Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd - [2003] NSWLEC 351

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd [2003] NSWLEC 351

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Rethmann Australia Environmental Services Pty Ltd

FILE NUMBER(S): 50006; 50008 of 2003

CORAM: Talbot J

KEY ISSUES: Prosecution :- totality - penalty where liability vicarious

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 64(1), s 116, s 241, s 241(1)(a), s 250

CASES CITED: R v Holder; R v Johnston (1983) 3 NSWLR 245;
Veen v The Queen (No 2) (1987-1988) 164 CLR 465;
Weininger v R (2003) 196 ALR 451 (HCA)

DATES OF HEARING: 1/12/2003

DATE OF JUDGMENT:
12/19/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D A Buchanan SC
SOLICITORS
Department of Environment and Conservation (formerly Environment Protection Authority)
DEFENDANT
Mr I S Lloyd QC
SOLICITORS
Minter Ellison

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50006 of 2003
50008 of 2003

Talbot J

19 December 2003

Environment Protection Authority

Prosecutor

Rethmann Australia Environmental Services Pty Ltd

Defendant

Judgment

Introduction

1 By summons issued in matter No. 50006 of 2003 in the class 5 jurisdiction of the Court, Rethmann Australia Environmental Services Pty Ltd (“the defendant”) is charged that on or about 15 February 2002 at or near 3 Distillers Place, Huntingwood (“the Huntingwood premises”) it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that it was the holder of an environment protection licence, a condition of which was contravened. In matter No. 50008 of 2003 the defendant faces the same charge that on the same day it committed the same offence at or near 238 Prospect Highway, Seven Hills (“the Seven Hills premises”).

2 Environment Protection Licence No. 7356(“the EPL”), issued by the Environment Protection Authority (“the EPA”) in respect of a tanker truck registered No. PQZ 374, contains condition 4.01.1 which provides as follows:-

Licensed activities must be carried out in a competent manner.

3 Effectively, what the prosecutor alleges is that the defendant failed to provide any instructions, or any sufficient instructions, to its employees in relation to dealing with odour incidents arising from the use of the tanker truck. Further, after being notified of an odour being omitted from the tanker truck at the nominated premises the defendant continued, through its employees, to operate the pumping equipment on the tanker truck, thereby causing an odour and/or gas to vent to the atmosphere at the two premises.

4 The defendant has entered a plea of guilty to each charge.

5 The parties have agreed on a statement of facts relevant to each offence.

Statement of Agreed Facts

6 The Statement of Agreed Facts (“the SOAF”) discloses the following.

7 The defendant conducts a waste management business and, in particular, provides a liquid waste transport and disposal service in New South Wales. The defendant holds the EPL under Chapter 3 of the PEO Act. The EPL authorises the defendant to transport…

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 351
Decision Date: 12/19/2003

CaseChat Overview and Summary

In the case of Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd, the Land and Environment Court of New South Wales was tasked with determining whether Rethmann Australia Environmental Services Pty Ltd (the defendant) was guilty of breaching a condition of its environment protection licence under the Protection of the Environment Operations Act 1997. The defendant, a waste management company, was accused of failing to conduct its waste transport and collection activities competently, resulting in the release of odorous gases that caused significant harm to people at two separate locations. The court had to decide whether the defendant was liable for the vicarious acts of its employees and determine an appropriate penalty.

The court found that the defendant was indeed liable for the actions of its employees under the principle of vicarious liability. It was established that the defendant's employee, James Struthers, failed to follow the company's procedures when an odour was detected during waste collection, which led to the release of harmful gases. The court considered various factors, including the seriousness of the offences, the harm caused, the defendant's response to the incidents, and its cooperation with the prosecutor. The court also noted the defendant's exemplary record and its efforts to improve its policies and procedures post-incident.

Ultimately, the court concluded that a substantial penalty was warranted to serve as a deterrent and to emphasize the seriousness of such incidents. The court imposed a fine of $20,000 for the offence at Huntingwood and $50,000 for the offence at Seven Hills, totaling $70,000. Additionally, the defendant was ordered to write letters of apology to the affected companies and pay the prosecutor's costs. The court believed that these measures, along with the financial penalty, adequately addressed the defendant's breaches and the harm caused.

Orders