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Environment Protection Authority v Peters

Environment Protection Authority v Peters

Case [2006] NSWLEC 465 19 July 2006

Regulatory Compliance

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Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Mark Peters [2006] NSWLEC 465

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Mark Peters

FILE NUMBER(S): 50033 of 2005

CORAM: Jagot J

KEY ISSUES: Prosecution :- Ex parte - company furnishing information false or misleading in a material respect - liability of director of company for furnishing information false or misleading in a material respect - approved labels for pesticides - information comprising certificates of pesticide applications

LEGISLATION CITED: Agricultural and Veterinary Chemicals (New South Wales) Act 1994
Criminal Procedure Act 1986 s 250(a)
Interpretation Act 1987 s 21
Land and Environment Court Act 1979
Pesticides Act 1999 s 4(1), s 15
Protection of the Environment Operations Act 1997 s 169, s 186, s 193, s 211(2)

CASES CITED: Bentley v BGP Properties Pty Limited [2006] NSWLEC 34;
Cassell v The Queen (2000) 201 CLR 189;
Environment Protection Authority v Hargraves [2002] NSWLEC 113;
Environment Protection Authority v Iron Gates Pty Limited [1998] NSWLEC 123;
EPA v Emerald Peat Pty Limited (In Liq) [1999] NSWLEC 147;
Hamilton v Whitehead (1988) 166 CLR 121;
R v Cassell (1998) 45 NSWLR 325;
Tesco Supermarkets Limited v Nattrass [1972] AC 153

DATES OF HEARING: 17/07/2006, 18/07/2006, 19/07/2006

EX TEMPORE JUDGMENT DATE: 07/19/2006

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard
SOLICITORS
Department of Environment & Conservation
DEFENDANT
No appearance
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

19 July 2006

50033 of 2005

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor

MARK PETERS
Defendant
JUDGMENT

Jagot J:
Introduction

1 The defendant, Mark Peters, is charged with an offence against s 211(2) of the Protection of the Environment Operations Act 1997 (the “POEO Act”), by operation of s 169 of that Act.

2 Section 211(2) provided that:

(2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence.

3 Section 169 provided that:

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation…

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.

Continue reading Environment Protection Authority v Peters

Details

AGLC: Environment Protection Authority v Peters [2006] NSWLEC 465
Case: [2006] NSWLEC 465
Decision Date: 19/07/2006

CaseChat Overview and Summary

The defendant, Mark Peters, was charged with an offence under the Protection of the Environment Operations Act 1997 (POEO Act) for furnishing false or misleading information in material respects. The court had to determine whether the defendant, as a director of Mandiar Pty Limited, was liable for the offence committed by the company. The court had to establish if the defendant was the directing mind and will of the company, if the information furnished was false or misleading in material respects, and if the defendant knew the information was false or misleading. The court found that the defendant was the directing mind and will of the company, that the information furnished was false or misleading in material respects, and that the defendant knew the information was false or misleading. Therefore, the defendant was liable for the offence committed by the company. The court ordered the prosecutor to approach the registry to obtain a date for the sentence hearing and to take steps to notify the defendant of the orders.

Orders