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Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd

Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd

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Case Copied 31 March 2003 59 min read

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Reported Decision: 128 LGERA 240

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
McConnell Dowell Constructors (Aust) Pty Ltd

FILE NUMBER(S): 50009 of 1999

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- pollution - waters - vicarious liability - independent contractor - power of control - direct authorisation

LEGISLATION CITED: Clean Waters Act 1970 s 16(1)

CASES CITED: Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497;
Christmas v Nicol Bros Pty Ltd (1941) 41 SR 317;
Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36;
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1;
Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279;
Environment Protection Authority v Norco Co-operative Ltd [2000] NSWLEC 35;
Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51;
Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226;
Ex parte Falstein; Re Maher and Anor (1948) 49 SR 133;
Hollis v Vabu Pty Ltd (2001) 207 CLR 21;
Kondis v State Transport Authority (1984) 154 CLR 672;
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127;
Scott and Ors v Davis (2000) 204 CLR 333;
State Pollution Control Commission v Australian Iron and Steel Ltd (1992) 74 LGRA 387;
Stoneman v Lyons (1975) 133 CLR 550;
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715;
Torette House Pty Ltd v Berkman (1939-1940) 62 CLR 637

DATES OF HEARING: 04/11/2002; 05/11/2002; 06/11/2002; 07/11/2002; 08/11/2002; 11/11/2002; 12/11/2002; 13/11/2002; 14/11/2002; 19/11/2002; 20/11/2002; 21/11/2002; 22/11/2002; 26/11/2002; 27/11/2002; 29/11/2002; 06/12/2002

DATE OF JUDGMENT:
03/31/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D A Buchanan SC with Mrs J C Kelly (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr J L Glissan QC with Mr G B Newport (Barrister)
SOLICITORS
Doyles

JUDGMENT:

50009 of 1999

Pearlman J
31 March 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD

Defendant

Judgment

Introduction

1 In February 1998, a quantity of oil and part of a pipeline fell into the waters of Woolloomooloo Bay during the re-development of the Finger Wharf. This case concerns a criminal prosecution for pollution arising out of that incident.

2 The defendant, McConnell Dowell Constructors (Aust) Pty Ltd, has been charged with an offence against the Environmental Offences and Penalties Act 1989 in that it polluted waters contrary to s 16(1) of the Clean Waters Act 1970. The defendant has pleaded not guilty to the charge.

3 Although the statutes under which the defendant has been charged have now been repealed, it is common ground that this Court has jurisdiction to hear and determine the charge (see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at pars 19 – 22; Environment Protection…

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: [2003] NSWLEC 70
Decision Date: 03/31/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority brought a criminal prosecution against McConnell Dowell Constructors (Aust) Pty Ltd for a pollution offence under the Clean Waters Act 1970. The defendant was charged with polluting waters by causing a section of a pipeline and its contents to fall into Woolloomooloo Bay during the redevelopment of the Finger Wharf. The defendant pleaded not guilty. The key legal issues were whether the defendant could be held vicariously liable for the actions of its subcontractor, Moltoni Corporation Pty Ltd, and if so, under what circumstances. The court found that the defendant did not have a power to control the manner in which Moltoni performed its demolition work sufficient to render the defendant vicariously liable for the pollution incident. The direction given by a defendant employee to continue work did not amount to direct authorisation of the conduct which caused the pollution. The court acquitted the defendant, finding it not guilty of the offence. The matter was stood over to allow the prosecutor time to consider its position.

Orders