Hobart City Council v Budd
[2008] TASSC 68
•13 November 2008
[2008] TASSC 68
CITATION: Hobart City Council v Budd [2008] TASSC 68
PARTIES: HOBART CITY COUNCIL
v
BUDD, Malcolm
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 357/2008
DELIVERED ON: 13 November 2008
DELIVERED AT: Hobart
HEARING DATE: 6 October 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Environment and Planning – Pollution – Waste disposal – Offences – Defences – Generally – Defence afforded by statute – Reasonable and practicable measures of prevention.
Environmental Management and Pollution Control Act 1994 (Tas), ss51A(2), 55.
Slivak v Lurgi (2001) 205 CLR 304, applied.
Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166, followed.
CTM v R (2008) 247 ALR 1, referred to.
Aust Dig Environment and Planning [420]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: S J Bender
Solicitors:
Appellant: Shaun McElwaine
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 68
Number of paragraphs: 31
Serial No 68/2008
File No 357/2008
HOBART CITY COUNCIL v MALCOLM BUDD
REASONS FOR JUDGMENT SLICER J
13 November 2008
The applicant, the Hobart City Council ("the council"), seeks review of a conviction imposed by a Court of Petty Sessions for an indictable offence contrary to the Environmental Management and Pollution Control Act 1994 ("the Act"), s51A(2). The complaint alleged that on 22/23 June 2006, the council deposited a pollutant, untreated sewage and trade waste effluent, into the Hobart Rivulet. Two bases are advanced in support of the notice to review, namely that the council was not the depositor of the effluent and that its defence afforded by the Act, s55, that it had taken all reasonable and practicable measures to prevent discharge, had not been upheld.
Circumstances of discharge
The council was, and remains, the statutory authority responsible for the operation and maintenance of the sewage system for the City of Hobart. In June 2006, a sewer line became blocked, and backed-up effluent discharged through an old and unrecorded access cover into the Hobart Rivulet. The blockage occurred at point E (MH1) on line SM 34505, although the effluent discharged some 350 metres upstream through the unrecorded access point A. The effluent itself had in all probability come through satellite pipes SM 34506 and 34507 which serviced 25 dwelling or factory units which included a tannery. A discharge monitoring unit attached to the satellite pipe junction had not previously registered any discharge problem. The blockage itself had, in all probability, been caused by debris and rubble washed down through varying points along the conjoined pipe system following a period of heavy rain. The primary factors were not in issue. There had been a blockage, the effluent was a pollutant which could cause material environmental harm and the discharge had occurred through an unrecorded access cover. Logic dictates that if access cover A had not existed, the discharge would have occurred further up the system. Whether discharge elsewhere would have resulted in pollution of the rivulet is problematic and immaterial to the legal issues raised on this appeal.
The charge as framed alleged that the council:
"… on or about the 22nd June, 2006 and on or about the 23rd June, 2006 deposited a pollutant, ie approximately 50,000 litres comprising untreated sewage and trade waste where it could reasonably be expect to cause material environmental harm, ie Hobart Rivulet near South Hobart contrary to Section 51A(2) of the Environmental Management and Pollution Control Act 1994."
The Court of Petty Sessions was not required to consider an alternative charge, differently framed, alleging an offence contrary to the Environmental Management and Pollution Control (Waste Management) Regulations 2000. It is not necessary, for the purpose of this appeal, to consider whether this charge attracts questions of intent or mistake raised in cases such as Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523. The applicant, quite properly as befits its good reputation, does not rely on any defence which might be afforded by any legal principles stated in those cases to either of the charges laid.
The prosecution did not prefer any charge of permitting the escape of a pollutant, if such is possible, or allowing a pollutant to be deposited. It relied upon the act of "depositing" through its interconnected system.
Statutory provisions
The Act, s51A, prohibits the causing of serious (s51A(1)) or material (s51A(2)) environmental harm. Section 51A(2) provides:
"(2) A person must not deposit a pollutant, or cause or allow a pollutant to be deposited, in a place or position where it could reasonably be expected to cause material environmental harm.
Penalty:
In the case of —
(a) a body corporate, a fine not exceeding 1200 penalty units; or
(b) a natural person, a fine not exceeding 600 penalty units."
