R v Santos, Bluewind Shipping Ltd - [2011] QDC 254

[2011] QDC 254

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE DORNEY QC

Indictment No 2355 of 2010

THE QUEEN

BERNARDINO GONZALES SANTOS and
BLUEWIND SHIPPING LIMITED and
CHINA NAVIGATION COMPANY LIMITED and
SWIRE NAVIGATION COMPANY LIMITED and
SWIRE SHIPPING LTD

BRISBANE

..DATE 14/10/2011

SENTENCE

HIS HONOUR: Bluewind Shipping Limited and Swire Navigation Company Limited have each pleaded guilty in writing pursuant to section 594A of the Criminal Code to counts on indictment 2355 of 2010. They are, respectively, counts 2 and 4.

In terms, the counts read that between the 10th day of March 2009 and the 13th day of March 2009 oil was discharged from the ship, MV Pacific Adventurer, into Queensland coastal waters and at the time of the discharge each company was an owner of the ship, the MV Pacific Adventurer.

The maximum penalty applicable under the provision to which each of these defendants has pleaded guilty - in section 26(1)(a) of the Transport Operations (Marine Pollution) Act 1995 (that I will refer to as TOMPA) - is 3,500 penalty units.
Taken with the effect of section 181B(3) of the Penalties andSentences Act 1992 which multiplies the penalty for a provision which it so stated in that way by five for a corporation, and taken with section 5 of the Penalties andSentences Act which designates $100 for each penalty unit, the maximum that is calculated, therefore, for this provision is $1.75 m.

It must be understood that this maximum penalty is one that applied to events that occurred at the time. Subsequent amendments may well have raised that particular maximum; but the Court is concerned simply with the maximum as it applies to the events in question here. Now, although the submissions raised more widely, my consideration concentrates on the two defendants - whom I have named - who have made their pleas of guilty.

The Pacific Adventurer is a geared, (what is called) ‘tween decked general cargo vessel’, equipped for the carriage of containers. It was registered in Hong Kong. At all relevant times both defendants, Bluewind and Swire, were registered owners of that ship. And, as discussed later, unlike Australian ownership, Hong Kong law permits unlimited shared ownership.

On 9 March 2009, the ship was loaded with cargo in Newcastle, comprising, amongst other things, fifty 20 foot containers which were stowed on the hatch covers on the decks and secured by a lashing system. That lashing system is shown by various photographs which became exhibits, by a manual which was referred to, and by the physical objects which are present in Court. All of them illustrate the nature of the system which I will now describe.

That system was designed to operate as follows.

In all eight corners of each container, each container was provided with corner castings, which had elliptical openings on both horizontal and vertical faces. On the hatch covers and pedestals were welded numerous sliding deck shoes. Manually operated bottom twistlocks were inserted into those deck shoes by sliding them horizontally within the guides. As described in evidence, if the flanges or lips to those deck shoes rusted away it is obvious that they became less, or even not, effective at all as restraints.

A bottom tier container was then lowered onto a stowage position where there were four open twistlocks ready in the sliding deck shoes beneath each corner. Once in position, the bottom twistlocks were locked by turning the operating lever to the left. That caused the twistlock cone to turn, thereby locking the bottom of the container in place.

At the bottom of the second tier containers, and the base of the third, semi-automatic twistlocks were employed for locking to the adjacent container.

On the hatch covers and pedestals, the vessel was fitted with designated lashing plates (called "lashing eye plates") for use with a lashing rod/turnbuckle combination. The lower end of the turnbuckle was secured to the lashing eye plate using a studded pin and the upper end of the turnbuckle, comprising a hook, was passed through the eye at the lower end of the lashing rod.

The upper end of the lashing rod was inserted into the container corner casting end elliptical opening. The arrangement was then tightened by rotating the turnbuckle.
The lashing rod/turnbuckle combinations were deployed to the base of the second and third tier containers in a cross arrangement.

The manual I mentioned earlier, the ship's cargo manual, together with “A Master's Guide to Container Securing", contained diagrams of lashing equipment. The latter document the ship had on board as a publication for its use.

What the latter of those documents - that is the "Master's Guide" - showed was that a vigilance had to be exercised because it emphasised that the lashing rods had to be in good condition (that is referred to at page 22) and that regular examination of the lashing components should be undertaken (that is at pages 29 and 30). And it also made reference to the testing of damaged and distorted items.

The ship set sail from Newcastle at or about 5.38 p.m. on 9 March 2009. Prior to sailing, the Master was aware of the content of meteorological reports concerning the existence and nature of severe tropical cyclone Hamish. The Master consulted an independent weather routing service, which provided the Master with a recommended passage (through a series of emails, which became Exhibit 5), in order to take a safe passage to Brisbane, thereby avoiding the effects of that tropical cyclone. The Master at all times complied with the advice and the passage information provided by that service.

Pursuant to the Master's commands, additional lashings were applied to secure containers before the Pacific Adventurer set sail, on account of severe tropical cyclone Hamish.

Then, at or about 3.12 a.m. Australian Eastern Standard Time, on 11 March 2009, the ship was in Australian territorial waters at GPS position, latitude 27 degrees 01.5 seconds South and longitude 153 degrees 36.0 seconds East, and was experiencing severe synchronous rolling as a consequence of the ship's natural roll period nearly matching the encountered wave period. In Exhibit 18, Associate Professor Baldock refers to the nature of the sea at that time.

At about 3.12 a.m. on 11 March 2009 a stack of 31 of those original 50 containers - contained, in fact, in Bay 25 - that had been on the deck of the vessel, collapsed and were lost overboard. Further, a number of the lashings referred to went with them, obviously forever. An unknown number of the lost containers impacted the hull of the ship and holed or punctured the hull in two places on both the port and starboard sides where the fuel tanks were located.
At or about 3.12 a.m. on 11 March 2009, the ship began to leak fuel oil from the holes in its fuel tanks into the sea. The Master took what he thought was corrective action by listing the ship to starboard, thereby lifting the holes that he could see above the water line; but he was unaware that both sides had been punctured. Exhibit 22 shows, in photographic terms, the holes on both sides.

Oil, being fuel from the ship's fuel tanks, discharged into the Coral Sea within the “territorial sea” of the Commonwealth, being a point between 3 and 12 nautical miles off the coastline of Queensland. The definition of that is contained in a Proclamation declared under section 7 of the Seas and Submerged Lands Act 1973 (Commonwealth).

The oil discharged from the ship was “oil” for the purposes of TOMPA. It should be noted that section 26(1)(a) of TOMPA covers the discharge of oil from a ship into coastal waters.
The dictionary to the legislation defines "coastal waters" by reference to the Acts Interpretation Act 1954, section 36: in effect being within 3 nautical miles off the coastline.

