences open to the second respondent and second, for the first respondent to be sentenced. I agree this is the appropriate disposition in this case.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill1 MAY 2020
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