Section 52 renders the offence indictable, providing consent jurisdiction to a court of summary jurisdiction and permits the return of alternate verdicts. The section is contained within the Act, Pt4 entitled "Enforcement Provisions". Division 4 deals with General Offences as distinct from Civil Enforcement (Div3). Sections 55 and 55A provide for general criminal environmental duty offences. Relevant to this appeal are the provisions of s55, which provide:
"55 — General criminal defence
(1) It is a defence to a charge of an offence against this Act, including —
(a)an offence by a body corporate or a natural person where conduct or a state of mind is imputed to the body corporate or person under this Part; and
(b)…
if it is proved that —
(c)the alleged offence did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature; or
(d)…
(2) …
(3) Where a body corporate or other employer seeks to establish either of the defences provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof —
(a)that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and
(b)…
(4) A person who would, but for either of the defences provided by this section, be guilty of an offence of contravening a provision of this Act is, despite that defence, to be taken to have contravened that provision for the purposes of —
(a)any civil proceedings under this Act in respect of the contravention; and
(b)…
(c)…".
It is not necessary to consider whether Parliament intended to codify permitted defences and oust any historic common law principles. The council relied on the defence afforded by s55(1)(c). The legislative scheme does not purport to alter the traditional principles of onus of proof. It remains the duty of the prosecution to prove its case beyond reasonable doubt, but it is for the defence to bring into operation the statutory defence by demonstrating its application either on the basis of the evidence adduced by either or both parties. Where that is done it remains the prosecution's obligation to prove its case beyond reasonable doubt. That duty requires it to exclude the operation of the defence so raised. In practice the defence would seek to establish, through evidence, the existence of requisite systems and procedures and appropriate reporting, promoting and internal enforcement measures which had been taken. When so raised, the questions of the offending act and statutory compliance become matters of fact for the Tribunal or jury, to be determined in the usual way. The legislative scheme is, in some respects, similar to that adopted by Parliament in drug and sexual misconduct legislation (He Kaw Teh (supra); Slivak v Lurgi (2001) 205 CLR 304; CTM v R (2008) 247 ALR 1).
Circumstances of offence
On 23 June 2006, at approximately 4pm, a member of the public reported discolouration of the rivulet. On the following day a maintenance crew attended the site and cleared the blockage by noon. A further overflow was reported at 2pm and cleared by 5pm. An investigation recorded a partial blockage over some 22 hours and the estimated volume of effluent discharged said to have been in excess of 50,000 litres. Documentation established an appropriate management, reporting and executive action system. The incident report recorded as a possible reason "root intrusion", although a different report dated 18 January 2007, recorded a build-up of stones, twigs, vegetation and debris to have been present.
In the area polluted, the sewage system had been constructed in 1910 and designed for the collection of domestic sewage and trade waste. The city network is presently 400 kilometres in length with inevitable blockages through continuous use. The routine management of the system is programmed through a computer-based decision-making tool. The council was aware of the risks associated with the discharge of tannery waste and had entered into a Trade Waste Agreement with the operating company in March 2001 which provided for mutual obligations and specific monitoring measures. Some of the South Hobart Track sewer has been replaced, but other sections "resleeved" provide a safe use extension of some 70 years. The access point A from which the effluent escaped had been resleeved some 10 years previous and its location not re-recorded. Between October 1993 and June 2006, there had been a number of blockages reported and cleared in relation to line 34507, some of which had emanated from the tannery. Regular maintenance had been carried out on the identified pipelines during that period. In October 2003, a video recording device was used to check the interior of pipelines in the South Hobart area which indicated a "Conduit broken from 10 to 02 o'clock" 38.1 metres distant from a survey point which corresponded with the non-recorded access point A. The prosecution relied heavily on that recording to show that the council ought to have been aware of potential risk and taken steps to remedy potential risk. The report accompanying the recorded data states:
"Assessors: Comments: | Line has had severe fat deposits to overt, line now clean A repair to the line at 38m has ingress and void." |
The learned magistrate found:
"Despite the report indicating a possible breach in the pipe there was no follow up by the Council to inspect the pipe to ascertain whether the report was correct and if correct the nature and extent of the break."
He found that the blockage was caused by an accumulation of industrial waste from the tannery which had escaped from the sewage pipe "through the man hole top", which corresponded with access point A. Specific to the escape point his Honour concluded:
"77The Council however despite checking the pipe by CCTV in 2003, and detecting an apparent break in the pipe, and being aware that Cuthbertson Tannery was discharging waste in excess of its entitlement, did nothing further to investigate apparent potential problems.
