Dixonbuild P/L v Ipswich City Council
[2011] QDC 185
•31 August 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Dixonbuild P/L v Ipswich City Council [2011] QDC 185
PARTIES:
DIXONBUILD PTY LTD
(Appellant)
v
IPSWICH CITY COUNCIL
(Respondent)
FILE NO/S:
2906/2010
DIVISION:
Appeal
PROCEEDING:
Appeal to the District Court
ORIGINATING COURT:
Magistrates Court, Ipswich
DELIVERED ON:
31 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
11 August 2011
JUDGE:
Dorney QC, DCJ
ORDERS:
1. THE APPEAL IS ALLOWED.
2. THE APPEALED ORDERS ARE SET ASIDE.
3. COMPLAINT B IS DISMISSED.
4. BOTH PARTIES HAVE LIBERTY TO FILE WRITTEN SUBMISSIONS ON FURTHER ORDERS AND COSTS BY 4PM ON 2 SEPTEMBER 2011.
CATCHWORDS:
Appeal – standing – whether the local authority was required to be the only complainant – consideration of inferences drawn at first instance concerning “awareness” – place containing contaminant, as particularised, limited to particular place
Acts Interpretation Act 1954, ss 4, 42
Crimes Act 1914 (Commonwealth), s 13
Environmental Protection Act 1994, ss 440ZD, 440ZE, 440ZG, 445, 447, 490, 495, 496, 497, 500, 505
Environmental Protection Regulation 2008, s 100
Justices Act 1886, ss 48, 223, 223(2)
Justices Act 1902 (NSW), ss 65
Local Government Act 2009, ss 237, 240
Post and Telegraph Act 1901 (Commonwealth), s 42Anderson v Hamlin (1890) 25 QBD 221
Brebner v Bruce (1950) 82 CLR 161
Bowman v Brown [2004] QDC 006
Coulton v Holcombe (1986) 162 CLR
Crothers v Sheil (1933) 49 CLR 399
Day v Grice [2011] QCA 178
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1984) 155 CLR 129
Dever v Creevey; ex-parte Creevey [1993] 1 Qd R 232
Ex parte Edwards; Re Norris (1932) 49 WN(NSW) 5
House v The King (1935-1936) 55 CLR 499
Lacey v Attorney-General of Queensland [2011] HCA 10
Mbuzi v Torcetti [2008] QCA 231
Shepherd v R (1990) 170 CLR 573
Thomson v Lee [1935] VLR 360
Warren v Coombes (1979) 142 CLR 531COUNSEL:
Mr Wensley QC with Ms Moody for the appellant
Mr Freeburn SC with Ms Coman for the respondent
SOLICITORS:
Mr William Goodwin, (in house) Solicitor, for the appellant
City Solicitor, Ipswich City Council, for the respondent
Background
This is an appeal from a decision made in the Magistrates Court at Ipswich on 13 September 2009 in which the appellant was convicted of an offence against s 440ZG(a)(iii) of the Environmental Protection Act 1994 (“EPA”). The offence alleged was that the appellant had unlawfully deposited a “proscribed water contaminant” (identified as sand) “at another place” (identified as being 43 Christine Crescent, Redbank Plains) (“the Site”) and in a way so that the contaminant “could reasonably be expected to wash, blow, fall or otherwise move into ... a roadside gutter”, as at 19 March 2009.
Following conviction, the Magistrates Court imposed a fine of $20,000.00.
There are five specific grounds of appeal in the Notice of Appeal filed 11 October 2010, so far as the appeal concerns conviction.
By an application filed at 14 April 2011 the appellant applied for leave to amend its Notice of Appeal.
For its part, the respondent seeks leave, pursuant to s 223(2) of the Justices Act 1886 (“JA”), to adduce additional evidence.
Leave to Amend Notice of Appeal
The appellant seeks leave to add a further specific ground to the grounds already relied upon concerning conviction. The amendment seeks to raise the issue of the “complainant’s” standing or, alternatively, lack of authorisation in so far as it concerns the complaint being brought in the name of Mr Craig Maudsley “on behalf of” the Ipswich City Council.
Leave to Adduce Fresh or Additional Evidence
This application is inextricably linked to that sought by the appellant going, as it does, to the issue of the authorisation of Mr Maudsley.
Because of the link, while it may have otherwise been preferable to deal with both applications at the same time, since there was no objection to the affidavit of Sasha Ingbritzen, filed August 2011, being read by the respondent, I acceded to the application. It thus became additional evidence. It established appropriate authorisation by the Ipswich City Council of Mr Maudsley.
