EPA v Patrick Distribution Pty Limited - [2005] NSWLEC 433

Land and Environment Court

of New South Wales

CITATION:
EPA v Patrick Distribution Pty Limited [2005] NSWLEC 433

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Patrick Distribution Pty Limited

FILE NUMBER(S):
50001 of 2005

CORAM:
Talbot J

KEY ISSUES:
Prosecution :- application for stay of proceedings.

LEGISLATION CITED:
Land and Environment Court Rules 1996
Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998

CASES CITED:
Duncan and Another v Crews and Others (2001) 161 FLR 250 ;
Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217;
Jago v The District Court of New South Wales And Others (1999) 168 CLR 23

DATES OF HEARING: 04/08/2005

DATE OF JUDGMENT:

08/09/2005

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S J Rushton SC
SOLICITORS
Environment Protection Authority
DEFENDANT
Ms P E McDonald (Barrister)
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

9 August 2005

50001 of 2005 EPA v Patrick Distribution Pty Limited
JUDGMENT

1 Talbot J: Patrick Distribution Pty Limited (“the defendant”) has filed a Notice of Motion seeking an order permanently staying the proceedings.

2 By summons issued on 17 February 2005, it is alleged that on 25 February 2004 on the Great Western Highway at the foot of the pass from Mount Victoria to Little Hartley the defendant, as prime contractor, used a vehicle to transport dangerous goods when the vehicle did not comply with chapter 8 of the Australian Code for the Transport of Dangerous Goods by Road and Rail (“the ADG Code”) contrary to subregulation 8.3 of the Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998. Regulation 8.3 provides that a prime contractor must not use a vehicle to transport dangerous goods by road unless the vehicle and its equipment comply with chapter 8 of the ADG Code. Paragraph 8.1.1(1)(b) requires that a vehicle used to transport dangerous goods must be free of any defect that is likely to create a risk in transporting the goods.

3 The evidence of the prosecutor includes an affidavit sworn 15 March 2005 by Robert Stait, a Roads and Traffic Authority (“RTA”) inspector. The affidavit annexes a statement prepared by Mr Stait on 25 August 2004. The statement prepared by Mr Stait includes observations made by him at the RTA Mount Boyce Heavy Vehicle Checking Station on 28 February 2004. The observations relate to the condition of tyres and brake linings. The evidence of Mr Stait is for the purpose of establishing that there was insufficient tread depth on certain tyres of the trailer and that the left rear and right centre brake linings on the trailer were excessively worn.

4 Following service of the summons and the evidence of Mr Stait the defendant’s solicitors made an enquiry from the prosecutor as to the present whereabouts of the vehicle. On 15 April 2005 the solicitor for the Environment Protection Authority (“the prosecutor”) advised the defendant’s solicitors that she understood the last known location of the subject vehicle was Royans Smash…

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 EPA v Patrick Distribution Pty Limited

Details

AGLC: EPA v Patrick Distribution Pty Limited [2005] NSWLEC 433
Case: [2005] NSWLEC 433
Decision Date: 08/09/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) filed proceedings against Patrick Distribution Pty Limited, alleging that the defendant, as the prime contractor, used a vehicle to transport dangerous goods in breach of the Australian Code for the Transport of Dangerous Goods by Road and Rail and the Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998. The specific allegation is that the vehicle did not comply with the relevant regulations, particularly regarding the condition of the vehicle's tyres and brake linings. Patrick Distribution sought a permanent stay of the proceedings, arguing that the loss of the vehicle impeded its ability to adequately prepare a defence.

The court had to determine whether the defendant's inability to inspect the vehicle, which was involved in an accident and subsequently moved from the scene, warranted a stay of the proceedings. The defendant contended that it was prejudiced by the loss of the vehicle, which prevented it from presenting its own evidence, cross-examining the prosecutor's expert, and obtaining its own expert testimony. The court considered the principles of fairness and the community's interest in the prosecution of alleged offences.

Talbot J concluded that the defendant had not demonstrated that an unfair trial would inevitably result or that there would be an abuse of process. The court noted that the defendant had opportunities to inspect the vehicle and that the loss of evidence was not due to any fault of the parties. The court further observed that the defendant had various options to challenge the evidence during the trial, including calling its own expert witnesses or applying for an adjournment. Consequently, Talbot J dismissed the application for a stay of proceedings, finding that the defendant had not met the required burden of proving that the circumstances warranted such an extraordinary remedy. The court reserved any question of costs and allowed the exhibits to be returned.

Orders