Filipowski v De Ocampo

[1998] NSWLEC 92

Land and Environment Court

of New South Wales

CITATION:	Filipowski v. De Ocampo [1998] NSWLEC 92
PARTIES:	PROSECUTOR Filipowski DEFENDANTS De Ocampo Coral Canal Sa SantaCruz
FILE NUMBER(S):	50109 - 50111 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Marine Pollution Act 1987, s 8(1) Interpretation Act 1987, s 34(1)
CASES CITED:	Morrison v ANL (1996) 91 LGERA 437; Morrison v Che Mat (1997) 95 LGERA 212; The Ombudsman v Commissioner of Police (1987) 11 NSWLR 386, Lee J said (at 396); Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613; Saraswati v The Queen (1991) 172 CLR 1; Director of the Corrective Services v Mitchelson (1992) 26 NSWLR 648; Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461; Morrison v Peers (1995) 87 LGERA 39 at 43; Morrison v Dilmun Navigation Co Pty Limited (1995) 87 LGERA 257 at 260,
DATES OF HEARING:	01/05/98
DATE OF JUDGMENT:	05/09/1998
LEGAL REPRESENTATIVES:	PROSECUTOR A L Hill Abbott Tout DEFENDANT M L Williams Mallesons Stephen Jaques

JUDGMENT:

1. These three prosecutions arise out of an oil spill from a ship berthed at Kurnell Wharf in Botany Bay. The defendant Coral Canal SA is the owner of the ship AStolte Otome@ from which the discharge of oil occurred. The defendant Renato G De Ocampo is the master of the ship. The defendant Ernesto Santacruz is the chief engineer of the ship. The owner of the ship and the master have pleaded guilty to the offence. The chief engineer has pleaded not guilty.

2. The offences arise under the Marine Pollution Act 1987 (Athe Act@), s 8(1) which states:

A8. (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 caused the discharge, are each guilty of the 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.@

At the time of the offence a penalty unit was $100.00.

3. The offence created by s 8(1) is one of strict liability (Morrison v Michel, Stein J, 14 June 1996, unreported). There is no doubt in this case that there was a discharge of oil from the ship into the waters of the bay. Both the owner of the ship and the master are thus clearly liable under the section. Mr M L Williams, who appears for all three defendants, submits that the chief engineer, however, cannot be liable under the section. The chief engineer, he submits, cannot come within the words Aany other person whose acts caused the discharge@. Mr Williams relies for his submission on the judgment of Bignold J in Morrison v ANL (1996) 91 LGERA 437, in which his Honour held (at 441) that the term Aany other person@ in s 8(1) of the Act does not include personnel of the subject vessel. Mr Williams acknowledges, however, that Sheahan J in Morrison v Che Mat (1997) 95 LGERA 212 expressed the view, obiter, that the expression Aany other person@ in s 8(1) includes crew members of the particular ship ( at 214).

4. Judicial comity would normally suggest that I should follow a decision of another judge of the court on the same question which arises before me. However, since Bignold J has held that s 8(1) of the Act does not include a reference to personnel of the subject ship and Sheahan J has expressed a contrary view, it is appropriate that I consider the question afresh. Moreover, the question of whether the words Aany other person@ in s 8(1) includes a reference to members of the ship=s crew (other than the master) has been fully argued in the present case. As appears from the judgment of Bignold J in Morrison v ANL, the parties in that case proceeded on the common assumption that s 8(1) applied in the same manner to each of the three defendants in that case, one of whom was the third mate, so that his Honour did not have the benefit of the argument of counsel on the question. In Morrison v Che Mat all three defendants, one of whom was the chief officer, pleaded guilty, so that neither did Sheahan J have the benef

it of full argument on the question.