By force of wind and tide, the oil entered Queensland coastal waters at or about 8.15 a.m. on 11 March 2009. At the time the discharge entered those coastal waters it was deemed to be a discharge into Queensland coastal waters by virtue of section 9 of TOMPA.

In all, approximately 270.79 tonnes of the oil leaked on the 11th of March was discharged from the ship, most of which entered Queensland coastal waters from 11 March 2009.

Oil, so discharged from the ship, later washed up on Queensland beaches including: Ocean Beach at Bribie Island; Point Cartwright; the Coral Sea side of Bribie Island; Honeymoon Bay on Moreton Island; Currimundi Lake entrance; and Spitfire Creek. That oil discharge is shown graphically in the photographs which are contained in Exhibit 23.

The discharge thereby caused significant oiling to parts of the south-east Queensland coastline. An extensive clean-up operation was necessary and I will refer, somewhat briefly, to a number of environmental reports.

The first is the report of Dr Rissik. Dr Rissik prepared a report entitled "Environmental Impacts following the Pacific Adventurer Oil Spill: March 2008". Regardless of that date, I will proceed. At an unnumbered page in that report, he dealt with a number of matters which I will quickly move through.

The first issue that he dealt with was the effect on wildlife; and I read as follows:

"The number of wildlife affected was low, particularly due to the cyclonic weather conditions which dispersed wildlife, but also due to the location of the oil spill, high tides and where oil washed ashore.
A rehabilitation centre was set up to deal with the oil affected wildlife. All deceased wildlife found in the area (were) autopsied to determine the cause of death. No turtle or wader deaths were found to be related to oil.
The following organisms were affected: 13 pelicans (were) washed, rehabilitated and released; 1 crested tern (was) washed, rehabilitated and released; 1 kingfisher (was) washed, rehabilitated and released; 1 wedge-tailed shearwater (remained) in care [at the time of the writing of the report]; 1 little tern (was) deceased; 1 sea snake (was) deceased; (and) 1 great-winged or providence petrel (was) deceased."

Dealing then with the Sandy Beach ecosystems, he found as follows:

"The immediate impact(s) of the oil on the lower shore of the impact sites was a reduction in the abundance of five species of crustaceans … , two species of polychaetes and three species of bivalves.
On the lower shore, the difference in total abundance, species density and diversity between impact and reference sites, was greater 3 months after the spill. This suggests a delayed and persistent toxic effect of the oil on sandy beach invertebrates. It also clearly demonstrates that there was no recovery within the 3-month time frame."

Dealing then with the rocky shores, he stated as follows:

"Compared with reference sites on North Stradbroke Island, the initial effects were very marked, particularly on the upper shore where oiling was heavier than the lower shore. On the upper and lower shore there was little evidence of recovery up to five months after the spill."

Dealing then with the wetlands, in particular, the South Eagers Creek Wetland, he stated:

"The wetland was cleaned up by a small team shortly after the spill occurred following a softly-softly approach. This successful and rapid cleanup prevented any impact on wetland fish … . Oil was removed from impacted vegetation and oil vegetation was cut back, resulting in rapid and successful regrowth."

Dealing then with the Spitfire Creek Wetland, particularly with respect to wetland fish, he stated:

"The fish community in Spitfire Creek Wetland was affected by the oil spill. The number of species found in the oil affected areas dropped from … four to two in the month following the oil spill. The abundance of fish also declined substantially. Normally, an average number of 15 fish per unit effort are presented in the wetland, but numbers dropped to less than two per unit effort after the spill. Numbers increased to within normal range after 6 months, as the wetland was rehabilitated. It is not clear whether the fish were killed or whether they moved away from the affected area."

He later stated, with respect to the same issue, that:

"A separate study was conducted on the toxicity of the bioavailable component of oil collected from rocky shores, wetlands and from the sandy beach shortly after the oil spill. Results indicated that oil on the rocky shores and in the wetland was between 3 and 24 times more toxic than on the sandy beach." He then stated: "This is probably because of the loss of water-soluble fractions of the oil, wave and tidal action; and associated sand scouring may have assisted in the removal of remnant oil. … Eight months after the oil spill, toxicity of remnant oil in the wetlands had decreased substantially and PAHs could only be detected using passive samplers."

And, finally, with respect to the duration of the impact, he indicated by diagrammatic effort, with respect to various areas that I've identified, a recovery time. Summarising that diagram, he stated: with respect to the Spitfire Wetland that that had had a duration up to about the end of March 2009; with respect to the sandy beach, that had happened between March 2009 and December 2009; with respect to the Spitfire Wetland, that had continued but almost decreased by December 2010; and, with respect to the rocky shore, it had decreased by about the same time.

I then turn to the report prepared by the Incident Analysis Team, under its chair, Mr Michael Julian, of the 12th of February 2009. At page 6 of that report, it states as follows:

"During field visits in May and June 2009 …, the beaches were clean of oil and except for some remaining oil on the Moreton Island rocky shores and the ongoing clean-up efforts at Spitfire Creek, it was hard to tell that a 270 tonne spill of heavy oil fuel had occurred. The IAT formed the view that overall the response was effective. This result is a testament to those involved in the prolonged response which ended with a successful outcome."

Finally, I turn to the report of Steve Raaymakers, entitled "Independent Evaluation: Environmental Effectiveness of the SEQ Oil Spill Response: March 2009". At page 3 of that report, he stated as follows: Moreton Island and Moreton Bay are potentially extremely sensitive to oil pollution; (and) despite these values and sensitivities, and while some environmental damage certainly has been caused (the quantification of which requires more scientific assessment than he undertook), it was his professional opinion that the Pacific Adventurer oil spill “does not constitute an ecological ‘disaster’ as portrayed by some media”.

He further stated that:

"The type of oil spilled (Heavy Fuel Oil or HFO) is one of the less toxic oils - and environmental issues relate more to its high viscosity (its thick, gooey nature) than its toxic effect on the environment."

He then stated that:

"As HFO weathers under natural conditions it becomes even less toxic."

At page 4, he stated further as follows:

"In relation to Moreton Island it appears that oil has impacted on the seaward shores and does not appear to have entered Moreton Bay (except for some subsequent leakage from the ship on entering safe-haven in the Port of Brisbane).
In relation to Moreton Island the oil appears to have mainly impacted on sandy beaches and rocky shores - the two least sensitive shorelines when it comes to oil impacts. While dark oil on white beaches may ‘appear’ to ‘look bad’, environmentally it is of (relatively) limited ecological consequence and it is (relatively) easy to clean-up, compared to oiled mangroves, seagrasses or coral reefs. Additionally, the seaward surf beaches and rocky shores of Moreton Island are very high-energy environments, with (relatively) low biological diversity and productivity, and will ‘self-clean’ due to wave action and other natural processes."

