Filipowski v Terminals Pty Ltd and Ethell - [1999] NSWLEC 161

Land and Environment Court

of New South Wales

CITATION:

Filipowski v Terminals Pty Ltd and Ethell [1999] NSWLEC 161

PARTIES

No 50016 of 1998
PROSECUTOR
Filipowski

DEFENDANT
Terminals Pty Ltd
No 50017 of 1998 and No 50136 of 1998
PROSECUTOR
Filipowski
DEFENDANT
Ethell

NUMBER:

50016 of 1998, 50017 of 1998 and 50136 of 1998

CORAM:

Pearlman J

KEY ISSUES:

Environmental Offences :- marine pollution - penalty - mitigation

LEGISLATION CITED:

Marine Pollution Act 1987 s 27(1) , s 28(1)

DATES OF HEARING:

08/27/1998; 05/12/1999; 05/13/1999; 05/14/1999

DATE OF JUDGMENT DELIVERY:

07/14/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr A L Hill (Barrister)
SOLICITORS
Abbott Tout
DEFENDANT (Terminals Pty Ltd)
Mr B W Larkin (Barrister)
SOLICITORS
Freehill Hollingdale & Page
DEFENDANT (G Ethell)
Mr B W Larkin (Barrister)
SOLICITORS
Norton Smith & Co

JUDGMENT:

Contents

Section Paragraph Number

Introduction 1 to 6

The relevant statutory provisions 7 to 12

The incident 13 to 22

The amount of the spill 23

The extent of the spread of the spill

The amount of the spill

Responsibility for the whole spill? 44 to 54

Mitigating factors 55

Mitigating factors relating to both defendants 56 to 60

Mitigating matters relating to Terminals 61 to 66

Mitigating matters relating to Mr Ethell 67 to 71

Section 556A 72 to 74

The appropriate penalties 75 to 81

IN THE LAND AND

50016/98, 50017/98 and 50136/98

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 14 July 1999

No 50016 of 1998

BARBARA FILIPOWSKI

Prosecutor

TERMINALS PTY LTD

Defendant

No 50017 of 1998 and No 50136 of 1998

BARBARA FILIPOWSKI

Prosecutor

GERARD ETHELL

Defendant

JUDGMENT

Introduction

1. This judgment is concerned with penalties and costs in relation to three prosecutions in respect of which pleas of guilty have been entered.

2. All three prosecutions have been brought under the Marine Pollution Act 1987 (“the Act”) and each of them arises out of an incident where a substance known as nonyl phenol escaped into the waters of Port Botany during a discharge of cargo from a vessel to the terminal.

3. The charge against the defendant, Terminals Pty Ltd (“Terminals”) and one of the charges against the defendant, Mr Ethell, arise under s 27(1) of the Act.

4. A further charge under s 28(1) of the Act was brought against Mr Ethell. In a judgment which I delivered on 27 October 1998, I found that this charge contained an incurable defect in that it failed to disclose any offence, and I dismissed the summons. No statutory time limitation arises under the Act, and the prosecutor charged Mr Ethell a second time for an offence under s 28(1) of the Act by a summons which did not have the same defect as the first summons. It is the latter charge which is, of course, the subject of this judgment.

5. It is also relevant to note that the three initial proceedings were by leave heard together. The hearing proceeded on the basis that the prosecutor and…

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.

Keep reading for free

Create a free CaseChat account to read Filipowski v Terminals Pty Ltd and Ethell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWLEC 161
Decision Date: 14 July 1999

CaseChat Overview and Summary

In this case, the court was required to determine the appropriate penalties and costs in relation to three prosecutions brought under the Marine Pollution Act 1987. The defendants, Terminals Pty Ltd and Gerard Ethell, pleaded guilty to offences arising from a discharge of nonyl phenol into Port Botany. The court had to decide the legal issues surrounding the extent of the spill, the responsibility for the whole spill, and the mitigating factors in determining the penalties.

The court found that the amount of the spill did not exceed 40 litres, despite the prosecution's expert estimates. The court rejected the defendants' argument that they should not be held responsible for the spill that flowed into the waters through an open dump valve, as the source of the discharge was apparatus under the control of Terminals. The court also considered various mitigating factors, such as the lack of actual environmental harm, the clean-up operation, and the defendants' good records and environmental responsibilities.

Based on these findings, the court imposed penalties of $30,000 on Terminals Pty Ltd and $7,000 on Gerard Ethell for the offence under s 27(1) of the Marine Pollution Act 1987. For the offence under s 28(1) with which Mr Ethell is charged, the court imposed a penalty of $1,000. The court also granted leave to the parties to address the court on the question of costs.

Orders