Environment Protection Authority v Ramsey Food Processing Pty Ltd ACN 082 062 468 (No. 3)
[2011] NSWLEC 180
•13 October 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Ramsey Food Processing Pty Ltd ACN 082 062 468 (No. 3) [2011] NSWLEC 180 Hearing dates: 13/10/2011 Decision date: 13 October 2011 Jurisdiction: Class 5 Before: Sheahan J Decision: 1. Noting for the record that the Defendant did not appear when called at the commencement of today's hearing, the Court holds the Defendant to be in contempt of Orders 3b, 3c, 4a, 4b, and 5 of the orders made by me on 17 September 2010.
2. These contempt proceedings are adjourned for further hearing on conviction and sentence on 7 and 8 December 2011 .
3. I order the Defendant to pay the costs of the Prosecutor's motion, as agreed or assessed.
Catchwords: CONTEMPT: Findings made Legislation Cited: Land and Environment Court Act 1979
Protection of the Environment Operations Act 1997
Supreme Court Rules 1970Cases Cited: Australian Securities and Investments Commission (ASIC) v Sigalla (No 4) [2011] NSWSC 62
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2003] NSWLEC 82; (2003) 125 LGERA 369
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 150
EPA v Ramsey Food Processing Pty Ltd (No.2) [2010] NSWLEC 175
Fairfield City Council v Adam [2009] NSWLEC 199
Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104
Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132
Hearne and Anor v Street and Ors [2008] HCA 36; (2008) 235 CLR 125
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525Category: Principal judgment Parties: Environment Protection Authority (Prosecutor)
Ramsey Food Processing Pty Ltd ACN 082 062 468 (Defendant)Representation: N/A
Mr A A Hill (Prosecutor)
No appearance (Defendant)
File Number(s): 50069 of 2009
Judgment
Introduction
By Notice of Motion and Statement of Charge dated 17 February 2011, the Defendant company has been charged with contempt of court in regard to its alleged failure to comply with a range of orders made by the Court on 17 September 2010 following a successful prosecution concluded on 10 August 2010.
Background
I will not repeat all the relevant background information contained in the two judgments of the Court [2010] NSWLEC 150 and 175, but the charge laid on 11 November 2009 was that the company had offended s 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters on 3-4 December 2008 with waste and by-products and various other substances coming from its abattoir operation at or near South Grafton.
When the Defendant company was first charged with that offence Francis Gregory Hannigan of 'Hannigans Solicitors' filed an appearance on the Defendant's behalf on 19 November 2009.
On 11 June 2010 a plea of not guilty was entered on the Defendant's behalf.
On 7 July 2010 Stuart Bruce Ramsey filed in the Court a notice dated 28 June 2010, indicating that, as a director of the Defendant, he had terminated Mr Hannigan's authority to act for the Defendant in these proceedings. That notice was forwarded to the Registrar under cover of a letter dated 6 July 2010 signed by Monique Hannigan.
On several occasions referred to in my earlier judgments, the Defendant company since June 2010 has chosen to write direct to the Court about this matter, but has not appeared.
I am satisfied by the evidence before me today that the Prosecutor has carried out all directions given by the Court regarding service of documents on, and notification of directions, dates etc to, the Defendant. The Prosecutor generally sends its documents and correspondence by registered post, and to both the Defendant's registered office and the abattoir itself. None of the directions to the Defendant have been complied with.
Again today the Defendant has not appeared, nor been represented, and the Court has proceeded to again deal with the matter in its absence.
I note for the record, however, that at the time the substantive charge was dealt with in August 2010, Hannigans were still appearing for the Defendant company in respect of two Class 1 applications it had filed in this Court against the Prosecutor on 18 June 2010, one concerning the company's application to transfer its Environment Protection Licence ( EPL ) to a related company, Ramsey Wholesale Meats Pty Ltd, and the other seeking deletion of some variations made to EPL 1598 in a notice dated 26 May 2010 issued by the EPA.
Searches before the Court in August 2010 indicated that Stuart Bruce Ramsey and his wife Patricia Anne Ramsey had been directors of the Defendant company, but that its shares were owned by Ramsey Wholesale Meats Pty Ltd at the relevant time. Mr & Mrs Ramsey's residential address was given as 100 Regatta Parade, Southport, Queensland, but the two relevant companies and Hannigans have offices at the same address, namely 92 Centre Street Casino. An up to date ASIC search as at 4 November 2010 is before the Court today in tab 1 of Exhibit P1 , showing only Mrs Ramsey as a director by that date.