….
80It should have had regular inspections of the pipe under the Hobart Rivulet because its monitoring showed a breach of conditions by the Tannery and the CCTV showed a potential break of the pipe. Contrary to Mr Devlin's evidence the subject pipe was not ignored due to budgetary restraints. It was regularly monitored and a CCTV inspection was carried out in 2003. The Council did not however follow up anomalies detected with the pipe.
81Failure on the Defendant's part to take these steps allowed a build up of industrial waste in the pipe and a failure to find the man hole and to secure that man hole. The final result was the escape of the unchecked industrial waste through the unsecured man hole into the Rivulet."
The finding adds, as a complication, an additional matter of causation, namely discharge by the tannery of waste in excess of its entitlements.
The prosecution accepted that the council had established, by evidence, the matters required by the Act, s55(3), but relied on its claimed failure, required by s55(1)(c) to "take all reasonable and practicable measures to prevent the commission of the offence".
The council called as a witness, Damian Devlin, a civil engineer specialising in hydraulics infrastructure and Michael Street, a civil engineer and Director of Civic Solutions Division of Hobart City Council. Mr Street gave evidence of the maintenance programs in place and systems applied by the council in relation to monitoring and prevention. He was cross-examined by prosecuting counsel about the October 2003 inspection record and conceded that there was no record of any follow-up. The form of the cross-examination suggests that the matter had not been previously considered by the applicant's witnesses. The second witness, Mr Devlin, had been present during that cross-examination and when called gave the following responses to questions put by the applicant's counsel:
"Now, this particular length of sewer which is the subject of this report – can I first ask you, is my learned friend correct in what he put to Mr Street about the numbers can't correct and it has to be the bit of sewer line we've been talking about in this case?...That is correct. A reasonable person, in looking at the identification of the down stream manhole being 34505 and looking at the length of the sewer line would conclude that this is the sewer length that we're talking about.
So, the number in the top box should be?...34506.
Right. So, it's just an error that it's 38, correct?....It's poor data recording on the part of the contractor.
Okay. Now, has that section of sewer, between 34505 and 34506 been the subject of a more recent camera inspection?...That is correct. It was inspected on, I believe, the 4th of the third 2008.
That was by a contractor, was it?...That was by the same contractor, Underground Asset Solutions.
And what sort of report did you receive from that contractor, as to the more recent report?...The report consists of a DVD movie which is completed by the camera travelling down the sewer and we receive a paper copy as well.
Okay. And you managed to retrieve the DVD and the paper copy?...I have.
Right. What does the paper copy report as to defects in the pipe between 34505 and 34506?...It does not actually record any defects across there other than – well, there are no defects.
And have you managed to locate on the DVD the corresponding section of – the camera view?...We have.
And you've looked at that just outside Court, haven't you?....That's correct.
Right. Now, perhaps if you could just tell us what you have observed and then we'll play the DVD as best we can in this environment and you can explain. Firstly, does the DVD record the start point in terms of metreage and the end point?...That's correct.
And what's the critical point we're looking at if we're examining this report of 28 October '03?...The critical chainage or measurement is 38.1 metres and we're also interested in anything happening either side of that measurement due to the inaccuracies in putting your little tractor camera down the manhole and backwards and forwards, so anywhere within a metre of that chainage.
Okay. So, that's important. There's an error of margin is there, on this metreage record?...That is correct.
Of up to how much?...Well, if you were talking about how you would measure a manhole, for instance, there're approximately a metre diameter so where you actually mark the chainage of the manhole – you know, it might be to the centre of the manhole, the up stream edge or the down stream edge, so the way that it's done normally is to actually mark at the beginning of your survey as 00 and then progressively note defects from that point either up stream or down stream.
Okay. So, you've got a commencement point on the DVD of I think about 36 or 37 metres, is that right?...On the DVD it's currently played forward to that point.
Okay. Don't play it yet. By reference to the DVD do you have a further opinion to express in respect of the information recorded on the report of 28 October '03?...Yes, I do.
