Purtill v Landfix Pty Ltd

[2004] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Purtill v Landfix Pty Ltd [2004] QPEC 067

PARTIES:

JAMES PURTILL, CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY
(Applicant)

v

LANDFIX PTY LTD
(Respondent)

FILE NO/S:

38 of 2004

DIVISION:

Planning &  Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5, 6 and 7 October 2004

JUDGE:

Judge Alan Wilson SC

ORDER:

1.  That the respondent be fined;

(a)   $5,000 for its contempt in failing to comply with paragraph 7(b)(iii) of the Order of this court made on 31 October 2003

(b)    $5,000 for its contempt in failing to comply with paragraph 7(b)(iv) of that Order;

(c)     $5,000 for its contempt in failing to comply with paragraph 7(b)(v) of that Order.

2. That the respondent pay the applicant’s costs of and incidental to the proceedings, assessed on an indemnity basis.

PLANNING LAW – CONTEMPT – application for orders that respondent be punished for contempt for failure to comply with an order made by consent on 31 October 2003 – proof of contempt – penalty - costs

Environmental Protection Act 1994.
Integrated Planning Act 1997

Cases Considered:

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483,
Environment Protection Authority v Transgrid [2003] NSWLEC
Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation(Qld Branch) (2001) 2 Qd R 118,
GDL Investments (Qld) Pty Ltd v Spotwire Pty Ltd (2003) QSC 273
McIntyre v Perks (1987) 15 NSWLR 417, at 427-28, 436

Permewan Wright Consolidated Pty Ltd v Attorney General (1994) 35 NSWLR 365
Witham v Holloway (1995) 183 CLR 525
Wolfe v Price [2002] QSC 53

COUNSEL:

Mr M Hinson SC for the applicant
Mr D Jackson QC and Mr R Devlin for the respondent

SOLICITORS:

Crown Law for the applicant
Hopgood Ganim for the respondent

1. This is an application for orders that the respondent Landfix Pty Ltd (Landfix) be punished for contempt arising from its alleged non-compliance with the terms of an order made in this court on 31 October 2003 (the Order).  The application also sought similar orders against Ian Albert Taylor, an officer of Landfix but, following an application brought on his behalf at the commencement of the hearing, that part of the originating application which pursued relief against him[1] was struck out.

   [1]Origination application filed 7 April 2004, para 5

1. The Order was made in proceedings brought under s 505 of the Environmental Protection Act 1994 (EPA).  They related to Landfix’s premises at Port Alma which it used between 1997 and 2003 for the re-processing of saltcake, a waste product from the secondary processing of alumina.  This re-processing generates a by-product in the form of a fine-grained solid commonly known as “non metal product” or NMP, which is an alumina rich salt with high salinity and a “regulated waste”.  A great deal of NMP had been generated during Landfix’s saltcake re-processing operations and was stored on and spread around the site, which immediately abuts a waterway and the Environmental Protection Agency (EPA) was concerned that regulated waste could be discharged from the site, and cause environmental damage.

1. The Order required, in short, that Landfix remove the NMP from the site according to a timetable, and also remove residual saltcake and all equipment associated with its operations, and maintain and manage the stormwater control system on the land so as to prevent the release of contaminants.  It was the last matter upon which most of the evidence and argument focused.

1. This court’s power to punish for contempt is to be found, initially, in the Integrated Planning Act 1997, (IPA) s 4.1.5, which invests it with similar powers given to the District Court under the District Court of Queensland Act 1967, s 129 which, relevantly, provides:

129Contempt

…

(2)    A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.

