Environment Protection Authority v Keogh
[2000] NSWLEC 237
•10/20/2000
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Keogh [2000] NSWLEC 237 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
KeoghFILE 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 5CASES CITED: Director of Public Prosecutions v John Fairfax and Sons Limited and Ors (1987) 8 NSWLR 732;
R v Smith (1987) 44 SASR 587DATES OF HEARING: 20/10/00 EX TEMPORE
JUDGMENT DATE :10/20/2000 LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard (Barrister)SOLICITORS
Environment Protection AuthorityDEFENDANT
SOLICITORS
Ms M Painter (Barrister)
Peter Adams & Co
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 50088A of 1998
CORAM: Cowdroy J
DECISION DATE: 20/10/00
Prosecutor
Defendant
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 1998. A notice had been previously served upon the defendant in March 1997 requiring him to take steps to remediate a site which is known as lot 4 Bradley Street, Orchard Hills (“the site”) by May 1997. The site had been covered with thousands of used motor car tyres, piles of bricks and other debris including car bodies. The site had become a waste dump. There was no compliance with that notice. In consequence proceedings which alleged that the defendant had breached the provisions of the Waste Minimisation and Management Act 1995 were instituted by the prosecutor (“the EPA”) in this Court.
7. On 21 September 1998, the defendant consented to orders (“the orders”) being made against him, pursuant to which he undertook to refrain from bringing waste to the site, to remediate the site, pay a fine of $12,000 and the EPA’s costs of $6,500. The defendant also consented to orders that he remove from the site all tyres and baled plastic by 31 March 1999.
8. No steps were taken by the defendant in fulfilment of any of those orders. Accordingly on 6 April 1999 the EPA instituted proceedings alleging contempt. The Statement of Charge. It alleged that the defendant was guilty of contempt of court in that the defendant had failed to remediate the site and secondly had brought further waste to the site in breach of the restraining order. The defendant pleaded guilty to the first charge. The defendant pleaded not guilty to the second charge.
9. On 6 June 1999 the Court delivered its judgment in respect of the contempt hearing, and found that the defendant was guilty of both charges. The Court deferred passing any sentence for a period of two months for the express purpose of enabling the defendant to purge his contempt by remediating the site.
10. No steps were taken by the defendant to remediate the site in the two month period. Accordingly on 26 August 1999 the Court imposed a custodial sentence of two months in respect of each contempt charge to be served concurrently. However the Court took into consideration not only the question of penalty but also the public interest in having the site remediated as well as the imposition of a penalty. For this purpose the defendant was allowed a further 12 months in which to purge his contempt. In granting such suspension the Court accepted the detailed proposals of the defendant to remove the offending waste.
11. From 26 August 1999 up to 31 January 2000 no steps were taken by the defendant to comply with the orders save for the removal of a minor quantity of scrap metal. Since January 2000 the only steps that have been taken to remediate the site is the removal of some motor car bodies and insignificant piles of rubbish. In all respects the site remains essentially as a rubbish dump. A video tendered in evidence shows that thousands of used motor car tyres, plastic and other rubbish remain on the site.
12. The evidence concerning the defendant’s activities is, as in previous hearings, unsatisfactory. No financial records have been produced from which the court could conclude that the defendant is financially unable to take steps to remediate the site. The evidence adduced in this hearing, and from past hearings, indicates that the defendant or his wife has an interest of some kind in the three transport companies, namely Nepean Haulage Pty Limited, Bradley’s Mechanical Repairs Pty Limited, TRX Pty Limited. The suggestion that the defendant’s business is on the brink of collapse because of the departure of the former employee carries little weight. No financial records nor tax records have been kept. The only financial evidence is the assertion that the business which the defendant currently operates is producing approximately $3000 gross per week of which approximately $2000 per week is used in fuel and other expenses. The defendant testified that he and his wife take the residue of the earnings after expenses as wages. In the absence of any financial records, such evidence is to be treated with caution. In any event it does not satisfy the Court that the defendant is, from a financial point of view, unable to take steps to remove the tyres and baled plastic from the site as required by the orders.
