Environment Protection Authority v Panther Resources Pty Ltd - [2003] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Panther Resources Pty Ltd and Another [2003] NSWLEC 216

PARTIES:
APPLICANT
Environment Protection Authority
FIRST RESPONDENT
Panther Resources Pty Ltd
SECOND RESPONDENT
Andrew Thaler

FILE NUMBER(S): (4)0261 of 2002

CORAM: Talbot J

KEY ISSUES: Practice and Procedure :- litigant in person facing custodial sentence - assistance from counsel acting pro bono

LEGISLATION CITED:

CASES CITED: Dietrich v The Queen (1992) 177 CLR 292

DATES OF HEARING: 09/09/2003

EX TEMPORE
JUDGMENT DATE :
09/09/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms J M Jagot (Barrister)
SOLICITORS
Environment Protection Authority
RESPONDENTS
Mr P J McEwen SC
SOLICITORS
NA

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4)0261 of 2002

Talbot J

9 September 2003

Environment Protection Authority

Applicant

Panther Resources Pty Ltd

First Respondent

Andrew Thaler

Second Respondent

Judgment

Introduction

1 HIS HONOUR: The Court appreciates that Mr McEwen SC has made himself available at the Courts request on short notice on a pro bono basis to assist the defendant, who is otherwise unrepresented, in a matter where the applicant is seeking orders in respect of an alleged contempt of court with the prospect of making submissions that a custodial sentence should be imposed upon the second respondent, Andrew Thaler.

2 I am advised by Mr McEwen from the bar table that there has been an approach made to the Legal Aid Commission and that it may well be that there has been a misunderstanding as to the serious nature of the particular proceedings given the response that was reported to Mr McEwen, namely that the Legal Aid Commission does not, as a matter of policy, provide legal aid in environmental matters. The fact is although this may be an environmental matter nevertheless it is a quasi-criminal matter which can have serious consequences for Mr Thaler.

3 I am also aware of the fact that Mr Thaler has entered a plea of not guilty initially on the instruction of Cowdroy J on the last occasion but nevertheless has maintained it today with an intention to in fact put himself in a position to best challenge the orders that were originally made by Cowdroy J in some way and secondly, to afford him the fullest opportunity to give an explanation as to why the orders may not have been complied with.

4 As Mr McEwen put it, ultimately the intention of the second respondent may be satisfied by a plea of guilty with an explanation. The prospect of serious consequences remains, irrespective of whether the applicant seeks to persuade the Court to impose a custodial sentence. Nevertheless, that remains an option that is open to the Court and the matter needs to be considered in that light.

5 The High Court considered the circumstances of an unrepresented litigant in Dietrich v The Queen (1992) 177 CLR 292 and the aspect of whether or not this respondent should be allowed to, or be put in a position of having…

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 216
Decision Date: 09/09/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (Applicant) brought proceedings against Panther Resources Pty Ltd and Andrew Thaler (Respondents) concerning an alleged contempt of court. The Applicant sought orders against Mr. Thaler, including a potential custodial sentence. The case was presided over by Talbot J, who acknowledged the pro bono assistance provided by Mr. McEwen SC to Mr. Thaler, who appeared unrepresented. Mr. Thaler had previously pleaded not guilty to the charges at the instruction of another judge, Cowdroy J, but maintained this plea in the current proceedings.

The court had to determine whether Mr. Thaler, an unrepresented litigant, should be allowed to continue defending himself in these serious quasi-criminal proceedings or whether a stay should be granted. The court considered the implications of the High Court's ruling in Dietrich v The Queen, which addressed the rights of unrepresented litigants. The court also considered the potential consequences of the proceedings for Mr. Thaler, who intended to challenge the original orders and provide an explanation for non-compliance.

The court decided to direct Mr. Thaler to apply for legal aid within seven days and to report the outcome to the Applicant. The matter was adjourned to allow for this process, with liberty to restore on three days' notice. The court set a date for mention and directions, reserving costs and returning an exhibit for the Applicant's information.

Orders