Minister for Environment, Heritage and the Arts v Lamattina

Case [2009] FCA 753

FEDERAL COURT OF AUSTRALIA

Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753

ENVIRONMENT – civil penalties – contravention of s 18(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by taking an action that had a significant impact on an endangered species – proposed penalties agreed between parties – criteria to be taken into account when determining penalty – determination that agreed pecuniary penalty not within range of appropriate penalty

Held – penalty proposed by the parties not within the permissible range – higher pecuniary penalty imposed

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18(3), 475, 481, 484, 494
Federal Court of Australia Act 1976 (Cth) s 21
Crimes Act 1914 (Cth) s 4AA(1)
Native Vegetation Act 1991 (SA) ss 26(1), 30

Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 discussed
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 cited
NW Frozen Foods Pty Ltd  v Australian Competition and Consumer Commission (1996) 71 FCR 285 cited
J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 cited
Minister for the Environment and Heritage v Wilson [2004] FCA 6 discussed
Minister for Environment and Heritage v Warne [2007] FCA 599 discussed
Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 cited
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 cited

MINISTER FOR ENVIRONMENT HERITAGE AND THE ARTS v ROCKY LAMATTINA & SONS PTY LTD and ROCCO LAMATTINA

SAD 182 of 2007

MANSFIELD J
17 JULY 2009
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 182 of 2007
BETWEEN:

MINISTER FOR ENVIRONMENT HERITAGE AND THE ARTS
Applicant
AND:

ROCKY LAMATTINA & SONS PTY LTD
First Respondent

ROCCO LAMATTINA
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

17 JULY 2009

WHERE MADE:

ADELAIDE

THE COURT DECLARES THAT:

1.The first respondent, by causing the clearance of native vegetation from the property known as Acacia Downs and more properly described as Certificate of Title Volume 5400 Folio 622 Sections 324, 325, 326, 327 and 328 in the Hundred of Hynam in the State of South Australia (the property) between April 2004 and July 2005, took an action likely to have a significant impact on a listed threatened species included in the endangered category, namely the South-eastern Red-tailed Black Cockatoo (Cayptorhynchus banksii graptogyne), in contravention of s 18(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).

THE COURT ORDERS THAT:

2.Pursuant to s 481 of the EPBC Act, the first respondent pay the Commonwealth of Australia a pecuniary penalty of $220,000 in respect of the conduct set out at paragraph 1 above.

3.The first respondent pay the applicant’s costs of the application fixed at $22,500.

4.There be no order in relation to the second respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


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Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753
Case
[2009] FCA 753
Decision Date

CaseChat Overview and Summary

The case of Minister for Environment, Heritage and the Arts v Lamattina involved the respondent contravening the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) by clearing native vegetation in an area designated as a habitat for the endangered Cockatoo. The Court was tasked with determining the appropriate amount of the pecuniary penalty to be imposed on the respondent to deter similar actions in the future. The case considered the deliberate nature of the respondent's actions, the significant impact on the endangered species, and the need for the penalty to have a strong deterrent effect on the public.

The Court noted the importance of imposing penalties that reflect the seriousness of the offence and the need to deter future breaches. In assessing the appropriate penalty, the Court considered previous cases where similar penalties were imposed for breaches of the EPBC Act. The Court concluded that the respondent's deliberate and planned actions warranted a substantial penalty. The Court found the deliberate nature of the conduct, coupled with the significant impact on the ecological character of the Ramsar wetlands, justified a penalty that would serve as a strong deterrent.

In determining the amount of the penalty, the Court balanced several factors, including the deliberate nature of the respondent's actions, the lack of evidence regarding the impact on the property's value, and the public interest in negotiated settlements. The Court ultimately decided that a penalty of $220,000 was appropriate, taking into account the deliberate and planned nature of the contraventions and the need for a significant deterrent effect. The Court also ordered the respondent to pay costs of $22,500 associated with the application.

Pursuant to the EPBC Act, the Court ordered the first respondent to pay a pecuniary penalty of $220,000. The first respondent was also ordered to pay the applicant's costs of the application, which were fixed at $22,500. No order was made in relation to the second respondent.

Orders

Orders of the court

2. Pursuant to s 481 of the EPBC Act, the first respondent pay the Commonwealth of Australia a pecuniary penalty of $220,000 in respect of the conduct set out at paragraph 1 above.

