Environment Protection Authority v Truegain Pty Limited - [2003] NSWLEC 277

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Truegain Pty Limited [2003] NSWLEC 277

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Truegain Pty Limited

FILE NUMBER(S): 50121 of 2002

CORAM: Talbot J

KEY ISSUES: Prosecution :- whether special costs order justified following plea of guilty and conviction

LEGISLATION CITED: Criminal Procedure Act 1986 s 3, s 253, s 253(1), s 253(2), s 253(2)(b)
Land and Environment Court Act 1979 s 52
Supreme Court Rules 1970 Pt 52, Pt 52A
Land and Environment Court Rules 1996 Pt 16

CASES CITED: Latoudis v Casey (1990) 170 CLR 534

DATES OF HEARING: 27/10/2003, 28/10/2003

DATE OF JUDGMENT:
11/19/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D J Galpin (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr I J Hemmings (Barrister)
SOLICITORS
Corrs Westgarth Chambers

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50121 of 2002

Talbot J

19 November 2003

Environment Protection Authority

Prosecutor

Truegain Pty Limited

Defendant

Judgment

Introduction

The Offence

1 The defendant pleads guilty to the charge that on 17 December 2001 it polluted waters being a drain that runs along the eastern boundary of its premises at 62 Kyle Street, Rutherford (“the premises”). The original allegation that waters downstream were polluted has not been pursued.

2 The defendant carries on a business at the premises of receiving, storing and processing waste oils and oily water emulsions. The defendant refines and re-processes these products into re-usable petroleum-based products.

3 A wastewater treatment plant is located within a bunded area at the eastern side of the premises. The subject bund is constructed of four concrete walls and at the time of the incident the floor of the bund comprised two concrete slabs. The main slab was 150mm thick and the second slab, or apron slab, was 100mm thick. The two floor slabs were joined by an epoxy expansion joint, traversing the floor of the bund.

4 A concrete-lined stormwater drain runs along the eastern boundary of the premises (“the stormwater drain”). The stormwater drain is about two metres deep and is located down a steep embankment from the subject bund. The floor of the stormwater drain is about five metres down the embankment from the boundary of the premises and the subject bund.

5 On 17 December 2001 liquid escaped from the subject bund through a separation in the epoxy expansion joint between the two concrete floor slabs and some liquid entered the stormwater drain.

6 It is an agreed fact that the separation in the epoxy expansion joint was caused by a weak area of sub-material under the floor of the subject bund. The weak area under the subject bund caused the 100mm apron slab to sink and fall towards the stormwater drain by approximately 25mm. The movement of the 100mm apron slab caused the epoxy expansion joint between the two slabs to open, breaking the integrity of the subject bund.

7 There is a factual dispute as to whether the company failed to respond…

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 277
Decision Date: 11/19/2003

CaseChat Overview and Summary

The case of Environment Protection Authority v Truegain Pty Limited dealt with a charge against Truegain Pty Limited for polluting a stormwater drain on their premises. The incident occurred when liquid escaped from the defendant's bunded wastewater treatment plant due to a separation in an epoxy expansion joint between two concrete floor slabs, leading to contamination of the drain. The defendant had entered a guilty plea, and the matter was brought before the Land and Environment Court of New South Wales.

The primary legal issue in this case was whether a special costs order was justified following the defendant's plea of guilty and conviction. The court considered whether the defendant was entitled to set-off costs against the prosecutor's costs for evidence that was ultimately not relied upon, arguing that the prosecutor had incurred unnecessary costs. The court examined the provisions of the Criminal Procedure Act 1986 and Land and Environment Court Rules 1996 to determine the appropriate course of action.

The court held that while it had a discretion to award costs to the prosecutor under s 253 of the Criminal Procedure Act 1986, the defendant could not be awarded costs as there was no statutory authority to do so. The court reasoned that the mere fact that some evidence was not ultimately used did not justify a special costs order, as the court was not privy to the circumstances under which the evidence was prepared or the procedure followed. The court also noted that any costs dispute could be addressed during the assessment process if the parties could not agree on the quantum of costs. Ultimately, the court ordered the defendant to pay the prosecutor's costs of the proceedings.

The final orders of the court were that the offence as charged was proved, the defendant was convicted, and the defendant was ordered to pay a fine of $7,500 as well as the prosecutor's costs of the proceedings. The exhibits were ordered to be returned.

Orders