He finally stated with respect to this issue, at least, that:

"It appears that the oil has not impacted on sensitive mangrove areas, seagrass beds and inter-tidal flats, and the oiling of sea birds and other wildlife appears to have been relatively minimal to date."

One can conclude, from a survey of those particular reports, that there was no risk to human life or health and there was a low mortality to wildlife, although, as the reports indicate, a lot of that wildlife may well have been driven inland by the cyclonic effects.

Now, the Queensland Government made a claim for the clean-up. By Exhibit 3 - which in fact is a report under the hand of Tony James, Assistant Director, Financial Services Branch of Justice and Attorney-General - there is a ‘validated’ claim for reimbursement of discharge expenses incurred by public sector agencies of the State. The report shows that with respect to claims by ports, councils and State Government departments and agencies, the total expense incurred is $30,394,234.12. I am required to make a finding with respect to that.
Later, with respect to the issue of causation, I refer specifically to section 132C of the Evidence Act 1977; but it is sufficient for present purposes to state that I accept to the relevant standard that that sum of approximately $30 million is the sum which is the total of the discharge expenses.

The discharge of oil from the ship resulted from the damage to the hull of the ship, which I have referred to. This, itself, directly resulted from a combination of circumstances including the failure of container securing.

The ship's lashing plan, which was tendered as Exhibit 6, was adopted on board although it was not followed entirely. In addition, as I have earlier referred to, the Master added to the lashing such that it became stronger than that which is shown in fact in the lashing guide.

By section 32C, as I mentioned earlier, of the Evidence Act 1977, I am required to apply the civil standard of proof to any allegation of fact that is not admitted.

I am satisfied to that standard:
from the scientific evidence of Dr Ken Kirby (which is Exhibit 17) - while noting that there was limited examination of fittings from Bay 25 - though specifically cognizant of the conclusions he reached in Section 5 of that report;
from the photos which were tendered, particularly those referrable to Bay 25 (which was Exhibit 25); and
from the requirements outlined in the manuals and particularly in the manual entitled "A Master's Guide to Container Shipping";
that it can be inferred as the more probable inference that the failure of the container securing equipment was caused by the compromised state of the container securing equipment, which itself was caused, in turn, by a lack of proper maintenance.

With respect to that, on and prior to 18 October 2008, the owners had become aware that a number of twistlock deck shoes and lashing eye plates on the hatches of the vessel were faulty, but progressive repairs were underway and, as at October 2008, the owners genuinely expected the repairs to be completed in less than three months.

Unfortunately, as at 11 March 2009, some but not all relevant repairs had been completed. Thus, as I have just found, the integrity of the unrepaired items, which included the twistlock deck shoes and the lashing eye plates used for the relevant containers, remained compromised. As at the date of the discharge of the oil, new replacement lashing equipment was in fact on the ship, but, unfortunately, only some of this had been used and some of this had not been put into service. That, of course, goes to the determination of the culpability of the ship's owners.

Concerning the plea:

A committal proceeding was held on 7 July 2010, at which there was limited cross-examination. The cross-examination, as indicated by the prosecution, was directed to a minor spill in Brisbane (which was contained and is not the subject of any of the charges considered by me here).

From that one draws a conclusion that it was, primarily, what is called a ‘hand-up’ committal and, certainly, as the Crown conceded, the defence did not challenge any facts which are now accepted.

On 18 January 2011, the defendants made application to the Court for rulings on the interpretation of section 28 of TOMPA. Section 28 deals with defences.

On 28 January 2011, Judge Robin QC made rulings adverse to the accused.

An offer of a plea was made on 27 June 2011; and that was agreed to by the prosecution some three weeks ago.
A formal indication to the District Court was made on the 30th of September 2011.

I therefore accept, as submitted by both sides, that there has been a timely plea of guilty to the charges in question.

With respect to the contest about section 28 of TOMPA, there had been no published decision prior to the 28th of January 2011 concerning it. The prosecution correctly concedes that the case was arguable and that it was inappropriate to take such a point at the committal.

Therefore, I accept, in all the circumstances, it was reasonable for the defendants to conduct a limited committal and it was reasonable for them not to offer a plea until the Court had ruled on the meaning and effect of that section.

In terms of the investigation:

After the discharge, access to the ship was gained by officers of Marine Safety Queensland, pursuant to statutory provisions. It is accepted by the prosecution that employees of the accused co-operated with the MSQ officers to manage the ship and its discharge. There was also co-operation in the investigation, although that, for the reasons I will go through, is contended by the prosecution to be limited.
The defendants agreed to provide information and interviews as follows.

They allowed access to the vessel and all documents on board at all times while it was in Brisbane following the incident. They allowed fuel samples to be obtained from the vessel's fuel tanks. On 12th March 2009, MSQ conducted an interview with the chief engineer. On 13 and 16 March 2009, MSQ sought access to documents from the ship and such documents were produced on 16 March 2009.

On 19 March 2009, MSQ seized various items of cargo and securing equipment from the vessel. On 19 and 23 March 2009, MSQ sought further documents from the ship; and such documents were produced on 23 March 2009.

By letter dated 20 March 2009, MSQ invited the defendants to participate in interviews. By letter dated 25 March 2009, MSQ again invited the accused to participate in interviews through their authorised representatives. I will come, in a moment, to that response.

By letter dated 25 March 2009, MSQ sought further documents from the ship and such documents were produced on 6 April. On 7 April 2009, MSQ sought further documents from the ship and such documents were produced on 14 April.
Turning, then, with respect to the invitation for the accused to participate in an interview on 25 March 2009, the accused declined to participate in an interview. The prosecution has rightly conceded that such declining was within the rights given to persons before they are charged.

Turning, then, to further requests for information and interviews, on 20 August 2009, after the accused were charged, MSQ made a written request to them for information pursuant to section 88 of TOMPA. By letter dated 18 September 2009, the defendants declined to provide that information on the basis of a reasonable excuse, namely, privilege against self-incrimination.

Further, by letter dated 26 February 2010, after the defendants were charged, legal representatives for MSQ sought further information and documentation from the accused, and by letter dated 30 March 2010 the defendants declined to provide the documents requested on the basis that charges had already been laid.

As I just indicated, the prosecution also concedes with respect to those refusals that it was appropriate for them, in the circumstances, to rely upon the legal rights given to them with respect to the criminal justice system in this State.

After the discharge, the defendants and others applied to the Federal Court of Australia for limitation of their civil liability under the relevant 1976 Convention given force of law in Australia by the Limitation of Liability for Marine Claims Act 1976 (Commonwealth): see section 6.

