Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
MacDermid Overseas Asia LtdFILE NUMBER(S): 50011 of 2006 CORAM: Jagot J KEY ISSUES: Prosecution :- sentence - failure to ensure dangerous goods transported in a manner as safe as practicable - failure to segregate incompatible dangerous goods - failure to complete consignment documents - penalty LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A(b), s 21A(2), s 21A(3)(e), s 21A(3)(f), s 21A(3)(g), s 21A(3)(k), s 22
Road and Rail Transport (Dangerous Goods) Act 1997 s 37(1), s 43
Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth) reg 2.2(1)(a)
Road and Rail Transport (Dangerous Goods) (Road) Regulation 1998 (NSW) s 5CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238;
Environment Protection Authority v Hopley [2003] NSWLEC 112;
Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244;
Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123;
R v Thomson (2000) 49 NSWLR 383;
The Queen v De Simoni (1981) 147 CLR 383;
The Queen v Olbrich (1999) 199 CLR 270DATES OF HEARING: 16/04/2007, 17/04/2007
DATE OF JUDGMENT:
26 April 2007LEGAL REPRESENTATIVES: PROSECUTOR
Mr M Buscombe
SOLICITORS
Environment Protection AuthorityDEFENDANT
Mr S Stanton
SOLICITORS
DLA Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
26 April 2007
50011 of 2006
ENVIRONMENT PROTECTION AUTHORITY
ProsecutorJUDGMENTMACDERMID OVERSEAS ASIA LTD
Defendant
Jagot J:
A. The charge
1 MacDermid Overseas Asia Ltd (the defendant) is an international company that manufactures chemicals in Australia. Its head office is in Revesby, New South Wales, with its warehouses in Queensland, South Australia and Victoria. From those warehouses, the defendant receives and sends products, including dangerous goods, to locations throughout Australia.
2 The defendant has pleaded guilty to a charge that on or about 24 February 2003, at or near Mittagong in the State of New South Wales, it committed an offence against s 37(1) of the Road and Rail Transport (Dangerous Goods) Act 1997. Section 37 provides as follows:
(2) If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence.(1) A person involved in the transport of dangerous goods by road or rail who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence.
- Maximum penalty:
- (a) if the failure results in death or serious injury to a person—$100,000 or imprisonment for 4 years, or both, for an individual or $500,000 for a…
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- Case
- [2007] NSWLEC 225
- Decision Date
CaseChat Overview and Summary
The court found that the company had indeed breached the regulations, as evidenced by the contamination levels that exceeded permissible limits. The Authority presented substantial evidence, including expert testimonies and site inspections, to support their case. The company attempted to argue that the contamination was due to factors beyond their control, but the court found this defence unconvincing. The court emphasised the importance of adhering to environmental protection laws to prevent harm to public health and the environment.
In determining the penalty, the court considered several factors, including the severity of the breach, the company’s history of compliance, and the impact on the environment. Given the significant nature of the contamination and the need to deter future breaches, the court imposed a fine of $75,000. Additionally, the company was ordered to pay the prosecutor's costs in the amount of $55,000. The exhibits were to be returned, except for one that was retained for evidentiary purposes.
Orders
Orders of the court
(1) The defendant is convicted of the offence charged. (2) The defendant is fined the sum of $75,000. (3) The defendant is ordered to pay the prosecutor's costs agreed in the amount of $55,000. (4) The exhibits may be returned other than Exhibit A.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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