The substantive finding I made on 10 August 2010 in respect of the pollution charge was noted, at par [53] of my first judgment [2010] NSWLEC 150, in the following terms:
I find that the proscribed animal tallow material fell or descended or percolated into prescribed waters, namely a length of approximately 100m of Musk Valley Creek, so as to constitute an offence of " pollute waters " under s 120 of the POEO Act , by reason of failures on the part of the defendant company as holder of EPL 1598 to secure, maintain, and supervise its premises, and adopt better work and training practices.
On 10 August 2010 I entered a conviction and ordered the Defendant company to pay the Prosecutor's costs and investigation expenses. I also made a series of notations and orders foreshadowing that the Court would likely order an environmental audit of the subject site.
On 10 September 2010 a sentencing hearing was appointed for 17 September 2010.
Again on 17 September there was a letter from, but no appearance by, the Defendant, so I proceeded in its absence. I gave an extempore judgment (No. 2 [2010] NSWLEC 175) in which I noted previous convictions entered and sentences imposed by Cowdroy J in 2003 ([2003] NSWLEC 82; (2003) 125 LGERA 369), and Biscoe J in February 2010 ([2010] NSWLEC 23).
The Orders
I made (at [31]) a series of consolidated orders that included the following (the annexures 'A' and 'B' are not reproduced):
1. The court confirms its order 'A' of 10 August, that the defendant is convicted of the offence charged in the summons dated 12 November 2009.
2. Pursuant to s. 250(1)(d) of the Protection of the Environment Operations Act 1997, and subject to Order 3 of these orders, the offender is ordered to carry out the environmental audit specified in Annexure A to these orders ('the mandatory audit').
3. Pursuant to s. 250(1)(d) and s. 250(2) of the Protection of the Environment Operations Act 1997:
a. Molino Stewart Pty Ltd ACN 067774332 is appointed to carry out the mandatory audit;
b. within 14 calendar days of the date of these orders, the offender shall, at its own cost, do all things reasonably necessary to cause the auditor to perform the mandatory audit; and
c. within 60 calendar days of the appointment date, the offender is to file and serve a copy of the mandatory audit on the Prosecutor.
4. Pursuant to s. 250(1)(a) of the Protection of the Environment Operations Act 1997, the offender is ordered to take the following action to publicise the offence:
a. Within 14 calendar days of the date of these orders, publish the contents of the notice annexed to these orders and marked 'Annexure B', in the first 12 pages of the early general news section of the Sydney Morning Herald at a minimum height of 10cm by width of 20cm, from and including the heading below the words 'Annexure B', such heading to be in bold print; and
b. Within 14 calendar days of the date of these orders, publish the contents of Annexure B in the first 12 pages of the Grafton Daily Examiner at a minimum size of one quarter of a page, from and including the heading below the words 'Annexure B', such heading to be in bold print.
5. Within seven calendar days of the due date for compliance with Orders 3b, 4a and 4b, the defendant is ordered to provide evidence to the prosecutor that there has been compliance with each of those orders.
6. The Prosecutor is ordered to notify the offender of these orders in writing.
7. The court notes that, upon the offender carrying out the mandatory audit the subject of Order 3 of these orders, and having regard to the recommendations of the audit report arising from the mandatory audit, the Court may contemplate ordering, as part of sentencing and pursuant to section 245(c) of the POEO Act, that the offender take such steps as may be specified in any such report to prevent the continuance or recurrence of the offence. The matter is adjourned to 9.30am on Friday 26 November 2010 for the purpose of the Court making any further orders based upon the recommendations set out in the mandatory audit.
8. Liberty is granted to the parties to apply generally on two calendar days notice.
9. The defendant company is ordered to pay the prosecutor's costs of these proceedings up to and including today, including the costs ordered to be paid pursuant to order C:9 made on 10 August 2010, as agreed or assessed.
10. Order C:8 made 10 August 2010 in respect of investigation costs and expenses ($1,715.01) is confirmed.
11. Exhibits P10, P11, P13-P18 are now returned.
Contempt is Charged
When these orders did not appear to have been complied with as at 17 February 2011, the Notice of Motion for contempt, the Statement of Charge, and a supporting affidavit, were filed in open court, and I gave directions.
