Environment Protection Authority v Encore Tissue Pty Limited - [2003] NSWLEC 417

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Encore Tissue Pty Limited [2003] NSWLEC 417

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Encore Tissue Pty Limited

FILE NUMBER(S): 50026 of 2003

CORAM: Pain J

KEY ISSUES:
Prosecution :- guilty plea - discharge of waste water containing paper by-products clays and chalk into creek

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 120(1), s 241
Crimes (Sentencing Procedure) Act 1999 s 3A(b)

CASES CITED: Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 82 LGERA 21;
Environment Protection Authority v Metziya [2003] NSWLEC 196 (26 June 2003);
R v Thompson; R v Houlton (2000) 49 NSWLR 383;
Veen v Regina (No 2)(1988) 164 CLR 465

DATES OF HEARING: 18/11/03

EX TEMPORE
JUDGMENT DATE :
11/18/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
D. Samuels
SOLICITORS:
Environment Proection Authority
DEFENDANT:
P. Hamill
SOLICITORS:
Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50026 of 2003

Pain J

18 November 2003

ENVIRONMENT PROTECTION AUTHORITY

ENCORE TISSUE PTY LTD
Defendant

Judgment

2. The maximum penalty applicable to a Defendant for an offence of this nature is $250,000. The Defendant has pleaded guilty so that all the essential legal ingredients of the offence have been admitted.

3. The Court had the benefit of an agreed statement of facts handed up by the parties. According to the statement of agreed facts, at all relevant times the Defendant was the occupier of the factory premises at 83-93 Fallon Street, Albury pursuant to a lease from the owner of the premises, Norton Vale Pty Limited. The Defendant carries out the business of manufacturing recycled paper products on the premises. At the time of this incident the Defendant owned and operated the machinery on the premises. Operations at the premises commenced in October 1998. The machinery on the premises operates seven days per week, twenty-four hours per day except when shut down for maintenance, breakdown or planned shutdowns. The Defendant has approval from Albury City Council for the discharge…

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 417
Decision Date: 11/18/2003

CaseChat Overview and Summary

In the case of Environment Protection Authority v Encore Tissue Pty Limited, the Environment Protection Authority (EPA) prosecuted Encore Tissue for an environmental offence under s 120(1) of the Protection of the Environment Operations Act 1997. Encore Tissue, a company that recycles waste paper and manufactures tissue paper, was found to have discharged waste water containing paper by-products, clays, and chalk into Mungabarina Creek. The court was required to determine the extent of the harm caused by the discharge, the measures that could have been taken to prevent it, the foreseeability of the incident and harm, and the degree of control Encore Tissue had over the causes of the offence. The court also had to consider general and specific deterrence, proportionality, and mitigating factors such as the defendant's early guilty plea, contrition, environmental benefits of their business, and cooperation with the EPA.

The court found that the incident and the potential harm were foreseeable, given the volume of liquid allowed to disperse over Encore Tissue's property and the lack of a system to detect overflow to the stormwater system. Encore Tissue had control over the causes of the offence. The court imposed a penalty of $20,000, taking into account the maximum penalty applicable, the need for the sentence to be proportional to the gravity of the crime, and the mitigating factors presented. The court also ordered Encore Tissue to pay the EPA's costs of $10,000.

The court's reasoning and outcome in this case demonstrate the importance of environmental responsibility and the consequences businesses face when they fail to meet their obligations under environmental legislation. Encore Tissue's early guilty plea, expression of contrition, and cooperation with the EPA were considered mitigating factors, but the court still imposed a significant penalty to reflect the seriousness of the offence and to serve as a deterrent for both general and specific deterrence.

Orders