By order of Dowsett J, on the 15th of September 2009, a limitation fund was created which limited the defendants’ liability to $17,526,122.71. That sum was paid by the defendants’ mutual insurance association as part of a policy of insurance to which the accused have paid, and continue to pay, premiums - and no criticism has been made of the fact that they took insurance to cover such liability.

In addition to the sum paid pursuant to the limitation order, the defendants have paid $7,473,877.29 to the Commonwealth on account of the Queensland Marine Environment Trust established under an agreement with the State of Queensland. This was a gratuitous payment and the proceeds of the Trust have been on paid to the State of Queensland.

Turning then to the legal issues that affect this matter:

Section 26(1)(a) of TOMPA, as I have indicated, refers to a maximum penalty of 3,500 penalty units. Section 26(1)(a) states that: "If oil is discharged from a ship into coastal waters, the following persons each commit an offence", then naming, amongst others, “the ship's owner” in the singular.

It is clear from section 32C(a) of the Acts Interpretation Act 1954 that the singular includes the plural. So, for the purpose of determining offenders with respect to section 26(1)(a), it is clear that the reference to “the ship's owner" includes “the ship's owners". The "each" that I have referred to appears to refer to "each person" in the various categories referred to in section 26(1) and therefore reinforces the construction that the plural is intended.

The problem though that arises is with respect to the maximum penalty. That is, is it to be interpreted as applicable to each offender?

Section 41(b) of the Acts Interpretation Act defines "penalty" in a way which indicates that an offence is punishable, on conviction (whether or not a conviction is recorded), “by” a penalty “not more than” the specified penalty.

Section 4 of the Acts Interpretation Act states that the application of that Act (that is, the Acts Interpretation Act) may be displaced by any contrary intention appearing in any Act. But I discern that no apparent contrary intention in section 26 of TOMPA exists. I will come to my conclusions on this issue in a moment.

Turning to authorities:

The only case that in any detail considered the issues for a potentially analogous provision was the case in the New South Wales Planning and Environment Court of Environment ProtectionAuthority v Hochtief; Thiess Pty Ltd [2005] NSWLEC 506.

Bignold J looked at how a provision - which was somewhat different from the provision here in that it referred to a “person” who pollutes any waters being guilty of an offence - in circumstances where there in fact was a joint venture.

Paragraph [34] of his decision referred to that issue in these terms:

"Th(e) issue arises, not because the defendants are co-offenders or principal offenders whose respective culpabilities in respect of the same offence are indistinguishable from one another, but because the offence was, from a practical viewpoint, committed by the Joint Venture that the two defendants had created for the purpose of undertaking the … works (in question). Since that Joint Venture does not possess a legal personality, it cannot be charged with the offence because it is not relevantly ‘a person …’ … . It is as a result of the Joint Venture’s lack of legal personality (which also explains why the environment protection licence was granted to the two defendants as co-licensees rather than to the Joint Venture) that the defendants as the constitutive members of the Joint Venture incur liability … ."

He then continued, at [35]:

"In my opinion the appropriate sentence to be imposed upon each of the defendants for the admitted offences … is one that takes into account the fundamental reality that the pollution incident was caused by the Joint Venture … and the further reality that the admitted liability of each defendant for the same offence only arises because the absence of legal personality of the Joint Venture precludes (it) from being charged with the offence of causing the water pollution incident."

His Honour, then referred to another authority which dealt with a partnership. A partnership in Queensland law is also not a separate entity: the partners are each personally liable.

In paragraph [40] he then sets out the contentions which were made against that particular submission and I will just read them in brief terms.

"The … submissions were as follows:
In accordance with general sentencing principles, the appropriate approach for the Court to take where more than one individual or legal entity can be said to have committed the offence is for each offender’s culpability etc to be considered individually. That is, the Court should view the nature and seriousness of each offender’s part in the incident, their respective culpability, other objective factors and their respective subject factors."

(I think that means "subjective factors".)

"Where the connection between each offender, as it relates to the facts, is so intimate that they are indistinguishable, as is the case in these matters, the Court may view this as a factor relevant to assessing each individual's individual culpability. While the end result of this process may lead to each offender receiving the equivalent of perhaps half the fine they would have received if the Court was instead concerned with one offender, it is respectfully submitted that this is the appropriate way of determining (the) penalty."

In the following paragraph [41], Bignold J then stated that the opposing submission to that submission that I have just outlined was as follows:

"… (I)t is appropriate in these circumstances that the Court determine the penalty payable for the offence arising out of the incident, and apportion the penalty equally between the two defendants. … The two defendants are so intimately related that they should be seen as one entity for the purposes of setting the penalty. In simple terms, the Court should see the defendants as one. Each defendant is being prosecuted for its role as occupier and licensee … ” (that is, for its status).

Bignold J in that case accepted the submission advanced on behalf of the defendants that one should simply add the combination of the defendants in determining the one sentence penalty.

For my part, I do not follow that particular decision for the following reasons. Despite, indisputably, section 26(1)(a) of TOMPA creating a status offence rather than an action/omission offence, there is nothing in the provision that I must consider that shows any contrary intention to plurality. Further, though not a strong indicator, section 41(b) of the Acts Interpretation Act seems to tie “penalty” to the “offence” “by” punishing the offender for each offence. Therefore, acknowledging that the approach to that is different from approaching the differences between 26(1)(a) and 26(1)(b), I accept the construction advanced by the prosecution in this case. Obviously, that still leaves for determination how punishment is to be determined after such conclusion.

With respect to that I hold that what I call "the status effect" has some engagement. This is, the effect is that legal structures such as joint ventures, partnerships and joint ownership are to be seen as one entity, as companies would be (that is, if a single company was in fact the ship's owner), when one comes to consider the effects of how one applies to the culpability the penalty in question.

That approach, I conclude, is strengthened by the purpose of such punishment. Such punishment in a case as this has, as a major factor, general deterrence. That has effect as a general publication of the finding to others for the act or omission involved and not for the number of legal persons involved in the entity in question.

Here, there is no evidence that shows that one or other of the two defendants is more culpable. Therefore each, by parity principles, must be treated equally.
However - and I take as instructive the passage from the decision of Wells J, speaking on behalf of the Full Court of the Supreme Court of South Australia in The Attorney-Generalv Tichy (1982) 30 SASR 84 (at page 92) - that it is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing Judge may determine in every case whether sentences should be ordered in that case to be served concurrently or consecutively or, in this case, how one should determine, by perhaps the application of percentages, such a penalty between two defendants who, as here, are joint owners.

Thus, I conclude that no sentencing approach dictates that each must bear 50 per cent of the punishment imposed for a single owner, though general deterrence would suggest that I must accept such an aspect as relevant to the determination of the penalty to be imposed. I was referred to a potential comparable case.

