Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann - [2004] NSWLEC 207

Land and Environment Court

of New South Wales

CITATION: Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann [2004] NSWLEC 207

PARTIES:
No. 50068 of 2003
PROSECUTOR:
Barbara Filipowski
DEFENDANT:
Schiffsbeteiligungsges m.b.H & Co KG
No. 50066 of 2003
PROSECUTOR:
Barbara Filipowski
DEFENDANT:
Dietrich Kleemann

FILE NUMBER(S): 50068 of 2003 and 50066 of 2003

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- pollution of waters - mitigating factors - guilty plea - penalty and costs - section 10 of the Crimes (Sentencing Procedure) Act 1999

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

CASES CITED: Hoogendoorn v MISR Shipping Company; Hoogendoorn v Hassan [2001] NSWLEC 171;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
Thorneloe v Filipowski (2001) 52 NSWLR 60

DATES OF HEARING: 17/02/2004; 25/03/2004 and 26/03/2004

DATE OF JUDGMENT: 05/05/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr A L Hill (barrister)
SOLICITORS:
Dibbs Barker Gosling
DEFENDANTS:
Mr G J Grogin (barrister)
SOLICITORS:
Ebsworth & Ebsworth

JUDGMENT:

- 13 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50066 of 2003 and 50068 of 2003

Lloyd J

5 May 2004

No. 50068 of 2003

BARBARA FILIPOWSKI

Prosecutor

SCHIFFSBETEILIGUNGSGES M.B.H & CO KG

Defendant

No. 50066 of 2003

BARBARA FILIPOWSKI

Prosecutor

DIETRICH KLEEMANN

Defendant

JUDGMENT

Introduction

1 The defendant Schiffsbeteiligungsges m.b.H & Co KG has pleaded guilty to a charge that on 30 April 2001 it was the owner of a ship, namely the ship “P&O Nedlloyd Fos” from which a discharge of oil occurred into State waters, namely, the waters of Brotherson Dock, Port Botany, in contravention of s 8 of the Marine Pollution Act 1987.

2 The defendant Dietrich Kleemann has pleaded guilty to a charge that on 30 April 2001 he was the master of a ship, namely the ship “P&O Nedlloyd Fos” from which a discharge of oil occurred into State waters, namely, the waters of Brotherson Dock,. Port Botany, in contravention of s 8 of the Marine Pollution Act 1987.

3 Section 8(1) of the Marine Pollution Act at the time of the commission of the offence was as follows:

8(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 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 questions for determination are the appropriate penalty and costs. Both charges arise out of the same incident and accordingly both cases were heard together. The parties were unable to agree on a statement of facts. As a consequence it has been necessary to admit and consider a great deal of affidavit and documentary evidence, including some oral evidence, from which I derive…

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

AGLC: Filipowski v Schiffsbeteiligungsges m.b.H. and Co Kg; Filipowski v Kleemann [2004] NSWLEC 207
Case: [2004] NSWLEC 207
Decision Date: 05/05/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with two cases involving environmental offences concerning the discharge of oil into State waters. Schiffsbeteiligungsges m.b.H & Co KG, the owner of the ship "P&O Nedlloyd Fos," and Dietrich Kleemann, the ship's master, both pleaded guilty to charges under the Marine Pollution Act 1987. The primary legal issues involved determining the appropriate penalty and costs for these offences. The Court considered various mitigating factors, including the defendants' guilty pleas, the lack of prior environmental offences, and the absence of any environmental harm resulting from the incident.

The incident in question involved an overflow of heavy fuel oil onto the ship’s deck during bunkering operations, which subsequently flowed into the waters of Brotherson Dock due to heavy rain. The Court detailed the sequence of events leading up to the spill, highlighting the crew's efforts to contain the oil and the measures taken by the Sydney Ports Corporation to mitigate the environmental impact. The Court noted the defendants' cooperation in cleaning up the spill and their adherence to the ship's oil pollution emergency plan.

In determining the penalty, the Court weighed the seriousness of the offence against the mitigating factors. For the corporate defendant, the Court imposed a penalty of $50,000 after applying a 35% discount for the early guilty plea. The Court also ordered the corporate defendant to pay the prosecutor's costs. Regarding the Master, the Court exercised its discretion under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, deciding not to record a conviction due to the absence of personal fault, the Master’s long and unblemished career, and the effective response to the incident. The exhibits were ordered to be returned, and no costs were ordered for the Master.

Orders