What is that?...My opinion is that the camera report which took place in 2003 noted a number of things. It talks about a connection at three o'clock, the conduit being broken from ten to two o'clock and what is called an infiltration runner. An infiltration runner for the Court, is any form of defect where we find water squirting into a pipe. My opinion is that having reviewed what is present today and what is recorded there, that what this camera report failed to observe is that there was a manhole constructed at exactly the same chainage or measurement a [sic] the branch connection to the premises immediately down stream of the Cuthbertson Tannery.
Okay. Is that a manhole shown on this plan, which is what we've been calling P01?....It is not a manhole that's marked on that plan. The original of that plan would have been transferred to Council's geographical information system from the original field book records of 1910, when that sewer was constructed. So, there is a data problem with Hobart City Council in not transferring subsequent manholes onto their records.
I'm going to ask you – could the witness be shown P01, please? Should we – with the pink highlighter, can you mark approximately where in your view this presently unmarked manhole is?...Yes.
Hold it up for us and in due course you're going to hand that back to the Court clerk. So, that's an error in recordkeeping?...Yes.
Which will doubtless be fixed by the end of the week, I suspect.
HIS HONOUR: Are you saying that the camera of 2003 picked up a manhole cover instead?
WITNESS: I'm saying that the camera of 2003 failed to note that there was a manhole at that point but that may not necessarily have – that may have been a misinterpretation. Camera technology has developed sufficiently I think in the last five years. The standard now is a tilt and pan camera head. I can't say with reliability whether what was – what the camera inspection which took place at that time to my knowledge was a tilt and pan camera or not but I believe that what they've actually recorded is what you would see if you didn't know it was a manhole. In other words, that there has been a slot cut out of the top of the pipe where this manhole was constructed and that water was coming in there which they've interpreted as an infiltration runner.
Okay. Now, either side of this point, which we're going to look at on the DVD in a moment, is there anything consistent with the description contained in the '03 report, conduit broken, infiltration runner?...No."
The evidence raised a significant question of causation. Devlin had revisited the maintenance records, witness statements, and the documented history of the system as a whole. His report, tendered on the hearing, relevantly stated:
(1)Common causes of sewer failures – physical defects, blockages through discharge of unapproved materials (including teddy bears and porridge) and inadequate pipe capacity.
(2)Benchmark indicator standards of 20 blockages per year per 100 kilometres providing a Hobart equivalent of 80.
(3)Preventive and inspection measures, cost effectiveness and control of discharge.
(4)Management systems and council compliance, in particular:
"· 6.2.2 Council's conquest records show that the sewer asset known as SM34507 (includes a sewer crossing the Hobart Rivulet and a branch sewer which transports only trade waste from the Cuthbertson's tannery to join the sewer in Wynyard Street) had suffered no less than 25 blockages in the 13 years since records were collected and transferred into the conquest asset management system. Over the corresponding period, the sewers downstream of this asset known as SM 34503, SM34504 and SM34505 which transport both the trade waste from the tannery as well as the domestic sewage of some 25 premises upstream have only had two other blockages apart from that under investigation. Both of these prior blockages (1992 and 1995) occurred prior to the renewal of the sewer in approximately 1996.
·6.2.3 As 18 of these 25 blockages occurred on the branch sewer which only services the tannery, the causes of the blockages can be reliably be [sic] interpreted from the records and fully attributed to the discharges from the tannery, namely fats, sludge and 'rubbish' discharged from the tannery.
…
6.3 Management by Fact.
· 6.3.1 In relation to the subject sewers:
■ 6.3.1.1 Council was aware that its sewer assets had been renewed and were defect free
■ 6.3.1.2 Council had no records of a mains blockage occurring prior to this environmental incident on the relined (225mm diameter) sections of sewer after the sewers were relined
■ 6.3.1.3 Council had significant evidence that the branch blockages were the result of discharges from the tannery and that the consequences of a partial branch blockage could be noticed as frothing in the boundary trap providing sufficient notice for the Council to attend and the possibility of the trade waste generator to throttle their discharge without any material environmental harm occurring
■ 6.3.1.4 As it was possible that no environmental harm was occurring though [sic] this practice, and because Council had other known defects in its sewer system requiring attention, Council carried out background levels of preventive maintenance only, choosing to use the observations of tannery staff of the boundary trap as advanced warning of a partial blockage
■ 6.3.1.5 Council has continued to carry out subsequent investigations into this area which suggest that the material causing the blockage actually results from Tannery stormwater management practices as well as tannery trade waste discharges (grit, sediment, wood metal nails etc) sampled on 03 March from the relined sections of sewer
■ 6.3.1.6 Council has increased the level of preventive maintenance on the subject sewers following the environmental incident
· 6.3.2 Determining the root causes of system failures
■ 6.3.2.1 In relation to the subject environmental incident
· 6.3.2.1.1 Council has determined that there were no physical defects in the subject Council sewer(s)
· 6.3.2.1.2 Council has determined that it is highly likely that the accumulation of materials within the sewer at the time of the subject environment incident may have resulted from tannery site stormwater management practices in combination with trade wastes rather than simply the trade waste discharges themselves. These materials are not approved wastes covered by the trade waste discharge permit for the tannery."