This provision applies, in my view, notwithstanding the fact that the Order was made under EPA, s 505 which allows the court to impose penalties for contravention[2]. Landfix contended that an order made under s 505 is not an order of the court within the meaning of IPA s 4.1.5(3) because, otherwise, a failure to comply with a s 505 order would be both an offence, and a civil contempt, something generally seen as impermissible: e.g., Criminal Code s 205 which prohibits punishment both for contempt, and under the provisions of the Code for the same act or omissions. The interrelation between IPA s 4.1.5 and EPA s 505 has not been directly considered in this context but, in Wolfe v Price [2002] QSC 53 Moynihan SJA was satisfied the former had not affected an implied repeal of the latter and suggested[3] that s 4.1.5 contemplated the separate existence of offences but permitted this court to deal with contraventions of its orders as a civil contempt. I do not think the mere fact of alternate remedies compels a construction of s 4.1.5(3) which excludes its operation in respect of orders made under s 505.

[2]s 505(12)

[3]Para [11]

1. Proceedings of the present kind require that the applicant establish each element of the alleged contempt at the level of proof beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534. As McMurdo J said recently in GDL Investments (Qld) Pty Ltd v Spotwire Pty Ltd (2003) QSC 273, at para [25]

The case must be proved with the ‘utmost strictness’:  Clifford v Middleton (1974) VLR 737, as cited in Commissioner of Water Resources v Federated Engine Drivers Association (1998) 2 Qd R 385 at 392 and Hafele Pty Ltd v Maggeury Pty Ltd (2000) QCA 397 at [29], and ‘uncertain inferences from inexact proofs will not support such a charge’: Consolidated Press Ltd v McRae (1954-55) 93 CLR 325, 333.

Charge 1

1. Paragraph 5 of the Order required the following of Landfix:

On and from 28 October 2003 maintain and manage the stormwater control system on the site, including:

(i)pumping out the fines captured in the lined stormwater and lined process ponds; and

(ii)grading and maintaining the stormwater drains on site, to prevent the release of contaminants including … oxidised N(nitrite and nitrate), total soluble phosphorous, and the following elements … copper from lease R and lease S, particularly in dust and stormwater runoff.

1. The applicant asserts Landfix is in contempt because it failed to prevent the discharge, on 13 January 2004, from the tidal pond on the land and on to the adjacent mudflats outside the site contaminants including copper, oxidised nitrogen and total soluble phosphorous.  It is not in issue that samples taken on the mudflats just outside the site on 13 January 2004 contained these contaminants at a high level but the respondent contends that has not been demonstrated to be the consequence of any failure on its part to maintain and manage the stormwater control system.  Prior to 28 October 2003 that system was so designed as to permit water to overflow from an unlined stormwater storage dam to the final receptacle in the system, a sea end or tidal pond but, after that date, (as I saw on an inspection of the first day of the hearing) the drain to the sea end pond was blocked off, or plugged and it was not, thereafter, an active part of the stormwater control system. 

1. There was no evidence suggesting that water had run over the drain or plug, causing contaminants to flow into the sea end pond after 28 October and Mr Orwin, an EPA investigator agreed that in fact there was no reason to believe that had occurred[4].  Dr Mortimer, a scientist called for the EPA, did not purport to say that he had seen evidence of a “runoff” of that kind.  Mr O’Sullivan, a subcontractor employed by Landfix to manage the site at material times said that to his observation there had actually been no discharge of water from the unlined stormwater storage dam before the plug was installed[5].  There is, then, no evidence establishing any water had run over the drain or plug to release the contaminants into the sea end pond (or, thereafter, to the mudflats) after 28 October.  A possible explanation is that some of the contaminants “tailed out” of the sea end pond as part of its tidal flow carrying, perhaps, “old” contaminants previously deposited in that pond by some means, but that remains conjectural.  Certainly, there was no other evidence explaining the presence of the contaminants save, of course, simple proximity.

   [4]T 79.40-50

   [5]T 182.1-30

1. On its face the Order requires that the stormwater control system be maintained and managed but that does not carry the necessary implication of a promise that there will be no release of contaminants, or that a release cannot occur.  The terms of the two numbered subparagraphs support the construction that the purpose or object of the Order is directed primarily to the obligation to maintain, and manage.  The charge does not, however, allege any particular act said to have constituted a failure to maintain or manage, causing a release of contaminants; or, that the release was a consequence of stormwater runoff.  The want of evidence about those matters led the applicant to attempt, rather, to argue from a conclusion, in a way which goes beyond the apparent nature and effect of the Order.

