Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) - [2020] NSWLEC 98

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
Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Category: Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Aussie Earthmovers Pty Ltd (Defendant)
Representation:
COUNSEL:
E Muston SC and J Caldwell (Prosecutor)
N/A (Defendant)
SOLICITORS:
Environment Protection Authority (Prosecutor)
N/A (Defendant)

File Number(s): 18/104771 and 18/104773

Judgment

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).
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…

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: [2020] NSWLEC 98
Decision Date: 24 July 2020

CaseChat Overview and Summary

In Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2), the dispute involved the Environment Protection Authority (EPA) and Aussie Earthmovers Pty Ltd, a company engaged in excavation activities. The EPA alleged that Aussie Earthmovers had contravened environmental protection laws by failing to obtain necessary permits and by engaging in activities that led to soil and water contamination. The matter was heard by the Supreme Court of New South Wales.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Aussie Earthmovers Pty Ltd (Defendant)
Representation:	COUNSEL: E Muston SC and J Caldwell (Prosecutor) N/A (Defendant) SOLICITORS: Environment Protection Authority (Prosecutor) N/A (Defendant)
File Number(s):	18/104771 and 18/104773