(5) Effect of specific trade waste:
"■ 6.3.4.1 Council has a trade waste discharge permit agreement with the Tannery operators which relates to volume and a range of chemical and biological indicators. Of interest is that samples recently removed from the relined sections of sewer had significant deposits of grit, sand, and other debris such as a nails an sticks [sic] that suggest that site stormwater diverted to the sewer may be a source of the material causing the blockage.
■6.3.4.2 Council carries out monitoring of the trade waste discharges to minimise the potential for undesirable outcomes at the waste water treatment plant and damage to the sewers themselves
■6.3.4.3 Council actively engages with the tannery staff to continuously improve treatment processes and compliance with the trade waste discharge permit
· 6.3.4.4 Approximately 20 years ago Council staff initiated discussions with the tannery resulting in a new CSIRO developed process to oxidise the sulphide rich wastewaters via catalytic conversion
· 6.3.4.5 Approximately 11 years ago, Council instigated action to increase oxidation capacity and remove leather fines through micro screening as well as pH monitoring and control, heavy metal reduction through process changes and the installation of a dissolved air floatation system to remove heavy metals, oils and grease. Around this time Council also directed that site stormwater from the heavily contaminated site be treated and directed to the sewer system rather than the Hobart Rivulet.
· 6.3.4.6 Approximately 7 years ago a trade waste discharge permit was agreed with the tannery, stating the discharge limits in terms of waste strength and volume. Council also installed flow measurement equipment
· 6.3.4.7 Around three years ago Council installed a telemetry system to remotely monitor discharges and by agreement with the tannery management also monitor tannery process information"
In Mr Devlin's opinion the council complied with all the performance indicators and compared favourably with those of 21 other major water and sewerage systems throughout Australia. His evidence on the above matters was not challenged in cross-examination.
Findings of the magistrate
The learned magistrate did not accept that Devlin's evidence provided sufficient basis for accepting the defence advanced through the Act, s55A. Having made his primary and unchallenged findings of discharge, polluting effluent and location, he considered the evidence of Mr Devlin in the following terms:
"77The Council however despite checking the pipe by CCTV in 2003, and detecting an apparent break in the pipe, and being aware that Cuthbertson Tannery was discharging waste in excess of its entitlement, did nothing further to investigate apparent potential problems.
78Mr Devlin's expert evidence has to be discounted in the light of the fact that:
(a) Despite his evidence that the Council could not improve its system of monitoring problems in the pipes in 2006 it has according to Mr Street improved its monitoring of pipes ie there were more reasonable and practicable steps that the Council could take and indeed have taken in the last two years.
(b) The Council should have been aware by the monitoring it did undertake of the subject pipe to potential problems with the pipe and should have undertaken further investigations but it did not do so. To monitor the pipes as the Council did is admirable and good practice but if such monitoring reveals potential problems it is not reasonable to simply ignore those potential problems.
79The Court is not satisfied that the Council took all reasonable and practicable measures to prevent the commission of the offence.
80It should have had regular inspections of the pipe under the Hobart Rivulet because its monitoring showed a breach of conditions by the Tannery and the CCTV showed a potential break of the pipe. Contrary to Mr Devlin's evidence the subject pipe was not ignored due to budgetary restraints. It was regularly monitored and a CCTV inspection was carried out in 2003. The Council did not however follow up anomalies detected with the pipe.
81Failure on the Defendant's part to take these steps allowed a build up of industrial waste in the pipe and a failure to find the man hole and to secure that man hole. The final result was the escape of the unchecked industrial waste through the unsecured man hole into the Rivulet."
