Environment Protection Authority v Fernando - [2003] NSWLEC 281

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Fernando and Another [2003] NSWLEC 281

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANTS
Chester Fernando
Steadfast Maintenance Services Pty Limited

FILE NUMBER(S): 50047; 50048 of 2003

CORAM: Talbot J

KEY ISSUES: Prosecution :- deliberate and deceitful conduct by individual - whether attributable to company trading as trustee - whether a company entitled to benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes Act 1914 (Cth) s 19B
Crimes (Sentencing Procedure) Act 1999 s 10
Interpretation Act 1987 s 8(d), s 21
Protection of the Environment Operations Act 1997 s 143(1), s 143(1)(a), s 241(1)(a), s 241(1)(e)

CASES CITED: Environment Protection Authority v Virotec International Limited [2002] NSWLEC 110, unreported;
Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45;
John C Morish Pty Ltd v Luckman (1977) 30 FLR 88;
Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2003] NSWLEC 68, unreported;
Reg v O'Neill [1979] 2 NSWLR 582;
Sheen v Geo Cornish Pty Ltd (1978) 30 FLR 466;
Trade Practices Commission v Sun Alliance Australia Pty Ltd (1994) 16 ATPR 42-286;
Workcover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142

DATES OF HEARING: 31/10/2003

DATE OF JUDGMENT:
11/19/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D M Samuels (Solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANTS
Mr J M Atkin (Barrister)
SOLICITORS
Carroll & Associates

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50047 of 2003
50048 of 2003

Talbot J

19 November 2003

Environment Protection Authority

Prosecutor

Chester Fernando

Steadfast Maintenance Services Pty Limited

Defendants

Judgment

Introduction

1 There are two defendants before the Court to answer charges in relation to the same events. In matter No. 50047 of 2003 Chester Fernando is charged that on the 24 January 2002 off the Putty Road south of Singleton (“the place”) he committed an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (“the PEO Act”), in that he did transport waste to that place, being a place that could not lawfully be used as a waste facility for the waste.

2 In matter No. 50048 of 2003 Steadfast Maintenance Services Pty Limited (“the company”) is separately charged with the same offence, as a consequence of Chester Fernando and David Pereghy, employees of the company, transporting the waste to the place and dumping it.

3 Section 143(1) of the PEO Act provides that if a person transports waste to a place that cannot be lawfully used as waste facility for that waste, a person is guilty of an offence. In the case of a corporation the maximum penalty is $250,000. In the case of an individual the maximum penalty is $120,000. Each of the defendants has entered a plea of guilty.

4 The facts in support of a plea in mitigation are diverse.

The Offence

5 The company operates a cleaning…

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.

Continue reading Environment Protection Authority v Fernando

Details

AGLC: Environment Protection Authority v Fernando [2003] NSWLEC 281
Case: [2003] NSWLEC 281
Decision Date: 11/19/2003

CaseChat Overview and Summary

Environment Protection Authority v Fernando was a case in the Land and Environment Court of New South Wales. Chester Fernando and Steadfast Maintenance Services Pty Limited faced charges for transporting and dumping waste in an unauthorised location. The company, a trustee of the Fernando Trust, was charged under the Protection of the Environment Operations Act 1997 for allowing its manager, Chester Fernando, to dump waste without permission. Chester Fernando was charged for his role as the manager who made the decision to dump the waste.

The court had to decide whether Chester Fernando's actions were attributable to the company and if the company was entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. The key issues were whether Chester Fernando's deliberate and deceitful conduct could be attributed to the company and whether the company was entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act.

The court found that Chester Fernando's actions were primarily responsible for the offence and that his conduct was deliberate and dishonest. The court determined that the company was not entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act as it had not been disputed that Chester Fernando's actions were for the benefit of the company. The court found Chester Fernando guilty and ordered him to pay a fine of $60,000. The court found Steadfast Maintenance Services Pty Limited guilty and ordered it to pay a fine of $5,000. Both defendants were ordered to jointly and severally pay the prosecutor's costs.

In conclusion, the court found that Chester Fernando's actions were deliberate and dishonest, and that his conduct was primarily responsible for the offence. The court determined that the company was not entitled to the benefit of s 10 of the Crimes (Sentencing Procedure) Act. The court ordered Chester Fernando to pay a fine of $60,000 and Steadfast Maintenance Services Pty Limited to pay a fine of $5,000. Both defendants were ordered to jointly and severally pay the prosecutor's costs.

Orders