13. The defendant has been in ill health for some years and the prognosis suggests his state of health will not change. One of his medical specialists reports that he is unable to work. However the evidence in previous hearings establishes that the defendant did not drive trucks or heavy equipment in the operation of his transport business. Such work was done by employees. There is no evidence before the Court which suggests that the defendant could not have organised the clearing of the site.
14. Initially the sympathy of the Court might be attracted to the submissions made in respect of the defendant’s health. It might be concluded that his injury has prejudiced his ability to comply with the Court’s order. Any such sympathy however disappears when the transcript of the defendant’s evidence on 5 February 1999 is read. The following questions were asked of the defendant by the Court:-
Q:- Mr Keogh when you consented to the court order back in September, were you aware of the extent of the cleaning up which was required on your land?
A:- Oh yes, yes it’s not a big operation, it’s just a matter of doing it and concentrating and getting it done. I mean the whole operation if I get stuck into it I could do it and just allow me to calculate the tyres in 150 truck loads, shredded.
Q:- And how long would it take to remove?
A:- Oh if I put three trucks on it, I’d do it in a seven day truck - per truck over to Enviroguard.
Q:- That could all be done within a week?
A:- 20 odd loads.
Q:- Within a week?
A:- Yes yes.
Q:- Well in that event why was six months required for you to clean up the land?
A:- Just for the monetary side view, that’s all, and prior to Christmas we usually have a good run, and it’s because summer, that’s our busiest period. And then sort of February, March.
Further questions were asked by the Court of the defendant:-
Q:- But irrespective of your economic considerations, are you telling the court that the whole of this job could have been cleaned up within seven days?
A:- It would probably take two weeks, two to three weeks.
15. In view of that evidence the suggestion that the defendant should be afforded a further 12 months period to comply with the orders is ludicrous. The defendant has already been granted an initial six months period from the date of the original consent orders to remediate the site, a further two months thereafter by the Court, and a further 12 month period upon the defendant’s undertaking to perform that work. The defendant has had every opportunity to comply with the orders and for some reason known only to himself, has chosen not to comply.
16. The penalty imposed results from the disobedience to the Court’s orders. In Director of Public Prosecutions v John Fairfax and Sons Limited and Ors (1987) 8 NSWLR 732, the Court of Appeal considered the nature of punishment for contempt. The learned President said at 739:-
Contempts whether civil or criminal share a common characteristic. It is as Lord Diplock said in Attorney-General v Leveller Magazine Limited (1979) AC 440 at 449 that they “ involve an interference with a due administration of justice either in a particular case or more generally as a continuing process” . This “ common characteristic ” led the High Court of Australia recently to emphasise the importance of the operation of contempt law ‘to uphold and protect the effective administration of justice’”. See Australian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 60 ALJR 608 at 611.
17. Penalties are imposed following findings of contempt of court to reflect a public wrong. Such finding in this case has resulted in the custodial sentence.
18. There is no reason why that sentence should not now be carried out. The pre-sentence report is of limited assistance because it does not state whether there are suitable facilities available for the defendant at the detention institution. However the institution will take into consideration the defendant’s medical evidence and I authorise copies of the medical reports to be made available so that appropriate arrangements may be made for the defendant.
19. The medical practitioner who treated the defendant for his burns has not provided any continuing treatment. The Court of Criminal Appeal in R v Smith (1987) 44 SASR 587 at 589 considered the extent to which new evidence concerning a defendant’s health is to be taken into consideration in circumstances similar to the present. I am satisfied that there is nothing in the recent medical reports which warrants any further suspension of the orders in view of the principles referred to in that decision.
20. Ms Painter who appears for the defendant has placed before the Court every possible matter that could be raised on the defendant’s behalf and has conducted the case for the defendant with great skill. Nevertheless I consider that it would make a mockery of justice if the Court allowed the defendant any further period of suspension. I dismiss the defendant’s motion for a stay dated 28 August 2000.
21. By notice of motion filed by the prosecutor on 31 August 2000, the prosecutor seeks a warrant for the committal of the defendant. In respect of such motion I make order 1, and in so far as is necessary I make order 2. I make order 3, and I sign the warrant for committal attached to the notice of motion and date it today.
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