Resolution of Leave to Amend Notice of Appeal
The appellant did not raise the issues of standing, or authorisation, at the trial in the Magistrates Court.
It is important to note that the context of the appeal is that dictated by s 223 of the JA: that is, that this appeal is by way of “rehearing on the evidence”. As indicated, recently by the Queensland Court of Appeal in Day v Grice [2011] QCA 178, on such an appeal the judge affords respect to the decision of the magistrate and bears in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence; but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: at [25], per Peter Lyons J, with whom Margaret McMurdo P and Atkinson J agreed.
It is unnecessary in this particular case to consider whether, in terms of the plurality judgment in Lacey v Attorney-General of Queensland [2011] HCA 10, it is necessary to determine, also, whether there needs to be some demonstration of error on the part of the magistrate before the powers of this Court to set aside the magistrate’s decision are enlivened: at [57]-[58]. This is because I am of the view that error has been demonstrated here.
As analysed by McGill SC DCJ in Bowman v Brown [2004] QDC 006, if the point was one concerning consent and was one which, had it been taken at trial, could easily have been overcome by the opposing party, either by proof of the requisite consent or by electing to proceed in another way, it is “well established” that the appellant is “not entitled to take the point for the first time on appeal”: at [55].
But it is clear from Dever v Creevey; ex-parte Creevey [1993] 1 Qd R 232 that consent to bring a particular prosecution is quite different from the question of compliance with a statutory requirement: see McPherson ACJ at 236 and Thomas J at 241. The case relied upon by McPherson ACJ, Anderson v Hamlin (1890) 25 QBD 221, is illustrative of that point. Where such cases have been treated as belonging to such a separate class, the failure to prove authorisation has led to a non-entitlement to institute the proceedings.
In the end, the different approaches do not matter here. This is because s 490(2) of the EPA states that considerations of appointment or authority are presumed. There is no evidence that reasonable, or any, notice requiring such proof was given at first instance.
Furthermore, as was noted by Byrne J in Dever, where, as there, the court may receive additional evidence on “review”, where the relevant document was on the lower court file it was available “for all purposes”: at 248. Given the additional evidence here (including the absence of objection to it), I treat it, analogously, as being in the same category.
Even on the view that I have reached concerning the impact of that evidence, it does not determine the issue of standing.
Although the appellant’s written submissions in reply correctly identify issues such as this as a matter of the law (see Bowman at [54]), given the other principles that I have canvassed, each issue is not a “pure issue of law”. Accordingly, the principles outlined by the High Court in Coulton v Holcombe (1986) 162 CLR 1 apply, meaning that the point cannot be raised for the first time on appeal, without leave.
I take a generous view of what can be agitated on such a review as this. Therefore I have allowed an amendment to the Notice of Appeal. In such a case, it is clear from that additional evidence (being the affidavit of Sasha Ingbritsen filed 5 August 2011) that the relevant “authorisation” has been given. This would nullify the second point raised in the new ground of appeal (Ground 6A) – but not that of standing.
Standing to Bring Complaint
Inherent in the High Court decision of Crothers v Sheil (1933) 49 CLR 399 (referred to in Bowman: at [18]) is the ability to cure any relevant defect of identity by amendment, subject to the matter of any limitation period. In Crothers the complainant had “authority” to prosecute the offence on behalf of the Milk Board, but under the relevant Act the prosecution had to be in the name of the Milk Board. In those circumstances, it was held by Rich J, with whom Dixon, Evatt and McTiernan JJ concurred, that s 65 of the Justices Act 1902 (NSW) would heal the defect in the information (being that the information proceeded as one brought on behalf of the principal, that the information was not drawn up in the principal’s name and that the information was in the personal name of an officer in the service of the Milk Board: at 407).
Upon invitation by me to the respondent to seek a similar solution, by amendment pursuant to s 48 of the JA, the election to do so was reserved, pending consideration by it in further written submissions.
Standing?
This is the remaining matter in appeal Ground 6A.
As matters evolved, the only concerns that need to be determined with respect to this ground is, first, whether it is required by the relevant legislation that the complaint and summons be brought in the name of the Ipswich City Council and, secondly, if so, given that more than 12 months have expired from the time of the alleged offence being “on or about the 19th of March 2009”, that limitation period imposed by s 497(a) of the EPA means that no amendment pursuant to s 48 of the JA can now be made.
