Environment Protection Authority v Keogh - [2000] NSWLEC 237

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Keogh [2000] NSWLEC 237

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Keogh

FILE NUMBER(S): 50088A of 1998

CORAM: Cowdroy J

KEY ISSUES: Contempt :- penalty - gaol sentence for failure to comply with Court order requiring remediation of site - sentence suspended to afford opportunity to defendant to purge contempt - defendant failing to remediate site during period of suspension - application by defendant for further suspension - application refused.

LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 42 r 12, Pt 44 r 5

CASES CITED: Director of Public Prosecutions v John Fairfax and Sons Limited and Ors (1987) 8 NSWLR 732;
R v Smith (1987) 44 SASR 587

DATES OF HEARING: 20/10/00

EX TEMPORE
JUDGMENT DATE : 10/20/2000

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Ms M Painter (Barrister)
SOLICITORS
Peter Adams & Co

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 50088A of 1998
CORAM: Cowdroy J
DECISION DATE: 20/10/00

Environment Protection Authority

Prosecutor

Allan Andrew Keogh

Defendant

JUDGMENT

1. Before the court are two notices of motion. The first motion was filed by the defendant, and is dated 28 August 2000. The second motion is that of the prosecutor filed on 31 August 2000.

2. I shall deal with the first motion. The defendant seeks a further twelve month suspension of the two month custodial sentence imposed upon the defendant on 26 August 1999 and which was suspended for a period of 12 months from 26 August 1999 to enable the defendant an opportunity to remediate the subject site.

3. The motion is founded upon the provisions contained in Pt 42 r 12, or alternatively Pt 44, r 5 of the Supreme Court Rules 1970. Each of these rules are adopted by this Court by virtue of Pt 6 r 1 of the Land and Environment Court Rules 1996. In support of the application, affidavits were filed by the defendant and by a medical practitioner who has treated the defendant. Two additional medical certificates were tendered in evidence.

4. The defendant claims that two reasons have rendered him unable to comply with orders the Court made on 26 August 1999. First the defendant claims that his transport business suffered a downturn as a result of an employee ceasing employment which caused the loss of some of his drivers and clients. Further the defendant claims he was injured. On 31 January 2000 the defendant suffered burns to his body sustained when he was filling a lawnmower with petrol. As a result of the burns the defendant was hospitalised from 31 January 2000 to 1 March 2000.

5. It is essential that the Court recite the history of this matter and for convenience I shall state the chronology of events.

6. These proceedings were first instituted in this Court by a summons filed on 15 May…

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: [2000] NSWLEC 237
Decision Date: 10/20/2000

CaseChat Overview and Summary

Environment Protection Authority v Keogh is a case before the Land and Environment Court of New South Wales. The defendant, Keogh, is being prosecuted by the Environment Protection Authority (EPA) for failing to comply with a court order to remediate a waste site. Keogh had previously been found in contempt of court for not adhering to the remediation order. He was initially given a two-month suspension of a two-month custodial sentence to allow him to purge the contempt by remediating the site. Keogh applied for a further twelve-month suspension of the sentence to enable him more time to remediate the site, citing his business downturn and injuries as reasons for his non-compliance.

The court was required to decide whether to grant Keogh's application for a further suspension of his sentence. The court considered the defendant's reasons for non-compliance and whether they warranted a further suspension. The court also had to determine whether the defendant's injuries were a valid reason for not complying with the court order and whether his business downturn was a sufficient reason for not remediating the site. The court had to weigh the defendant's reasons for non-compliance against the importance of upholding the administration of justice and ensuring that the court's orders were followed.

The court found that Keogh had been given ample opportunity to remediate the site and that his reasons for non-compliance were not valid. The court noted that Keogh had previously stated that the remediation could be completed within two to three weeks, but had chosen not to do so. The court also found that there was no reason to further suspend the sentence as there was no evidence to suggest that Keogh was unable to comply with the court order due to his injuries. The court dismissed Keogh's application for a further suspension of his sentence and ordered that he be committed to serve the two-month custodial sentence.

The court's decision highlights the importance of upholding the administration of justice and ensuring that court orders are followed. The court found that Keogh had been given ample opportunity to remediate the site and that his reasons for non-compliance were not valid. The court also found that there was no reason to further suspend the sentence as there was no evidence to suggest that Keogh was unable to comply with the court order due to his injuries. The court's decision sends a strong message that the court will not tolerate non-compliance with its orders and that those found in contempt of court will be held accountable for their actions.

Orders