Environment Protection Authority v Moama Refinery Pty Ltd - [2002] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Moama Refinery Pty Limited [2002] NSWLEC 244

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Moama Refinery Pty Limited

FILE NUMBER(S): 50041 of 2002

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- failure by consignor of goods transported by road to ensure as far as practicable that the goods were transported in a safe manner

LEGISLATION CITED: Road and Rail Transport (Dangerous Goods) Act 1997, s 37

CASES CITED: R v Olbrich (1999) 199 CLR 270

DATES OF HEARING: 18/11/02

DATE OF JUDGMENT:
12/19/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T Howard, Barrister
SOLICITORS
Solicitor Environment Protection Authority
DEFENDANT:
Mr P Skinner, Barrister
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

MOAMA REFINERY PTY LIMITED

Defendant

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Defendant has pleaded guilty to a charge of an offence against the Road and Rail Transport (Dangerous Goods) Act 1997 (the Transport Act) s 37(1) in that on or about 27 April 1999 it, being involved in the transport of dangerous goods by road, did fail to ensure, as far as was practicable, that the goods were transported in a safe manner. The Defendant was the owner and consignor of the goods, but not the transporter. (A separate charge of an offence against the same section has been brought against the transporter but the hearings of these separate charges were not concurrent.)

2. According to the particulars endorsed upon the amended Summons filed in Court at the trial, the relevant details of the offence were as follows:

a) Dangerous goods

and/or

and/or unleaded petrol and/or naphtha contained within about 144 drums, being dangerous goods class 3 (flammable liquid).

b) Road(s)

Roads in New South Wales from Hillside Lane, Moama, to the Pacific Highway at or near Mount White, including the Cobb Highway, the Hume Highway and the Pacific.

c) Involvement in the transport of the dangerous goods:

· loading and packing the dangerous goods onto truck Federal registration number VV58DW and trailer, Victorian registration 36747S (the vehicle) for transporting by road; and/or

· loading the dangerous goods into the drums that were loaded onto the vehicle for transport by road; and/or

· placarding the vehicle used to transport the dangerous goods by road; and/or

· marking the drums in which the dangerous goods were contained for transport by road;

d) Acts or omissions constituting a failure to ensure that, as far as was practicable, the dangerous goods were transported in a safe manner:

(i) using drums that leaked; and/or were not structurally sound; and/or were damaged; and/or were defective; and/or were not sealed correctly; and/or were not suitable for transporting dangerous goods;

(iii) transporting the dangerous goods in the vehicle that was not appropriately placarded; and/or failing to ensure the required shipping documentation was carried; and/or…

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: [2002] NSWLEC 244
Decision Date: 12/19/2002

CaseChat Overview and Summary

In the case of Environment Protection Authority v Moama Refinery Pty Ltd, the Land and Environment Court of New South Wales dealt with a charge against Moama Refinery Pty Ltd for an offence under the Road and Rail Transport (Dangerous Goods) Act 1997. The defendant, a company involved in the hydrocarbon storage and processing at Moama, NSW, pleaded guilty to failing to ensure that dangerous goods were transported in a safe manner. The goods in question were Solvent B and other flammable liquids, transported by road from Moama to Lemon Tree. The court had to decide whether the defendant's actions constituted a breach of the statutory duty to ensure the safe transport of dangerous goods and, if so, the appropriate penalty for the offence.

The court found that the defendant's breach of the statutory duty was serious, considering the multiple deficiencies in the management of the packaging and transport of the dangerous goods, including the use of leaking and poorly maintained drums, inadequate placarding, and insufficient lighting for proper inspection. The court also considered the significant risk of harm to life, property, and the environment that the breach created, which was fortunately averted. The penalty was to be determined by weighing the objective gravity of the offence against the mitigating factors, such as the defendant's guilty plea, genuine contrition, and post-offence improvements in procedures and practices.

After careful consideration of the submissions from both the prosecutor and the defence, the court decided that the offence warranted a penalty of $45,000, which represents a 40% reduction from the maximum prescribed penalty of $250,000. The court also ordered the defendant to pay $4,000 to the prosecutor for the costs reasonably incurred relating to the investigation of the offence and the prosecutor's legal costs.

Orders