Environment Protection Authority v Ramsey Food Processing Pty Ltd - [2009] NSWLEC 152

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152

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

FILE NUMBER(S): 50073; 50074; 50075 of 2008

CORAM: Biscoe J

KEY ISSUES: PROSECUTION :- application by defendant during sentencing hearing for leave to contradict or qualify previously agreed facts.

LEGISLATION CITED: Evidence Act ss 4(2), 184(1), 191, 192
Protection of the Environment Operations Act 1997 ss 120(1), 148(4)

CASES CITED: R v JGW [1999] NSWCCA 116
R v Popovic (unreported 25 March 1996)
R v Smith [1981] 1 NSWLR 193,
R v Wilkinson (No 4) [2009] NSWSC 323

DATES OF HEARING: 4 September 2009

EX TEMPORE JUDGMENT DATE: 4 September 2009

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr D Jordan, barrister
SOLICITORS
Department of Environment & Climate Change
DEFENDANT:
Mr A Djemal, barrister
SOLICITORS
Hannigans

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

4 September 2009

50073-75 of 2008

ENVIRONMENT PROTECTION AUTHORITY v RAMSEY FOOD PROCESSING PTY LTD

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application by the defendant, made on the third day of a sentencing hearing for pollution offences, for leave to contradict or qualify facts agreed in the parties’ statement of agreed facts filed approximately ten weeks ago. The prosecutor’s case has not yet closed.

2 The defendant has pleaded guilty to charges that it committed offences against s 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters. It has also pleaded guilty to a charge of committing an offence against s 148(4) in that, being the occupier of premises on which a pollution incident occurred so that material harm to the environment was caused or threatened, it failed to notify the appropriate regulatory authority of the pollution incident as soon as practicable after becoming aware of the incident and to provide all relevant information about the incident.

3 The prosecution alleges that the polluting water offences occurred between about 8 and 12 October 2007, the pollutants were effluent from the defendant’s abattoir, the effluent was being carried by pipe from the abattoir to the defendant’s settlement ponds some distance south of the abattoir; and the effluent escaped through a crack in the pipe in north-easterly and south-easterly directions into the Musk Valley Creek and in a north westerly direction into the Musk Valley Creek Western Tributary. The confluence of the creek and the tributary lies downstream a little to the north of the cracked pipe and close to the abattoir. The prosecutor alleges that the pollutant travelled a substantial distance in the creek downstream from the confluence in a general northerly direction. All this was agreed in the statement of agreed facts.

4 The defendant now seeks leave to contradict or qualify agreed facts in some nineteen paragraphs of the agreed statement of facts in order to make the following three contentions, which relate to the extent of environmental harm caused by the…

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: [2009] NSWLEC 152
Decision Date: 4 September 2009

CaseChat Overview and Summary

Environment Protection Authority v Ramsey Food Processing Pty Ltd was a case heard in the Land and Environment Court of New South Wales. The defendant, Ramsey Food Processing Pty Ltd, sought leave to contradict or qualify previously agreed facts during a sentencing hearing for pollution offences. The key issues were whether the defendant could contradict or qualify facts agreed in the parties' statement of agreed facts and whether the defendant had a good and substantial reason to warrant such leave. The defendant sought leave to contradict or qualify facts in nineteen paragraphs of the statement of agreed facts to make three contentions relating to the extent of environmental harm caused by the offence. The defendant argued that its effluent in the creek above the confluence came not from the cracked pipe but from its settlement ponds further to the south and were washed there by rain (Upstream Contention). The defendant also argued that downstream of the confluence the effluent did not travel as far as was agreed in the statement of agreed facts but a lesser, albeit significant, distance which the defendant could not specify (Downstream Contention). Lastly, the defendant argued that as a consequence of the downstream contention, the pollution caused by the defendant’s effluent downstream of the confluence only presented a potential health risk to humans in that unspecified part of the creek waters that it reached (Consequential Health Contention).
The court considered the matters listed in s 192(2) of the Evidence Act 1995, which should be taken into account when exercising the discretion to grant leave to contradict or qualify agreed facts. The court held that an application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. The court also held that the defendant had to make out a case for leave including as to the circumstances in which they came to agree the facts. The court held that the defendant had a stronger case for leave in criminal proceedings than in civil proceedings. The court held that the defendant should be given leave to contradict or qualify the agreed facts to the effect of the Upstream Contention as there was expert evidence capable of supporting it, which was not received by the defendant until after the statement of agreed facts was filed and which was duly served on the prosecutor before the hearing. The court held that it was not persuaded that it should give leave in respect of the Downstream Contention or the Consequential Health Contention. The court held that the weight of prejudice to the prosecution was greater than in the case of the Upstream Contention, particularly when viewed as cumulative to the prejudice or potential prejudice arising from the Upstream Contention.
The court gave leave to the defendant to contradict or qualify the statement of agreed facts by contending that the effluent from the cracked pipe did not travel east to the creek. The court ordered the defendant to pay the prosecutor’s costs occasioned by this leave and the prosecutor’s costs occasioned by any consequential adjournment of the hearing. After delivering the above reasons for judgment, the defendant informed the Court that, having regard to the prospect of the prosecution requiring an adjournment and the costs order, it abandoned the Upstream Contention.

Orders