Environment Protection Authority v Hanna - [2013] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Hanna [2013] NSWLEC 41
Hearing dates: 19 February 2013
Decision date: 04 April 2013
Jurisdiction: Class 4
Before: Pain J
Decision:
1. Mr Hanna is found guilty of the charge of contempt of this Court for failing to comply with the order made by Craig J in these proceedings on 21 March 2011.
2. Mr Hanna is punished by committal to prison for three months which sentence is suspended for three months on condition that he enter into a good behaviour bond under s 12(1) of the Crimes (Sentencing Procedure) Act 1999.
3. The conditions of the good behaviour bond are that Mr Hanna:
(i) Is to be of good behaviour for a period of three months, and
(ii) Is to appear before the Court if called upon to do so at any time during the term of the bond.
4. Mr Hanna is to pay the costs of the Environment Protection Authority for the Notice of Motion for contempt.

Catchwords: CONTEMPT - sentencing - failure to comply with court order not to transport waste to a place that could not be lawfully used as a waste facility - waste containing asbestos dumped in residential area - contempt contumacious - multiple prior convictions for offence of transporting waste to place that could not be lawfully used as a waste facility - first charge of contempt of court- potential for environmental harm - consideration of custodial sentence - no purging of contempt - early plea of guilty
Legislation Cited: Criminal Procedure Act 1986 s 257B
Crimes (Sentencing Procedure Act) 1999 s 3A, s 5, s 6, s 7, s 8, s 12, s 21A, s 22
Crimes (Sentencing Procedure) Regulation 2010 cl 23
Land and Environment Rules 2007 (the Court Rules) r 6.3
Protection of the Environment Operations Act 1997 s 143
Supreme Court Rules 1970 r 7, r 13
Cases Cited: ASIC v Matthews [2009] NSWSC 285 (2009); 71 ACSR 279
Attorney-General for NSW v Whiley (1993) 31 NSWLR 314
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315; (2011) 185 LGERA 216
Cobiac v Liddy (1969) 119 CLR 257
Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469
Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 128
Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 231
Blacktown City Council v Reid [2003] NSWLEC 120
Environment Protection Authority v Pannowitz (No. 2) [2006] NSWLEC 797; (2006) 153 LGERA 126
Environment Protection Authority v Waste Recycling Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210
R v J C E [2000] NSWCCA 498; (2000)…

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: [2013] NSWLEC 41
Decision Date: 04 April 2013

CaseChat Overview and Summary

Environment Protection Authority v Hanna was a case before the Local Court in which the Environment Protection Authority (EPA) sought to enforce an order against Mr Hanna for contempt. The EPA's complaint was that Mr Hanna had failed to comply with a previous order made by Craig J on 21 March 2011. The primary legal issue before the court was whether Mr Hanna had indeed failed to comply with the earlier order, and if so, whether this constituted contempt of court warranting a penalty.

The court reviewed the evidence presented regarding Mr Hanna's compliance with the prior order. It found that Mr Hanna had indeed failed to adhere to the conditions set forth in the previous order. Given this finding, the court turned to whether this non-compliance constituted contempt. The court determined that Mr Hanna's actions were in wilful defiance of a court order, thereby amounting to contempt of court. The court sentenced Mr Hanna to three months imprisonment, which was suspended for three months, and imposed a good behaviour bond. The bond required Mr Hanna to be of good behaviour for three months and to appear before the court if called upon during the bond's term. Additionally, Mr Hanna was ordered to pay the EPA's costs for the Notice of Motion for contempt.

Orders

Orders of the court

1. Mr Hanna is found guilty of the charge of contempt of this Court for failing to comply with the order made by Craig J in these proceedings on 21 March 2011.

2. Mr Hanna is punished by committal to prison for three months which sentence is suspended for three months on condition that he enter into a good behaviour bond under s 12(1) of the Crimes (Sentencing Procedure) Act 1999.

3. The conditions of the good behaviour bond are that Mr Hanna:

(i) Is to be of good behaviour for a period of three months, and

(ii) Is to appear before the Court if called upon to do so at any time during the term of the bond.

4. Mr Hanna is to pay the costs of the Environment Protection Authority for the Notice of Motion for contempt.

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 Hanna [2013] NSWLEC 41
Hearing dates:	19 February 2013
Decision date:	04 April 2013
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. Mr Hanna is found guilty of the charge of contempt of this Court for failing to comply with the order made by Craig J in these proceedings on 21 March 2011. 2. Mr Hanna is punished by committal to prison for three months which sentence is suspended for three months on condition that he enter into a good behaviour bond under s 12(1) of the Crimes (Sentencing Procedure) Act 1999. 3. The conditions of the good behaviour bond are that Mr Hanna: (i) Is to be of good behaviour for a period of three months, and (ii) Is to appear before the Court if called upon to do so at any time during the term of the bond. 4. Mr Hanna is to pay the costs of the Environment Protection Authority for the Notice of Motion for contempt.
Catchwords:	CONTEMPT - sentencing - failure to comply with court order not to transport waste to a place that could not be lawfully used as a waste facility - waste containing asbestos dumped in residential area - contempt contumacious - multiple prior convictions for offence of transporting waste to place that could not be lawfully used as a waste facility - first charge of contempt of court- potential for environmental harm - consideration of custodial sentence - no purging of contempt - early plea of guilty
Legislation Cited:	Criminal Procedure Act 1986 s 257B Crimes (Sentencing Procedure Act) 1999 s 3A, s 5, s 6, s 7, s 8, s 12, s 21A, s 22 Crimes (Sentencing Procedure) Regulation 2010 cl 23 Land and Environment Rules 2007 (the Court Rules) r 6.3 Protection of the Environment Operations Act 1997 s 143 Supreme Court Rules 1970 r 7, r 13
Cases Cited:	ASIC v Matthews [2009] NSWSC 285 (2009); 71 ACSR 279 Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Chief Executive Officer, Department of Environment and Conservation v Szulc (No 2) [2011] WASC 315; (2011) 185 LGERA 216 Cobiac v Liddy (1969) 119 CLR 257 Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469 Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 128 Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 231 Blacktown City Council v Reid [2003] NSWLEC 120 Environment Protection Authority v Pannowitz (No. 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 Environment Protection Authority v Waste Recycling Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 R v J C E [2000] NSWCCA 498; (2000)…