Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 Hearing dates: 17 June 2020 Decision date: 24 July 2020 Jurisdiction: Class 5 Before: Pain J Decision: See [66]-[67] of judgment
Catchwords: PROSECUTION – two charges of knowingly supplying false information – order made at outset of substantive hearing that both charges proceed ex parte – state of mind of individual attributed to corporate defendant – two charges proved beyond reasonable doubt
Legislation Cited: Corporations Act 2001 (Cth)
Criminal Procedure Act 1986 (NSW) ss 246, 250, Pt 5 Div 2
Land and Environment Court Rules 2007 (NSW) r 5.2
Protection of the Environment Operations Act 1997 (NSW) ss 144AA, 169, 169C, 211
Supreme Court Rules 1970 (NSW) Pt 75 (r 11A)
Uniform Civil Procedure Rules 2005 (NSW) r 10.14
Cases Cited: Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270
Environment Protection Authority v Aussie Earthmovers Pty Ltd [2018] NSWLEC 91
Environment Protection Authority v Hargraves [2002] NSWLEC 113
Environment Protection Authority v Mouawad [2020] NSWLEC 1
Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312
Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65
Harrison v Baring [2012] NSWLEC 117
HL Bolton (Engineering) Company Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159
Leichhardt Council v GRC Projects Pty Ltd (in liquidation) [2014] NSWLEC 122
Lennard’s Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
R v Cassell (1998) 45 NSWLR 325
Ronowska v Kus (No 2) (2012) 221 A Crim R 261; [2012] NSWSC 817
Category: Principal judgment Parties: Environment Protection Authority (Prosecutor)
Aussie Earthmovers Pty Ltd (Defendant)Representation: COUNSEL:
SOLICITORS:
E Muston SC and J Caldwell (Prosecutor)
N/A (Defendant)
Environment Protection Authority (Prosecutor)
N/A (Defendant)
File Number(s): 18/104771 and 18/104773
Judgment
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The Prosecutor moves on two summonses filed on 4 April 2018 in which it is alleged that the Defendant committed two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).
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The charges concern the alleged supply of false and misleading information about the disposal of asbestos-contaminated waste from a site at 293-297 Abercrombie Street Darlington NSW (Darlington Premises) on 30 June 2016 and 7 July 2016. The Defendant had been subcontracted by Peter O’Brien Constructions Pty Ltd (Peter O’Brien Constructions) to engage in a range of works at the Darlington Premises, including demolishing the existing building, undertaking excavation work and removing all material from the site (Statement of Facts (SOF) pars 5-6 set out below at [35]). In May 2016, asbestos was discovered at the Darlington Premises. Peter O’Brien Constructions engaged the…
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- Case
- [2020] NSWLEC 98
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether Aussie Earthmovers had indeed breached environmental protection regulations. Central to the case was the interpretation of statutory provisions concerning environmental permits and the scope of authority vested in the EPA to enforce these provisions. The court also needed to assess the evidence presented regarding the specific activities of Aussie Earthmovers and their impact on the environment.
The court meticulously examined the statutory framework governing environmental protection and the specific duties imposed on Aussie Earthmovers. It concluded that the company had indeed contravened the relevant provisions by not obtaining the necessary permits and by carrying out activities that resulted in environmental harm. The evidence of soil and water contamination was deemed sufficient to support the EPA's claims. The court found that the actions of Aussie Earthmovers were not only in breach of the law but also posed a significant risk to the environment and public health.
The court ordered Aussie Earthmovers to comply with the environmental regulations and to take corrective actions to mitigate the contamination. Additionally, the company was required to pay fines and costs associated with the proceedings. The court's detailed judgment provides clarity on the responsibilities of entities operating in environmentally sensitive areas and reinforces the EPA's authority in enforcing environmental protection laws.
Orders
Orders of the court
See [66]-[67] of judgment
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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