Ebacarb Pty Ltd v Environment Protection Authority - [2003] NSWLEC 411

Land and Environment Court

of New South Wales

CITATION: Ebacarb Pty Ltd v Environment Protection Authority [2003] NSWLEC 411

PARTIES:
APPELLANT
Ebacarb Pty Ltd
RESPONDENT
Environment Protection Authority

FILE NUMBER(S): 60001 of 2003

CORAM: Talbot J

KEY ISSUES: Appeal :- sentence imposed by local court - penalty confirmed
Costs :- applicant to pay respondent's costs as ordered in local court and costs of the appeal

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act s 3A
s 21A
Fines Act 1996 s 6
Justices Act 1902 s 133AE
s 133AM
s 133AO(1)(a)
s 133AO(3)
s 133BE
Protection of the Environment Operations Act 1997 s 120
s 241(1)(b)
s 241(1)(c)
s 241(1)(d)

CASES CITED: Axer Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357;
R v Doan (2000) 50 NSWLR 115 ;
R v Thomson;
R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 02/12/2003

EX TEMPORE
JUDGMENT DATE :
12/02/2003

LEGAL REPRESENTATIVES:

APPELLANT
Mr S J Stanton (Barrister)
SOLICITORS
Cox Wiseman & Davidson
RESPONDENT
Mr D Jordan (Barrister)
SOLICITORS
Environment Protection Authority

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

60001 of 2003

Talbot J

2 December 2003

Ebacarb Pty Limited

Appellant

Environment Protection Authority

Respondent

Judgment

Introduction

1 HIS HONOUR: These proceedings are by way of an appeal against the decision in the local court at Wollongong when the defendant company was convicted of an offence against s 120 of the Protection of the Environment Operations Act 1997 (“the PEO Act”) for the act of causing the pollution of water. There is a history of how the matter proceeded in the local court, which is not altogether clear but it is apparent that the defendant company, represented by a director, appeared on the first occasion and indicated that the company intended to plead guilty. As a consequence of what passed between the defendant’s representative and the magistrate on that occasion it appears that the magistrate rejected that plea. When the matter was ultimately listed for hearing I think it is fair to say that the matter proceeded as if there had been a plea of guilty and indeed the transcript makes it plain that the representative of the defendant may well have persuaded the magistrate that his client was maintaining a plea of guilty.

2 This is a re-hearing pursuant to the appropriate legislation under Pt 5B of the Justices Act 1902 which, notwithstanding its repeal by the Crimes (Local Courts Appeal and Review) Act 2001, is maintained at least for the purposes of this appeal. I have granted leave pursuant to s 133AE of the Justices Act to bring the appeal out of time. Furthermore, I have granted leave pursuant to s 133AM to allow the defendant to give new evidence at this hearing. In both cases the application for leave was not opposed.

3 The facts that were placed before the magistrate are reiterated here by way of a statement of facts incorporated in the…

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.

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Details

Case: [2003] NSWLEC 411
Decision Date: 12/02/2003

CaseChat Overview and Summary

Ebacarb Pty Ltd appealed against the decision of the local court at Wollongong, which convicted the company of an offence under the Protection of the Environment Operations Act 1997 for causing water pollution. The court considered the appeal against the sentence imposed by the local court and the issue of costs. The key legal issues were whether the penalty imposed by the local court was appropriate and whether the appellant should bear the costs of the appeal. The court found that the penalty was appropriate and that the appellant should bear the costs of the appeal, which were assessed on the basis of a one-day hearing, including the costs ordered by another judge on a previous occasion. The court ordered that the appellant pay the respondent's costs of the appeal, which amounted to the costs of one day of hearing.

The court dismissed the appeal against the penalty and ordered that the appellant pay the respondent's costs of the appeal. The court considered the factors relevant to sentencing, including the purposes of sentencing, aggravating and mitigating factors, and the means of the company. The court found that the penalty imposed by the local court was appropriate and that the appellant should bear the costs of the appeal. The court assessed the costs of the appeal on the basis of a one-day hearing, including the costs ordered by another judge on a previous occasion. The court took into account the fact that the appellant had been wholly unsuccessful on the appeal and that there had been medical problems on two previous occasions that led to the abortion of two hearing days. The court considered it reasonable that the appellant should bear the costs of the appeal, which amounted to the costs of one day of hearing.

Orders