3. The first respondent pay the applicant’s costs of the application fixed at $22,500.

4. There be no order in relation to the second respondent.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
The applicant submits, and the first respondent accepts, that a significant penalty is nonetheless warranted to deter other landowners in a similar position, directly or by their agents, from taking action likely to have a significant impact on the Cockatoo or other endangered species. It is appropriate that the penalty be fixed in an amount which is likely to have a strong deterrent effect on the public and to demonstrate to the public and those whose business interests are conducted on land on which there is native vegetation that such conduct is seriously regarded by the community, as expressed in the legislation. The amount of a pecuniary penalty needs to demonstrate that such conduct will not be tolerated by the Court.Other decisions The joint submissions note that the Court has considered the amount of the pecuniary penalty to be imposed pursuant to the EPBC Act in several recent cases. In Greentree, a corporate entity contravened s 16(1) of the EPBC Act by taking the deliberate action of clearing, ploughing and subsequently sowing wheat that had a significant impact on the ecological character of a declared Ramsar wetland. The maximum penalties were the same under s 16(1) of the EPBC Act as apply to the present conduct. Sackville J found that the contravening conduct was deliberate, as the respondents (as a corporate entity and its director) carried out the contravening conduct when they were well aware that any unauthorised action had a significant impact on the ecological character of the Ramsar wetlands site and would constitute a contravention of the EPBC Act. The deliberate conduct was found to be more than an isolated act of the kind that might occur as the result of an impulsive error of judgment, and that it was planned conduct. The nature and extent of the contraventions of the EPBC Act suggested that substantial pecuniary penalties were warranted. The personal respondent was ordered to pay a pecuniary penalty of $150,000, and the corporate respondent was ordered to pay $300,000. The other two cases to which my attention was drawn are not so directly relevant. They relate to different offences. In Minister for the Environment and Heritage v Wilson [2004] FCA 6 (Wilson), the respondent set a net in the Great Australian Bight Marine Park and caught a shark, contrary to s 354(1) of the EPBC Act. The Minister and the Respondent jointly submitted that the appropriate pecuniary penalty to be imposed was $12,500 (the maximum civil penalty for an individual was $55,000). Selway J decided that level of penalty was appropriate. On the facts put by the respondent and not disputed by the applicant, the respondent knew that he was close to the border of the Park and knew there was a risk that his vessel might drift into the Park, but did not know that in fact his vessel had done so. Further, it was a first offence, was not deliberate and was the result of negligence, bordering on recklessness. In Minister for Environment and Heritage v Warne [2007] FCA 599 (Warne), the respondent was the skipper of a vessel which carried out commercial fishing within the boundaries of a reserve contrary to s 354(1)(a) and (f) of the EPBC Act. Whilst inside the boundaries, the vessel took a species of fish classified as a native species under the EPBC Act. The parties filed an agreed statement of facts and made joint submissions in support of a pecuniary penalty of $25,000 (the maximum civil penalty for an individual was $55,000). The parties characterised the respondent’s incursions into the wildlife park as “reckless”. Siopis J ordered that the respondent pay the agreed penalty.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

There may be many reasons for that. It is unlikely to have become less valuable because its cropping potential was increased by the contravening conduct. There is certainly no evidence on that topic. It may be that it was resold at a lower value because the market generally had fallen. It may be that the first respondent had disposed of certain water rights attaching to it. It may be (although it is unlikely) that the property was allowed to run down. Without evidence, the reason for the lower resale value of the property is simply unexplained. If the focus is on the profitability of cropping the illegally cleared land, again there is no evidence to indicate whether the particular cleared land was cropped at a profit or a loss, compared to the more generally available cropping area. CONSIDERATION The Court generally looks favourably upon negotiated settlements: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375. It is in the public interest for the Court to make orders in litigation concerning the EPBC Act on the terms that have been agreed between parties so as to encourage parties to assist the applicant in investigations and achieve negotiated settlements. The Court has recognised that, in addition to savings in time and costs, there is a public benefit in imposing agreed pecuniary penalties where appropriate as parties would not be disposed to reach such agreements where there are unpredictable risks involved. The Court’s role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods (1996) 71 FCR 285, concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1:Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd, it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount.There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne;Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.