Notice to review
Grounds 1 and 2 of the notice to review claim error of the learned magistrate:
"1in finding that the Applicant had not established a defence pursuant to Section 55 of the Environmental Management & Pollution Control Act 1994;
2in failing to make a finding as to whether the offence the subject of the complaint did not result from any failure on the part of the Applicant to take all reasonable and practicable measures to prevent the commission of the offence or offences of the same or a similar nature."
Causation
The learned magistrate found two causative links between the consequence and the act of depositing or causing a deposit. With respect I do not agree with his reasoning. The initial cause was the downstream blockage, not access point A. There was no evidence establishing that the downstream blockage was a result of the tannery discharging more effluent than licensed. The linked cause was the outflow from the access point A. It may be that if the effluent had not escaped through the unrecorded access point A, the waste would have overflowed further upstream, although that is irrelevant to the issue other than to disprove an ancient and common axiom. What is relevant is whether the outflow through access point A was a consequence of fault or defect unnoticed or unrecorded by council. That the 2003 survey had suggested the existence of a fault unchecked or un-inspected was not the cause of the overflow. It was the presence of a "manhole" cover which permitted egress. That its existence had been overlooked or unrecorded during the "resleeving" works was immaterial to cause. Had it been defective and failed to contain discharge, the prosecution case could be established. But the question for the Court was whether its nature and presence was but a failure to take reasonable measures to prevent the discharge. Before the learned magistrate could consider the existence or otherwise of a statutory defence, he was required to consider whether the "depositing" of a pollutant resulted from an identified act or omission. He was required to be satisfied that the discharge was caused by a failure on the part of the council to take "all reasonable and practicable measures to prevent the commission of the offence" or at least not be satisfied that such had not been the case. The question was not the council's failure to follow-up the 2003 report, but whether that failure was a causative link in any prevention of the offence. It could not be said that the failure to follow-up the 2003 survey "allowed a build up of industrial waste in the pipe and [the] failure to find the man hole and to secure that man hole".
Excessive emissions
The second causative link found by the learned magistrate was that since the council was aware of the discharge of waste in excess of entitlement, its defence under s55A(1) was precluded because it "did nothing to investigate apparent potential problems". Mr Street, the council engineer, told the Court that the council had installed a "flow monitoring station in a manhole in Wynyard Street" on the pipe outlet from the tannery. In his evidence Mr Street stated:
"…Within that manhole is a flow metre which measures obviously the flow and there's some other instrumentation there that automatically and continuously measures Ph and a couple of other parameters, which is telemetered to the office in the Town Hall. On a monthly – quarterly – quarterly basis an automatic sampler is installed and over a four day period a twenty four hour sample is taken and then tested in our labs to see how they're going against all the other parameters that are in the discharge limit, plus that also is the mechanism by which the fees are charged.
HIS HONOUR: So monthly you check on this, is that right, every month there's a report?
WITNESS: I'm not sure if it's monthly or quarterly.
HIS HONOUR: Well we'll say regular reports –
WITNESS: Yes.
MR McELWAINE (Resuming): Have a look at this document if you would, please, Mr Street. What is that or what is that an extract from?........I believe that to be a screen dump from telemetry system from the automatic testing station.
For the tannery?........Yes.
And the sheets underneath, what are they?........They are the Ph temperature measurements that I believe to be taken by that system.
Right. Now you've examined that list before giving evidence, haven't you?........Yes.
Prior to May 2006 does the sampling indicate compliance or non-compliance in general terms by the tannery with the effluent discharge limits contained in the agreement?........Ph is just outside for a couple of those readings in May, COD would appear to be well outside for three of those four readings and suspended solids for – I'm not sure because at the – it's not listed there.
HIS HONOUR: For these you're going to say – you said Ph was just outside in a couple of places –
HIS HONOUR: Yes, but then you said something else was outside the range.
WITNESS: Chemical oxygen demand, the limit there is 10,000 milligrams per litre and three of those readings exceed that by some amount.
MR McELWAINE (Resuming): Prior to this incident in June '06 and to your knowledge from the information you were receiving and the works which you were responsible for was there compliance or non-compliance by the tannery with its discharge limits as set out in the agreement?........Could you just repeat that again, please.
Prior to June '06 -……..Yes.
- and based upon these reports you receive and your knowledge of what's happening in your division was there compliance or non-compliance by the tannery with its discharge limits?........I think – my understanding is that apart from May that generally they were compliant.