Before I turn to that, I wish to make some general comments about sentencing processes. In the recent decision of the High Court of Muldrock v The Queen [2011] HCA 39, the Court referred to the decision of McHugh J in Markarian v The Queen (2005) 228 CLR 357. The passage in question reads as follows: "A Judge identifies all of the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of that case." (emphasis added). That is at paragraph [26] of that Judgment.

Markarian contains some other useful statements, in addition to what I have referred to. In the plurality judgment - paragraph [37] at page 374 - in a long extract from the decision of Gaudron, Gummow and Hayne JJ in Wong, this passage, as follows, appears: "To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in The Queen v Gallagher when he said that: 'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'"

Turning then, particularly to this issue of the “worst” case, Markarian, in that plurality judgment, addressed that issue although in a general way at pages 372 and 373 in paragraphs [32] and [33]. They stated that the submission which was made in the passage which they just quoted "involved too great an emphasis upon quantity without regard to the facts of the case." They remarked that, "True it is that his Honour did not overlook the objective facts, or indeed any other matters relating to penalty, but having started where he did, at the maximum, and then making deductions from it, he did not make, even in a provisional way, an assessment of the sentence called for by the objective facts. It might or might not be appropriate for a trial judge to state such a provisional view. A judge would rarely be in error for not doing so. It is, after all, a provisional position only."

They then continued: "A serious fallacy in his Honour's reasoning is that it assumes that any case involving” - (that was a case of possession) - “more than 250 g of heroin is likely to be a worse case than any case involving only 250 g or less. That cannot be so in … absolute terms … . Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply for the purposes of creating an addiction in an infant."

Therefore, it is not simply a matter of size.

One turns then to the case in question upon which reliance was placed. It is Filipowski v Fratelli D'Amato SRL; and Ors [2000] NSWLEC 50, a decision of Talbot J.

I will turn in a moment to some aspects of it in looking at the issue of “worst” case.

To start with, it is clear from paragraphs [104] to [106] that the approach of his Honour, in that case, was in fact to take percentages. I decline to follow that particular approach and therefore I am merely treating what I will refer to as "the D'Amato case" solely for the purposes of assessing or helping to assess the seriousness of the offence in question here.

I am not going to go through all of the paragraphs which were referred to me. It is clear that there were not dissimilar volumes involved, although in the D'Amato case it was a slightly greater discharge that occurred.

With respect to the widespread effects, the paragraphs showed that in some degree it was worse. And in some degree it might be said to be not as bad. The ecological effects were set out in paragraphs [79], [80] and [81], and I will read them briefly:

"Rocky areas and rocky mud flats continue to leech oil, creating an oil slick on the water with each incoming tide."

(It should be noted that the discharge was on the 3rd of August 1999 and the hearing was on the 2nd of March 2000.)

"This, together with the fact that hydrocarbon levels substantially exceed ecological criteria, suggest to (the expert that is named) that harm from the oil spill is ongoing and will remain so until the mud flat and rock areas are free from oil.
Sixteen birds were received for treatment. One was already dead, a further nine died, while the remaining six were released after treatment. One seahorse was recovered and subsequently died."

There were other aspects which were dissimilar. Nevertheless, it was clear that some of the effects were potentially significant. The Court stated at paragraph [68]:

"(If) … favourable weather conditions (had not come) it may have been a more serious incident given the explosive nature of the spillage."

In addition, at paragraph [71], the Court accepted that the "inhalation of vapours from the crude oil could cause nausea, dizziness, eye irritation and headaches and, in extreme cases, vomiting and narcosis which can be fatal in cases of prolonged over exposure."

It is also clear that the Sydney Opera House had to suspend a performance, the Royal North Shore Hospital had to turn off its air conditioning and the poor old Ku-ring-gai Council has to suspend a council meeting.

What I take from the case though, is that stated by Talbot J at paragraph [83]. He said:

"Overall, it can be said that the environmental consequences of the incident were not significant in terms of the potential for widespread, short term and long term damage to the harbour waters and its foreshores. Congenial weather conditions averted what could have been a major catastrophe on the land."

He then referred to the prompt reaction which played a "significant role in confining and reducing the environmental consequences."

He then referred to the "the high flashpoint of the crude oil released present(ing) a significant catastrophic threat"; although that, of course, did not eventuate.

He concluded at paragraphs [87[ (and [88]) that:

"The extent of actual harm caused is not to be measured solely by reference to the death or injury of living species. The spread of oil over such a large area of (Sydney Harbour) is inherently offensive. It remained over a number of days. There are long term consequences which are yet to be finally assessed."

Turning then to the general conclusion about the worst category of cases, at paragraph [99], he stated:

"Accordingly, although serious, the offences are not to be regarded as the worst kind."

And, importantly, for my consideration, he then referred to a decision in the New South Wales Court of Appeal of Camilleri'sStock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, where Kirby P, who was then president of that Court, "recognised that in environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty.": at [100].

The cost of the clean-up in that case was some $4.5 m. I do not take that to be greatly relevant in the final determination of the categorisation of the offences here.
This is not only because it happened in 1999 and there, obviously, have been inflationary factors since then, but also because the Queensland coast oil disbursement was widespread and obviously distant from sources of help in that clean-up.

It is therefore, perhaps, unsurprising that the cost incurred was somewhere in excess of $30 million.

So what conclusion do I reach?

In the report of Dr Stevens & ors, which is contained as part of Exhibit 26, and headed "Initial ecological impacts of a moderate-sized oil spill on a subtropical rocky shore", it stated, at page 2 of that report, after referring to the fact that it is “not surprising” that accidents of kinds such as this occur:

"Nonetheless, spills do occur, and marine and intertidal ecosystems are damaged, sometimes severely, when impacted by oil … , as was spectacularly demonstrated recently in the Gulf of Mexico … . Most of the published accounts, however, relate to very large (referring to that to be in excess of 10,000 tonne) spills in mid- to high latitudes" (using as examples of that, the Amoco Cadiz, the Braer, the Exxon Valdez, the Prestige and the Erika).

It then stated:

"In contrast, much less is known about the environmental impacts of small to moderate spills" (emphasis added) which it described as spills of less than 1,000 tonne.

That, obviously, is of some guidance.

There was also, as I acknowledge, in the various examples tendered in the Schedule which became Exhibit 34, very many other spills which involved significantly more tonnage of dispersed fuel than in this particular case.

The conclusion I therefore reach is that the category is one which is very serious. Nevertheless, I do not determine that it is in the worst category because, even not straying into impermissible judicial knowledge and the examples given from elsewhere, one can conceive of worse categories which involve perhaps loss of human life, significant wildlife deaths and significant effects on other organisms as well as other widespread ecological destruction. But, as I reiterate, it still is a very serious offence.