1. It was ultimately contended that the applicant did not need to prove the precise mechanism by which the material was discharged and, rather, that there was a “compelling inference” that it occurred as a consequence of some failure of an obligation under paragraph 5 of the Order[6].  It was submitted that the Order required Landfix to do whatever was necessary to avoid or prevent a particular result and, if there was evidence the result had occurred the only reasonable inference was that it happened as a consequence of a failure on the respondent’s part[7].  Dr Mortimer acknowledged, however, that he could not contend there had been a release of contaminants into the sea end pond between 28 October 2003 and 13 January 2004[8] and, in the face of that difficulty, advanced the theory that there had been seepage from various parts of the site, relying upon some visual evidence in the raised walls of the site abutting the mudflats which suggested contaminants had leached from the site or the stormwater control system.  It must be doubted, however, that events of that kind would constitute “stormwater runoff” and there are added difficulties: no sample was taken from the alleged seepage points and no other witness supported Dr Mortimer’s theory.

   [6]Address of Mr Hinson SC, T 210.29-36

   [7]T 210.8-12

   [8]T 129.46-55

1. Plainly, gleaning evidence to support an application of this kind will always present considerable difficulty, even to an applicant with the resources of the EPA.  Nevertheless, it is impossible to conclude other than that the applicant has failed to discharge the onus of demonstrating, beyond reasonable doubt, that a failure to maintain or manage the stormwater control system, through any act or omission, caused the release of the contaminants.  Nor can the fact that contaminants might, possibly, have tailed out of the sea end pond as part of its tidal flow constitute a breach, or contempt, because the evident flow of water was not something the respondent was required to prevent as part of the course of maintaining and managing the system.  The charge has not been made out.

1. Even if the applicant had been able to demonstrate some technical breach or failure to comply with the Order, in relation to the water discharge at the sea end pond, the evidence does not suggest any serious or significant environmental impact and, otherwise, points more strongly to the conclusion that the respondent applied itself with reasonable diligence to the maintenance of that system[9].  Photographs, and an inspection of the sea end pond, revealed healthy local plants at the place where the water was sampled.  That is not to say these contaminants are not environmentally bad but, overall, these factors indicate that even had the breach been proved the penalty would have been nominal and, for reasons explored later, limited to the payment of costs.

   [9]Affidavit of Tim O’Sullivan (filed by leave 6 October 2004) paras 23, 24

Charge 2

1. Paragraph 7(b) of the Order required that the respondent remove regulated waste from the site according to a timetable stipulating specified tonnes per month between and including November 2003 and May 2004, totalling 16,000 tonnes.  Charge 2 asserts various breaches by reference to both monthly and cumulative totals, although the latter are, in the terms of the Order, irrelevant.  Some of the appellant’s calculations failed to credit what I am satisfied, from Mr O’Sullivan’s evidence, was in fact properly removed NMP.  His evidence established, I am satisfied, that:

(a)         slightly over 1,000 tonnes was removed in November 2003 (as required);

(b)         about 1,500 tonnes was removed during December (as required);

(c)         the target for January 2004, 2700 tonnes was not met, but that occurred

             

because Mr O’Sullivan wrongly believed the target was the same as for  

             

December, i.e. 1,500 tonnes; and, the month of January 2004 was

             

exceptionally wet;

(d)        nevertheless, only slightly more than 1,500 tonnes were removed during

            

January 2004

(e)        slightly over 2,500 tonnes was removed in February 2004 – still, however,

            

short of the required monthly total of 2,700 tonnes

(f)         no NMP was removed in March 2004.

