Environment Protection Authority v Embridge Crest Pty Ltd - [2002] NSWLEC 238

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Embridge Crest Pty Ltd

FILE NUMBER(S): 50040 of 2002

CORAM: Cowdroy J

KEY ISSUES: Prosecution :- failure of carrier of dangerous goods to ensure that as far as practicable goods were transported in a safe manner.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 22
Land and Environment Court Act 1979, s 21(da), s 39
Roads and Rail Transport (Dangerous Goods) Act 1997, s 3, s 37
Road Transport (Vehicle Registration) Act 1997
Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998
Road Transport Reform (Dangerous Goods) Regulations 1997
Road Transport (Vehicle Registration) Regulations 1998

CASES CITED: Cameron v R (2002) 187 ALR 65;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244;
R v Sharma (2002) 54 NSWLR 301;
R v Thomson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 26/11/2002

DATE OF JUDGMENT:
02/03/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr M Wright (Barrister)
SOLICITORS
Acuiti Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50040 of 2002

COWDROY J

3 February 2002

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

EMBRIDGE CREST PTY LTD

Defendant

Judgment

Introduction

1 By summons filed 19 April 2002 the Environment Protection Authority (“the EPA”) charges Embridge Crest Pty Ltd (“the defendant”) with an offence against s 37(1) of the Roads and Rail Transport (Dangerous Goods) Act 1997 (“the Act”) in that it was involved in the unsafe transport of dangerous goods by road (“the offence”). Section 37 of the Act relevantly provides as follows:-

37(1) A person involved in the transport of dangerous goods by road or rail who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence.
….

Maximum penalty:

(a) if the failure results in death or serious injury to a person - $100,000 or imprisonment for 4 years, or both, for an individual or $500,000 for a body corporate, or

(b) in any other case - $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.

2 The defendant has entered a plea of guilty to the charge and has agreed to pay the prosecutor’s costs of the proceedings. Accordingly only the issue of penalty remains for determination by the Court. In separate proceedings before His Honour Justice Bignold which arises out of the same circumstances Moama Refinery Pty Ltd has been convicted of an offence against the Act: see Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244. In these proceedings the parties requested that the Court reserve its judgment until the publication of the judgment in those proceedings. These two proceedings comprise the first prosecutions in this Court under the Act.

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: [2002] NSWLEC 238
Decision Date: 02/03/2003

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case brought by the Environment Protection Authority against Embridge Crest Pty Ltd for an offence under the Roads and Rail Transport (Dangerous Goods) Act 1997, specifically for failing to ensure that dangerous goods were transported in a safe manner. The defendant, a company based in Numurkah, Victoria, was involved in transporting a highly flammable and dangerous liquid known as Solvent B Premium from the Moama Refinery in New South Wales. The company pleaded guilty to the charge, and the court was tasked with determining the penalty. The case was significant as it marked the first prosecutions under the Act in the Land and Environment Court.

The court had to consider various breaches of safety standards and legislative requirements, including inadequate shipping documentation, improper placarding, lack of safety equipment, absence of an emergency procedure guide, and inadequate training of personnel. The vehicle used for transport was also in an unsafe condition, with defects such as cracked brake drums, worn tyres, and damaged suspension mechanisms. The court acknowledged the seriousness of the offence, noting the potential for significant harm to the public and the environment. However, the court also considered the defendant's early plea of guilty, expression of contrition, and charitable activities, as well as the lack of full cooperation with the EPA's investigations.

In determining the penalty, the court considered the maximum penalty of $250,000 for the offence, reflecting its seriousness. The court also noted that the offence could have resulted in severe penalties if it had caused death or serious injury. The court found that the defendant's actions exposed the public to a potential environmental disaster and demonstrated a disregard for public safety. However, the absence of actual harm, the early plea of guilty, and the defendant's charitable activities warranted a reduction in the penalty. The court ordered that the defendant be fined $30,000, to be paid within 28 days, and also pay the prosecutor's costs. The exhibits were ordered to be returned.

Orders