Turning then to the culpable features of the defendants in this case:

It is clear from the emails (which became Exhibits 19, 21 and 20) of 2008, 2007 and 2006, that there was a problem with the lashing equipment. The 2008 emails show that the problem was particularly with respect to twistlock shoes and lashing eyes being in heavy corrosion, being in wasted or worn out condition, that required them, as owners, to renew them as soon as possible. There is also a reference to container lashing gear being below requirements.

The 2006 emails show that the consequences of wasted, fractured and distorted fittings could well endanger the ship.

All those matters can therefore be taken into account as indicating that the owners in question here were aware both of a problem that existed and the consequences of that particular problem. That obviously required them to ensure that there was timely implementation of replacement lashings. It is noted, particularly when I deal with the mitigating factors, that the two owners did begin to implement such replacements; but of course it is not only a matter of beginning to implement them but to ensure, in fact, that they were implemented particularly before a course is taken by a ship of theirs in really such dangerous conditions. And, of course, in determining the extent of the category, the clean-up costs are a relevant factor in indicating that the culpability is a culpability for, as I indicated, a very serious set of offences.

I turn then to the mitigating factors.

The prosecution, quite correctly, described these as “quite compelling”. I will go through them in as much detail as I feel I need.

There was an early alerting of authorities to the problems in question. There was co-operation with the clean up authorities. There was co-operation with the investigating authorities in the ways that I have discussed. There was a timely plea which, of course, is very important; and that has led to a saving of time, money and the attendance of witnesses both from here and from overseas, with a consequential saving in both Court costs and prosecution costs.

There was the donation to the Commonwealth fund of some $7.5m, the terms of which show an expression of regret and an acceptance of corporate social responsibility. But, as acknowledged by the Deed which was signed with the Commonwealth, nothing contained in the Deed directly relates to criminal liability. And that states the obvious principle that one cannot buy justice - although a clear recognition is, as it must be, given to the donation as a mitigating factor.
It is also important that that particular figure took all the payments made including the limitation of liability figure to some $25 million.

There was also, of course, the payment to the extent of the limited liability fund. The fact that it was made by the insurer is an unimportant feature because, as any citizen can, these particular defendants took out insurance for such a consequence. They cannot be criticised at all for that.
In addition, the accessing of the limitation of liability is not a subject of criticism. They were simply utilising laws that both the Commonwealth Government and the State Government Parliaments had enacted for the purpose of limiting their liability.

There was the further mitigating feature of the apology (which became Exhibit 30) to the Governor and the Premier on the 17th of March 2009.

There is the offered apology (which is Exhibit 33), although that must be seen in the context that it could well be ordered anyway under section 127(2) of TOMPA; and, of course, can be ordered in addition to any fine that is otherwise imposed.

There was the mitigating feature of remorse shown both by the pleas and the apologies - and I will come to this issue in a bit more detail later. I do not accept that it is in any reduction of that remorse that the defendants seek to limit the publication that is ordered by the offered apology.

There was their voluntary help in the cleaning up, including the provision of equipment which was directly freighted to Queensland in the sum of some $1.74 million. There was a sum of $73,000 which was expended in engaging experts which were useful in the cleaning-up process and there is the amount of $23,000 paid to ITOPF, the details of which are contained in Exhibit 32, as technical advisors.

It is also to be noted, as part of the antecedents of the defendants, that Swire shipping has been in existence since 1882, and that they have not been involved in incidents of a like kind before. Neither defendant has any prior conviction of this sort. It has been shown that they are good corporate citizens both by the acts immediately after the discharge and by the fact that they have undertaken donations to research projects.

It is also important in terms of rehabilitation issues that they have refitted all their vessels now with new lashing systems. And, as an acknowledgement of their remorse, there is the attendance of the Chairman of Swire, Mr Kendall, at the Court for these proceedings.

I also accept that there was no deliberate misconduct undertaken by either defendant. I also accept there was no intentional aspect to this, although, of course, it must be understood that that is apart from a failure to ensure that the repairs were, in fact, effected. There was also no covering up and that has meant that early intervention consequences could flow.

I further find that the ship's Master acted reasonably in both the preliminary steps he took and in controlling the ship after the holing of the hull had occurred.

And I accept that, although it is foreseeable that an event such as this could occur when containers of this kind are torn free from their lashings, it is an event that is of relative rarity, and that that leads, in a sense, to lesser culpability than might otherwise adhere to, for instance, sending an unseaworthy ship which then later became grounded and lost its fuel supplies in that way.

I accept also the circumstances of the synchronous rolling had an effect, which is shown in Exhibit 35 by the photographs of internal disturbance to the ship itself. And, as I have indicated earlier, I accept that the defendants are good corporate citizens both from the awards they have received and from the funding of research that they have undertaken.
Turning then to the kinds of orders that might be made:

An apology can be ordered by this Court to be made pursuant to section 127(2)(b)(ii) of TOMPA. The terms in which that is expressed is the Court “may order (a) defendant to do 1 or more of the following”, then, on application only by the prosecution, “to make either a stated private apology or publish a stated public apology to persons affected by the contravention”.

It is to be noted that the stated public apology is to be to persons “affected by” the contravention. Parliament could have, if it had so wished, extended the particular boundaries of that apology to such things as “corrective advertising”, covering such things as were raised in this case about persons who commented in perhaps an improper way about the consequences of what occurred. But I conclude that the provision in question is not directed to righting all wrongs that may have occurred by such publications, but simply to express a mea culpa to the persons affected by the contravention. Therefore, I intend in making the order with respect to the apology to limit the publication to the Courier Mail as appears in Exhibit 33.

I turn then to the matter of a donation:
The prosecution submitted that, pursuant to section 127(2)(c) of TOMPA, the Court was empowered to make an order that the defendants make a donation to an appropriate organisation. They have, in fact, identified that organisation and I have no problem at all with the organisation in question; but the concern I have is whether, in fact, I have sufficient power.

It seems to me that that particular provision deals with empowerment to order certain acts. It also seems to me that expressed in the terms in which it is expressed, namely, to comply with another order the Court considers appropriate, that is another order in addition, one assumes, to paragraphs (a) and (b) of subsection (2) of section 127. I conclude that the provision is, at least, in context, limited to the kinds of orders that are outlined in paragraphs (a) and (b) but, in fact, have not been stated but occur to the Court to be reasonable within the circumstances. I do not accept that, therefore, that provision is wide enough to cover a donation to a particular cause, however praiseworthy that cause may be.

I was presented with a Court Order of the Magistrates Court in Victoria. That Court Order was made pursuant to its Environmental Protection Act 1970, section 67AC(2)(c). I found it is of little assistance because of the different actions that were legislatively authorised in that particular provision. But even if I were to be wrong about that interpretation, I conclude that the donation of $7.5 m satisfies any requirement to make a donation and that no further donation should, in fact, be ordered - as I say, if I am wrong about the conclusion that I have reached.