1. Mr O’Sullivan said, and I accept, that in the second half of February he became concerned at the effect removal was having upon the stability of the site, and the safe use of machinery.  He has long experience in earthworks, and compaction and his concerns were reasonable.  He urged the respondent’s director, Mr Taylor, to cease removal and on 24 February sent him a report containing a plan which was used by the respondent’s solicitors to prepare a submission to the EPA’s lawyers of 4 March 2004 in which they sought EPA’s consent to change the Order.  EPA refused, by letter from Crown Law 5 April 2004, and began these proceedings two days later. 

1. It follows the applicant has established contraventions of paragraphs 2(c), (e) and (g), relating to shortfalls in removal under the schedule in January and February 2004, and March.

Charge 3

1. Paragraph 7(d) of the Order required the respondent to remove all residual saltcake on the site by 30 November 2003.  As Mr O’Sullivan explained[10] the reference to “saltcake” is in fact to saleable aluminium in block form, a matter to which a later charge refers.  Otherwise there was no evidence indicating non-compliance with this part of the Order. 

   [10]His affidavit, paras 10 and 11

Charge 4

1. Paragraph 7(e) of the Order required that all equipment on the site at 31 October 2003 (other than equipment required for the purpose of stormwater management and removal of the NMP stockpile) was to be removed by 31 December 2003.  Some uncertainty arose about various things on the site and, in particular, whether they were “equipment” or, rather, fixed structures.  The application alleged two agitators and an agitator assembly, two shipping containers, a water tank and other equipment had not been removed, in breach of this order.  Mr O’Sullivan said, and I accept, that the agitators were incorrectly described and were, in fact, structures.  The white agitator bowl was not required on site, and should have been removed.  The shipping containers were used to store equipment relevant to ongoing activities.  The water tank was a structure, storing water to wash down equipment used for NMP removal and site management; and, of the other equipment mentioned in paragraph 7(e), it was all relevant to the ongoing activities.  Notably, paragraph 6(c) of the Order permitted the respondent to leave “buildings, structures and all things used in the activity of recycling or reprocessing regulated waste” on the land until 1 June 2004. 

1. The saleable aluminium was not removed until January because Mr O’Sullivan did not appreciate that was required.  When he did it was taken away promptly.  It follows that only the charges raised in paragraphs 4(b) and 4(f) (relating to the agitator assembly, and the saleable aluminium) have been proven and are, indeed, admitted.

Penalty

1. Under UCPR r 930(3) punishment for contempt, if the respondent is a corporation, may include both seizing corporation assets, and a fine. Mr Hinson SC submitted the failures to comply with the timetable for removal of NMP were, while not contumacious, properly categorized as wilful. While lacking any specific elements suggesting an actual attempt to defy the authority of the court they could not, he said, be described as casual, accidental or incidental. Ultimately, Mr Hinson contended for a fine of 3,000 penalty units ($225,000), half of which should be paid immediately and the balance suspended on condition that the respondent henceforth comply with an undertaking to remove the balance NMP at the rate of 2,000 tonnes per calendar month, and associated provisos to ensure compliance.

1. A number of factors impinge upon the process of calculating an appropriate penalty here.  An important one is that the respondent is liable for costs which, having regard to the complexity to the issues, the number of large affidavits filed, and the length of the hearing will be substantial[11].  Secondly, the party in contempt is effectively prevented from cross-applying for an extension of time in which to carry out these kinds of remediation orders[12] but, here, the appellant presented an undertaking (Exhibit 14) to remove regulated waste at a fixed rate, and subject to additional conditions which would determine when that exercise was properly completed.  It is clear that when the Order was made the precise amount of NMP on the site was unknown, although it was roughly estimated at, apparently 16,000 tonnes.  The conditions proposed by the respondent changed the Order by requiring removal, but up to a point where the site may, I understand, be deemed to be safe and sufficiently clear of NMP.