5. In reaching his conclusion Bignold J had regard, in particular, to the exculpatory provisions of subs (2) of s 8, as expanded by subs (3). His Honour also had regard to subs (6), which provides as follows:

A(6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge.@

6. Bignold J notes, correctly in my view, that subs (1) creates two categories of potential offender: (i) the master and owner of the ship as a matter of status and (ii) any other person who caused the discharge. As Bignold J states (at 439):

AIn the former case, the actus reus is being the master and the owner of the ship from which a discharge of oil occurs into State waters. In the latter case, the actus reus of the offence is an act causing a discharge of oil from a ship into State waters.@

7. Bignold J then notes that the distinction for the different bases of liability is carried through into subss (2) and (6). His Honour continues (at 439):

AThe implications of the distinction in the several liabilities created by subs (1) are most profoundly encountered in the application of subs (6), for whereas the proof of the minimal facts of (i) a discharge of oil (ii) from a ship (iii) into State waters would be entirely appropriate to the liability based upon status as master and owner of the ship, it would be entirely inappropriate to the liability based upon an act causing such a discharge to occur. More than being >inappropriate= in the latter case, such a provision would be repugnant to basic principles of criminal liability which is created in respect of a person whose act causes the proscribed discharge of oil into State waters.@

8. Bignold J then states that this result is reinforced by the terms of subs (2) which operate to exclude liability in cases where the discharge is shown to have escaped Ain consequence of damage, other than intentional damage, to the ship or its equipment@ and it is shown that Aall reasonable precautions@ were taken to prevent or minimise the escape of oil. AIntentional damage@ as defined by subs (3) is exclusively consigned to acts or omissions of the master and the owner of the ship.

9. I do not share the reservations expressed by Bignold J arising from these provisions. In particular subs (6), upon which particular reliance was placed by his Honour, does not present the difficulty described in the passage which I have set out in par 7 above. As Bignold J notes, subs (1) creates two categories of defendant: (i) the master and owner as a matter of status, and (ii) any other person whose act caused the discharge. It is true, as his Honour notes, that by dint of subs (6) it is sufficient to allege and prove that a discharge of oil or an oily mixture occurred from the ship into State waters. But the fact of the occurrence of such a discharge, whilst sufficient to establish liability on the part of the master and owner of the ship, does not necessarily establish liability to any other person. It must still be necessary for the prosecutor to show that the second category of defendant was a person who came within that category, that is to say, that he or she was a person Awhose act caused the di

scharge@. That cannot be repugnant to basic principles of criminal liability. I accept that the exculpatory provisions to which Bignold J referred apply only to the master or owner of the ship. It seems to me that there is nothing inappropriate about that. They are otherwise liable by reason of their status. I see nothing inappropriate, however, about there being a second category of defendant if, in order to be such a defendant, the prosecutor must prove that such person actually caused the discharge.

10. Bignold J also had regard to the manner in which the charge was framed against the third mate in the case with which he was concerned. In that case the summons laying the charge used these words: A Y that on 22 of November 1992 he was the third mate of a ship Y from which a discharge of oil occurred into the waters Y in contravention of s 8 of the Marine Pollution Act 1987@. In the present case, however, the charge against the chief engineer is framed differently and, in my opinion, more appropriately than it was in the matter considered by Bignold J. The present charge states: A Y that on 14 December 1996 whilst he was the chief engineer of ship Y his action caused a discharge of oil into the waters Y in contravention of s 8 of the Marine Pollution Act 1987@. The charge as framed clearly brings the chief engineer within the second category of defendant as described by Bignold J.

11. Bignold J held that the internal textual difficulties created by subss (2) and (6) would be eliminated by reading the attribution of liability to Aany other person@ so as to impliedly exclude any member of the ship=s crew. As I have said, I do not see any internal textual difficulties. Nevertheless, Bignold J held that Athe proper meaning is sufficiently doubtful (in the sense of being ambiguous or obscure) to justify recourse to the Minister=s second reading speech of the Bill in order to determine the meaning@ (at 441). (His Honour referred to s 34(1)(b) of the Interpretation Act 1987.) After referring to the Minister=s speech, Bignold J held that it confirms the conclusion he had tentatively reached that the additional basis of liability created by s 8(1) of the Act in respect of a person (other than the master and owner of the ship) does not include a person who is a member of that ship=s crew.