Prior to June '06, given that you're in charge of the Maintenance Division what sort of call out history had you had for blockages from this sewer in South Hobart?........The blockage history for the particular – for the decommissioned trunk sewer, I guess to describe it that way, was virtually nil, there were – without the notes I couldn't tell you exactly when they were, but back in the nineties there was a blockage, more or less none at all in the last five or ten years.
…
And for how long have these sorts of maintenance records been kept on this sewer to your knowledge?........To my knowledge the council kept reasonably good records of sewer and water maintenance and when the new system was put in I think they went back to about 1990 when they entered them in.
Okay. Now you've told us about the flow meter in one of the manholes for the tannery?........Yes.
Could you just have a look at P1 and tell us which manhole if we went and picked it up we'd find the flow meter in, which number manhole in P1?........I'll just check, I think it's 34507, and I've got it in – yes, 34 – manhole 34507 has the flow meter.
Okay. Do your records indicate whether that manhole had been the subject of blockages and perhaps overflows before June '06?........Yes.
What do they – what do the records tell us?........In overall terms there were three in – if I go backwards from 2006 and these are presumably for – well they are for the calendar year. There were three maintenance actions at that manhole, in 2005 there were three, 2004 –
HIS HONOUR: Sorry, just – 2006?
WITNESS: Three.
HIS HONOUR: Yep.
WITNESS: 2005, three. 2004, four. 2003, two. 2002, six and 2001, five.
MR McELWAINE (Resuming): Now are we talking about sewer blockages or some particular issue with this manhole that has the flow meter in it?........No, we're really talking about blockage of the flow meter.
Right…….To the extent that the signal stuff's coming through the telemetry system and then the people in the Town Hall that monitor that would call Civic Solutions to have it cleared out.
Okay. So do I understand that it's not a problem with general flow in the sewer but it's a problem with the instrument that's meant to register the amount of discharge from the tannery, is that -……..That's true.
Okay. Now was some plan put in place, some maintenance program put in place to deal with that particular issue at that point?........Not specifically, there were – it was cleaned and inspected as part of a normal program, as part of – those maintenance items may have been inspections and cleaning or responses to a blockage, they both count together, so –
But when you were speaking earlier about a prior history of blockage you didn't seem to include these specific clearances of the flow meter, what is the distinction?........Because they were – as I said, they were maintenance actions around the flow meter.
Right……..It didn't necessarily – there's an overflow system around it so it doesn't – it didn't block up and fill an overflow out of that particular manhole just when that occurred.
But I take it when you lifted the lid if there was a blockage it could have been dealt with at the same time, is that right, when you're looking at the flow meter?........A blockage elsewhere?
Yeah, a blockage in the system?........Yes."
The finding of a causative link was not open on the evidence.
Application of principle
Industrial safety legislation imposes on an employer a statutory duty to ensure as far as is reasonably practicable the health and safety of an employee. Failure to do so involves a statutory offence. Here the elements of reasonableness and practicality are contained in "defence provision". In Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166, the Full Court of the Supreme Court of South Australia had cause to consider the balance between absolute duty and reasonableness. In the primary judgment, Gray J, having considered the High Court case of Slivak v Lurgi (supra) said:
"36In Edwards v National Coal Board [1949] 1 KB 704. Asquith LJ observed that the phrase 'reasonably practicable' was a matter narrower than 'technical feasibility':
'Reasonably practicable' is a narrower term than 'physically possible' and seems to me to imply that a computation must be made by the owner, in which the quantum of the risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them.
37'Reasonably practicable' must also be judged as at the time of the matter alleged, as put by Lord Keith in Marshall v Gotham Co Ltd 1954] AC 360:
'But it is not the precautions in themselves which have to be reasonably practicable. It is the observance of the precautions that it is required so far as may be reasonably practicable. That calls, I think, for a consideration of the whole circumstances at the time of the accident, an assessment, an assessment of the situation, as it had been put, at the material time.'
and later
'There is, in my opinion, no general rule or test that can safely be relied on for measuring the discharge of such a duty.'
38What is 'reasonably practicable' is a question of fact for the trial Magistrate. Complaints before the Industrial Court and Magistrates Court under section 19(1) typically may be expected to involve consideration of matters such as: the magnitude of the potential harm; the likelihood that harm will arise; the availability of any measures that could be taken to eliminate or minimise the risk; the cost and time involved in those measures being taken and their effectiveness in addressing the risk.
