Filipowski v Cadem Shipping Pty Ltd - [2005] NSWLEC 552

Land and Environment Court

of New South Wales

CITATION:
Filipowski v Cadem Shipping Pty Limited & Anor [2005] NSWLEC 552

PARTIES:
PROSECUTOR
Barbara Filipowski
DEFENDANTS
Cadem Shipping Pty Limited
Guy Laurence Clark

FILE NUMBER(S):
50044; 50045 of 2004

CORAM:
Talbot ACJ

KEY ISSUES:
Prosecution :- plea of guilty- application of s 10 of Crimes (Sentencing Procedure) Act 1999 for strict liability offence
Costs:- Class 5

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s 10
Criminal Procedure Act 1986, s 4(2)
Land and Environment Court Act 1979, s 74
Land and Environment Court Regulation 2000
Land and Environment Court Rules 1996
Legal Profession Act 1987
Marine Pollution Act 1987, s 8

CASES CITED:
Filipowski v Island Maritime Limited [2005] NSWLEC 73 ;
Filipowski v Mediterranean Shipping Co [2005] NSWLEC 159 ;
R v Thompson (2000) 49 NSWLR 383 ;
Thorneloe v Filipowski (2001) 52 NSWLR 60

DATES OF HEARING: 27/06/05-28/06/05; 12/09/05-14/09/05

DATE OF JUDGMENT:

10/07/2005

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr A L Hill (Barrister)
SOLICITORS
Dibbs Barker Gosling
DEFENDANTS
Mr G J Nell (Barrister)
SOLICITORS
Norton White

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot ACJ

7 October 2005

50044 of 2004 and
50045 of 2004

Filipowski v Cadem Shipping Pty Limited and
Filipowski v Clark, G L
JUDGMENT

The Prosecutions

1 Talbot ACJ: These proceedings involve two prosecutions that relate to a discharge of oil from the ship the Tavake Oma (“the ship”). The discharge occurred at the No 8 Berth Glebe Island on 11 October 2001.

2 The owner of the ship, Cadem Shipping Pty Limited (“Cadem”), and the ship’s master, Captain Guy Laurence Clark have each been charged with an offence under section 8(1) of the Marine Pollution Act 1987 (NSW) (“the Marine Pollution Act”).

3 Section 8(1) of the Marine Pollution Act provides:-

Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship, and any other person whose act caused the discharge are each guilty of an offence punishable, upon conviction by a fine not exceeding:

(a) If the offender is a natural person — 2 000 penalty units, or

(b) If the offender is a body corporate — 10 000 penalty units.

4 Each penalty unit at the relevant date was $110.

5 Both defendants have entered pleas of guilty. The matters have been heard together as the facts in each case are identical.

The Agreed Facts

6 The Tavake Oma is a general cargo vessel, built in 1984. The ship is a single deck geared multi purpose cargo vessel with one cargo hold and capable of carrying containers, break bulk and bulk cargoes.

7 At the date of the incident, 11 October 2001, Cadem was the owner of the ship and Captain Guy Laurence Clark was the ship’s Master. Intercontinental Shipping Management (“ISM”) managed the ship while it was owned by Cadem.

8 The discharge the subject of these proceedings…

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: [2005] NSWLEC 552
Decision Date: 10/07/2005

CaseChat Overview and Summary

The case of Filipowski v Cadem Shipping Pty Ltd and Filipowski v Clark involved two defendants, Cadem Shipping Pty Limited and Captain Guy Laurence Clark, who were charged with offences under section 8(1) of the Marine Pollution Act 1987 (NSW) following a discharge of oil from the ship Tavake Oma at Glebe Island on 11 October 2001. Both defendants entered pleas of guilty. The court had to decide whether to proceed to conviction and impose penalties or dismiss the charges under section 10 of the Crimes (Sentencing Procedure) Act 1999. Additionally, the court had to determine the amount of costs to be paid by the defendants.

The court found that the discharge of oil occurred due to a leak between the No 9S starboard double bottom water ballast tank and the No 11S starboard sludge/slops tank, caused by a 20 mm fracture in the steel plate separating the two tanks. However, the exact cause of the fracture was unknown. The court accepted the evidence of Dr Brian King and Captain Read regarding the quantity of oil discharged, which was estimated to be at least 1050L and 137.5L respectively. The court also found that the spill had some environmental impact, but the extent of the harm was not as severe as claimed by the prosecutor.

Regarding the legal issues, the court considered whether the defendants could have taken any measures to avoid the spill and whether the Shipboard Oil Pollution Emergency Plan (SOPEP) required further inspections or soundings before resuming deballasting operations. The court found that there was no evidence to suggest that the defendants acted imprudently or carelessly, and that the Master was entitled to benefit from a section 10 order.

The court dismissed the charges against Captain Clark without proceeding to conviction, as it was inexpedient to inflict any punishment on him. The court imposed a fine of $50,000 on Cadem Shipping Pty Limited, taking into account the early plea of guilty and the cooperation between the crew and the Sydney Ports Corporation in respect of the clean up operation. The court also ordered the defendants to pay the prosecutor's costs as agreed or assessed.

Orders