PAYNE -v- TIWEST PTY LTD [2005] WASC 141

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 141
Case No:	SJA:1075/2004	Heard:	8 DECEMBER 2004
Coram:	SIMMONDS J	Delivered:	30/06/05
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	ROGER FRANCIS PAYNE TIWEST PTY LTD
Catchwords:	Environmental law Air pollution Company charged with causing pollution and emitting an unreasonable emission of chlorine gas Negligence Whether emission was foreseeable Whether company exercised due diligence Whether company failed to take reasonable precautions Whether Magistrate erred in dismissing the complaint
Legislation:	Environmental Protection Act 1986 (WA), s 49(3), s 49(5), s 74(1), s 74(1a)
Case References:	Canale v Bayens [2001] WASCA 383 Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 Maloney v Commissioner for Railways (1978) 18 ALR 147 Osland v The Queen (1998) 197 CLR 316 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Suvaal v Cessnock City Council (2003) 200 ALR 1 Thielemann v Commonwealth [1982] VR 713 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 Warren v Coombes (1979) 142 CLR 531 Webb v South Australia (1982) 43 ALR 465 Abalos v Australian Postal Commission (1990) 171 CLR 167 Beneficial Finance Corporation v Karavis (1991) 23 NSWLR 256 Dempster v Mallina Holdings Ltd (1994) 13 WAR 124 Devries v Australian National Railways Commission (1993) 112 ALR 641 Edwards v Noble (1971) 125 CLR 296 Fox v Percy (2003) 197 ALR 201 Howells v Murray River North Pty Ltd [2004] WASCA 276 Jones v Hyde (1989) 85 ALR 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PAYNE -v- TIWEST PTY LTD [2005] WASC 141 CORAM : SIMMONDS J HEARD : 8 DECEMBER 2004 DELIVERED : 30 JUNE 2005 FILE NO/S : SJA 1075 of 2004 MATTER : Justices Act 1902 BETWEEN : ROGER FRANCIS PAYNE

Appellant

AND

TIWEST PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR P G MALONE SM

File No : PE 42416 of 2002, PE 42417 of 2002

Catchwords:

Environmental law - Air pollution - Company charged with causing pollution and emitting an unreasonable emission of chlorine gas - Negligence - Whether emission was foreseeable - Whether company exercised due diligence - Whether company failed to take reasonable precautions - Whether Magistrate erred in dismissing the complaint

(Page 2)

Legislation:

Environmental Protection Act 1986 (WA), s 49(3), s 49(5), s 74(1), s 74(1a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms C J Thatcher & Ms C A Ide

Respondent : Mr M W Odes QC

Solicitors:

Appellant : State Solicitor

Respondent : Freehills

Case(s) referred to in judgment(s):

Canale v Bayens [2001] WASCA 383
Council of the Shire of Wyong v Shirt (1980) 146 CLR…

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.

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Details

Case: [2005] WASC 141
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Payne v Tiwest Pty Ltd [2005] WASC 141 was heard on 8 December 2004 and delivered on 30 June 2005 by Justice Simmonds. The case was an appeal by leave under Justices Act 1902 (WA), s 187, against the dismissal of two complaints against the respondent company, Tiwest Pty Ltd, for offences under the Environmental Protection Act 1986 (WA). The complaints related to the discharge into the atmosphere, from a stack at the respondent's plant, of gas containing chlorine. The appeal raised the issue of the application of the defences to these offences, specifically whether the defences were correctly applied by the learned Magistrate in concluding that the discharge was not foreseeable.

The court found that the appeal did not raise any issue with the learned Magistrate's analysis of the offences or the determination that all elements of the offences had been proved. The appeal focused on the application of the defences to the offences, specifically whether the learned Magistrate's conclusion that the discharge was not foreseeable was correct. The court considered the standard for appellate review in cases of this kind and concluded that the approach to be taken was to decide the case for itself, recognising the advantages enjoyed by the judge who conducted the trial, but also recognising that if the judges of appeal consider that the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

The court considered the grounds of appeal separately, finding that none of the grounds were upheld. The court found that the learned Magistrate did not err in law or fact in determining that the discharge was not foreseeable and that the respondent had exercised due diligence and taken reasonable precautions to prevent the commission of the offence. The court concluded that the appeal should be dismissed, as it had not upheld any of the grounds of appeal in the matter.

Orders