39The construction of section 19(1) is assisted by noting that the words 'so far as is reasonably practicable', modify the verbs 'provide and maintain'. It is those verbs that provide and create the obligation. The obligation imposed by section 19(1) is not an absolute obligation. The words of qualification also prescribe the measure of the precautions to be taken to ensure 'that the employee is, while at work, safe from injury and risks to health'. These observations draw directly on the reasoning of Brennan J in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 251.
40Liability under section 19(1) should be determined by reference to the terms of the statutory provision. The statute obliges an employer to ensure - to make sure - that the employee is safe. The statutory duty is expressed in terms of reasonable practicability. The word 'ensure' carries with it a heightened obligation for an employer under the statute.
41The elements of the offence created by section 19(1) are to be found within the statutory provision. The obligation on the employer is to ensure safety so far as is reasonably practicable. That is an element of the offence.
42In determining whether the complainant has proved beyond a reasonable doubt that the employer failed to ensure safety so far as was reasonably practicable, a number of considerations may be expected to arise. As Gaudron J observed in Slivak, the determination of this element involves a value judgment. Given the nature of the subject matter of section 19(1), it can be expected that similar considerations to those that arise in the determination of a breach of a common law duty may also arise when considering whether this element under section 19(1) has been proved. However, it would be a materially different matter to import into section 19(1) elements of the offence incorporating common law requirements."
Although a court or tribunal is required to exercise judgment, the question remains one of fact. Nothing said by the High Court in Slivak (supra), is contrary to the analysis conducted in Dinko. Here the offence is defined in strict terms, but the defence provisions become a statutory component which must be considered within the basic onus requirement. Grounds 1 and 2 of the notice to review are upheld.
Depositing
Ground 3 of the notice to review claims error in the learned magistrate's finding:
"… that the offence charged pursuant to Section 51A(2) of the Environmental Management & Pollution Control Act 1994 was established by the depositing of a pollutant on the facts as found."
The argument at the hearing concerned the meaning of the word "deposit", with the applicant contending that the term required some form of act or conduct. The learned magistrate applied the ordinary meaning of the word as defined in the Macquarie Dictionary as:
"1to put or lay down; place; put
2to throw down or precipitate: soil deposited by a river
…
5anything laid or thrown down; as matter precipitated from a fluid; sediment."
and in Oxford as:
"something deposited; laid or thrown down; esp. matter precipitated from a liquid medium; or collected in one place by natural process."
He determined that the disposition did not require a deliberate act of "putting down the pollutant in a specific place" and that it was "sufficient that the … Council allowed the pollutant to leak out of the pipe and precipitate into the rivulet".
It is not necessary for the disposition of this appeal to determine the matter. The scheme of the legislation suggests that the interpretation preferred by the learned magistrate is apposite.
Disposition
There were no significant factual differences between the parties, nor questions of credibility at the hearing. Given my conclusions on the issues of causation, onus and interpretation, it is not necessary to refer the matter back to the Court of Petty Sessions.
There remains the alternate charge alleging an offence against reg8(1). That regulation provides:
"(1) A person must not deposit at any place a controlled waste in a manner that —
(a)directly or indirectly causes, or is likely to cause, environmental harm; or
(b)gives rise, or is likely to give rise, to any harmful concentration of any substance in any plant, animal, organism or soil above natural concentrations; or
(c)adversely affects, or is likely to adversely affect, the use or value of receiving waters for recreational, commercial, domestic, agricultural or industrial purposes; or
(d)contains sufficient heat, or is likely to generate sufficient heat by itself or in combination with other matter, to ignite or cause fire; or
(e)gives rise, or is likely to give rise, to undesirable, abnormal or harmful growth of a plant, animal, virus or organism."
The regulation essentially differs from the Act, s50(2A) on consequence. No separate issue is raised and the defences afforded by the Act, s55A, equally apply. The regulation might exclude a defence based on mistake if such exists in relation to an offence, indictable or not, against the Act. Here dismissal of the indictable offence would apply equally to the alternate. No purpose would be served by remittal.
The motion to review is upheld and the conviction imposed by the Court of Petty Sessions quashed. The order of this Court is that complaint No 912342/07 be dismissed.
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