Environment Protection Authority v Ramsey Food Processing Pty Ltd - [2003] NSWLEC 82

Reported Decision: (2003) 125 LGERA 369

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82 revised - 30/04/2003

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

FILE NUMBER(S): 50093 of 2002

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences :- water pollution - wastewater treatment system - penalty - mitigation - late plea of guilty - expenditure to prevent pollution - negligence irrelevant to strict liability offences

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120(1), s 120(2), s 123, s 241, s 245(c)
Crimes (Sentencing Procedure) Act 1999, s 22

CASES CITED: Axer Pty Limited v Environment Protection Authority (2001) 113 LGERA 357;
Cameron v R (2002) 76 ALJR 382;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Anning (1998) 100 LGERA 354;
Environment Protection Authority v Brazel (2002) 119 LGERA 72;
Environmental Protection Authority v Timber Industries Ltd [2000] NSWLEC 39;
Environmental Protection Authority v TransGrid [2003] NSWLEC 18;
Lim Chin Aik v The Queen [1963] AC 160;
Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court NSW, 6 November 1986, unreported);
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66;
R v Olbrich (1999) 199 CLR 270;
R v Storey [1998] 1 VR 359;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Regina v O'Neill [1979] 2 NSWLR 582;
State Pollution Control Commission v Tiger Nominees Pty Ltd and Another (1991) 72 LGRA 337;
Thorneloe v Filipowski (2001) 52 NSWLR 60;
Woodward (for and on behalf of the State Pollution Control Commission of New South Wales) v Cleary Brothers (Bombo) Pty Ltd (1984) 54 LGRA 409

DATES OF HEARING: 10/03/2003
11/03/2003

DATE OF JUDGMENT:
04/28/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms E. Fullerton SC
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr P. O'Connor (Barrister)
SOLICITORS
Hannigans Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50093 of 2002

Cowdroy J

28/04/2003

ENVIRONMENTAL PROTECTION AUTHORITY

Applicant

RAMSEY FOOD PROCESSING PTY LTD

Defendant

Judgment

Facts

1 By summons dated 27 September 2002 the Environmental Protection Authority (“the EPA”) charges Ramsey Food Processing Pty Ltd (“the defendant”) with an offence committed against s 120(2) of the Protection of the Environment Operations Act 1997 (“the POEO Act”). Such charge alleges that on or about 3 October 2001 the defendant caused waters to be polluted when a pipeline comprising part of the defendant’s wastewater treatment system failed.

2 Initially these were defended proceedings but on the second day of the contested hearing the defendant changed its plea to guilty. Accordingly the Court is only required to determine the appropriate penalty.

3 Section 120 of the POEO Act provides:-

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters includes cause or permit any waters to be…

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 82
Decision Date: 04/28/2003

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales involved a prosecution by the Environmental Protection Authority (EPA) against Ramsey Food Processing Pty Ltd (the defendant), charging it with causing water pollution by discharging wastewater from its wastewater treatment system into Musk Valley Creek. The defendant, which operates an abattoir, initially defended the charge but changed its plea to guilty on the second day of the contested hearing. The court's task was to determine the appropriate penalty for the offence under the Protection of the Environment Operations Act 1997.

The court considered several factors in assessing the seriousness of the offence, including the extent of the harm caused or likely to be caused to the environment, measures taken to prevent, control, abate or mitigate that harm, the reasonable foreseeability of the harm, and the extent of the defendant's control over the causes of the water pollution. The court also considered mitigating factors such as the defendant's guilty plea and expenditure incurred to prevent pollution. The court found that the offence was serious due to the potential harm to the environment, but the extent of the harm was contained within the defendant's premises and the concentration of the effluent diminished at a distance of approximately 450 metres from the discharge point. The court also found that the defendant could have reasonably foreseen the harm and had control over the causes of the water pollution.

The court granted a 10% discount on the penalty for the defendant's guilty plea, which was entered late in the proceedings, and did not consider the defendant's expenditure to prevent pollution as a mitigating factor. The court found that the defendant could have taken measures to avoid the offence, such as implementing a system of surveillance of the pipeline following a previous incident. The court imposed a penalty of $33,750, which lies in the low to middle range of penalties imposed for offences with a similar degree of gravity.

In addition to the penalty, the court made orders requiring the defendant to submit a document specifying the system for inspection of the effluent treatment system at the abattoir and the means by which such system is maintained and the procedures for recording incidents that are likely to cause or have caused water pollution. The court also ordered the defendant to pay the prosecutor's costs and return the exhibits.

Orders