12. The Interpretation Act 1987, s 34(1) provides:

A34. (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made); or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure; or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.@

Section 15AB of the Acts Interpretation Act 1901 (Cth) is to a like effect. It is immediately apparent that it is only in the circumstances described in subs (b) that it is open to a court to overturn the plain or ordinary meaning of the text of a provision. The limited circumstances which must exist before recourse may be had to extrinsic material for the purpose of statutory construction and the limited use that may be made of a Minister=s second reading speech, in particular, is emphasised in a number of cases.

13. In Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 the High Court in a rare joint judgment (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ) said (at 420):

AReliance is also placed on a sentence in the second reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case.@

14. In Re Bolton; Ex parte Beane (1987) 162 CLR 514, Mason CJ, Wilson and Dawson JJ held (at 518) that, in interpreting the meaning of an ambiguous provision, while consideration may be given to the second reading speech of the Minister when introducing the Bill for the Act into the House, such speech of itself, whilst deserving serious consideration, cannot be determinative of or substituted for the text of an Act, even if it is inconsistent therewith: AThe words of the Minister must not be substituted for the text of the law.@ Moreover, a construction required by the Act obviates the need for resort to extrinsic material as provided by the Acts Interpretation Act 1901 (Cth), s 15AB (per Gaudron J at 547).

15. In The Ombudsman v Commissioner of Police (1987) 11 NSWLR 386, Lee J said (at 396):

ACounsel submits that his Honour was there asserting that when Hansard identifies the mischief which the Act was intended to deal with then the Act must be construed in the light of the purpose so disclosed. It is true that it can be material where there is doubt, to take it into account the mischief which a statute was intended to remedy as appearing from the speeches of the Minister in charge of the Bill in the House and to take it into account in determining the operation of general words but those speeches cannot be used to create doubt where none exists. The Interpretation Act 1987, s 34(1)(b), recognises this. A Minister=s statements in the House as to the intended scope of the Act, whilst in one sense defining the mischief of the Act, cannot be availed of by a court to limit the scope of the Act as appearing from its own terms.@ (my emphasis)

His Honour also quotes (at 397) Lord Reid and Lord Simon in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 where their Lordships said:

AY it appears to me to be unusually important to consider as aids to construction all other material which the law allows us to look at, and I shall first state my view on that matter. We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. In a comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further inquiry is permissible.@ (my emphasis)

After referring to the above his Honour then said (at 397-8):

AIf it was Mr Wran=s or Parliament=s intention that the Bill being considered was only to relate to complaints by persons other than Police officers acting in their official capacity then that intention expressed through Mr Wran=s speech in the House, cannot be used to convert the general words >a person= in s 5 into a person other than a member of the Police Force when there is nothing in the words or terms of the Act to support that meaning. If what the Premier said in the House is to be taken as the intention of Parliament then the Act which has been passed has not carried out that intention.@ (my emphasis)

16. In Saraswati v The Queen (1991) 172 CLR 1 McHugh J (with whom Toohey J agreed) said (at 21):

ASection 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction >that would promote the purpose or object underlying the Act= over a construction >that would not promote that purpose or object=. Y Moreover, the terms of s 34 of that Act, which provides for the use of extrinsic material, make it plain that >the ordinary meaning conveyed by the text of the provision= is the meaning conveyed by that provision after >taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule.@

17. In Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648, Kirby P said (at 653):

A Y the Court must give meaning to the Parliamentary purpose as discerned from the words used by the Parliament. Use of the word >intention= in the context of determining the Parliamentary purpose can be misleading. It suggests, wrongly, that the search is one for the subjective ideas of the legislators whose approval to the Bill which became the Act affords it the authority of law. Such subjective intentions, even if they could be ascertained, do not govern the court=s approach to its function. That function is to pronounce the Parliamentary purpose ascertained from the words used: see Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461.@

Even extrinsic aids such as the long title and headings must give way to any clear and unambiguous language in the text (Kirby P at 657; Handley JA at 662).

