Environment Protection Authority v Taylor [No. 3] - [2001] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115

PARTIES:
PROSECUTOR:
Environment protection Authority
DEFENDANT:
Rodney Scott Taylor

FILE NUMBER(S): 50093 of 1998; 50094 of 1998 and 50095 of 1998

CORAM: Lloyd J

KEY ISSUES: Prosecution :- carelessly disregard instructions on pesticide container - offence proven

LEGISLATION CITED: Interpretation Act 1987 s 30(1)
Pesticides Act 1978 s 21, s 23, s 25 and s 33

CASES CITED:

DATES OF HEARING: 01/05/2001

EX TEMPORE
JUDGMENT DATE :
05/01/2001

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr D A Buchanan SC
SOLICITORS:
Stephen Garrett
DEFENDANT:
Ms V M Heath
SOLICITORS:
Sheridan & Stubbs

JUDGMENT:

IN THE LAND AND Matter Nos.: 50093/50094/50095 of 1998
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 1 May 2001

Environment Protection Authority

Prosecutor

Rodney Scott Taylor

Defendant

JUDGMENT [No. 3]

HIS HONOUR:

1. The defendant is charged with three offences against s 33 of the Pesticides Act 1978. That Act was repealed and replaced in 1999 but the effect of s 30(1) of the Interpretation Act 1987 is that the repeal of the 1978 Act does not affect anything done or any liability acquired or penalty incurred under that Act; and any legal proceeding or remedy may be instituted, continued or enforced as if that Act had not been repealed.

2. Section 33 of the Pesticides Act 1978 is as follows:

33 (1) Except to the extend that he is otherwise required by an order made under section 21 or, pursuant to a permit, he is otherwise authorised by section 25 , a person shall not, in preparing for use, using, keeping or disposing of:

(a) a registered pesticide; or

(b) a pesticide that contains a registered pesticide,

wilfully or carelessly disregard any instruction on any label affixed to a container in which:

(c) the pesticide is situated;

(d) he acquired the pesticide; or

(e) he knows or has reasonable cause to suspect the pesticide to have been,

if there is a registered label for an approved container for the pesticide that contains that instruction.

Penalty: 200 penalty units or, for an offence by corporation, 400 penalty units

(2) It is a defence to a prosecution for a contravention of subsection (1) if the court is satisfied that the instruction disregarded was not directed to the avoidance of harm to the health or property of any person.

3. The first summons (No. 50093 of 1998) alleges that in on or about 4 June 1997 at No. 73 Tozer Street, West Kempsey the defendant committed an offence against s 33 of the Pesticides Act in that, not being a person required by an order under s 21 of the Act or a person authorised under s 25 of the Act, he did in using a registered pesticide carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a…

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: [2001] NSWLEC 115
Decision Date: 05/01/2001

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted Rodney Scott Taylor for three offences under section 33 of the Pesticides Act 1978. Taylor was charged with using a registered pesticide while carelessly disregarding specific instructions on the container's label. These instructions included not allowing contact with mattresses, bed clothes, or clothing, not contaminating utensils or surfaces where food may be prepared or stored, and keeping the pesticide away from cooking and eating utensils and removing or covering all raw or processed foodstuffs before spraying.

The legal issues before the court were whether Taylor had, in fact, carelessly disregarded the instructions on the pesticide container and whether the evidence was sufficient to prove the offences beyond reasonable doubt. Given that the offence under section 33 of the Pesticides Act 1978 is one of strict liability, the court needed to determine if the prosecution had demonstrated that Taylor had used the pesticide in a manner that disregarded the label instructions, irrespective of his intent or knowledge.

The court found that the evidence provided by the occupants of the house, along with photographs and a videotape, demonstrated that Taylor had used the pesticide in a manner that was in careless disregard of the label instructions. The evidence showed extensive contamination of various areas of the house, including kitchen surfaces, cupboards, children’s toys, shoes, walls, skirting boards, cooking utensils, and even clothing. Taylor had admitted to reading the instructions on the container, yet he proceeded to use the pesticide in a way that directly contravened the label's directives. The court concluded that Taylor's actions constituted a clear disregard for the safety instructions, leading to unavoidable contamination of household items and surfaces.

As a result, the court found Taylor guilty of all three charges. The hearing for the penalty was deferred to a future date, and the court granted the parties liberty to approach the Registrar to set the date for the penalty hearing. The exhibits would remain with the court until then.

Orders