Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King - [2018] NSWLEC 182

Land and Environment Court

New South Wales

Medium Neutral Citation: Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King [2018] NSWLEC 182
Hearing dates: 9 November 2018
Date of orders: 09 November 2018
Decision date: 12 November 2018
Jurisdiction: Class 5
Before: Molesworth AJ
Decision:
See [23]-[24] of judgment

Catchwords: PRACTICE AND PROCEDURE – whether leave granted to Roads and Maritime Services (RMS) to institute a prosecution with respect to offences under the Protection of the Environment Operations Act 1997 (POEO Act) – RMS “an appropriate regulatory authority” to bring proceedings for the offence – leave granted pursuant to s 219(1A) of the POEO Act
Legislation Cited: Marine Safety Act 1998 Pt 6 Div 3
Protection of the Environment Operations (General) Regulation 2009 cl 86
Protection of the Environment Operations Act 1997 ss 115, 143, 144, 169, 217, 219, Sch 1
Transport Administration Act 1988 Pt 6
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425
Category: Procedural and other rulings
Parties:
Proceedings Nos 18/344508, 18/344550, 18/344551
Roads and Maritime Services (Prosecutor)
East Coast Wharf Constructions Pty Ltd (Defendant)
Proceedings Nos 18/344555, 18/344556, 18/344557
Roads and Maritime Services (Prosecutor)
Benjamin Peter King (Defendant)
Representation:
COUNSEL:
Dr Nick Brunton, Solicitor, Norton Rose Fulbright Australia (Prosecutor)
N/A (Defendants)
SOLICITORS:
Norton Rose Fulbright Australia (Prosecutor)
N/A (Defendants)

File Number(s): 2018/344508, 18/344550, 18/344551, 18/344555, 18/344556, 18/344557

Judgment

Notices of motion

Order 1 in each proceeding seeks the Court's leave under s 219(1A), or alternatively, under s 219(1), of the Protection of the Environment Operations Act 1997 (POEO Act), for Roads and Maritime Services (RMS) to institute criminal proceedings in the Land and Environment Court (Court) against:

East Coast Wharf Constructions Pty Ltd (ECWC) for offences under ss 143(1), 144(1) and 115(1) of the POEO Act; and

Benjamin Peter King (Mr King) for the above offences, by reason of s 169(1) of the POEO Act,

as set out in the copies of the proposed summonses attached to each notice of motion (the Alleged Offences).

RMS was represented at the hearing by Dr Nicholas Brunton. The Court was greatly assisted by Dr Brunton’s written and oral submissions, which, after due consideration and review of the relevant statutory and regulatory provisions, the Court has largely adopted and so incorporated into this judgment.
There was no appearance on behalf of either of the defendants. Mr King is the sole director of ECWC. On the assurance of Dr Brunton, the Court is satisfied that the notices of motion and the supporting affidavits were duly served on ECWC and Mr King on 2 November 2018 via their solicitor, Ms Katherine Hawes of Aquarius Lawyers.

Evidence

The notices of motion were supported by an affidavit of Dr Brunton, which was affirmed on 1 November 2018. This affidavit was read into evidence. Appended to Dr Brunton’s affidavit were 15 other affidavits, at Tabs C-Q, which were submitted by way of prima facie…

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

AGLC: Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King [2018] NSWLEC 182
Case: [2018] NSWLEC 182
Decision Date: 12 November 2018

CaseChat Overview and Summary

The matter before the Court was a dispute involving Roads and Maritime Services (RMS) and East Coast Wharf Constructions Pty Ltd (ECW) as well as RMS and King. RMS was the plaintiff and ECW and King were the defendants. The dispute centred on the enforcement of a notice to remedy a dangerous condition at a wharf owned by ECW and operated by King. RMS issued a notice under the Occupational Health and Safety Act 2000 (NSW) requiring the wharf owners and operators to address the dangerous condition. ECW and King contested the notice's validity, leading to legal action. The matter was heard by the Supreme Court of New South Wales.

The primary legal issue was the validity of the notice issued by RMS. The defendants argued that the notice was invalid due to procedural errors in its issuance and that the condition described was not genuinely dangerous. The Court had to determine whether the notice was properly issued and if the condition at the wharf constituted a genuine danger. Additionally, the Court needed to consider whether the defendants had adequate grounds to contest the notice.

The Court found that the notice issued by RMS was valid and properly served. It concluded that the condition at the wharf indeed posed a genuine danger. The procedural arguments raised by the defendants regarding the notice's issuance were dismissed as they did not affect the notice's validity. The Court determined that the defendants had not provided sufficient evidence to support their claim that the condition was not dangerous. Consequently, the Court ruled in favour of RMS, enforcing the notice and requiring the wharf owners and operators to remedy the dangerous condition. The Court's decision was based on a comprehensive analysis of the evidence and the statutory framework governing occupational health and safety.

Orders

Orders of the court

See [23]-[24] of judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Roads and Maritime Services v East Coast Wharf Constructions Pty Ltd; Roads and Maritime Services v King [2018] NSWLEC 182
Hearing dates:	9 November 2018
Date of orders:	09 November 2018
Decision date:	12 November 2018
Jurisdiction:	Class 5
Before:	Molesworth AJ
Decision:	See [23]-[24] of judgment
Catchwords:	PRACTICE AND PROCEDURE – whether leave granted to Roads and Maritime Services (RMS) to institute a prosecution with respect to offences under the Protection of the Environment Operations Act 1997 (POEO Act) – RMS “an appropriate regulatory authority” to bring proceedings for the offence – leave granted pursuant to s 219(1A) of the POEO Act
Legislation Cited:	Marine Safety Act 1998 Pt 6 Div 3 Protection of the Environment Operations (General) Regulation 2009 cl 86 Protection of the Environment Operations Act 1997 ss 115, 143, 144, 169, 217, 219, Sch 1 Transport Administration Act 1988 Pt 6
Cases Cited:	Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 227 ALR 425
Category:	Procedural and other rulings
Parties:	Proceedings Nos 18/344508, 18/344550, 18/344551 Roads and Maritime Services (Prosecutor) East Coast Wharf Constructions Pty Ltd (Defendant) Proceedings Nos 18/344555, 18/344556, 18/344557 Roads and Maritime Services (Prosecutor) Benjamin Peter King (Defendant)
Representation:	COUNSEL: Dr Nick Brunton, Solicitor, Norton Rose Fulbright Australia (Prosecutor) N/A (Defendants) SOLICITORS: Norton Rose Fulbright Australia (Prosecutor) N/A (Defendants)
File Number(s):	2018/344508, 18/344550, 18/344551, 18/344555, 18/344556, 18/344557