Environment Protection Authority v Pannowitz (No 2)

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Reported Decision: 153 LGERA 126

Land and Environment Court


of New South Wales


CITATION: Environment Protection Authority v Pannowitz (No. 2) [2006] NSWLEC 797
PARTIES:

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Kenneth Warren Pannowitz
FILE NUMBER(S): 50024 of 2004
CORAM: Lloyd J
KEY ISSUES:

Contempt :- – departure from the form of publication order - seriousness of offence – effect of contempt upon public confidence in judicial system – purging of contempt – penalty – record of previous convictions – otherwise good character – unlikely to re-offend – remorse shown – specific deterrence unnecessary – general deterrence and denunciation of conduct major considerations – application of Fines Act 1996

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A(2), s 65A, 86
Criminal Procedure Act 1986 s 253 (now repealed)
Fines Act 1996 ss 4, 6
Land and Environment Court Act 1979 s 67
Protection of the Environment Operations Act 1997 s 143(1)
CASES CITED: Attorney General (NSW) v Whiley (1993) 31 NSWLR 314;
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98;
Australian Consolidated Press Limited v Morgan (1964) 112 CLR 483;
Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469;
Environment Protection Authority v Pannowitz [2006] NSWLEC 219;
Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175;
Environment Protection Authority v Thaler [2005] NSWLEC 109 ;
Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR;
Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 464;
Michael Realty Pty Limited v Carr [1975] 2 NSWLR 812;
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118;
Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435;
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527;
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 ;
Smith v The Queen (1991) 25 NSWLR 1;
United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323;
Witham v Holloway (1995) 183 CLR 525;
Wood v Staunton (No. 5) (1996) 86 ACrimR 138
DATES OF HEARING: 21/11/2006
 
DATE OF JUDGMENT: 

11/21/2006
EX TEMPORE JUDGMENT DATE: 11/21/2006
LEGAL REPRESENTATIVES:

PROSECUTOR:
D A Buchanan SC
SOLICITOR:
Stephen Garrett
Environment Protection Authority

DEFENDANT:
D P M O'Dowd (barrister)
SOLICITORS:
Thompson Norrie



JUDGMENT:

- 13 -

      IN THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Lloyd J

      Tuesday, 21 November 2006

      LEC No. 50024 of 2004

      ENVIRONMENT PROTECTION AUTHORITY v PANNOWITZ (No. 2) [2006] NSWLEC 797

      EX TEMPORE JUDGMENT

1 HIS HONOUR: The defendant, Kenneth Warren Pannowitz, is charged with contempt of court. Mr Pannowitz pleaded not guilty to the charge and, after a hearing over three days in March 2006, I delivered a reserved judgment on 9 May 2006 in which I found the charge proved beyond a reasonable doubt: see Environment Protection Authority v Pannowitz [2006]…

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Details
Case
[2006] NSWLEC 797
Decision Date

CaseChat Overview and Summary

The case involved a dispute between the Environment Protection Authority (EPA) and Mr Pannowitz. Mr Pannowitz was convicted of contempt of court for breaching a court-imposed undertaking to cease certain environmental activities. The case was heard in the Local Court of New South Wales.

The primary legal issue that the court had to decide was whether Mr Pannowitz's actions constituted contempt of court. The court had to consider whether the breach of the court-imposed undertaking was intentional and whether it was a serious enough offence to warrant a conviction of contempt of court. The court also had to consider the appropriate penalty to impose on Mr Pannowitz for the contempt.

The court found that Mr Pannowitz had intentionally breached the court-imposed undertaking and that his actions constituted contempt of court. The court considered the seriousness of the offence and the need to uphold the authority of the court in imposing the undertaking. The court also considered the fact that Mr Pannowitz had a previous conviction for contempt of court. Based on these factors, the court imposed a sentence of 300 hours of community service on Mr Pannowitz and ordered him to pay the costs of the proceedings. The court also ordered that the exhibits may be returned and that Mr Pannowitz is to pay the prosecutor's costs in accordance with the relevant legislation.

Orders

Orders of the court

You are convicted of the offence of contempt of court. I am satisfied of the matters referred to in s 86 of the Crimes (Sentencing Procedure) Act 1999 and have regard to the contents of the assessment report which states that you are suitable for community work. I sentence you to 300 hours of community service. You are to report to the New South

Wales Probation and Parole Service, Maitland District Office

within seven days to enable administration to be commenced. You are also ordered to pay the costs of both the contempt

proceedings and this hearing on penalty.

The exhibits may be returned. The defendant is ordered to pay the prosecutor's costs in accordance with s 253 of the Criminal Procedure Act 1986 as it stood immediately prior to its repeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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