Essential to the determination of this first concern is the proposition stated by McGill SC DCJ in Bowman that, ultimately, the question of whether, in a particular case, legislation may expressly, or by implication, limit the category of person who may prosecute for particular offences, or for offences under a particular Act, is a matter of construction of the Act: at [6]. Among the cases noted by way of footnote is Ex parte Edwards; Re Norris (1932) 49 WN(NSW) 5.
On its face, Ex parte Edwards suggests that the appellant’s argument may well have merit. There, the question that was raised was whether in the relevant Post and Telegraph Act 1901 (Commonwealth) the contrary intention so appeared, preventing any individual from laying any information in respect of offences created by that Act. Halse Rogers J, after noting that there was nowhere in the Act where any expressed provision limited the right to prosecute for offences, considered that particular sections inclined him to the view that the matter of prosecuting for a penalty for an alleged offence against the provisions of that Act was a matter of administration under the Act and one which was specifically, therefore, under the control of the Postmaster General: at 7. The sections relied upon included a section that provided that, where any person admitted to the Postmaster General that he committed a breach of the Act otherwise than an indictable offence, then the Postmaster General might, with the consent in writing of that person, determine the matter and might order such person to pay such pecuniary penalty as he may think proper. Another section, which provided for the form of informations and complaints, was held to clearly contemplate that the offences referred to in it were to be regarded as offences concerning the Department. In addition, it was held that the provision in a section which stated that all penalties should be paid to the Treasurer of the Commonwealth and placed to the credit of the consolidated revenue fund showed that the ordinary position as to persons laying informations was not to apply: at 7.
As can be seen in this case, there are certain provisions which state that, given certain conditions, fines imposed must be paid to the relevant local government: see, for instance, s 500(2), although the exception in s 500(3) remains for consideration later. Unfortunately for the status of Ex parte Edwards, it was expressly overruled in the High Court decision of Brebner v Bruce (1950) 82 CLR 161. Latham CJ, with whom Webb and Kitto JJ formed a plurality, held, in overruling Ex parte Edwards that the necessary contrary intention did not appear, either expressly or impliedly, in the relevant Act: at 167. That had the effect that s 13 of the Crimes Act 1914 (Commonwealth) applied with the result that any person was able to institute a prosecution for an offence against that Act, subject to the provision that dealt with a person admitting to the Postmaster General that he (or she) had committed the breach: also at 167. None of the plurality adopted the analysis by Fullagar J about a distinction between the various classes that he identified: at 173-175.
In Bowman it was clear from s 4.3.18 of that Act, headed “Proceedings for Offences”, that there were express limitations which overrode down the prima facie position that anybody had standing to prosecute another person for a relevant offence: at [7]-[8]. The only provisions identified by the appellant are ones which, at best, might provide an implicit exclusion. As identified by the appellant, s 100 of the Environmental Protection Regulation 2008 (“EPR”) provides that the “administration and enforcement” of Chapter 8, Part 3C of the EPA “is devolved to each local government for its local government area”. It is this Part which contains the relevant offence section. Further, the appellant contends that ss 445 and 447 of the EPA, in that context, indicate that relevant authorised persons who are appropriately appointed do not have power under the EPA or the EPR to bring a proceeding for an offence in their own name.
The respondents counter those contentions by arguing that s 100 of the EPR does not address the mechanics of bringing proceedings for this offence. Rather, it is the EPA itself which deals with such mechanics, referring specifically to ss 490, 495, 496, 498 and 500. It is in that context that s 500(3), in the respondent’s contention, assumes significant relevance. I accept that, properly construed, s 500(3) clearly permits, implicitly, a person other than the local government to prosecute an offence if “the administration and enforcement of a matter has been”, as here, “devolved...to a local government”: see s 500(1)(a). In such a case, the fine that must otherwise be paid to the local government does “not apply to any part of the fine the court orders be paid to the party”. As noted, s 100(1) of the EPR does talk about the “administration and enforcement” of a matter which has been “devolved to each local government for its local government area”: see para (a).
I accept the respondent’s contention that what s 100 of the EPR is simply directed to is the geographical allocation of responsibility to the local government having control over that geographical place, and accept that this approach is reinforced by those provisions which permit prosecutions to be initiated by the relevant Minister: see s 505 and, in particular, s 505(1)(a) and s 505(1)(d), noting that the latter even permits “someone else” being a proceeding with the leave for the court, although limited to restraint orders, even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding.
