Environment Protection Authority v Moama Refinery Pty Limited

[2003] NSWLEC 144

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Reported Decision: 126 LGERA 398

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Moama Refinery Pty Limited [2003] NSWLEC 144
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Moama Refinery Pty Limited
FILE NUMBER(S):	50041 of 2002
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- whether Judge imposing penalty on conviction has power to extend time for payment of penalty and costs beyond time fixed by Fines Act 1996
LEGISLATION CITED:
CASES CITED:	Fines Act 1996, ss 7 and 10
DATES OF HEARING:	19/12/2002
EX TEMPORE JUDGMENT DATE :	12/19/2002
LEGAL REPRESENTATIVES:	PROSECUTOR: Ms Cullen, Solicitor SOLICITORS Solicitor Environment Protection Authority DEFENDANT: Ms Mohr Solicitor SOLICITORS Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 50041 of 2002

Coram : Bignold J

19 December 2002

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

MOAMA REFINERY PTY LIMITED

Defendant

JUDGMENT

1. Consequent upon the delivery of judgment in this matter earlier today in which the Defendant was convicted of the offence charged and a penalty of $45,000 was imposed in respect of the conviction and the Defendant was ordered to pay the Prosecutor’s legal costs, an application was made on behalf of the Defendant for time to pay the penalty imposed. At the trial this application had been anticipated.

2. The application raises the question as to whether the Court has the requisite power. In referring to the Court, I am referring to myself as the judge who has convicted the Defendant and imposed the fine in contradistinction to the Registrar of the Court who is given particular functions under the Fines Act 1996.

3. It was submitted on behalf of the Defendant that the judge imposing the fine had the power to allow time for payment after or beyond the period prescribed by the Fines Act, s 7(1). That subsection provides that a fine imposed by any court is payable within 28 days after it is imposed. Subsection (2) goes on to provide that “arrangements for the payment of the fine after that time may be made under this Part” and subsection (3) provides the court, when imposing a fine, (a) may direct that the fine is payable before that time for the special reasons stated by the court; and (b) may not allow time for payment of the fine after that time.

4. The argument advanced on behalf of the Defendant focussed attention upon subsection (3) and in particular on paragraph (b) of subsection (3). The argument was advanced that paragraphs (a) and (b) are in fact addressing the same situation, namely, a situation where the court in imposing the fine directs its payment “before” and the words used are, “that time”, which can only mean the time prescribed by subsection (1), namely “within 28 days after it is imposed”.

5. In my respectful opinion that argument is not sustainable and the section read as a whole in my judgment does not confer any power upon the Court to order the payment of a fine after the time of 28 days that is fixed by subsection (1).

6. The Fines Act contains, of course, a comprehensive definition of “fine” in s 4. It is “any monetary penalty imposed by a court for an offence” and goes on to include inter alia, costs ordered in the proceedings. The reference to court is to be understood according to the definition in s 3(1) as the Supreme Court, the Industrial Relations Commission, the Land and Environment Court, the District Court, the Local Court, Children’s Court or any other court.

7. It follows in my judgment that the Fines Act, s 7 is applicable in this particular case and that there is no power vested in me to order the payment of the fine that I have imposed after the period of 28 days prescribed by subsection (1), nor do I have the power to order the payment of the fine by instalments.

8. Those two types of power were originally vested in the Court by the Land and Environment Court Act 1979, s 54 upon enactment but s 54 of the Act was repealed by the Fines Act 1996. That Act also amended s 53 of the Court Act to provide that “the payment of any money ordered by a Judge exercising summary jurisdiction under this Act is to be paid as a penalty or for costs may be enforced in accordance with the Fines Act 1996”.

9. The Fines Act, s 10 vests a power in the Registrar of the Court imposing the fine to allow further time to pay if it appears expedient so to do, and s 10(2), and s 10 (3) confer upon the Registrar the power to extend the time for the payment of the whole fine or vide paragraph (b), “to allow the fine to be paid by instalments in such amounts and at such times as the Registrar specifies”. Section 11, then goes on to provide ancillary provisions in relation to an application for further time to pay the fine. Again, the powers so conferred are expressly conferred upon the Registrar of the Court.

10. For all the foregoing reasons, I hold that I do not have the power that is sought to be invoked by the Defendant in this particular case and the orders that I have made in imposing the fine attract the provisions of the Fines Act, in particular, the provisions of Part 2 of that Act.

11. In the alternative it was submitted on behalf of the Defendant that the Court should order that the Defendant file any application in respect of time to pay the penalty and payment by instalments within 28 days and that the penalty imposed be not payable until any application so made be determined. The Prosecuting Solicitor does not oppose these additional orders and accordingly I make the two orders as contained in the Minute of Orders as I have amended them. The amendment is to Order 2 so that it reads in the event of such application being so made, the penalty etc. In other words, Order 2 is predicated upon an application being made to the Registrar within the 28 days. For those reasons, I am prepared to make the additional two orders as set forth in the Short Minute of Order as I have amended it. Those orders are as follows:
1. The Defendant file any formal application in respect of time to pay the penalty and payment by instalment of the penalty within 28 days.

2. In the event of such application being so made, the penalty in these proceedings is not payable by the Defendant until any application in respect of time to pay and payment by instalment has been determined by the Court.