Environment Protection Authority v Le Dome Pty Ltd - [2002] NSWLEC 167

Reported Decision: 125 LGERA 121

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Le Dome Pty Limited [2002] NSWLEC 167

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Le Dome Pty Limited

FILE NUMBER(S): 50143 of 2001

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Use of registered pesticide contrary to label-vicarious liability for act of employee-mitigating circumstances

LEGISLATION CITED: Pesticides Act 1999, s 15
Crimes (Sentencing Procedure) Act 1999, s 10

CASES CITED: Cabonne Shire Council v Environment Protection (2001) 115 LGERA 304;
R v Ingrassia (1997) 41 NSWLR 447 ;
Thorneloe v Filipowski (2001) 116 LGERA 56;
Walden v Hensler (1987) 163 CLR 561

DATES OF HEARING: 21 June 2002

DATE OF JUDGMENT:
09/20/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Ms Caruana, Solicitor
SOLICITORS
Solicitor Environment Protection Authority
DEFENDANT:
Mr P Holland, Solicitor
SOLICITORS
Minter Ellison

JUDGMENT:

IN THE LAND AND

Matter No. 50143 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

20 September 2002

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

LE DOME PTY LIMITED (ACN: 000 205 603)

Defendant

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Defendant has pleaded guilty to an offence against Pesticides Act 1999, s 15(1) in that on 19 December 2000 at Woolloomooloo, it used a registered pesticide in contravention of an instruction on an approved label for the pesticide without being authorised to do so by a permit.

2. The charge adopts the language of s 15(1) which provides as follows:

A person must not use a registered pesticide in contravention of any instruction on an approved label for the pesticide unless the person:

(a) is authorised to do so by a permit, and

(b) complies with the permit.

Maximum penalty:

· $120,000 in the case of a corporation, or

· $60,00 in the case of an individual

3. The terms “use a pesticide”, “registered pesticide”, “instruction”, “approved label”, a “permit” are defined by the Pesticides Act, s 4(1) and the term “pesticide” is defined by s 5. Many of those definitions refer to or adopt relevant provisions of the “Agvet Code” which is defined by s 4(1) as meaning “the provisions applying because of the Agriculture and Veterinary Chemicals (New South Wales) Act 1994, s 5”. That section enacts that

the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth as in force for the time being:

……………

…………….

4. Section 4 of the Commonwealth Act enacts the Agricultural and Veterinary Chemicals Code which is set out in the Schedule to the Act and is a detailed Code containing some 184 sections, the express object of which as stated in Section 1, is:

to make provision for “(a) the evaluation, approval and control of the supply of, active constituents for proposed or existing agricultural chemical products or veterinary chemical products; and (b) the evaluation, registration and control or the…

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: [2002] NSWLEC 167
Decision Date: 09/20/2002

CaseChat Overview and Summary

In the case of Environment Protection Authority v Le Dome Pty Ltd, the Land and Environment Court of New South Wales considered the matter of an offence under the Pesticides Act 1999. Le Dome, a hostel operator, had pleaded guilty to using a registered pesticide in contravention of the label instructions. The court was required to decide the appropriate penalty and whether to impose a conviction. The key issues involved vicarious liability for the employee's actions, mitigating circumstances, and the appropriate penalty under the Pesticides Act.

The court noted that while Le Dome was vicariously liable for the employee's actions, its culpability was not as severe as the employee's blatant disregard of instructions. The court assessed various factors, including the trivial nature of the offence, extenuating circumstances, and other proper considerations. Although Le Dome had a long, unblemished history and had taken steps to prevent future incidents, the court found that the company's procedures were deficient and its culpability in the offence warranted a conviction. The court imposed a penalty of $12,000, reflecting a 50% discount due to mitigating factors, and ordered Le Dome to pay the prosecutor's legal costs. The court concluded that a conviction was necessary to uphold the law's proscriptions and to serve as a deterrent.

Orders