Consequently, given the analysis by the High Court in Brebner, I hold that there is nothing in the EPA, other explicitly or implicitly, which derogates from the empowerment of s 42 of the Acts Interpretation Act 1954 enabling a person to take a proceeding for the imposition or enforcement of a penalty under an Act. It is important when considering that provision that note is made of s 4 of the same Act which states that the application of the Act may be displaced, wholly or partly, “by a contrary intention appearing in any Act”. Such displacement has not occurred here.
But the resolution of that issue leads to another potential problem for the respondent. That is because s 237(1) of the Local Government Act 2009 (”LGA”) states that any proceeding by a local government “must” be started in the “name” of the local government. Section 240(1)(b) permits, in any proceeding, the Chief Executive Officer, or another employee authorised in writing by local government, to sign all documents for the local government. Neither that nor s 240(1)(a) which gives power, in its own circumstances, to those persons to give instructions and act as the authorised agent for the local government gainsays the view that the mandatory requirement of s 237 can be somehow limited. There is no reading of the EPA and the LGA which would permit the local government itself to prosecute offences against the EPA other than by the use of the “name” of the local government; and a thorough analysis of Crothers shows that Mr Maudsley did not bring the prosecution in the name of the Ipswich City Council. It was purported to be brought “on behalf of” that Council: see Bowman at [27]. As just canvassed, that is not permitted; but it does not change the fact that the complaint and summons was by a complainant in “his” own name.
Nevertheless, because of the provisions of s 42 of the Acts Interpretation Act it was open to Mr Maudsley to bring the complaint and a summons in his own name.
Thus, subject to any amendment to displace him as the complainant, to be discussed next, Mr Maudsley has had standing to bring the proceeding for the offence for which the appellant was convicted.
Amendment of Complaint and Summons
In Crothers, Rich J speaking for the Court on this issue, described the laying of the information by the proper officer on behalf the Milk Board and the prosecution of that information as a “defect” in the information which could be healed by the relevant equivalent of s 48 of the JA: at 407. Further, he held that it was a defect “in substance or in form”; but added that, when the authorising provision of the relevant Act was looked at, with the information, what appeared was that the “right person” had proceeded by an “appropriate information” and in the information had proceeded expressly “on behalf of” his principal “but (had) drawn up the information in his own but not in the principal’s name”: at 407. Later, he characterised, by analogy, the error or defect as one “in the form of exercise of the power”: at 408.
When the Queensland Court of Appeal considered the width of the amending power under s 48 of the JA in Mbuzi v Torcetti [2008] QCA 231, Fraser JA, with whom Keane JA and Muir JA agreed, in dealing with a contention that the Magistrate was not empowered to amend the charge in question by substituting a different offence after the expiry of the one year limitation period, held that, although s 48 did not authorise the substitution of a “completely new” charge, it did authorise the substitution of an offence that was of a “cognate or like nature” with, and not “essentially different from”, the offence originally charged: at [26]. Furthermore, in reliance upon Thomson v Lee (1935) VLR 360, it was held that the application of s 48 does not condition the power of amendment upon a prior application for amendment, it having been long accepted that a court may act of its own motion under a provision in this form: at [30]. This last aspect is dealt with expressly by s 48(e).
Given the analysis by Rich J in Crothers, it is difficult, if not impossible, to see that any amendment which corrects a defect “in” the complaint and summons which is an error or defect in the form of exercise of a relevant power could fall outside the ambit of s 48 of the JA. There would be no completely new charge and the offence would in no way be essentially different from the offence originally charged. In fact, rather than being of a cognate or like nature, the offence charged would be of exactly the same nature.
Accordingly, if it were to be necessary in this case, I would acceed to the contention made in the Further Submissions on behalf of the respondent (which I gave leave to file) that the proposed amendment should be allowed. But, as that contention was phrased conditionally, and as I have found it unnecessary to activate that condition, I do not intend to make any order amending the complaint and summons. Paradoxically, if no amendment were to be made (as being unnecessary), but were I to uphold the decision below, s 500(3) of the EPA might have unexpected repercussions for the Ipswich City Council’s recovery of the fine, if only directly.
Relevant Provisions
Concerning the substance of the offence, conceded matters apart, the relevant provisions are contained in Part 3C of Chapter 8 of the EPA.
