Filipowski v Tanner - [2002] NSWLEC 95

Land and Environment Court

of New South Wales

CITATION: Filipowski v Tanner [2002] NSWLEC 95

PARTIES:
PROSECUTOR:
Barbara Filipowski
DEFENDANT:
Andreas John Tanner

FILE NUMBER(S): 50089 of 2001

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- marine pollution - no penalty

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

CASES CITED: Filipowski v Fratelli D'Amato S.r.l (2000) 108 LGERA 88;
Lim Chin Aik v The Queen [1963] AC 160;
Thorneloe v Filipowski (2001) 52 NSWLR 60

DATES OF HEARING: 24/04/2002

EX TEMPORE
JUDGMENT DATE :
04/24/2002

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr A L Hill (barrister)
SOLICITORS:
Abbott Tout
DEFENDANT:
Mr E G H Cox (barrister)
SOLICITORS:
Norton White

JUDGMENT:

IN THE LAND AND Matter No.: 50089 of 2001

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 24 April 2002

Barbara Filipowski

Prosecutor

Andreas John Tanner

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to an offence which is in contravention of s 8(1) of the Marine Pollution Act 1987 in that, on 8 September 1999 he was the master of a ship, namely the vessel “Karamea”, from which a discharge of oil occurred into State waters, namely the waters of Port Jackson.

2. The relevant facts may be shortly stated as follows. On the 4 September 1999 the vessel, the M T “Karamea”, a New Zealand registered tug, entered State waters, namely the waters of Port Jackson and proceeded to berth at the inner Captain Cook dry dock. At the time of entering State waters “Karamea” was towing a barge, the “Union Bulk 1”. On board “Karamea” there was a complement of ten crew. Whilst “Karamea” was at the inner Captain Cook dry dock, the owners and crew decided to carry out the annual survey of certain items of equipment aboard the vessel, including the fire fighting system. On 8 September 1999 during the annual survey of certain equipment aboard “Karamea”, the Classifications Society surveyor was requested to certify the operation of the fire fighting system. In order to certify the fire fighting system, the Classification Society surveyor requested the testing of the fire fighting equipment. The master, that is the defendant, accordingly ordered the testing of the fire fighting equipment.

3. Prior to being used to test the fire fighting system, the general service pump had been used to pump bilge water from the vessel’s bilge to the slop tank on the vessel. The general service pump had not been flushed or cleaned subsequent to being used to transfer oil and bilge water. As a consequence of the prior use of the general service pump to transfer oily bilge water and the omission to ensure that it had been flushed clean, the general pump service contained an amount of oil and oily water. This residue of oily bilge water in the pump was discharged into the State waters when the fire fighting system was tested.

4. After operating the general service pump,…

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 Tanner

Details

AGLC: Filipowski v Tanner [2002] NSWLEC 95
Case: [2002] NSWLEC 95
Decision Date: 04/24/2002

CaseChat Overview and Summary

In the case of Filipowski v Tanner, the Land and Environment Court of New South Wales heard a matter concerning a marine pollution offence under the Marine Pollution Act 1987. Andreas John Tanner, the defendant, admitted to being the master of the ship "Karamea" when an oil discharge occurred into Port Jackson on 8 September 1999. The key issue for the court was whether Tanner should be granted the benefit of section 10(3) of the Crimes (Sentencing Procedure) Act 1999, which allows for the dismissal of a charge without a conviction under certain conditions.

The court considered Tanner's long service at sea and lack of prior convictions, which were sufficient to satisfy the character and antecedents requirement under section 10(3)(a). Additionally, the court noted the trivial nature of the offence, with only two to three litres of oily water discharged, causing no significant environmental harm. The court also took into account the extenuating circumstances, where Tanner had directed the second engineer to test the fire fighting system using the fire pump but was unaware that the general service pump was used instead, nor that it had not been flushed clean prior to use.

Referencing previous cases, the court determined that the defendant could not have done anything further to prevent the incident. Therefore, the court exercised its discretion under section 10 of the Crimes (Sentencing Procedure) Act 1999, dismissing the charge without a conviction. The court ordered that Tanner pay the prosecutor's costs.

This decision underscores the importance of considering individual circumstances when imposing penalties for marine pollution offences, particularly when the offender has no prior convictions and the offence caused minimal harm.

Orders