18. In Newcastle City Council v GIO General Limited (1997) 72 ALJR 97 McHugh J said, at 110:

AWhen the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.@

19. These cases illustrate the principle that only in limited circumstances can a court have recourse to the Minister=s second reading speech on the Bill for the purpose of construing the text of an Act. Moreover, such speech is not, of itself, determinative. It must give way to the text of the Act, even if it is inconsistent therewith. In my view the plain and ordinary meaning of the words Aany other person whose act caused the discharge@ is clear. There is simply no ambiguity or obscurity. The purpose of the Act is to protect the sea from pollution and the imposition of penalties on those who cause such pollution. If the expression Aany other person whose act caused the pollution@ does not include personnel of the subject vessel, then it would mean that any member of the ship=s crew who, for example, deliberately turns a valve to release oil into the sea would escape liability. That, it seems to me, cannot have been the intention of the legislature. In short, I am compelled to agree with the observations of

Sheahan J in Morrison v Che Mat. The ordinary meaning of the words Aany other person whose act caused the pollution@ are plain English words which could only say what they mean and mean what they say. In applying the basic principles of statutory construction, discussed above, it is impermissible to have recourse to extrinsic evidence such as the Minister=s second reading speech in order to construe the phrase. Moreover, the intent evinced by the Minister=s second reading speech cannot displace the clear and unambiguous terms of a statute.

20. It follows that the defence of the chief engineer fails. No other evidence was called by Mr Williams to suggest that the chief engineer, although a member of the ship=s crew, could not be described as Aa person whose act caused the pollution@. Accordingly, I am satisfied that the chief engineer is guilty of the offence as charged, based upon the evidence of the facts which give rise to these prosecutions and which I shall now briefly describe.

21. On 14 December 1996 the AStolte Otome@ was berthed at the Caltex and Ampol Kurnell Wharf, Botany bay. At 6.10 am the bunkering of 60 tonnes of diesel bunkers commenced. At 6.36 am, before the loading finished, the load masters heard over the ship=s two-way radio the vessel=s duty engineer shouting AStop, shut down@ and APlease stop bunkers@. The load masters immediately shut down the flow of bunkers from the wharf to the ship. The bunkers had overflowed the ship=s starboard diesel tank. The chief engineer of the ship asserted that the ship had already received 60 tonnes, but the tank gauges on the delivery tank showed that only 50.5 tonnes had been delivered. The chief engineer, however, later took delivery of the alleged shortfall of ten tonnes.

22. Oil that had overflowed onto the deck of the ship was immediately mopped up by the crew. About 20 to 30 litres of oil overflowed the side of the ship and spilled into the waters of the bay. Officers of the Sydney Ports Authority quickly attended and broke up the oil slick with the propeller action of two Sydney Ports Corporation vessels. By about 11.15 am the oil had apparently disbursed. There was no evidence of any oil at 2.30 pm nor was there evidence of any environmental harm having been caused.

23. According to the evidence of Mr P E Burge, a marine engineer, the defendants did not follow the basic safe practices of competent marine engineers when receiving or transferring liquids. This resulted in the spillage of light fuel oil from the ship into Botany Bay for the following reasons:

(a) They failed to accurately ascertain the amount of oil in the recipient tank;

(b) They did not accurately monitor the rising level of fuel oil in the recipient tank;

(c) They did not direct the shore based loading personnel to stop the delivery of fuel oil in sufficient time to avoid the spillage occurring.

24. Statements were tendered on behalf of the defendant which suggest that the chief engineer checked the capacity of the ship=s fuel tanks before the commencement of bunkering and that there was continual checking of those tanks during the process. It is apparent, however, that the rising level of fuel oil in the recipient tank could not have been accurately monitored and/or the shore based loading personnel were not notified to stop the delivery of fuel oil in time to avoid the spillage. That is to say, I am satisfied that either the second and/or the third reason advanced by Mr Burge was the reason for the spillage. The responsibility lies on those receiving the fuel oil to ensure that the receiving tank does not overflow. The onus is on them to accurately monitor the rising level in the recipient tank and to notify the shore based loading personnel when to stop the delivery. The chief engineer admits that he was on duty supervising the bunkering operations at the time. These facts satisfy me that the chie

f engineer was Aa person whose act caused the discharge@.