Given that the “proscribed water contaminant” was particularised as being “sand” for Complaint B (which is the only matter still in dispute), it should be noted that s 440ZD, containing definitions for Part 3C, defines “earth” to mean (amongst other solids) “sand” and describes “proscribed water contaminant” as meaning “earth”: see paragraph (a).
Since it is common ground that the relevant definition of “deposits” for the purposes of s 440ZG is s 440ZE(2), it is relevant that s 440ZE(2) states that a person “deposits” a contaminant at a place if –
“(a) the person is an occupier of the place …; and
(b)someone deposits the contaminant at the place in a way mentioned in sub-section (1); and
(c)the person does not remove the contaminant from the place within a reasonable time after becoming aware that the contaminant has been deposited at the place”.
It is, again, common ground that the appellant was a relevant “occupier” of the particularised “place”, being the Site. I do not accept that the trial was run on any basis different from one that the Site was the “place” referred to in the alleged offence.
Importantly, s 440ZE(1), in turn, states that a person deposits a contaminant at another place if the person –
“(a) drops, places or throws the contaminant .. onto the place; or
(b)releases the contaminant, or otherwise causes it to move… onto the place.”
Turning, then, lastly to s 440ZG. It states, relevantly, that:
“A person must not –
(a) unlawfully deposit a proscribed water contaminant -
(i) …; or
(ii) …; or
(iii) at another place, and in way, so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into … a roadside gutter;
.....
Maximum penalty -
(a) If a deposit or release is done wilfully – 835 penalty units; or
(b) otherwise – 300 penalty units.”
For s 440ZG, a legislative “example” given of s 440ZG(a)(iii) is “a building site where soil may be washed into an adjacent roadside gutter”.
Matters not in Contention
As already observed, there are some matters, already mentioned, that are not in contention. Additionally, “unlawfully”, as used in s 440ZG(a), is not in contention: see s 493A of the EPA.
Further, although the issue is raised by the 5th specific appeal ground, I accept the argument of the respondent that the learned Magistrate did not decide the outcome of this offence on the basis of s 440ZE(3).
Even if he had, the fact is that that section specifically concerns “earth” as a product of “earthworks”. In circumstances where the particularisation of the “earth” in question was “sand”, that would have meant that he would have been in error on that aspect
Appeal Ground 1 – “Awareness” of “Deposit”
It is not in dispute between the parties that the requirement under the legislation, pursuant to s 440ZE(2)(c), that removal of the contaminant from the place must occur within a reasonable time “after the offender becoming aware” that the contaminant had been deposited at the place, is a subjective determination of “awareness”: see Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1984) 155 CLR 129 at 151.
The real issue between the parties is whether there was evidence before the learned Magistrate (to which I should afford respect to any decision of the Magistrate concerning it, bearing in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence), which, in terms of the test to be applied, satisfies me to the requisite standard of proof of such awareness.
The learned Magistrate, in his Reasons for Decision, after setting out the evidence of each witness called, concluded that the evidence of the appellant’s supervisor, and agent (for the relevant purposes), Mr May, was vague with respect to the “sand pile”, both as to his recall of it being there and as to what it was there for. I accept that that is so, after review.
In further considering the approach of the learned Magistrate to Mr May’s evidence, the learned Magistrate also found that, due to conflicting evidence which was not the subject of any examination or challenge, and given the photographic evidence supporting Mr May as to other entities performing work on the Site at the time, he was “not able to disregard” the fact that the sand pile was in fact placed where it was “by persons other than persons acting for” the appellant. Again, after review, I accept that conclusion.
Further, the learned Magistrate noted that photographic evidence supported the evidence of Mr May that the owner was granted permission by the appellant to access the Site for the purpose of constructing a retaining wall and that this occurred at some point between the taking of the photographs by the respondent’s compliance officers on, respectively, 13 February 2009 and 19 March 2009 (noting that the learned Magistrate has inadvertently referred to those two dates as being in “2010”). Again, that is accepted.
Before going to the learned Magistrate’s final conclusions concerning Mr May, he found, when surveying the evidence given by that witness, that:
· the witness agreed that the sand pile should not have been placed in the location shown;
· an impression gained from the witnesses’ evidence “is that he was largely ignorant of the need to manage sediment control”;
· while the witness was the building company’s site manager, he only rarely visited the building Site in question (which was “not surprising” when one considered that at the time he was responsible for between 80 and 100 sites);
· when he did visit, the witnesses’ attention was on inspecting the particular building stage reached at that point, and not in relation to the Site in general; and
· as the witness frankly conceded, he was naïve as to sediment control measures.
