Environment Protection Authority v Thaler - [2005] NSWLEC 109

Land and Environment Court

of New South Wales

CITATION:
EPA v Thaler [2005] NSWLEC 109

PARTIES:
APPLICANT
Environment Protection Authority
RESPONDENT
Andrew Evan Thaler

FILE NUMBER(S):
(4)0261 of 2002

CORAM:
Talbot J

KEY ISSUES:
Contempt :- penalty.

LEGISLATION CITED:
Fines Act 1996.

DATES OF HEARING: 21/2/05, 22/2/05

EX TEMPORE JUDGMENT DATE:
02/22/2005

LEGAL REPRESENTATIVES:
APPLICANT
Ms J M Jagot (Barrister)
SOLICITORS
Environment Protection Authority
RESPONDENT
Mr R G Thomas (Barrister)
SOLICITORS
Bates & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

22 February 2005

(4)0261 of 2002 Environment Protection Authority v Andrew Evan Thaler
JUDGMENT

1 Talbot J: Andrew Thaler (“the respondent”) is charged with contempt of Court for having failed to comply with orders made by Cowdroy J on 16 August 2002. The circumstances are set out in a statement of charge which was served in accordance with the rules.

2 Finally with the benefit of counsel and solicitor, the respondent has appeared at this hearing. At the commencement of the actual hearing, with the leave of the Court, he changed his plea from a plea of not guilty to guilty. The plea of guilty amounts to an admission of the essential elements of the charge and the facts supporting it.

3 Briefly, the orders made by Cowdroy J in effect required the respondent and a former company, Panther Resources Pty Limited to comply with certain orders made by the applicant in relation to the management of waste at premises 51 Hinksman Street, Queanbeyan and associated matters in relation thereto such as provision of reports and receipts relating to the disposal of the waste, which in the main, although not exclusively, comprised batteries previously used in motor vehicles.

4 The respondent’s attempts, as a director of Panther Resources and individually, to comply firstly with the orders made by the Environment Protection Authority (“EPA”) and, secondly, when those orders were reinforced by the orders made by Cowdroy J, to put it in the best light, demonstrate a certain degree of reluctance. He expressed a strong resentment to the making of the orders against him when he had formed the view that others were not being treated in the same way and that accordingly the attitude of the Authority towards him, was in his opinion, discriminatory.

5 I have accepted that the initial resentment may have carried through to his approach to the compliance with the orders made by Cowdroy J. That has turned out to be a seriously misguided approach. Although it was put to him, perhaps in staccato fashion, by EPA officers that the Court orders needed to be respected, Mr Thaler made it quite clear at various times during the course of negotiations and discussions with them that was not a matter that concerned him.

6 Initially the applicant proceeded on the basis that Mr Thaler’s actions in contempt of the Court’s orders justified a prison sentence. I regard the actions of Mr Thaler as extraordinarily serious. However, as I said earlier in…

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: [2005] NSWLEC 109
Decision Date: 02/22/2005

CaseChat Overview and Summary

In the matter of Environment Protection Authority v Andrew Evan Thaler, the respondent, Andrew Thaler, was charged with contempt of court for his failure to comply with orders made by Cowdroy J on August 16, 2002. The case was heard by the Land and Environment Court of New South Wales. The primary legal issue that the court needed to decide was whether the respondent's actions amounted to contempt of court, and if so, what penalty should be imposed. The court considered the respondent's actions in relation to the management of waste at premises located at 51 Hinksman Street, Queanbeyan, and associated matters. The court found that the respondent's attempts to comply with the orders made by the Environment Protection Authority and reinforced by Cowdroy J were inadequate, and that he had a degree of reluctance in complying with the orders. The court accepted the plea of guilty and found the contempt proved. The court imposed a fine of $50,000 as a penalty for the contempt, and directed the respondent to pay the costs of the proceedings. The court also noted that failure to pay the fine would amount to further contempt, and that the prospect of imprisonment would follow if the court's orders were not complied with. The court emphasised that the respondent was fortunate not to face imprisonment, and that the fine would serve as a reminder of the seriousness of the situation.

Orders