DML Constructions Pty Ltd v Dolan - [2023] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
DML CONSTRUCTIONS PTY LTD v DOLAN
[2023] SASC 125
Judgment of the Honourable Justice Bampton
1 September 2023
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - SENTENCING
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against the recording of convictions following the appellant’s pleas to two environmental nuisance offences contrary to s 82(2) of the Environmental Protection Act 1993 (SA) – whether sentencing Judge erred in failing to exercise the discretion prescribed by s 24(1) of the Sentencing Act 2017 (SA) to not record convictions.
Held: Appeal dismissed – the sentencing Judge did not err in application of s 24(1) of the Sentencing Act 2017 (SA).
Environment Protection Act 1993 (SA) ss 3, 25(1), 82(1), 82(2), 124, 5C; Environment, Resources and Development Court Act 1993 (SA) s 30(4); Sentencing Act 2017 (SA) s 24; Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Hemming v Lukin (1996) 67 SASR 248; Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223; R v Taylor; R v Teekens [2022] SASCA 79; Liemareff v Baldry [2016] SASC 152; Rusby v Kerley [2002] SASC 141; Piva v Brinkworth (1992) 59 SASR 92; H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296; City of Salisbury v Ahrens Group Pty Ltd (2010) 108 SASR 54, considered.

DML CONSTRUCTIONS PTY LTD v DOLAN
[2023] SASC 125
Appeal to a single Judge

BAMPTON J: This is a salutary tale for developers, engineers, and civil works contractors of a series of unfortunate events, compounded by an industry practice of deference to engineers inconsistent with statutory and contractual obligations.
In August 2016, DML Constructions Pty Ltd (“DML”), a civil works contractor, was invited by the engineering firm Fyfe Pty Ltd (“Fyfe”) to tender to perform civil construction works on a steeply sloping and challenging site (“the site”) at Nairne in the Adelaide Hills. The developer of the subdivision on the site was Nevarc Constructions Pty Ltd (“Nevarc”), more commonly known by its trading name “Oakford Homes”. DML’s tender for the stage 1C civil construction works (“the works”) was accepted. DML and Nevarc signed a contract for the works on 24 October 2017 and a variation to the contract on 1 March 2018. DML performed the works between January and early April 2018.
Part of the works involved the installation of erosion mitigation measures by DML pursuant to a stormwater erosion and drainage management plan (“SEDMP”) which had been prepared by Fyfe. Significant rain events in April and June 2018 impacting on the large-scale earthworks on the site, combined with an inadequate SEDMP, resulted in discharges of soil, clay, gravel, and sand from the site onto neighbouring residential properties and into Nairne Creek (“the two pollution events”). Following the June 2018 rain event and upon receipt of complaints from affected residents, the Environment…

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 DML Constructions Pty Ltd v Dolan

Details

AGLC: DML Constructions Pty Ltd v Dolan [2023] SASC 125
Case: [2023] SASC 125
Decision Date

CaseChat Overview and Summary

In the case of DML Constructions Pty Ltd v Dolan, the dispute centred around the enforcement of environmental regulations and the imposition of convictions for breaches. DML Constructions Pty Ltd, the appellant, was found to have contravened the general environmental duty under the Environmental Protection Act by allowing muddy water to escape from its construction site, causing environmental harm. The legal issues before the court were whether the Judge had properly considered the relevant factors in deciding to record convictions against DML and whether the convictions should have been recorded in light of the mitigating circumstances.

The court held that the Judge did not adequately consider all relevant factors when deciding to record convictions against DML. It was found that the Judge misapplied the discretion provided under section 24 of the Sentencing Act by focusing primarily on the deterrent effect of recording convictions and the publication of the offending, without adequately considering other mitigating factors presented in the submissions. The court noted that the Judge failed to acknowledge the agreed publication of a notice informing the community of the offending and did not properly evaluate the extenuating circumstances that could have justified not recording the convictions. The Judge's decision was thus flawed as it did not fully consider the discretionary factors and took into account irrelevant considerations.

Consequently, the court determined that the convictions should not have been recorded in light of the extenuating circumstances presented. The court found that the Judge's error in taking into account irrelevant considerations and misapplying the test under section 24 of the Sentencing Act led to an incorrect outcome. The court's decision was based on the principle that convictions should be imposed only when justified by the relevant circumstances, and in this case, the mitigating factors were sufficient to warrant a different outcome.

