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 response to that submission I have given him the benefit of the doubt. I have the benefit of his appearance before me prior to the commencement of the actual hearing, at a number of directions hearings. Since then I have heard evidence of his financial situation. I accept there were initially difficulties in obtaining the appropriate legal advice so that he may not have been in a position until quite recently to fully appreciate the seriousness of his actions and the dire consequences that could follow.

7 I am satisfied that Mr Thaler now does understand. If I am wrong about that, he must be a very stupid or arrogant person after having regard to the discussions that have taken place in open court. I have observed him in the witness box. I have not formed the opinion that he is either stupid or arrogant to the extent that his earlier actions may have indicated. If he does feel some resentment towards the EPA or indeed the Court for what has befallen him as a consequence of the Court making the orders, it is utterly misplaced.

8 There is now no question of coercion required to have the orders made by Cowdroy J complied with. As Ms Jagot, who appears for the applicant, has put to me, those matters that are technically outstanding are no longer of any utility. No further orders requiring compliance with those directions are necessary. Nevertheless, the fact is the material that was required by way of records, receipts and the like was not supplied until last week, and then under the pressure of the imminence of this Court hearing.

9 Secondly, the orders that involved a temporal element could not be complied with once the time specified in the orders had expired. It must be borne in mind (and I do take it into account) that there was an unacceptable lapse in time before the spirit of the orders was complied with, namely before the premises were cleared of the waste and somehow disposed of in an acceptable way. Mr Thaler did in part comply with a requirement to clean out a sump on the premises, but ultimately that work was completed to the satisfaction of the EPA by a subsequent occupier.

10 It is a significant factor that no direct actual environmental harm has been shown to occur. This is notwithstanding that the waste was stored on a property that had a drain running through it that ultimately discharged to waters other than the drain. Fortunately it has not been demonstrated there was harm by way of death to any living organisms. Whatever harm did occur, although I said no environmental harm has been proved, it certainly would have been minimal based upon the evidence before me.

11 Mr Thaler must regard himself as very fortunate that he is not facing a term of imprisonment. I have given him the benefit of the doubt on the basis explained about his possible misunderstanding of the seriousness of his situation and the obligations that he had in relation to the Court orders made by Cowdroy J. I note that the orders were made in his absence in circumstances where he had made an attempt to inform the Court that the changed arrangements for the hearing at the appointed time led him to make a judgement about what would occur on that day and that he intended to appear on the following days in the next week when the matter was set down.

12 He nevertheless did arrange for his father to appear informally before Cowdroy J. Cowdroy J was persuaded that the matter should proceed and accordingly the orders were made in Mr Thaler’s absence. Cowdroy J of course was entitled to deal with the matter in that way, but again I appreciate that the making of the orders in his absence may have contributed to the way in which Mr Thaler regarded the manner of dealing with him, namely that he was being put upon or that it was discriminatory. However, he would now be aware that the obligations that he had were serious and that his failure to comply with the Court’s orders has placed him in this serious predicament.

13 Mr Thaler has shown by affidavit evidence and by his evidence given orally today that although not altogether financially successful in his endeavours to date he could be regarded as a person who does not lack enterprise and ambition. He pursues work that is in accordance with the experience he has in the scrap metal industry. He is pursuing opportunities as they present themselves in that respect. On one view it is unfortunate that these endeavours may be set back by yet another burden, namely, a significant fine as a consequence of the finding of contempt.

14 In one sense the fine that I propose may not in the general order of things, disregarding the personal financial circumstances of Mr Thaler, be a greatly significant amount of money, but in my view it will represent an amount that will make him aware of the seriousness of the situation over a significant period of time because I expect that it will take him quite some time to pay it in his present circumstances.

15 I am not satisfied that the Fines Act 1996 applies to the imposition of a fine where a court is exercising its power to punish for contempt. Nevertheless I propose to make an order that will allow the Registrar to extend the time I initially set for payment of the fine.

16 It should be brought to the attention of the Registrar that in my view the period of time during which Mr Thaler should be allowed to meet the obligation is at least twelve months, provided that he shows that he is making a proper effort to meet his obligation by paying substantial amounts from time to time to the end that the full amount should be paid more or less within that twelve month period.

17 Ms Jagot has indicated on behalf of the EPA, and I do not understand Mr Thomas, who appears for the respondent, to submit otherwise, that failure to pay the fine in accordance with the terms set from time to time will amount to further contempt. The prospect is that if the fine is not paid and arguably yet a further order of the Court is not complied with, a submission will be made that Mr Thaler should in that event be subject to a term of imprisonment for failing again to comply with the Court’s order.

18 Mr Thaler, stand up please. I find the offence proved. I find the contempt proved. I proceed to conviction. I order that you pay a fine by way of penalty in the sum of $50,000. I order that you pay the costs of the EPA in relation to the proceedings. I formally direct that the fine be paid within a period of twenty eight days. I select that period in case ultimately it may be found the Fines Act applies. I think it is agreed is not that twenty eight days is the period specified by the Fines Act?

19 THOMAS: It appears to be so your Honour, yes.

20 HIS HONOUR: I do not want to create a conflict. The exhibits may be returned. Treat yourself as lucky this time, Mr Thaler.