Finally, now, I turn to the matter of the fine:

But before I turn to the details of the fine, I must turn to the issue raised by section 127(3) of TOMPA. It is clear, pursuant to that provision, that in addition to the fine I may also order, in certain circumstances, a defendant to pay to the State or port authorities an amount that could be recovered under section 122. Section 122, of course, deals with discharge expenses to be recovered. For the reasons that both parties are in agreement about, it is clear that the limitation order which was made by the Federal Court means that I have no power now pursuant to the application of subsections (3) and (4) of section 127, to make such an order. And I obviously therefore pay it no further attention.

So to the details of the fine:

As I have stated a number of times, the maximum penalty is $1.75 m. As I have also indicated, the interpretation that I favour is one whereby it is, at least, theoretically possible that each particular offender could be the subject of that as a maximum.
As I have indicated, this is not in the worst category of cases, but I do find that it is a very serious case. I also find, for the reasons that I have already canvassed, that there have been significant mitigating features in this case.

I also conclude, for the reasons that I discussed in some detail earlier, that what has occurred here is that the two offenders are jointly responsible for the same consequence. That is, an event has occurred for which they are jointly responsible.

As I have indicated also, I reject any two or more stage process of reasoning and accept the intuitive synthesis approach which is sanctioned by the High Court.

So reflecting, in particular, general deterrence and also denunciation by the Court and adequate punishment imposed (in the sense of retribution by the community), whilst acknowledging that such factors as personal deterrence and the promotion of rehabilitation do not loom large in the circumstances, I intend to order a fine of $600,000 on each defendant: that is; a total of $1.2 m. As I've indicated, the maximum penalty that I could have imposed is twice $1.75 m.

Before I make any orders with respect to those particular sums, I am content, subject to submissions made by Mr Davis and Mr Glynn, to give time to pay it. Could you take some instructions on that matter?

MR GLYNN: Would your Honour excuse me, I'll just get some instructions on that?

HIS HONOUR: Yes, indeed.

MR GLYNN: Would your Honour allow 60 days, please?

HIS HONOUR: Sixty days, okay.

MR DAVIS: I don't want to say anything on that.

HIS HONOUR: You - no.

MR DAVIS: I don't want to say anything on it. I just thought, in the circumstances, on the record say I don't want to say anything, that's all.

HIS HONOUR: Yes, thank you, Mr Davis, I‑‑‑‑‑

MR DAVIS: And your Honour understands why.

HIS HONOUR: I - I appreciate that. I might make it two months from hence, which would be 14 December.

MR GLYNN: Thank you, your Honour.

HIS HONOUR: I intend also, before I actually make these orders to give liberty to apply, that's obviously if the fines are not paid or if the apology is not published. I don't expect that to be utilised but I think it's a useful thing to come back to me if such things are not met‑‑‑‑‑

MR GLYNN: Thank you, your Honour.

HIS HONOUR: ‑‑‑‑‑in accordance with the orders. Do you have a problem with that, Mr‑‑‑‑‑

MR DAVIS: No, your Honour.

HIS HONOUR: The orders I make are as follows:

On count 2 of the indictment, the defendant, Bluewind Shipping Limited, is fined the sum of $600,000; and a conviction is recorded.
On count 4 on the indictment, the defendant, Swire Navigation Company Limited is fined the sum of $600,000; and a conviction is recorded.
Both defendants are ordered to cause to be published an apology in the form of, and in the terms of, Exhibit 30.
Both defendants are given time to pay those fines. That is, they have until 14 December 2011 to pay such fines.
All parties have liberty to apply if the fines are not so paid or the apology is not so published.
And I order that all exhibits are to be returned after the expiry of the appeal period.

Are there any further orders that you seek?

MR DAVIS: Your Honour, there's only one issue‑‑‑‑‑

HIS HONOUR: Yes.

MR DAVIS: ‑‑‑‑‑about the - about the exhibits.

HIS HONOUR: Yes.

MR DAVIS: Exhibits 11 to 16 are the physical exhibits.

HIS HONOUR: Yes.

MR DAVIS: And, your Honour, we were going to offer that your Honour could release those to Crown law on an undertaking given to keep them in a safe place until either the expiration of the appeal period‑‑‑‑‑

HIS HONOUR: Of course.

MR DAVIS: ‑‑‑‑‑or the hearing of any appeal, whichever is the latter.

HIS HONOUR: All right.

MR DAVIS: We offer that just as a matter of convenience.

HIS HONOUR: You don't have a problem with that, Mr Glynn?

MR GLYNN: No, your Honour, thank you.

HIS HONOUR: All right.

MR DAVIS: Thank you.

HIS HONOUR: I make an order with respect to Exhibit 11 to 16 inclusive. Eleven to 16?

MR DAVIS: Beg your pardon, your Honour?

HIS HONOUR: Eleven to 16?

MR DAVIS: Eleven to 16 both inclusive, yes, your Honour.

HIS HONOUR: That they be released into the custody of Crown Law until the expiration of either the appeal period or the payment of such sums as I've indicated, whichever occurs earlier. Are there any further orders?

MR GLYNN: Your Honour, the only other matter is whether a conviction should be recorded in respect of each. My submission is that your Honour wouldn't record convictions given the prior good histories, the examples of being good corporate citizens, their cooperation in the process and really everything favours not recording a conviction rather than recording a conviction in these circumstances.

HIS HONOUR: I'll hear Mr Davis, but I'm disinclined to accept that submission. I think it's important when offences such as this come before the Courts that convictions are noted on the record as convictions being recorded. Mr Davis, do you wish to say anything about that?

MR DAVIS: Your Honour, the difficulty with not recording convictions is it's such a public matter and‑‑‑‑‑

HIS HONOUR: Yes, I think all the factors persuade me one way. I accept what you say, Mr Glynn, but I'm not persuaded in this case that those factors overwhelm the public interest in this matter.

MR GLYNN: Your Honour, with respect, the public interest really shouldn't affect - that is, if your Honour's referring to the interests of the public‑‑‑‑‑

HIS HONOUR: The public interest is in fact to have convictions on the record for offences such as this.

MR GLYNN: With respect, I‑‑‑‑‑

HIS HONOUR: Well, the trouble - well, the difficulty‑‑‑‑‑

MR GLYNN: There's - there‑‑‑‑‑

HIS HONOUR: ‑‑‑‑‑is as I see it, Mr Glynn, is that environmental offences of this kind now are occurring perhaps more than the past and that is maybe simply as a result that there are more vessels out there. I think it's important in the consideration of that issue and the public's perception of the way in which the Courts deal with that issue that convictions for such offences in fact be part of the public record.