   [11]Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) (2001) 2 Qd R 118, per McMurdo P at 127; Environment Protection Authority v Weight [2003] NSWLEC 124 per Pearlman J at para [12]

   [12]Permewan Wright Consolidated Pty Ltd v Attorney General (1994) 35 NSWLR 365, at 369

1. The respondent also presented evidence from Mr John Grounds, a civil engineer with environmental expertise, who has inspected the site and prepared a Remediation Action Plan[13] which is comprehensive and, it appears, addressed in the respondent’s proffered undertaking.  During submissions Mr Hinson SC presented a variation on that undertaking requiring speedier removal, and some differences in the sampling and testing provisions and, although it was clear differences existed, it seemed likely the parties could resolve them. 

   [13]Affidavit of John Arthur Grounds filed by leave 7 October 2004

1. Subject to the resolution of those questions I am satisfied the respondent’s undertaking represents a genuine intention to remediate the site in the way the original order intended, and to undertake that so soon as these proceedings are resolved. 

1. The applicant submitted that a suitable penalty might be calculated by reference to EPA s 505 which, read in combination with s 181(B) of the Penalties and Sentences Act 1992 would permit a fine of up to 15,000 penalty units, or $1,125,000 but, here, the true measure of the respondent’s wrong-doing would be satisfied by a fine set at one-fifth of the maximum, i.e. $225,000. The breaches alleged under Charge 4 are fairly characterized as minor, and not causative of any harm. The failure to remove the monthly amount of NMP is the most substantial question remaining to be addressed, in the context of penalty. The charges which I have found to be proven are the shortfalls in removal in January, February and March 2004 and they occurred, I am satisfied from Mr O’Sullivan’s evidence, initially as a consequence of a misunderstanding of the terms of the Order and, later, as a result of his genuine concern about the safety aspects of further removal. Those concerns were taken up with the respondent by letter in early March, to which the applicant replied in early April but, at the same time, responded by immediately beginning these proceedings. What has occurred since is irrelevant[14].

   [14]Environment Protection Authority v Transgrid [2003] NSWLEC 18 per Lloyd J at paras [126], [127]

1. These elements seem to me to define the parameters of the respondent’s contempt, and to indicate that its breaches were, while wilful in the sense that they were intentional (at least so far as the non-removal of any NMP in March 2004 was concerned), also capable of being fairly categorized as explicable within a rational context: i.e., Mr O’Sullivan’s apparently reasonable concerns.  That analysis shows the contempt was very far from consumacious and, insofar as it might be said to involve an intentional flouting or disregard of the court’s authority, was not of a high order.  The obligation to pay a significant sum in costs (on an indemnity basis, for reasons set out hereunder) and bear its own costs will impose a significant financial burden upon the respondent.  Taking all these matters into account, an appropriate penalty is the imposition of a fine of $5,000 for each of the three breaches under Charge 2, i.e. $15,000.  I will hear submissions about time for payment.

Costs

1. The respondent accepted that it was appropriate to make an order for costs in the applicant’s favour[15], which the applicant sought on an indemnity basis.  Certainly, an order for costs is not uncommon in contempt proceedings[16].  No costs order was made in the original proceedings and I was not referred to any provisions of EPA said to be relevant.  IPA s 4.1.23 permits costs orders in certain circumstances.  This court’s power to award costs here arises, rather, under UCPR r 932 which places them within the court’s discretion in a proceeding for punishment for contempt, whether a specific punishment is imposed or not. In Evenco it is clear an Order was made requiring the respondent to pay costs on the higher “solicitor and client” scales under the former Rules of the Supreme Court, as part of a further sanction or punishment for contempt[17].  This is an appropriate case in which to exercise the discretion in the applicant’s favour, and order that its costs of and incidental to the proceedings be paid by the respondent, assessed on an indemnity basis.

   [15]T 236.10-15

   [16]Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (supra) at p 127 per McMurdo P; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483,a t 498-99; McIntyre v Perks (1987) 15 NSWLR 417, at 427-28, 436

   [17]       Supra, at p 127, paras [13] per McMurdo P