25. The defendant Coral Canal SA was established on 14 June 1984. It is the owner of seven ships. The AStolte Otome@ was built in July 1991 and has thus been trading for seven years. The defendant Coral Canal SA has not hiterto been accused of, charged with or involved in any way in any offence or pollution incident anywhere in the world. Although this offence is thus a first offence, the Parliament regards it as being most serious in view of the maximum penalty which applied at the time, namely, $1,000,000.00. There is no doubt, however, that a spill of 20-30 litres, which was quickly dispersed without any evidence of environmental harm must be regarded as being a relatively minor offence. In similar cases of a minor oil spill of this magnitude the Court has imposed penalties on the owner of the ship within the range of $30,000 (for a spill of 40-60 litres) to $50,000 (for spills of 150 litres and of 200 litres). In one case of an extremely minor spill the Court imposed a penalty on the owner of the ship of

$10,000. In the present case, having regard to the factors which I have described, together with the fact that the owner of the ship has entered a plea of guilty, a fine of $30,000 would seem to be appropriate.

26. The master of the ship, Captain R G De Ocampo, was not on duty when the incident which gave rise to the present charges occurred. He had apparently left the chief engineer in charge of the bunkering operation. Nevertheless, when the emergency alarm sounded he immediately proceeded to the deck, ordered the crew to commence cleaning up the oil, notified Sydney Harbour Control by radio and requested the officer on duty at Sydney Harbour Control to inform the appropriate authority. He then supervised the crew cleaning up the oil. Captain De Ocampo has been at sea for some eighteen years and has never previously been involved in, or responsible for, any oil spillage from a vessel. In the light of all of these facts, to go further and punish the master for the same oil discharge incident, where the mere fact that the basis for his liability under s 8(1) of the Act arises by dint of his status would, in this instance, be an excessive response.

27. Accordingly, I accept Mr Williams= submission that the court should exercise its discretion under s 556A of the Crimes Act 1900 in favour of the master. This approach is consistent with the approach to penalty adopted by Bignold J in Morrison v Peers (1995) 87 LGERA 39 at 43 and in Morrison v Dilmun Navigation Co Pty Limited (1995) 87 LGERA 257 at 260, although the facts in other cases need not necessarily call for the same approach.

28. The chief engineer Mr E Santacruz, is also a person of prior good character who has not previously been involved in any oil spill or other offence of a like nature. He was, however, on duty supervising the bunkering operation. I have found that he was a person whose act caused the discharge. If it was not for his negligence the discharge would not have occurred. Accordingly, he should not receive the benefit of the judicial discretion conferred by s 556A of the Crimes Act.

Neither does he receive any benefit arising under s 439 of the Crimes Act which enables the court to reduce the penalty that it would otherwise have imposed in the case of a person who has pleaded guilty. In my view a penalty of $10,000 is appropriate.

Orders

29. 1. In charge No 50109 of 1997 -

(1) The charge against Renato G De Ocampo is dismissed pursuant to the provisions of s 556A of the Crimes Act 1900.

(2) Order that the defendant pay the prosecutor=s costs.

2. In charge No 50110 of 1997 -

(1) The defendant, Coral Canal SA, is convicted of the offence as charged.

(2) Order that the defendant pay a penalty of $30,000.

(3) Order that the defendant pay the prosecutor=s costs.

3. In charge No 50111 of 1997 -

(1) The defendant, Ernesto Santacruz, is convicted of the offence as charged.

(2) Order that the defendant pay a penalty of $10,000.

(3) Order that the defendant pay the prosecutor=s costs.