Environment Protection Authority v Waight - [2003] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Waight [2003] NSWLEC 124

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Waight

FILE NUMBER(S): 50019 of 1999 and 50020 of 1999

CORAM: Pearlman J

KEY ISSUES: Contempt :- penalty - fine - suspension on terms

LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 14
Supreme Court Rules 1970 pt 55 r 13

CASES CITED: Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126;
Environment Protection Authority v Waight [2003] NSWLEC 93;
Permewan Wright Consolidated Pty Ltd v Attorney General (1994) 35 NSWLR 365;
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

DATES OF HEARING: 13/05/2003

DATE OF JUDGMENT:
05/27/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D A Buchanan SC
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr J Laucis (Barrister)
SOLICITORS
N/A

JUDGMENT:

50019 of 1999 and 50020 of 1999

Pearlman J
27 May 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

MICHAEL JEFFREY WAIGHT

Defendant

Judgment

1 The defendant, Michael Jeffrey Waight, has been found guilty of contempt of orders of this Court. This judgment concerns punishment for that contempt.

2 The defendant breached some orders made under s 14 of the Environmental Offences and Penalties Act 1989. Those orders were made in respect of the remediation of the property at lot 204 Old Northern Road, Glenorie (“the property”). I will refer to the orders that were breached as “the remediation orders”. The terms of the remediation orders and the nature of their breach is set out in Environment Protection Authority v Waight [2003] NSWLEC 93 (“the contempt judgment”) and it is unnecessary to repeat those matters. Suffice it to say that each of the remediation orders referred to work designed to restore the environmental damage occasioned by the offences with respect to which the defendant was convicted: Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126) (“the principal judgment”).

3 Part 55 r 13 of the Supreme Court Rules 1970 relevantly provides as follows:

13(1) Where the contemnor is not a corporation, the Court may punish by committal to a correctional centre or fine or both.

(2) …

(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

4 It has been held that pt 55 r 13 is declaratory of the Court’s powers and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314.

5 Two passages from the judgment of Kirby P (as he then was) in Maniam (No 2) set out the approach to punishment for contempt. The first passage, which appears at p 314, is as follows:

A conviction of contempt of court is a conviction of an offence, criminal in nature.

Punishment of the convicted…

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.

Continue reading Environment Protection Authority v Waight

Details

AGLC: Environment Protection Authority v Waight [2003] NSWLEC 124
Case: [2003] NSWLEC 124
Decision Date: 05/27/2003

CaseChat Overview and Summary

In the case of Environment Protection Authority v Waight, the defendant, Michael Jeffrey Waight, was found guilty of contempt for breaching remediation orders made by the Land and Environment Court of New South Wales. The court was required to determine the appropriate punishment for this contempt, considering the nature of the breach and the objectives of contempt punishment. The primary legal issue was whether the defendant's contempt was contumacious, and if so, what form of punishment would be appropriate.

The court examined the defendant's conduct and found that while he had breached the orders, his actions were not driven by contumacious defiance but rather by ineptitude and incompetence. The court noted that the defendant had made efforts to remediate the property but had done so sporadically and without proper focus on the specific requirements of the orders. The court considered various factors, including the defendant's lack of contrition, his history of non-compliance, and the need to uphold the authority of the court and deter future contempt.

After careful deliberation, the court decided that a fine of $15,000 was an appropriate punishment. The court imposed a suspended fine, conditional on the defendant's compliance with the remediation orders within six months. Additionally, the court extended the compliance period for the remediation orders to six months from the date of the judgment. The defendant was also ordered to pay the prosecutor's costs associated with the contempt proceedings.

Orders