Environment Protection Authority v Ramsey Food Processing Pty Ltd - [2010] NSWLEC 150

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 150

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Ramsey Food Processing Pty Ltd

FILE NUMBER(S): 50069 of 2009

CORAM: Sheahan J

KEY ISSUES: PROSECUTION :- defendant's solicitors removed by defendant, defendant unrepresented, no appearance by defendant, plea of Not Guilty, application for adjournment by defendant in writing, application by prosecutor to proceed ex parte, charge of polluting waters, effluent from abattoir, effluent escaping from bunded area into nearby creek

LEGISLATION CITED: Criminal Procedure Act 1986
Protection of the Environment Operations Act 1997
Protection of the Environment Operations (General) Regulation 1998

DATES OF HEARING: 9 and 10 August 2010

EX TEMPORE JUDGMENT DATE: 10 August 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D K Jordan
SOLICITORS
Deparment of Environment Climate Change and Water
DEFENDANT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

10 August 2010

50069 of 2009 Environment Protection Authority v Ramsey Food Processing Pty Ltd
JUDGMENT

Introduction

By summons dated 12 November 2009 the EPA alleges that between about 3 and 4 December 2008 inclusive, at or near South Grafton, the defendant company committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (‘POEO Act’) in that it caused or permitted to discharge into the waters of Musk Valley Creek, effluent from an abattoir containing the following:

(a) animal matter of any description and/or

2 Under Item 1 of Schedule 3 of the Protection of the Environment Operations (General) Regulation 1998, as in force at that time, “animal matter of any description” is “prescribed matter” for the purpose of the offence.

3 The particulars of the breach describe the placing of the pollutant into a bund unsuitable for holding it, and/or failing to prevent the pollutant from escaping from the bund, as a result of which the pollutant was placed in, or introduced into, or on, the waters of the creek system, and/or was placed in a position where it fell, descended or was washed into those waters. In the alternative, or additionally, the company is charged with being the occupier of premises at or from which pollution occurred.

4 In submissions on the question of guilt the prosecutor has relied on the following elements of the POEO Act dictionary definition, under which “water pollution”/”pollution of waters” means:

“(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

…

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature,…

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: [2010] NSWLEC 150
Decision Date: 10 August 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Ramsey Food Processing Pty Ltd for an alleged environmental offence under the Protection of the Environment Operations Act 1997. The EPA alleged that the defendant caused or permitted the discharge of effluent from its abattoir into Musk Valley Creek, which led to the pollution of the waters. The defendant, represented by its CEO Stuart Bruce Ramsey, pleaded not guilty but failed to appear at the hearing. The court allowed the prosecutor to proceed in the absence of the defendant.

The court had to determine whether the defendant had committed the offence of polluting waters by allowing effluent to escape from its bunded area into Musk Valley Creek. The court considered the evidence presented by the prosecutor, including affidavits from officers of the prosecuting department and documents related to the defendant's operations. The court found that the defendant had failed to maintain its premises and adopt proper work and training practices, leading to the discharge of tallow, a fatty material from cattle carcases, into the creek. This discharge changed the chemical, biological, and physical condition of the water and caused environmental harm.

The court found the defendant guilty of the offence and will now hear arguments on conviction, penalty, costs, and other ancillary orders. The final orders of the court will be published at a later date.

Orders