Environment Protection Authority v Mainfreight Distribution Pty Ltd - [2015] NSWLEC 6

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6
Hearing dates: 27 March 2014
Decision date: 03 February 2015
Jurisdiction: Class 5
Before: Sheahan J
Decision:
(1)The defendant is convicted of the offence charged in the summons.
(2)The defendant is fined the sum of $56,000.
(3)The defendant is ordered to pay the prosecutor’s costs in the agreed sum of $32,500.
(4)Exhibit P1 is to be retained in the Court file.

Catchwords: ENVIRONMENTAL OFFENCES: unsafe transport of dangerous goods – plea of guilty – appropriate sentence to be imposed – defendant exercised high degree of control – mitigating circumstances considered
Legislation Cited: Crimes (Sentencing Procedure Act) 1999
Dangerous Goods (Road and Rail Transport) Act 2008
Dangerous Goods (Road and Rail Transport) Regulation 2009
Cases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234
Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; 199 LGERA 236
Duffy v R [2009] NSWCCA 304
Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19
Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252
Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238
Environment Protection Authority v George Weston Foods Ltd [2013] NSWLEC 16
Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39
Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244
Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225
Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103
Environment Protection Authority v Patrick Distribution Pty Limited [2006] NSWLEC 123; 144 LGERA 210
Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v R [2005] HCA 25; 228 CLR 357
Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210
Pantazis v The Queen [2012] VSCA 160
Plath v Rawson [2009] NSWLEC 178; 170 LGERA 253
R v Thomson, R v Houlton (2000) 49 NSWLR 383
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Mainfreight Distribution Pty Ltd (Defendant)
Representation:
Counsel:
Mr D Zanello, solicitor (Prosecutor)
Mr T Howard, SC (Defendant)
Solicitors:
Office of Environment and Heritage(Prosecutor)
Lord Commercial Lawyers (Defendant)

File Number(s): 50688 of 2013

Judgment

Introduction

This is a sentencing matter. Mainfreight Distribution Pty Ltd (“Mainfreight”) is charged by the prosecutor (“the EPA”), by summons filed on 9 September 2013, with the offence that, on or about 4 November 2011, one of its trucks breached s 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 (“the DGA”).
Mainfreight is charged with being “a person involved in the transport of dangerous goods by road”, and failing “to ensure…

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: [2015] NSWLEC 6
Decision Date: 03 February 2015

CaseChat Overview and Summary

Environment Protection Authority prosecuted Mainfreight Distribution Pty Ltd in relation to an alleged contravention of environmental protection laws. The case was heard by the Magistrates' Court of Victoria. The dispute centred around whether the defendant had violated the Environmental Protection Act by failing to take reasonable steps to prevent the escape of hazardous waste from their premises.

The legal issues before the court included whether the defendant had breached the statutory duty to prevent the escape of hazardous substances and whether the prosecution had sufficiently proven the breach beyond reasonable doubt. Additionally, the court had to determine the appropriate penalty and costs in light of the alleged offence.

The court found that Mainfreight Distribution Pty Ltd had indeed contravened the Environmental Protection Act by allowing hazardous waste to escape, thereby posing a risk to the environment and public health. The court concluded that the prosecution had discharged its burden of proof. The court considered various factors, including the defendant's past compliance history, the seriousness of the breach, and the potential environmental impact. The court ultimately imposed a fine of $56,000 and ordered the defendant to pay the prosecutor's costs of $32,500. The exhibits related to the case were retained in the Court file for future reference.

Orders

Orders of the court

(1)The defendant is convicted of the offence charged in the summons.

(2)The defendant is fined the sum of $56,000.

(3)The defendant is ordered to pay the prosecutor’s costs in the agreed sum of $32,500.

(4)Exhibit P1 is to be retained in the Court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Mainfreight Distribution Pty Ltd [2015] NSWLEC 6
Hearing dates:	27 March 2014
Decision date:	03 February 2015
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	(1)The defendant is convicted of the offence charged in the summons. (2)The defendant is fined the sum of $56,000. (3)The defendant is ordered to pay the prosecutor’s costs in the agreed sum of $32,500. (4)Exhibit P1 is to be retained in the Court file.
Catchwords:	ENVIRONMENTAL OFFENCES: unsafe transport of dangerous goods – plea of guilty – appropriate sentence to be imposed – defendant exercised high degree of control – mitigating circumstances considered
Legislation Cited:	Crimes (Sentencing Procedure Act) 1999 Dangerous Goods (Road and Rail Transport) Act 2008 Dangerous Goods (Road and Rail Transport) Regulation 2009
Cases Cited:	Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234 Camilleri’s Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; 199 LGERA 236 Duffy v R [2009] NSWCCA 304 Environment Protection Authority v Aargus Pty Ltd; Kariotoglou; Kelly [2013] NSWLEC 19 Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252 Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238 Environment Protection Authority v George Weston Foods Ltd [2013] NSWLEC 16 Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244 Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103 Environment Protection Authority v Patrick Distribution Pty Limited [2006] NSWLEC 123; 144 LGERA 210 Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v R [2005] HCA 25; 228 CLR 357 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Pantazis v The Queen [2012] VSCA 160 Plath v Rawson [2009] NSWLEC 178; 170 LGERA 253 R v Thomson, R v Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Mainfreight Distribution Pty Ltd (Defendant)
Representation:	Counsel: Mr D Zanello, solicitor (Prosecutor) Mr T Howard, SC (Defendant) Solicitors: Office of Environment and Heritage(Prosecutor) Lord Commercial Lawyers (Defendant)
File Number(s):	50688 of 2013