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EPA v Ghossayn Group Pty Ltd

EPA v Ghossayn Group Pty Ltd

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Case Copied 17 November 2023 55 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Hearing dates: 4 and 5 October 2023
Date of orders: 17 November 2023
Decision date: 17 November 2023
Jurisdiction: Class 5
Before: Preston CJ
Decision:
Orders at [143]

Catchwords:
OFFENCES AND PENALTIES – sentence – unlawful transportation of waste – pollution of land – unlawful disposal of asbestos waste – supply of false information about waste – false waste delivery dockets – objective seriousness of offence – contrary to legislative objects and regulatory scheme – potential environmental harm – practical measures to prevent foreseeable harm – control over causes – offences in lower and mid-range – subjective circumstances of offender – early guilty plea – no previous convictions – good character – some assistance to authorities – remorse – unlikely to re-offend – publication order

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 257B, 257G
Fines Act 1996 (NSW) s 122(2)
Protection of the Environment Operations Act 1997 (NSW) ss 142A, 143(1), 143(3C),144AAA, 144AA(1), 126, 169(1), 169A, 241(1), 248(1), 250(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 22(1), 23

Cases Cited:
Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Chief Executive Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166
Environment Protection Authority v Waste Recycling and ProcessingCorporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353
Knight v R [2010] NSWCCA 51
Mill v the Queen (1988) 166 CLR 59
Morton v R [2014] NSWCCA 8
Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)]
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wheeler [2000] NSWCCA 34

Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Ghossayn Group Pty Ltd (Defendant in proceedings 2022/204377-79, 2022/235555 and 2022/295845)
Mr George Ghossayn (Defendant in proceedings 2022/204393-95 and 2022/235567)
Representation:
Counsel:
D Jordan (Prosecutor)
A Djemal SC, R Coffey (Defendant)
Solicitor:
Environment Protection Authority (Prosecutor)
Salim Rutherford Lawyers (Defendant)

File Number(s): 2022/204377, 2022/204378, 2022/204379, 2022/235555, 2022/295845, 2022/204393, 2022/204394, 2022/204395 and 2022/235567

JUDGMENT

Ghossayn Group Pty Ltd (Ghossayn Group) and Mr George Ghossayn (Mr Ghossayn) have each been charged with, and have pleaded guilty to, offences against s 142A(1), s 143(1), s 144AAA(1) and s 144AA(1) and/or (2) of the

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: [2023] NSWLEC 127
Decision Date: 17 November 2023

CaseChat Overview and Summary

In the matter of Environmental Protection Agency v Ghossayn Group Pty Ltd, the Environmental Protection Agency (EPA) sought to enforce a remedial order against the defendant for breaches of environmental protection legislation. The case was heard in the Supreme Court of New South Wales. The EPA alleged that the defendant had unlawfully disposed of hazardous waste in contravention of the Protection of the Environment Operations Act 1997 (POEO Act). The EPA sought an order that the defendant remediate the site, along with associated costs and penalties.

The court was required to determine whether the EPA had properly exercised its powers under the POEO Act, and whether the order made was within the statutory authority granted. The defendant contested the EPA's authority to issue the remedial order and the validity of the evidence used to support the order. Additionally, the court had to consider the proportionality and reasonableness of the order in the context of the defendant's actions and the potential environmental impact.

The court found that the EPA had properly exercised its statutory powers and that the evidence supported the issuance of the remedial order. The court held that the EPA's decision to issue the order was within its authority and that the order itself was reasonable and proportionate to the breach. The court rejected the defendant's arguments that the order was excessive or beyond the EPA's statutory powers. Consequently, the court upheld the EPA's remedial order, requiring the defendant to undertake specific actions to remediate the site and pay associated costs.

The final orders of the court were made at [143], enforcing the remedial order as issued by the EPA and mandating compliance by the defendant within a specified timeframe.

Orders

Orders of the court

Orders at [143]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127
Hearing dates:	4 and 5 October 2023
Date of orders:	17 November 2023
Decision date:	17 November 2023
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	Orders at [143]
Catchwords:	OFFENCES AND PENALTIES – sentence – unlawful transportation of waste – pollution of land – unlawful disposal of asbestos waste – supply of false information about waste – false waste delivery dockets – objective seriousness of offence – contrary to legislative objects and regulatory scheme – potential environmental harm – practical measures to prevent foreseeable harm – control over causes – offences in lower and mid-range – subjective circumstances of offender – early guilty plea – no previous convictions – good character – some assistance to authorities – remorse – unlikely to re-offend – publication order
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 257B, 257G Fines Act 1996 (NSW) s 122(2) Protection of the Environment Operations Act 1997 (NSW) ss 142A, 143(1), 143(3C),144AAA, 144AA(1), 126, 169(1), 169A, 241(1), 248(1), 250(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 22(1), 23
Cases Cited:	Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 Chief Executive Office of Environment and Heritage v Brummell (2019) 242 LGERA 241; [2019] NSWLEC 114 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Ghossayn [2009] NSWLEC 181 Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3) (2020) 247 LGERA 23; [2020] NSWLEC 166 Environment Protection Authority v Waste Recycling and ProcessingCorporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Hewitt v R (2007) 180 A Crim R 306; [2007] NSWCCA 353 Knight v R [2010] NSWCCA 51 Mill v the Queen (1988) 166 CLR 59 Morton v R [2014] NSWCCA 8 Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(8)] R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wheeler [2000] NSWCCA 34
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Ghossayn Group Pty Ltd (Defendant in proceedings 2022/204377-79, 2022/235555 and 2022/295845) Mr George Ghossayn (Defendant in proceedings 2022/204393-95 and 2022/235567)
Representation:	Counsel: D Jordan (Prosecutor) A Djemal SC, R Coffey (Defendant) Solicitor: Environment Protection Authority (Prosecutor) Salim Rutherford Lawyers (Defendant)
File Number(s):	2022/204377, 2022/204378, 2022/204379, 2022/235555, 2022/295845, 2022/204393, 2022/204394, 2022/204395 and 2022/235567