I also accept those conclusions.
The concluding findings of the learned Magistrate concerning Mr May were that:
· although the witness stated that he could “not recall” the pile of sand, the learned Magistrate accepted that “it was there” (reasoning that it was not a large building site, that it was a residential block, that the pile of sand was quite prominent and that the witness “would have had to drive directly past the pile of sand to park his vehicle” to gain access to the block – notwithstanding the absence of any evidence to support the last conclusion); and
· while the witness said that he had “no memory” of the pile of sand, “on the facts in evidence” the learned Magistrate was “satisfied that sufficient inferences can be drawn to determine that Mr May was aware of the pile”.
Since it is clear from Warren v Coombes (1979) 142 CLR 531 that an appeal court, in the position that I am in, is in as good as a position as the judicial officer at trial to draw inferences, there is little in the first of the concluding findings of the magistrate (in paragraph [53] of these reasons) which is other than indisputable (except as to the “driving directly past”) fact. Thus, it is open to me to make a decision about the proper inferences which should be drawn.
Accordingly, I am of the view that although Mr May indicated that he could not recall the sand prior to early April 2009, particularly in the circumstances where I agree with the learned Magistrate that he had no particular reason to be unduly concerned about it, it has not been proved beyond reasonable doubt that he was relevantly “aware”. The problem with a circumstantial case (such as the learned Magistrate rightly treated this) is that the criminal law, and not civil law, approaches to inferences must be adopted. So, since “awareness” is an element of this offence, Shepherd v R (1990) 170 CLR 573 dictates that any reasonable inference consistent with innocence generates the relevant “reasonable doubt”: at 578-579. The learned Magistrate did not expressly find that Mr May was untruthful (which he could have done), while accepting that he had “no memory” of the “pile” of sand as at 19 March 2009. Rather, he took the approach that non-recollection was due to defective recall of his true memories and that the surrounding circumstances supplied the deficiency. My review of the evidence – although it could also be based on such non-recollection being an implicit denial of “awareness” [see, for instance, his cross-examination where he saw the pile of sand, and for the first time was “aware” of it, when he went to clean it up (in April, 2009)] – shows that it is sufficient to give rise to a reasonable doubt, even without that contrary finding. I accept the “facts” (apart from the error as to the “driving directly past”) as found above in paragraphs [49] to [53.5] (inclusive) as demonstrating that reasonable inferences are clearly open which are consistent with “innocence”, particularly where the learned Magistrate’s focus was, erroneously, on the whole pile of sand, rather than on the sand, if any, at the “place” (if any). As Deming instructs, the awareness involves not only knowledge of the sand pile but also that it was deposited “at the place” (namely, the actual “occupied” site).
But that rejection of awareness by Mr May does not conclude the matter entirely.
The learned Magistrate also concluded that an identified director of the appellant, Mr Lev Mizikovsky, signed an election (concerning another offence which was alleged to have occurred on 13 February 2009) on 6 March 2009. This was with respect to what was called the “first” Penalty Infringement Notice (“PIN”). The learned Magistrate found that that was sufficient to bring to the attention of that person that “what (was) in effect being spoken of” in that PIN “(was) the same pile of sand”. This was based upon the conclusion that the only difference was that the PIN related to “the outer edge of the pile which extended into the gutter”, whereas the offence here related to the inner edge of the pile “within the property boundary”.
In my view, a number of problems attend that conclusion. First, it is clear from the PIN dated 17 February 2009 that the “proscribed contaminants” were not specifically identified. On acceptance that the photographs which became Exhibit 6 were sent with the PIN, there are several different potential “proscribed contaminants” shown: see, in particular, photographs 1, 3 and 4. These are in addition to the “pile of sand”. Further, it is not to the point that the “pile of sand” which is shown outside the “Site” is primarily relevant. The focus needs to be on that part of the “pile of sand” which was proved to be within the boundaries of the relevant “Site”. Thus, there is very little evidence at all from which an inference can be drawn that Mr Mizikovsky had the relevant “awareness” and even if it could, it would, at least, be only on the balance of probabilities and could never overcome the higher standard applicable to a criminal law prosecution.
Appeal Ground 2 – Evidence of Mr May
Since I have already dealt with the evidence of Mr May, it is unnecessary to reach any further conclusions on that ground.