MR GLYNN: On the other hand, your Honour, the public will perceive that your Honour's imposed not insignificant fines‑‑‑‑‑

HIS HONOUR: Yes, indeed.

MR GLYNN: ‑‑‑‑‑and that - that that's the punishment. Were they to - to re-offend of course, they're - they're - convictions would almost certainly be recorded but they have an interest‑‑‑‑‑
HIS HONOUR: Mr Glynn, if you could point me to something as applies - and I say the ordinary in the sense that I mean it - in ordinary cases where in fact it could affect significantly the future employment opportunities, for instance, of an accused, then I would be more inclined to do so. But on the general factors that you've mentioned, I don't see a persuasive case.

MR GLYNN: Well, could I just put my one final point, your Honour?

HIS HONOUR: Yes, indeed, you may.

MR GLYNN: Reputation is a matter which is significant both to corporations and to‑‑‑‑‑

HIS HONOUR: Yes.

MR GLYNN: ‑‑‑‑‑individuals. The Courts have recognised in many, many cases that corporations that come before the Courts without prior criminal convictions are - are entitled, just as an individual is, not to have a conviction recorded. Whilst of course the type of offence is - is a relevant factor‑‑‑‑‑

HIS HONOUR: Yes.

MR GLYNN: ‑‑‑‑‑in my submission, there is nothing about an environmental offence that of itself would suggest that it's inappropriate to not record a conviction when both corporations have a significant interest in maintaining their reputation against a background where your Honour hasn't found that it's in the worst category, and there they have a prior - prior excellent records. Particularly in the case of Swire, who have been coming here for 150 years without - or a hundred and forty years without having previously been involved in any such incident. That's‑‑‑‑‑

HIS HONOUR: I‑‑‑‑‑

MR GLYNN: ‑‑‑‑‑as far as I can take it but‑‑‑‑‑

HIS HONOUR: Yes, I accept the strength in what you're saying but the matter of reputation flows as well from the extent of the fines that have been imposed as the conviction. I do not see in the circumstances that a conviction in cases such as this is likely to have much additional effect, that is, in addition to the publication of the actual fines imposed. I do not see an analogy which convinces me that, in this particular case, convictions should not be recorded; but I've understood your arguments and I understand the very good corporate standing of your clients; but these are significant offences as far as both the State and its citizens are concerned and I don't see that the circumstances have arisen for me to permit no conviction to be recorded.

MR GLYNN: Your Honour, there's one other point. A matter's been raised as to one matter that your Honour made a finding about by my instructing solicitors. May I just have the opportunity to‑‑‑‑‑

HIS HONOUR: Oh, indeed, if you - I'm‑‑‑‑‑

MR GLYNN: ‑‑‑‑‑confer with them and‑‑‑‑‑

HIS HONOUR: ‑‑‑‑‑more than happy to be corrected, I - as I indicated - I only had a limited time to read everything.

MR GLYNN: Yes, no.

HIS HONOUR: And if I've misstated something, I'm more than happy to have a correction of that.

MR GLYNN: I'd like to more fully understand the point before I raise it with your Honour. May I‑‑‑‑‑

HIS HONOUR: Would you like me just to wait outside? I mean, I'm happy to give you five or 10 minutes if‑‑‑‑‑

MR GLYNN: Would your Honour mind giving me about 10 or 15 minutes just to‑‑‑‑‑

HIS HONOUR: All right. Well, I'll‑‑‑‑‑

MR GLYNN: ‑‑‑‑‑go through the point?

HIS HONOUR: ‑‑‑‑‑retire to chambers and come back here in 15 minutes.

MR GLYNN: Thank you, your Honour.

THE COURT ADJOURNED AT 11.24 A.M.

THE COURT RESUMED AT 11.42 P.M.

HIS HONOUR: Yes, thanks, Mr Glynn?

MR GLYNN: Your Honour - your Honour made one finding and that is that the discharge expenses were 30 million-odd‑‑‑‑‑

HIS HONOUR: Yes.

MR GLYNN: ‑‑‑‑‑dollars. Your Honour, the - what I'd ask your Honour is to amend that to a finding that the State expended that amount of money in - in its clean up. The reason we do that is because discharge expenses has a technical meaning and that we haven't contested - there's been no contest about‑‑‑‑‑

HIS HONOUR: I understand that, but I thought I expressed it in a way that there was a validated claim for that rather than that - it necessarily is that. But I'm more than happy if there's a concern about it‑‑‑‑‑

MR GLYNN: Yes, there is, your Honour.

HIS HONOUR: ‑‑‑‑‑to clear it up on the record. All right. Now, what was the exhibit that actually had the findings that you were seeking, Mr Davis?

MR DAVIS: Exhibit 4.

HIS HONOUR: Four.

MR DAVIS: And the finding was made in accordance with, we thought, that exhibit.

HIS HONOUR: All right. I'm happy enough, are you happy enough with that then as expressed there, Mr‑‑‑‑‑

MR GLYNN: No, your Honour. The change we want is that the State expended the figure in cleaning up the - or in - in the course of the cleanup. The issue is that clean up costs - sorry, discharge expenses is defined in terms of reasonable.

HIS HONOUR: Sure.

MR GLYNN: The matter is yet to be contested as to whether they're reasonable in another Court.

HIS HONOUR: All right. Again, I thought that I expressed it in terms of they have a validated claim for that.

MR GLYNN: But your Honour also did use the term, discharge expenses, which is the technical term with which we're concerned. We don't have a problem with‑‑‑‑‑
HIS HONOUR: But I mean, they can well make a claim for something. It doesn't mean that in fact that must necessarily be so. But all right, well, look‑‑‑‑‑

MR DAVIS: Well, your Honour - your Honour, our position is just simply this. We doubt frankly whether it makes any difference given the way your Honour expressed it but having said that, we don't seek to take some collateral advantage out of these proceedings into the Federal Court proceedings. One - one quick way of this matter being perhaps dealt with is for your Honour just simply to state that your Honour makes no positive finding - makes no positive finding as to the quantum of the actual discharge expenses full stop and that then leaves the - the issue - leaves your Honour's comments about the validated claims, the exhibits on the file. It's obvious to all those who are interested that $30 million was actually expended and the rest of it probably doesn't matter.

HIS HONOUR: You happy with that?

MR GLYNN: Yes, your Honour.

HIS HONOUR: Okay, all right. Counsel for the two defendants who made the pleas, Mr Glynn, Senior Counsel, made a submission to me that the finding I made with respect to discharge expenses for the clean-up costs had been expressed in a way that might somehow bind his clients. It's been agreed between him and Mr Davis of Senior Counsel that the appropriate way to address the issue is that I make the finding in the following terms: I make no positive finding as to the quantum of the actual discharge expenses. Having made that finding, I think there's no need to address the matter further.

‑‑‑‑‑