Sherwood v The ANI Corporation Limited

[1988] NSWLEC 147

Land and Environment Court

of New South Wales

CITATION:	Sherwood v The ANI Corporation Limited [1988] NSWLEC 147
PARTIES:	APPICANT Sherwood RESPONDENT The ANI Corporation Limited
FILE NUMBER(S):	50019 of 1985
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	The Clean Air Act
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	11/22/1988
LEGAL REPRESENTATIVES:	RESPONDENT Mr Cox Mr Ambler

JUDGMENT:

His Honour: Yesterday I dismissed four charges brought by Mr Sherwood on behalf of the State Pollution Control Commission against ANI with respect to offences under s 14(2) and I now formally dismiss the summonses.

So far as the remaining four charges are concerned, charges 1 and 4 have been the subject of a plea and I shall return to these matters later.

Charges 2 and 3 have been subject of further evidence after I rejected a submission on behalf of the Corporation that no prima facie case had been established, that is that there had been no case to answer.

It is true, as Mr Hall has submitted, that the evidence was much the same as it was at the end of the prosecution case with perhaps the charge of failing to control equipment, being the wet cap scrubber on the northern cupola, the evidence in chief and in the defendant's case persuades me that what occurred was the blow out of the ring spray at the joining flange. That resulted in a jet of water penetrating the water veil over the wet cap with the result that blue smoke was emitted, as seen by Mr Sherwood. Later Mr Cox, an employee, was asked about the matter. I assume he had some understanding of what had taken place, and he said: "I had inspected the cupola wet cap yesterday while it was in operation. The ring spray was fractured at the joining flange. The leaking water was under such pressure and of such volume being supplied by 3 inch water pipe from a supply pump that it was colliding with and disrupting the water curtain over the wet cap". He vouchsafed no reason why the ring spray should have fractured

, or indeed what knowledge the company had, if any, concerning the matter other than that stated.

Mr Ambler told Mr Sherwood: "My maintenance staff failed to either detect or rectify malfunctions of the cupola wet cap, the bag filter serving the wheel abrader, or the set scrubber serving the fettling shop. The wet scrubber has only recently been fitted with a new fan motor and when it was first switched on the current draw had been excessive". Pausing there, the reference to the bag filter serving the wheel abrader is a reference to one of the matters with respect to which a plea has been entered.

So it is reasonable, I think, to conclude that the spray pipe was fractured - it was not a new pipe. The company does not know why it fractured and, although I know that the company undertook some maintenance work designed to prevent breakdown, and if a breakdown occurred, to rectify it, I know no more about the ring spray fracture than I have mentioned.

With respect to the second charge, what happened was that the company had installed a new piece of equipment in substitution for a piece that had blown out or become unfit for service. It was not provided with a proper gauge apparently, and in order to have it running in a proper condition the water level was being adjusted with the result that there was matter discharged into the atmosphere.

So the question in each case is whether or not the company was guilty of the offence under the first limb of s 14(1) of failing to maintain any control equipment installed in or on such scheduled premises in an efficient condition. The question is whether the obligation imposed by the first limb of s 14(1) is, as contended for by the prosecutor, absolute or strict, as those words are relevantly understood, or whether as Mr Hall submits, the word "maintain" with reference to the equipment has to be seen as meaning that it must be established that the company has failed properly to undertake a course of maintenance to prevent or rectify equipment. The State Pollution Control Commission submits that its case would be made out if a piece of expensive equipment was installed and it blew out 24 hours after it was installed for no reason that could have been understood by the installer with no culpability on its part. On the other hand, if Mr Hall's submission is correct, it would mean that if the maintenance was un

dertaken in accordance with manufacturer's directions, and a piece of equipment blew out some year or years after it was installed, there would be no offence committed under s 14(1).

I think, conformably with the authorities, the obligation imposed under s 14(1), the first limb of s 14(1), is absolute or strict. I am aware of Mr Hall's argument that the other and second limb of the section requires a reading down of that obligation, so it is not absolute or strict because it refers to imposing an obligation on the operator or occupier to operate the equipment in a proper and efficient manner, but as Mr Wilson has submitted on behalf of the SPCC, the second limb is essentially aimed or directed to the mode of operation of equipment, and the first limb of the section is directed to the keeping of equipment in an efficient condition. Both may overlap but certainly both have separate work to do and impose separate and independent obligations.

There has not been any material put before me that would raise any form of defence that is said to be open under statutes imposing strict liability such as the defence of honest and reasonable mistake etc. Upon these findings, it would seem to me without more, I would conclude that the offences under s 14(1) alleged to have been committed on 2 May 1985 and 3 May 1985 have been made out. That is to say, that on 2 May 1985, ANI failed in its statutory obligation to maintain the equipment of the northern cupola and it failed to maintain the wet scrubber equipment serving the fettling shop. Accordingly, I will find the company guilty of those offences. That being so, it is unnecessary for me to express any opinion as to whether I should infer any further culpability with respect to the observations made by Mr Cox and Mr Ambler on behalf of the company. But I do not see any essential conflict between Mr Sherwood's version of events and Mr Ambler's version of the events, and I accept them both. There is some ambigu

ity about Mr Ambler's comment to Mr Sherwood and I am prepared to assume in the company's favour that that ambiguity is resolved in favour of the company and meant merely what Mr Ambler had said in evidence viz that there was an inspection of the equipment in the usual routine way and nothing had been detected that would indicate it was malfunctioning. But that finding does not alter the conclusion I have reached.

Accordingly, I formally convict ANI Corporation of offences 1 - 4 inclusive in the statement of charge. As to penalty, the evidence persuades me that no great environmental harm was occasioned by any of the breaches. The evidence does not persuade me that what happened with respect to any one of the four could not have been avoided because clearly it could. But the breaches occurred in circumstances which, although not excusable and although avoidable, did not create a great environmental problem. Indeed, I think it is fair to say that the environmental problem was minor. I take into account in ANI's favour that no culpability has been established. I assume, generally, it has a good environmental record because I have been told there are no prior convictions and a company undertaking the work of the type which ANI was undertaking from the premises is of a type that can give rise to environmental complaints.

In all the circumstances, I have determined that in each case a moderate to small penalty should be imposed. This is not a case, however, where one imposes one single penalty and then attaches a nominal penalty to the rest because the offences, with respect to which there have been pleas and with respect to which I have found the company guilty, occurred on separate days and/or with respect to separate equipment. It is difficult to determine which of the offences was the most severe from an environmental point of view, and I think I should impose, in respect of each offence, a fine in the sum of $500 which I consider to be a minor penalty for offences under the Clean Air Act. I should mention that this is not a case for the Court to have recourse to s 556A of the Crimes Act.

The order that I make is that there is a fine of $500 to be paid to the Registrar of the Court to be paid out by him to the appropriate authority according to law and that I grant the company until 22 December to pay the fines.

Now as to costs, I will list the matter before me at 9.30 on Thursday morning for mention. But unless persuaded otherwise, I do think, Mr Wilson, that although you are entitled to your costs with respect to the convictions and pleas, you will have to pay the costs of the stated case.