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Environment Protection Authority v Multiplex Constructions Pty Ltd

Environment Protection Authority v Multiplex Constructions Pty Ltd

Case [2000] NSWLEC 6 24 March 2000

Environmental Offences

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Multiplex Constructions Pty Ltd (ACN 008 687 063) [2000] NSWLEC 6

PARTIES: PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Multiplex Constructions Pty Ltd

FILE NUMBER(S): 50010 of 1999

CORAM: Lloyd J

KEY ISSUES: Construction & Interpretation - Environmental Offences :- criminal offence - oil spill by employee of sub-subcontractor to defendant - whether defendant caused pollution - whether control by defendant - vicarious liability - whether defendant had non-delegable duty.
Construction & Interpretation:- "causes"
"cause"
"caused".

LEGISLATION CITED: Clean Waters Act 1970, s 16(1), (2)
Interpretation Act 1987, s 30(1)
Occupational Health & Safety Act 1993
Protection of the Environment Operations [Savings & Transitional] Regulations 1988 cl 17(1)

CASES CITED: Adelaide Corporation v Australasian Performing Rights Association (1928) 40 CLR 481;
Alphacell Ltd v Woodward [1972] AC 824;
Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348;
Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 CCA;
Bartonshill Coal Co v McGuire (1858) 3 Macq 300;
Bathurst City Council v Environment Protection Authority (1995) 89 LGERA 79;
Boral Roof Tiles Ltd v O’Brien (Court of Appeal, 15 December 1994, unreported);
Broad v Parish (1941) 64 CLR 588;
Brownlie v State Pollution Control Commission (1992) 27 NSW 78;
Burnie Ports Authority v General Jones Pty Ltd (1994) 179 CLR 520;
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41;
D & F Estates & Ors v Church Commissioners for England & Ors [1989] 1 AC 177;
Dalton v Angus Co (1881) 6 App Cas 740;
Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97CLR 36;
Davie v New Merton Board Mills Ltd [1959] AC 604;
Dorset Yacht Co Ltd v Home Office [1970] AC 1004;
Environment Agency v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 35; [1998] AllER 481 HL;
Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279;
Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51;
Gibb v Federal Commissioner of Taxation (1956) 118 CLR 628;
Hetherington v Mirvac Pty Ltd [1999] NSWSC 443;
Honeywill & Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191; [1933] AllER 77;
Humberstone v Northern Timber Mills (1949) 79 CLR 389;
Karatzidis v Victorian Railways Commissioner [1971] VR 360;
Kondis v State Transport Authority (1984) 154 CLR 652;
Lomas v Peek [1947] 2 AllER 574;
Louinder v Stuckey [1984] 2 NSWLR 354;
Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659;
May v O’Sullivan (1955) 92 CLR 654;
Miller v Williams (1990) 53 SASR 82;
Mount Albert Borough Council v Johnson [1979] 2 NZLR 234;
Mousell Bros v London & North Western Railway [1917] 2 KB 836;
Northern Sandblasting Pty Ltd v Harris (1995) 188 CLR 313; (1997) 71 ALJR 1428;

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

AGLC: Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6
Case: [2000] NSWLEC 6
Decision Date: 03/24/2000

CaseChat Overview and Summary

The case of Environment Protection Authority v Multiplex Constructions Pty Ltd was heard in the Land and Environment Court of New South Wales. The Environment Protection Authority charged Multiplex Constructions Pty Ltd with an offence under the Clean Waters Act 1970, alleging that it polluted the waters of Woolloomooloo Bay by causing an oil spill. Multiplex Constructions Pty Ltd denied the offence, asserting that it was not responsible for the actions of a sub-subcontractor who caused the spill. The court considered several issues, including whether Multiplex Constructions Pty Ltd had control over the works, whether it was vicariously liable for the actions of its subcontractors, and whether it had a non-delegable duty of care. The court found that the Environment Protection Authority failed to prove its case beyond reasonable doubt. The court concluded that Multiplex Constructions Pty Ltd did not have control over the works, was not vicariously liable for the actions of its subcontractors, and did not have a non-delegable duty of care. The summons was dismissed, and the defendant was acquitted. The court refrained from making formal orders to allow the prosecutor to consider its position.

Orders