The court ordered that the convictions recorded against DML should be quashed, reflecting the court's determination that the convictions were not warranted under the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Various authorities establish that it is rarely appropriate for a court not to record a conviction in cases involving a breach of regulatory legislation.[15] It was submitted it is important that the sanctions imposed for such offences serve as a deterrent to the defendant and the wider community. It was submitted it is the recording of convictions, in particular, that provide this specific and general deterrent in relation to regulatory offences.[16][15] See Rusby v Kerley [2002] SASC 141, [77]; Hemming v Neave (1989) 51 SASR 427, 428-429; Piva v Brinkworth (1992) 59 SASR 92, 96; Hemming v Lukin (1996) 67 SASR 248, 251-252; H Stanke & Sons Pty Ltd v Parkes (2010) 108 SASR 296, 303-304.[16] Rusby v Kerley [2002] SASC 141, [80].Conclusion As occupier of the stage 1C land, DML was under the general environmental duty prescribed by s 25(1) of the Act to, in performing the works, take all reasonable and practicable measures to prevent or minimise environmental harm. By its pleas, DML admitted it polluted the environment when muddy water escaped the stage 1C and stage 1D land following the two rain events causing environmental nuisance. In relation to the first rain event, the Judge found from 14 to 17 April 2018 rain fell over the site which exceeded the capacity of the northern detention basin. Moreover, “[s]urface water mixed with mud and silt was too great to be held by the mitigation measures that had been put in place by DML”. As a result, mud and silt escaped and entered several residential properties and Nairne Creek. The Judge found that after this event DML took steps to “repair and improve the containment measures it had put in place in stage 1D. It repaired silt fencing, repaired a collapsed bund and cleared and repaired sediment fences”. The northern detention basin capacity was once more exceeded during the second rain event. Again, the containment measures put in place to hold back mud and silt failed and they escaped, entering several residential properties and Nairne Creek. Two of the residential properties were subject to inundation during both the first and second rain events. There can be no doubt the contract mandated that DML was subject to the overall direction of Nevarc as superintendent and the direction of Fyfe as the superintendent’s representative. However, cl 23.2 of the general conditions of contract prescribed that DML’s responsibilities were unaffected by approval of the superintendent as follows:Where under the terms of this Contract the approval of the Superintendent is required, such approval, if any, shall not relieve the Contractor of any obligation, duty, responsibility, or liability either in law or under the terms of the Contract.(Emphasis added) DML was required under the contract to develop a CEMP which addressed erosion and sediment control and the implementation of the SEMDP prepared by Fyfe. DML was obliged by cl 2.9.1 of annexure B, in addition to its general environmental obligations, to observe and comply with the following as a minimum:… the requirements of any statute, by-law, standard and the like related to environmental protection …Develop a soil erosion management plan for the works for approval by the Superintendent.

Ratio Decidendi

Legal Principle Established

DML contended that when Fyfe directed it to perform the variation 8 works, those works became part of DML’s contractual obligations. It was submitted the Judge implicitly found that DML should have carried out the construction of the southern detention basin at its own cost and disregarded the directions of Fyfe, because that was the only measure that could have prevented the runoff from stage 1D land. DML submitted it was unclear what the Judge then did with these findings, but suggested the findings allowed his Honour to find that the offending was more serious than he otherwise would have. Error in taking into account irrelevant considerations in the course of considering s 24 of the Sentencing Act and misapplication of the test DML asserted, having found that DML was of good character pursuant to s 24(b)(i) of the Sentencing Act, the Judge did not go on to consider good reason and accordingly, misapplied the requirements of s 24 of the Sentencing Act. DML argued that had good reason been found, a full discretionary evaluation of the circumstances and consideration of the cases concerning regulatory offences would have been required. It was submitted these matters were referred to in the submissions before the Judge but were not considered in the remarks. It was contended the Judge arguably did not move to this stage because he erroneously found the second limb of s 24 of the Sentencing Act test not satisfied. DML argued the Judge did not make clear what issue he was, in fact, addressing in the following passage; good reason or the discretion:I consider the balance to be in favour of convictions being recorded against DML so that the whole community may know of this offending. I also consider that the recording of convictions in these circumstances will provide specific and general deterrence. I therefore decline to exercise my discretion not to record a conviction against DML.Further, he did not go on, it was submitted, to consider any circumstances in favour of not recording convictions. It was submitted that on the assumption the Judge was addressing the discretion, he misapplied the discretion and took into account irrelevant considerations. First, the Judge considered the balance to be in favour of recording convictions. Second, he failed to acknowledge that prior to the sentencing, it was agreed between the parties that a notice would be published informing the community of the offending. It was submitted that the only considerations the Judge seemed to take into account are publication and deterrence. DML argued that none of the matters put forward as being in favour of the exercise of the discretion are mentioned and, accordingly, the application of s 24 of the Sentencing Act has miscarried.In all relevant circumstances, convictions should not have been recorded It was submitted extenuating circumstances are circumstances that “seemed to lessen the seeming magnitude of guilt by partial excuses”. DML contended that this is not a high bar to leap over, and it was amply overleapt by the matters referred to in submissions as extenuating circumstances.