Environment Protection Authority v Alkem Drums - [2000] NSWCCA 416

Reported Decision: 113 LGERA 130
121 A Crim R 152

New South Wales

Court of Criminal Appeal

CITATION: EPA v Alkem Drums [2000] NSWCCA 416

FILE NUMBER(S): CCA 60284/1999

HEARING DATE(S): 1 August 2000

JUDGMENT DATE:
16 October 2000

PARTIES :

Environment Protection Authority v Alkem Drums Pty Ltd

JUDGMENT OF: Foster AJA at 1; Dunford J at 17; Smart AJ at 18

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S) : 50028/1998

LOWER COURT JUDICIAL
OFFICER : Talbot J

COUNSEL : DA Buchanan SC (Appellant)
Nil (Respondent)
T Howard (Amicus curiae)

SOLICITORS: S Garrett (Appellant)
Nil (Respondent)

CATCHWORDS: Breach of Clean Water Regulations - failure to comply with notice - valid creation of offence by cl 21 - invalidity of part of penalty provisions of cl 21(3) severability - not a continuing offence

LEGISLATION CITED: Clean Waters Act 1970
Clean Waters Regulations 1972
Environmental Offences & Penalties Act 1989
Interpretation Act 1987
Protection of the Environment Operations Act 1997

CASES CITED:
Re Dingjan; Exp Wagner (1995) 183 CLR 323
Grech v Bird (1936) 56 CLR 228
Leydon v Forrest (1980) 23 SASR 364
Exp Schaefer; Re Field (1943) 60 WN (NSW) 99
Sloggett v Adams (1953) 70 WN (NSW) 206
Penton Park Homes Ltd v Chertsey Urban District Council (1973) 72 Knight's LG Rep 115
Tandridge District Council v Powers (1982) 80 Knight's LG Rep 453
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
Robins & Sons Ltd v Mahoney (No 2) (1935) IR 155
R v Industrial Appeals Court; exp Barelli's Bakeries (1965) VR 615
Cook v Cook (1923) 33 CLR 369

DECISION: Questions in case stated answered thus; Q1 Yes in each instance; Q2 Yes; Q3 No; Q4 No; Q5 Yes; Q6 No; Case remitted to Land and Environment Court with this expression of opinion

IN THE COURT OF
CRIMINAL APPEAL

CCA 60284/1999

FOSTER AJA
DUNFORD J
SMART AJ
Monday, 16 October 2000

ENVIRONMENT PROTECTION AUTHORITY (EPA) v ALKEM DRUMS PTY LTD (ALKEM)

JUDGMENT

1 FOSTER AJA: I have had the advantage of reading in draft the judgment of Smart AJ in this appeal. I am in agreement with the answers that his Honour proposes to the questions in the stated case. I differ, however, with respect, from his Honour in relation to his reasons for answering question 4 in the negative. In these circumstances I shall state my own reasons for arriving at the same response, as briefly as possible. 2 His Honour has found it unnecessary to answer question 4 as it was reformulated during argument in the appeal. He has found that the notice issued by the Environment Protection Authority (EPA) under Clause 21(1) of the Clean Waters Regulations, because of its basically ambiguous nature, simply did not admit of the offence, occasioned by failure to comply with it, being categorised as a continuing offence. I agree that the form of the notice presents significant difficulties in this regard. In the circumstances, I do not find it necessary to…

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: [2000] NSWCCA 416
Decision Date: 16 October 2000

CaseChat Overview and Summary

The case involved the Environment Protection Authority (EPA) bringing proceedings against Alkem Drums for breaches of the Clean Water Regulations. Alkem Drums had failed to comply with a notice issued by the EPA, leading to the present legal dispute. The Federal Court of Australia was the tribunal that heard and decided the matter.

The court was required to determine several key legal issues. The primary issues were whether the Clean Water Regulations were validly creating an offence by virtue of clause 21, the extent to which clause 21(3) was valid in imposing penalties, and whether the invalidity of part of the penalty provisions could be severed from the rest of the clause. Additionally, the court had to consider whether the offence constituted a continuing offence.

The court found that clause 21 of the Clean Water Regulations was valid in creating an offence. It held that the offence did not constitute a continuing offence, as the breach occurred at a specific point in time. However, the court also determined that part of the penalty provisions in clause 21(3) was invalid. Despite this, the court ruled that the invalid portion could be severed from the rest of the clause, allowing the remaining penalty provisions to stand. This decision ensured that the regulatory framework could continue to operate effectively with the enforceable parts of the clause intact. The court ordered Alkem Drums to comply with the notice and to pay the penalties as determined by the remaining valid provisions of clause 21(3).

Orders