Environment Protection Authority v Leafair Pty Ltd - [2007] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Leafair Pty Ltd

FILE NUMBER(S): 50039 of 2005

CORAM: Talbot J

KEY ISSUES: Environmental Offences :- Sentencing - use of pesticide - finding of pilot error preferred.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A, s22 and s23;
Pesticides Act 1999 s 10(1)(a), s109(1)(a),(c)(e),(g),(f).

CASES CITED: Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722.

DATES OF HEARING: 19/04/2007; 20/04/2007

DATE OF JUDGMENT:
26 April 2007

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D Jordan (Barrister)
SOLICITOR
Environment Protection Authority
DEFENDANT
Mr M Gray-Spencer
SOLICITOR
Riley Gray-Spencer Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

26 April 2007

50039 of 2005 Environment Protection Authority v Leafair Pty Ltd
JUDGMENT

1 Talbot J: The defendant is charged that on 14 September 2004 it committed an offence against s 10(1) (a) of the Pesticides Act 1999 in that it used a pesticide in a manner that injured or was likely to injure another person. The defendant entered a plea of guilty to the charge on 2 February 2007.

2 At the time of the offence the company operated an aerial agricultural business under the name of Super Spread Aviation Australia operating out of Deniliquin Airport. It was the holder of an Aircraft (Pesticide Applicator) Licence issued by the Prosecutor on 14 July 1999.

3 One of the aircraft operated by the defendant was a Piper PA-25A9 Pawnee also known as a “Fatman”. The aircraft had been acquired by purchase from a previous owner in September 2003. The company employed a pilot, Rohan John Williams who regularly flew the aircraft for the purpose of the aerial application of liquid chemicals to crops.

4 The Company has two directors and shareholders and was first registered in 1984. One of the directors, Peter James Wood has given evidence. The pilot Mr Williams has given evidence for the prosecution.

5 The parties have prepared a Statement of Agreed Facts and affidavits sworn by Mr Williams and Mr Wood have been read.

6 In a hearing before the Chief Judge on 13 November 2006, Mr Williams pleaded guilty to a separate charge under s 10 (1)(a) of the Pesticides Act. (Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722). The Chief Judge found Mr Williams guilty as charged and imposed a fine in the sum of $7,000. Mr Williams was ordered to pay the Prosecutor’s professional costs as agreed in the sum of $5,000. The Chief Judge found, in effect, that the offence committed by Mr Williams was as a consequence of the failure to properly maintain the aircraft. However, in these proceedings, the company defendant makes the primary submission that the offence occurred as a consequence of pilot error. It will be necessary therefore to revisit some of the evidence accepted by the Chief Judge particularly following the production of additional material…

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 Leafair Pty Ltd

Details

AGLC: Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228
Case: [2007] NSWLEC 228
Decision Date: 26 April 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Leafair Pty Ltd for an offence under the Pesticides Act 1999. The defendant, Leafair Pty Ltd, a company engaged in aerial agricultural operations, was charged with using a pesticide in a manner that injured or was likely to injure another person. The incident in question involved the aerial spraying of pesticides, which resulted in a chemical substance being deposited on a car driven by Ms. Raelene Maree Wilson. The company pleaded guilty to the charge, and the primary issue before the court was to determine the degree of culpability attributable to Leafair Pty Ltd for the incident. The court had to decide whether the incident was a result of pilot error or a failure to properly maintain the aircraft. The court found that the offence was more likely a consequence of pilot error rather than a failure to maintain the aircraft adequately. This finding was based on the credibility of the witnesses and the evidence presented. The court found Mr. Wood, one of the directors of Leafair Pty Ltd, to be a more credible witness compared to the pilot, Mr. Williams, whose evidence was inconsistent and self-serving. The court considered various factors, including the extent of the injury caused, the foreseeability of the incident, and the company's efforts to ensure safety. The court also noted the prompt guilty plea and the absence of previous convictions. Ultimately, the court imposed a nominal penalty of a $1,000 fine and ordered Leafair Pty Ltd to pay the prosecutor's costs in the sum of $13,500. This decision serves as a reminder to operators of aircraft of the high expectations in terms of safety.

Orders