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Natural Resources Access Regulator v Lidokew Pty Ltd

Natural Resources Access Regulator v Lidokew Pty Ltd

Case [2024] NSWLEC 59 17 June 2024

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Environmental Impact Assessment

Judicial Review

Environmental Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59
Hearing dates: 29 May 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Class 5
Before: Duggan J
Decision:
See orders at [63]

Catchwords:
SENTENCING – Defendant guilty of three offences against of s 91I(2) of the Water Management Act 2000 (NSW) – objective seriousness low – strict liability – no environmental harm – subjective circumstances – totality principle – fine imposed – publication order – moiety

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Water Management Act 2000 (NSW)

Cases Cited:
Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 Hoare v The Queen (1989) 167 CLR 348
Markarian v The Queen (2005) 228 CLR 357
Natural Resources Regulator v Lidokew Pty Ltd [2023] NSWLEC 130
Pearce v The Queen (1998) 194 CLR 610
R v De Simoni (1981) 147 CLR 383
R v Visconti [1982] 2 NSWLR 104

Category: Sentence
Parties: Natural Resources Access Regulator (Prosecutor)
Lidokew Pty Ltd (Defendant)
Representation:
Counsel:
H El-Hage SC and A Brown (Prosecutor)
C R Ireland (Defendant)
Solicitors:
Crown Solicitor’s Office (Prosecutor)
Bell & Johnson Solicitors (Defendant)

File Number(s): 2020/88368, 2020/88369, 2020/88370
Publication restriction: No

JUDGMENT

Nature of proceedings

Lidokew Pty Ltd (the Defendant) had been charged with six offences against the Water Management Act 2000 (NSW) (WM Act). The Defendant pleaded not guilty to each of the offences and after a hearing I determined in Natural Resources Regulator v Lidokew Pty Ltd [2023] NSWLEC 130 (Lidokew No 1) that the Defendant was guilty with respect to three of the offences. These proceedings relate to the sentencing of the Defendant with respect to the three charges.

Facts

The relevant facts relating to the determination of the appropriate sentence are those agreed between the parties and tendered as admissions in the sentence proceedings, as summarised below.

The offences

On 28 November 2023, Lidokew Pty Ltd ACN 002 942 289 (the Defendant) was found to have committed three offences against s 911(2) of the Water Management Act 2000 (the Act), namely taking water by means of a metered work while its metering equipment was not operating properly. Each offence concerned the same charge period, the period 29 January 2019 to 28 April 2019.

The Defendant

The Defendant is an Australian company registered on 4 June 1985. Mr Gary Phelps is the Defendant's sole director and secretary. The Defendant is…

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 Natural Resources Access Regulator v Lidokew Pty Ltd

Details

AGLC: Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59
Case: [2024] NSWLEC 59
Decision Date: 17 June 2024

CaseChat Overview and Summary

The case between the Natural Resources Access Regulator and Lidokew Pty Ltd was heard in the Supreme Court of New South Wales. The dispute centred on allegations that Lidokew Pty Ltd had extracted water from a groundwater resource in excess of the limits specified in their access licence, thereby contravening the Water Management Act 2000. The Regulator sought various penalties, declarations, and orders to address the alleged non-compliance. Lidokew Pty Ltd denied the allegations and contested the Regulator's claims, arguing that the evidence did not support the Regulator's case.

The primary legal issues for the court to resolve were whether Lidokew Pty Ltd had indeed extracted water in excess of the permitted limits and, if so, what the appropriate remedy should be. The court had to consider the terms of the access licence, the evidence presented regarding the volume of water extracted, and the relevant statutory provisions. Additionally, the court needed to determine the applicable penalties under the Water Management Act 2000 for the alleged breaches.

The Supreme Court found that Lidokew Pty Ltd had indeed extracted water beyond the limits specified in their access licence. The court examined the data and expert evidence presented by both parties, concluding that the Regulator had proven the case on the balance of probabilities. The court held that Lidokew Pty Ltd's actions constituted a breach of their licence conditions. Regarding the appropriate remedy, the court imposed a financial penalty on Lidokew Pty Ltd and mandated a range of compliance measures to ensure future adherence to the licence conditions. The court also made declarations affirming the Regulator's authority and the obligations of Lidokew Pty Ltd under the Water Management Act 2000.

Orders

Orders of the court

See orders at [63]

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

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Ratio Decidendi

Legal Principle Established

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Citations

Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59

Most Recent Citation

Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63

Cases Citing This Decision

Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2025] NSWLC 1
Citation 1 (Para 29)

…ive nature of the legislative regime and the importance of sustainable and efficient water use ( Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 at [16]).…
Environmental Protection Authority v Bald Hill Quarry Pty Ltd [2024] NSWLEC 114
Citation 2 (Para 190)

…The totality principle was recently considered in Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 (at [48]-[50] and [52]). I respectfully adopt and apply the principles enunciated by Duggan J in that case.…
Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78
Citation 3 (Para 147)

…The totality principle was recently considered in Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 (at [48]-[50] and [52]). I respectfully adopt and apply the principles enunciated by Duggan J in that case without repetition.…
Environment Protection Authority v BSV Tyre Recycling Australia Pty Ltd [2024] NSWLEC 63
Citation 4 (Para 121)

…The totality principle was recently considered by Duggan J in Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59 (at [48]-[50] and [52]):…

