Filipowski v Dayton Corporation - [2004] NSWLEC 325

Land and Environment Court

of New South Wales

CITATION: Filipowski v Dayton Corporation; Sang-Tae [2004] NSWLEC 325

PARTIES:
PROSECUTOR
Barbara Filipowski
DEFENDANTS
Dayton Corporation
Kim Sang-Tae

FILE NUMBER(S): 50107 of 2003; 50082 of 2003

CORAM: Talbot J

KEY ISSUES: Prosecution :- plea of guilty - extent of direct responsibility of defendant considered in respect of a strict liability offence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10, s 10(1)
Marine Pollution Act 1987 s 8(1)

CASES CITED: Filipowski v De Ocampo and Others (Lloyd J, NSWLEC, 9 June 1998, unreported);
Filipowski v Esar Bunkering Pty Ltd and Another (Lloyd J, NSWLEC, 17 November 1998, unreported);
Filipowski v Thornloe and Another (2000) 112 LGERA 184;
Filipowski v Wallenius Lines Shipping Singapore Pte Limited & Another [2002] NSWLEC 148, unreported;
Filipowski v Arta Adhisatya Pte Ltd and Sahea [2002] NSWLEC 169, unreported;
Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171, unreported;
Morrison v Dillman Navigating Co Pty Ltd; Turner (1995) 87 LGERA 257;
Morrison v Peers; Hull 1048 Leasing Pty Limited (1995) 87 LGERA 39;
Thornloe v Filipowksi (2001) 52 NSWLR 60

DATES OF HEARING: 18/06/2004

DATE OF JUDGMENT: 06/25/2004

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr A L Hill (Barrister)
SOLICITORS
Dibbs Barker Gosling
DEFENDANTS
Mr G J Nell (Barrister)
SOLICITORS
Ebsworth & Ebsworth

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50107 of 2003

Talbot J

25 June 2004

Barbara Filipowski

Prosecutor

Dayton Corporation

Defendant

50082 of 2003

Barbara Filipowski

Prosecutor

Kim Sang-Tae

Defendant

Judgment

Introduction

1. These proceedings involve two prosecutions that relate to an incident on 6 February 2001 when a discharge of oil occurred at the Shell Terminal from the vessel Golden Lucy 1 (“the vessel”) into the waters of Gore Cove, Sydney Harbour.

2. The owner of the vessel, Dayton Corporation, has been charged with an offence under s 8(1) of the Marine Pollution Act 1987 (“the Marine Pollution Act”), as has the master of the vessel, Captain Kim Sang-Tae.

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

(1) 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 cause 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. The defendants have respectively entered pleas of guilty. Both charges have been heard together as the facts relating to this strict liability offence are identical.

The Incident

5. The vessel was purpose built as a chemical tanker in 1987. As at 6 February 2001 the vessel was owned by Dayton Corporation and demise-chartered to Lucy Shipping S.A. The vessel was then time-chartered by Lucy Shipping S.A to Dorval Kaiun. The vessel was time-chartered by…

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 Filipowski v Dayton Corporation

Details

AGLC: Filipowski v Dayton Corporation [2004] NSWLEC 325
Case: [2004] NSWLEC 325
Decision Date: 06/25/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the prosecutor, Barbara Filipowski, brought two prosecutions against Dayton Corporation and Kim Sang-Tae, the owner and the master of the vessel Golden Lucy 1, respectively. The prosecutions relate to a discharge of oil into the waters of Gore Cove, Sydney Harbour, on 6 February 2001. Both defendants have pleaded guilty to the charge under section 8(1) of the Marine Pollution Act 1987, which imposes strict liability for any discharge of oil or an oily mixture from a ship into State waters. The legal issues in the case included the extent of direct responsibility of the defendants for the strict liability offence and the application of section 10 of the Crimes (Sentencing Procedure) Act 1999, which allows the court to not record a conviction in certain circumstances.

Talbot J considered the arguments from both sides and examined previous cases to determine an appropriate penalty. The Court found that while the master, Kim Sang-Tae, could not be held directly responsible for the spill, it was appropriate to exercise discretion under section 10 of the Crimes (Sentencing Procedure) Act and not proceed to conviction. The Court took into account the master's impeccable record at sea, his lack of direct involvement in the incident, and the relatively minor nature of the spill. For Dayton Corporation, the Court imposed a fine of $25,000, considering the defendant's early plea of guilty, the nature of the occurrence that led to the charge, and the remote involvement of the defendant with the vessel's operation. Both defendants were ordered to pay the prosecutor's costs.

The final orders of the Court were as follows: Dayton Corporation was found guilty and convicted of the charge and ordered to pay a penalty by way of a fine in the sum of $25,000. Kim Sang-Tae's charge was dismissed without proceeding to conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act. Both defendants were ordered to pay the prosecutor's costs.

Orders