Appeal Ground 3 – Reasonable Expectation of Flow
This brings into consideration the remaining part of s 440ZE(2)(c). In addition to “becoming aware” of the deposit of the contaminant “at” the place, this element requires the court to be satisfied beyond a reasonable doubt that there was an objectively reasonable basis that the “contaminant” at the Site (being “at” the real property and within the boundaries of the property) could be expected to flow into the adjacent gutter.
The conclusion by the learned Magistrate was that, “in the position” that the “pile of sand” was, it “could reasonably be expected to flow into the gutter” and, further, that the defendant took no action to remove the contaminant within a reasonable time.
Since there was no actual removal until after all relevant dates, it is necessary to focus only on reasonable expectation of flow, as such a failure, after awareness on 19 March 2009, would otherwise satisfy a negative finding on “within a reasonable time”.
At trial, there was no evidence of any significance given by any person, much less an expert in the potential flow of a solid such as sand, that was of much assistance.
The evidence of Mr Williamson, a geo-technical engineer, was primarily directed towards the qualities of the earth extracted from the earthworks on Site. His only comment concerning sand was that “it will move quite easily” and being “coarse sand” there are silts within such sands and the finer particles, with water, move quite easily because they are “round particles”.
Of course, that may be potentially relevant if the identified “place” was in fact the footpath. But instead, it was the land within the boundaries of the Site that formed the basis, in reliance upon particulars supplied by the prosecution, which must be considered.
Even accepting that there was sufficient evidence given which permitted the learned Magistrate to decide exactly where the boundary in the relevant area was (a “fact” to be considered later), and that it coincided exactly with the top of the collapsed sedimentary barrier, it is not clear at all, and certainly not clear beyond any reasonable doubt, from the photographs which are contained in Exhibits 6 and 10 that that part of the pile of sand which was within the “Site” was such that “it” could reasonably be expected to either wash, blow, fall or otherwise move into the roadside gutter.
This is particularly so where the two inspectors employed by the respondent had no expertise at all with respect to water flow. Therefore, given that the only evidence of doubtful vague assistance is that given by the geo-technical engineer, it is not clear to me, as an uninstructed lay person, that the relevant causation has been established beyond reasonable doubt.
As to the boundaries, even though the colour photograph which is part of Exhibit 3 may – despite the severe qualifications attached to it concerning “accuracy” – have depicted the boundary of the “occupied” property as at the later date of 9 July 2010, there is nothing on it, or the “marked” photocopy attached to it, or any other acceptable evidence, which demonstrates beyond a reasonable doubt that the “pile of sand” was actually on the “place” as at 19 March 2009.
Appeal Ground 4 – Steps taken to Remove Sand
From the conclusions reached earlier, it is unnecessary to consider this particular ground.
Other Grounds
Given the conclusions I have already reached, it is unnecessary to consider the further Grounds 5 and 6 (which have not been the subject of any relevant written submissions by either party).
Penalty
The approach to this issue is different from that which applies to the appeal against conviction. In a consideration of whether the penalty was manifestly excessive, I am guided by the principles enunciated by the High Court in House v The King (1935-1936) 55 CLR 499 which limits interference unless it is shown that the relevant discretion of the Magistrate miscarried.
Although if sitting a first instance I might have been more moderate in the penalty that I might have imposed, the factors indicated by the respondent in its Outline of Submissions demonstrate that the learned Magistrate did not relevantly offend in exercising his discretion concerning penalty. This is particularly so where the maximum penalty for the offence for a corporation is $150,000.00, where the penalty imposed represents only 13% of that, where it is clear from the provision in question that it is to extend of contamination of exactly the kind that applied here, and that the Legislature, in increasing the penalty a few years ago, expressed the view that the increase was for the purpose of ensuring a sufficient deterrent.
In reaching that conclusion, it is acknowledged that the offending act was not something done blatantly or wilfully (for which a higher penalty would be imposed anyway), that the appellant had no prior convictions (even though being a major builder), and that the case is not one of a builder blatantly dumping a pollutant in a waterway.
Accordingly, were it necessary to consider this issue, I would not disturb the penalty imposed.
Orders
The appropriate orders to be made, pursuant to s 225(1) of the JA are:
(a) the appeal is allowed;
(b) the appealed orders are set aside;
(c) Complaint B is dismissed; and
(d) both parties have liberty to file written submissions on further orders and costs by 4.00pm on 2 September 2011.
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