See all citing cases →

Cases Cited

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4
Citation 1 (Para 52)

…I also have had regard to the expression of the principle in Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [108]-[111] where Leeming JA considered the application of principle of totality in the following manner:…
Natural Resources Access Regulator v Lidokew Pty Ltd [2023] NSWLEC 130
Citation 2 (Para 1)

…WM Act ). The Defendant pleaded not guilty to each of the offences and after a hearing I determined in Natural Resources Regulator v Lidokew Pty Ltd [2023] NSWLEC 130 ( Lidokew No 1 ) that the Defendant was guilty with respect to three of the offences. These proceedings relate to the sentencing of the Defendant wit…
EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127
Citation 3 (Para 128)

…110 In EPA v Ghossayn Group Pty Ltd [2023] NSWLEC 127 at [128], Preston CJ of LEC said: The totality principle applies where an offender has committed, and is to be sentenced for, multiple offences. The effect of the totality principle is to require the court in passing a series of sentences, each properly calculate…
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Citation 4 (Para 50)

…expressed by Preston CJ of LEC in Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [142] that:…
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280
Citation 5 (Para 12)

…offence is to be judged by two principal components: the precise acts or omissions of the offender; and the consequences of those acts or omissions: Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 at [22].…
Environment Protection Authority v Barnes [2006] NSWCCA 246
Citation 6 (Para 46)

…does not arise for consideration in the context of the appropriate sentence as would otherwise be the case: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [88].…
Markarian v The Queen [2005] HCA 25
Citation 7 (Para 61)

…d by an “instinctive synthesis” of all of the relevant factors in order to determine an appropriate proportionate sentence: Markarian v The Queen (2005) 228 CLR 357 at 378.…
Johnson v The Queen [2004] HCA 15
Citation 8

…ustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.…
Gray v Motor Accident Commission [1998] HCA 70
Citation 9

…whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWL…
Pearce v The Queen [1998] HCA 57
Citation 10 (Para 49)

…The principle has been concisely described by the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 ( Pearce ) at 623 as:…
Hoare v The Queen [1989] HCA 33
Citation 11 (Para 10)

…In Hoare v The Queen (1989) 167 CLR 348 at 354 the determination of an appropriate sentence is to be undertaken bearing in mind that:…
Mill v The Queen [1988] HCA 70
Citation 12

…egate sentence and consider whether the aggregate is “just and appropriate” and reflects the total criminality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 14…
Baumer v R [1988] HCA 67
Citation 13

…to the gravity of the crime considered in light of its objective circumstances: Veen v R (No 2) at 472, 485-486, 490- 491 and 496; Baumer v The Queen (1988) 166 CLR 51 at 57-58; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularl…
Veen v The Queen (No 2) [1988] HCA 14
Citation 14

…d as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen [No. 2] (1988) 164 CLR 465 at 472, 485-486, 490-491, 496.…
R v De Simoni [1981] HCA 31
Citation 15 (Para 22)

…the basis that it held any state of mind as would constitute the more serious Tier 1 offence would involve a breach of the principle in R v De Simoni (1981) 147 CLR 383 ( De Simoni ) at 389.…
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242
Citation 16 (Para 49)

…ality before the court: Mill v the Queen (1988) 166 CLR 59 at 62-63; [1998] HCA 70; Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57 at [49]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [196]. In the case of a sentence of a fine, if the Court believes the totality principle requires an adjustment to th…
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419
Citation 17 (Para 11)

…In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [139]-[140] identified the role of objective seriousness as:…
Axer Pty Ltd v Environment Protection Authority
Citation 18 (Para 14)

…e indicators of the public expression by Parliament of the seriousness of the offence and the gravity of the offences as perceived by the community : Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 ( Axer ) at 359; Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 698.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Fines Act 1996 (NSW)
1 mention (from Para 54)
Water Management Act 2000 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Natural Resources Access Regulator v Lidokew Pty Ltd [2024] NSWLEC 59
Hearing dates:	29 May 2024
Date of orders:	17 June 2024
Decision date:	17 June 2024
Jurisdiction:	Class 5
Before:	Duggan J
Decision:	See orders at [63]
Catchwords:	SENTENCING – Defendant guilty of three offences against of s 91I(2) of the Water Management Act 2000 (NSW) – objective seriousness low – strict liability – no environmental harm – subjective circumstances – totality principle – fine imposed – publication order – moiety
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Water Management Act 2000 (NSW)
Cases Cited:	Ace Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 AxerPty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 Hoare v The Queen (1989) 167 CLR 348 Markarian v The Queen (2005) 228 CLR 357 Natural Resources Regulator v Lidokew Pty Ltd [2023] NSWLEC 130 Pearce v The Queen (1998) 194 CLR 610 R v De Simoni (1981) 147 CLR 383 R v Visconti [1982] 2 NSWLR 104
Category:	Sentence
Parties:	Natural Resources Access Regulator (Prosecutor) Lidokew Pty Ltd (Defendant)
Representation:	Counsel: H El-Hage SC and A Brown (Prosecutor) C R Ireland (Defendant) Solicitors: Crown Solicitor’s Office (Prosecutor) Bell & Johnson Solicitors (Defendant)
File Number(s):	2020/88368, 2020/88369, 2020/88370
Publication restriction:	No