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Filipowski v Frey

Filipowski v Frey

Case [2005] NSWLEC 661 30 November 2005

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Land and Environment Court

of New South Wales

CITATION:
Filipowski v Frey [2005] NSWLEC 661

PARTIES:
APPLICANT
Barbara Filipowski
RESPONDENT
Theo Frey

FILE NUMBER(S):
50067 of 2003

CORAM:
Cowdroy J

KEY ISSUES:
Environmental Offences :- penalty - marine pollution - responsibility of defendant for spill - whether defendant entitled to discount for plea of guilty - s 10 application

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 10, s 253
Marine Pollution Act 1987 s 8(1)

CASES CITED:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Cameron v The Queen (2002) 209 CLR 339;
Filipowski v Frey [2004] NSWLEC 182;
Filipowski v Frey [2005] NSWLEC 166;
Filipowski v Island Maritime Limited; Majgaonkar [2005] NSWLEC 73;
Morrison v Ausmarine Fisheries Pty Ltd and Miato (1995) 88 LGERA 442;
R v O'Neill [1979] 2 NSWLR 582;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Siganto v The Queen (1998) 194 CLR 656;
Thorneloe v Filipowski (2001) 52 NSWLR 60

DATES OF HEARING: 19/09/2005, 20/09/2005, 21/09/2005, 23/09/2005

DATE OF JUDGMENT:

11/30/2005

LEGAL REPRESENTATIVES:
APPLICANT
A L Hill
SOLICITORS
Dibbs Abbott Stillman
RESPONDENT
G J Nell
SOLICITORS
Ebsworth & Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

30 November 2005

50067 of 2005

BARBARA FILIPOWSKI
Prosecutor

THEO FREY
Defendant
JUDGMENT

1 Cowdroy J: By summons dated 24 July 2003 the prosecutor charges that on 30 April 2001 the defendant, whilst Chief Engineer of the P&O Nedloyd Fos, caused a discharge of oil from that ship into State waters in contravention of s 8 of the Marine Pollution Act 1987. The defendant has pleaded guilty to such charge and accordingly the Court is required to determine the penalty.

2 The P&O Nedloyd Fos (“the ship”) is a container vessel. Certain features of the ship which have bearing on this offence should be explained.

3 The deck of the ship is surrounded by a barrier about 20 cm high known as a fishplate. About halfway down the length of the ship, above the level of the fishplate, is an oblong aperture known as a freeing port. The freeing port is approximately one metre in width, and allows any excess water which collects on the ship’s deck to escape overboard.

4 The ship contains four fuel tanks, namely the No 1 port tank, the No 1 starboard tank, the No 2 port tank (capacity 437.9 m3) and the No 2 starboard tank (capacity 436.2 m3). The ship also has an overflow tank with a capacity of 13 m3.

5 On 30 April 2001 the ship was berthed at No 1 Brotherson Dock in Port Botany. The starboard side of the ship was adjacent to the dock. At approximately 8.30 am, the bunker barge Esar Sydney (“the barge”) came alongside the port side of the ship. Bunkering operations occurred between 9.00 am and 11.00 am after which the barge left to refill its tanks.

6 The barge resumed bunkering…

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 Frey

Details

AGLC: Filipowski v Frey [2005] NSWLEC 661
Case: [2005] NSWLEC 661
Decision Date: 11/30/2005

CaseChat Overview and Summary

Filipowski v Frey is a case before the Land and Environment Court of New South Wales concerning charges against Theo Frey, the Chief Engineer of the P&O Nedloyd Fos, for causing an oil discharge into State waters in contravention of the Marine Pollution Act 1987. The defendant pleaded guilty to the charge, and the court was required to determine the appropriate penalty. The court had to consider several legal issues, including the defendant's responsibility for the oil spill, whether he was entitled to a discount for his plea of guilty, and whether a conviction should be recorded against him under s 10 of the Crimes (Sentencing Procedure) Act 1999. The court found that the defendant was responsible for the oil spill due to his failure to adhere to proper bunkering procedures and his negligence in not taking adequate measures to prevent the spill. It was also found that the defendant was entitled to a 10% reduction in penalty for his early plea of guilty, despite his attempts to evade prosecution. However, the court decided not to grant the benefit of s 10 to the defendant, as it found that he could have done more to prevent the discharge. The court imposed a fine of $36,000 on the defendant, reduced by 10% due to his plea of guilty. The court also ordered the defendant to pay the costs of the prosecutor and returned the exhibits.

Orders