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Environment Protection Authority v Hopley

Environment Protection Authority v Hopley

Case [2003] NSWLEC 112

Strict Liability

Pollution

Nuisance

Unconscionable Conduct

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hopley [2003] NSWLEC 112

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Richard John Hopley

FILE NUMBER(S): 50104 of 2002; 50105 of 2002

CORAM: Cowdroy J

KEY ISSUES: Prosecution :- employment of unlicensed driver to transport dangerous goods - pollution of waters - plea of guilty - sentencing considerations - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 3A, s 10, s 21A, s 22, s 23
Fines Act 1996, s 6
Land and Environment Court Act 1979, s 52
Protection of the Environment Operations Act 1997, s 120(1), s 123, s 241
Road and Rail Transport (Dangerous Goods) Act 1997, s 35(2)
Road Transport Reform (Dangerous Goods) Regulations 1997, cl 18
Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998, cl 5

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Cameron v R (2002) 76 ALJR 382;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269;
Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409;
Mill v The Queen (1988) 166 CLR 59;
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66;
Pearce v The Queen (1998) 194 CLR 610;
R v Sharma (2002) 54 NSWLR 301;
R v Storey [1998] 1 VR 359;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Ryan v The Queen (2001) 206 CLR 267;
State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported);
The Queen v Olbrich (1999) 199 CLR 270;
Tiger Nominees Pty Ltd v State Pollution Control Commission; Kristim Nominees Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 715;
Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409

DATES OF HEARING: 02/05/2003

DATE OF JUDGMENT:
07/03/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S. Rushton SC
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr M. Scott (Barrister)
SOLICITORS
Curwood & Partners

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50104 of 2002
50105 of 2002

Cowdroy J

3 July 2003

Environment Protection Authority

Prosecutor

Richard John Hopley

Defendant

Judgment

Introduction

1 By summons filed 11 October 2002 the Environment Protection Authority (“the prosecutor”) charges Richard John Hopley (“the defendant”) with two offences.

2 In proceedings 50104 of 2002 the defendant is charged with an offence against s 35(2) of the Road and Rail Transport (Dangerous Goods) Act 1997 (“the Dangerous Goods Act”). The charge alleges that on or about 8 February 2002 the defendant employed another person to drive a vehicle transporting dangerous goods by road who was unlicensed, contrary to the Road Transport Reform (Dangerous Goods) Regulations 1997 of the Commonwealth (“the Dangerous Goods Regulations”)). Clause 5 of the Road and…

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 Hopley

Details

AGLC: Environment Protection Authority v Hopley [2003] NSWLEC 112
Case: [2003] NSWLEC 112
Decision Date: 07/03/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted Richard John Hopley for employing an unlicensed driver to transport dangerous goods and for polluting waters at Wetherill Park. The Court found Mr Hopley guilty of both charges under the Road and Rail Transport (Dangerous Goods) Act 1997 and the Protection of the Environment Operations Act 1997. The key issue in the Dangerous Goods Act offence was whether Mr Hopley knew that the driver, Mr Barrett, did not hold a dangerous goods licence. The Court found that Mr Barrett had informed Mr Hopley about the lack of a licence but Mr Hopley proceeded with the transport regardless. The Court also determined that the environmental pollution was severe but short-term, and Mr Hopley had control over the situation as he instructed Mr Barrett to transport and unload the goods. The Court imposed a fine of $15,000 for the Dangerous Goods Act offence and $20,000 for the pollution offence, taking into account mitigating factors such as Mr Hopley's good character and early guilty plea.

The Court's reasoning focused on the seriousness of the offences and the need for deterrence. The maximum penalty for the Dangerous Goods Act offence was $50,000 or two years' imprisonment, reflecting the legislature's view of the offence's seriousness. The Court found Mr Hopley grossly careless and applied the totality principle in sentencing, which resulted in a fine of $15,000 after considering the guilty plea. For the pollution offence, the Court considered the environmental harm, the measures to prevent such harm, and Mr Hopley's foresight of the harm. The maximum penalty for the pollution offence was $120,000, and the Court imposed a fine of $20,000, reduced to account for the guilty plea. The Court also ordered Mr Hopley to pay the prosecutor's costs.

Orders