The Statement of Charge recites pars 2, 3, 4 and 5 of the orders of 17 September 2010, as reproduced above, and particularises the five charges of contempt in the following terms:
First Charge
In breach of Order 3b the Defendant did not, within 14 days of Order 3b being made, do all things reasonably necessary to cause the appointed auditor to perform the mandatory audit in that it failed to provide, or undertake to provide, payment of the fees of the appointed auditor for performing the audit.
Second Charge
In breach of Order 3c the Defendant did not, within 60 days of Order 3c being made, file and serve a copy of the mandatory audit on the Prosecutor.
Third Charge
In breach of Order 4a the Defendant did not, within 14 days of Order 4a being made, place a notice in the first 12 pages of the early general news section of the Sydney Morning Herald newspaper at a minimum height of 10cm by width of 20cm in the form of Annexure 'B' to the order made by His Honour Justice Sheahan on 17 September 2010.
Fourth Charge
In breach of Order 4b the Defendant did not, within 14 days of Order 4 being made, place a notice in the first 12 pages of the Grafton Daily Examiner at a minimum size of one quarter of a page in the form of Annexure 'B' to the order made by His Honour Justice Sheahan on 17 September 2010.
Fifth Charge
In breach of Order 5 the Defendant did not, within seven days of the due date for compliance with Orders 3b, 4a and 4b, provide evidence to the Prosecutor that there had been compliance with each of those orders.
The Evidence
Since 17 February 2011, various affidavits and other documents have been filed by the Prosecutor, and the evidence upon which it relied today can be briefly summarised.
Anthony Alexander Hill, solicitor for the Prosecutor, deposes to service of documents, to other correspondence between the parties, and to the Prosecutor's satisfaction that, while appropriate newspaper advertisements were placed by the Defendant in respect of its convictions by Biscoe J on 24 February 2010, none were placed in respect of its conviction by me on 17 September 2010.
Peter Kerr from the Sydney Morning Herald deposes that the Defendant placed advertisements in his paper re the February 2010 matter (and paid the fee), but not the September 2010 matter.
Judith Lewis from the Grafton Examiner gives similar evidence to Mr Kerr in respect of advertising in that newspaper.
Scott Ensbey, an officer of the Prosecutor, deposes to service of letters, and annexes a copy of EPL 1598.
Robert Donohoe, another officer of the Prosecutor, also swore an affidavit on 4 July 2011 regarding service of letters.
The nominated environmental auditor, Steven Molino, swore an affidavit dated 29 June 2011, deposing that the Defendant at no stage engaged his company for the audit, as ordered.
Prosecution solicitor Gail Nash swore an affidavit on 27 July affirming that the Defendant has not complied with Orders 3c and 5 of 17 September 2010.
Among the annexures to the Prosecutor's affidavits are several relevant letters.
On 27 September 2010, the Defendant company wrote to the Prosecutor in the following terms:
To Whom It May Concern,
Re: EPA v Ramsey Food Processing Pty Ltd
Land and Environment Court No. 50069 of 2010
I have a copy of the judgement in the above matter which was given on the 17th September 2010.
In the judgement a number of Orders were made including that the offender is to publish the offence within 14 days in the Sydney Morning Herald and the Grafton Daily Examiner .
As you are aware, the offender is insolvent and is unable to pay the cost of the publications. If Ramsey Food Processing did so it would be trading insolvently and in doing so would be breaking the law.
We note Section 250(3) of the Protection of the Environmental Operations Act 1997 allows the prosecutor to take action to carry out the order as far as is practicable.
Yours faithfully,
Ramsey Food Processing Pty Ltd
On the same day, the Defendant wrote to Molino Stewart in the following terms:
Dear Mr Molino
Re: EPA v Ramsey Food Processing Pty Ltd
Land and Environment Court No. 50069 of 2010.
I have a copy of the judgement in the above matter which was given on the 17th September 2010.
In the judgement a number of Orders were made including that Molino Stewart Pty Ltd is appointed to carry out a mandatory audit of the Armidale Road Site (Order 3a). Order 3b requires Ramsey Food Processing Pty Ltd to do all things reasonably necessary to cause the auditor to perform the mandatory audit which is the reason for this letter.
Your staff can access the Armidale Road Site on 24 hours notice and we will do our best to answer any questions you may have as well as providing you with access to documents etc. Naturally any of your staff visiting the site will need to comply with occupational health and safety requirements as well as any applicable AQIS requirements including Q-Fever injections.
You will see from the judgement that Ramsey Food Processing advised the Court that it was in a poor financial position and was unable to continue paying for legal representation for the hearing. Ramsey Food Processing is insolvent and put simply is unable to pay your firms fee of $84,450.30, or any part of it, to conduct the mandatory audit. If Ramsey Food Processing did so then it would be trading insolvently and in doing so would be breaking the law.
Ramsey Food Processing will do everything reasonable to allow your company to undertake the mandatory audit but it cannot pay for it.
Yours faithfully
Ramsey Food Processing Pty Ltd
On 20 July 2011, Hannigans wrote to the Registrar of this Court in the following terms, concerning the present proceedings:
The Director of the above company, being the Defendant in the above proceedings, has requested our Firm, to act as Amicus Curiae and to advise the Court of the following;-
1. The Company is insolvent;
2. The Company cannot attend Court as it would be an indication of trading whilst insolvent;
3. The Company has no funds to instruct legal practitioners; and
4. It is likely the Company shall be wound up in the future.
Consideration
This Court has power, under s 67(1)(d) of the Land and Environment Court Act 1979, to deal with contempt, and must comply with Part 55 of the Supreme Court Rules 1970 in doing so. The jurisprudence of the High Court and Court of Appeal, in cases such as Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, Hearne and Anor v Street and Ors [2008] HCA 36; (2008) 235 CLR 125, and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, is applied by all the judges of this Court. See, for example, recent cases such as Fairfield City Council v Adam [2009] NSWLEC 199, and Gerondal v Eurobodalla Shire Council (Nos 5 and 6) [2011] NSWLEC 104 and 132. See also White J's learned judgment in Australian Securities and Investments Commission (ASIC) v Sigalla (No 4) [2011] NSWSC 62.
I am satisfied beyond reasonable doubt that the Defendant is on notice of the charges and of today's hearing.
I am also satisfied beyond reasonable doubt that it is aware of my two earlier judgments, and the findings and the orders I have made in the matter. All those documents were served, and the Defendant's letters of 27 September 2010 contain clear admissions.
In respect of the first charge of contempt, concerning Order 3b of 17 September 2010, I am satisfied beyond reasonable doubt that the Defendant was clearly on notice of the " reasonably necessary " requirements of the Prosecutor, the Court and the nominated auditor, in respect of the audit ordered, and did not comply.
Not having had the audit performed, the Defendant inevitably failed to serve a copy of it, and so failed to comply with Order 3c of the Court's orders. Ms Nash's evidence confirms that the second charge must, therefore, also succeed.
I am also satisfied beyond reasonable doubt that the Defendant failed to place the advertisements required by Orders 4a and 4b, and that it must, therefore, be found guilty on the third and fourth charges.
Order 5 required the Defendant to provide evidence of its compliance with Orders 3b, 4a and 4b. As I am satisfied beyond reasonable doubt that the Defendant failed to comply with those orders, I am satisfied by Ms Nash's evidence that it must be found guilty of the fifth charge as well.
Conclusion and Orders
Noting for the record that the Defendant did not appear when called at the commencement of today's hearing, the Court holds the Defendant to be in contempt of Orders 3b, 3c, 4a, 4b, and 5 of the orders made by me on 17 September 2010.
These contempt proceedings are adjourned for further hearing on conviction and sentence on 7 and 8 December 2011 .
I order the Defendant to pay the costs of the Prosecutor's motion, as agreed or assessed.
I make the following directions:
1. The Prosecutor is to file and serve any evidence upon which it seeks to rely on sentence by 11 November 2011.
2. The Defendant is to file and serve any evidence in reply by 25 November 2011.
3. The parties are to notify one another as to any witnesses a party requires for cross examination by no later than 7 business days prior to hearing.
4. The parties are to notify one another as to any objections to evidence filed by the other party by no later than 10 business days prior to hearing.
5. The Prosecutor is to serve a sealed copy of these orders on the Defendant by close of business 19 October 2011.
The parties have liberty to restore on 3 business days notice to the other party.
All exhibits will be retained on the Court file, pending the hearing on 7 and 8 December 2011.
I will publish these reasons later today.
Decision last updated: 12 December 2011
1
10
3