Wollondilly Shire Council v Brogan Box Pty Ltd

[2002] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION:	Wollondilly Shire Council v Brogan Box Pty Ltd [2002] NSWLEC 139
PARTIES:	PROSECUTOR Wollondilly Shire Council DEFENDANT: Brogan Box Pty Ltd
FILE NUMBER(S):	50123 of 2001
CORAM:	Bignold J
KEY ISSUES:	Prosecution :- Water pollution-mitigating factors
LEGISLATION CITED:	Protection of the Environment Operations act 1997, s 120 Crimes Sentencing Procedure Act 1999, s 10
CASES CITED:	Cabonne Shire Council v Environmental Authority (2001) 115 LGERA 304; Environment Protection Authority v Transfield Pty Limited 2001 NSWLEC 45
DATES OF HEARING:	28 March 2002
EX TEMPORE JUDGMENT DATE :	03/28/2002
LEGAL REPRESENTATIVES:	Mr A Seton, Solicitor SOLICITORS Marsdens Mr T G Howard, Barrister SOLICITORS N/A

JUDGMENT:

THE LAND AND

Matter No. 50123 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

28 March 2002

WOLLONDILLY SHIRE COUNCIL

Prosecutor

v

BROGAN BOX PTY LIMITED

Defendant

JUDGMENT

Bignold J:

1. The Defendant has pleaded guilty to a charge of an offence against the Protection of the Environment Operations Act 1997, s 120 in that on or about 6 April 2001, the Defendant polluted waters at Picton. The particulars of the offence endorsed upon the summons are that on or about 6 April 2001 an employee of the Defendant placed a blue coloured substance in a position on the premises known as Lot 1 in Deposited Plan 790202 being premises known as numbers 9-13 Colden Street, Picton from where it descended into a gutter thereon, such gutter being designed to receive or pass rainwater, floodwater or any other water that is not polluted.

2. The particularisation of the offence, of course, relies upon the extended definition of “water pollution” contained in the Protection of the Environment Operations Act dictionary where water pollution and pollution is defined to include and I quote from paragraph (d) of the definition:

placing any matter (whether solid liquid or gaseous) in a position where:

…………..

………….

(ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any other water that is not polluted.

3. The plea of guilty, I should add, was entered at the first return date of the summons.

4. The parties have tendered an Agreed Statement of Facts (Exhibit 1) which indicates that at the time of the offence, the Defendant was occupying the Picton premises in carrying out its business of pallet repair and restoration. Part of the restoration of the pallets involved their being painted. The Council became aware 8.30 am on 6 April of a blue paint like substance being observed, to be entering Stone Quarry Creek at Picton. Investigations later in that day led to the officers of the Wollondilly Council attending upon the Defendant’s premises noting that a stormwater grate located within the premises showed evidence of being wet with a blue paint like substance. The stormwater grate that is located on the Defendant’s premises is connected with another grate and an open channel within the premises, and the blue paint like substance was observed in both those places. Conversation ensued with an employee of the Defendant in the course of which he admitted that pallets were being painted by the Defendant’s employees and that paint from the operations got into the stormwater grate.

5. The prosecuting Solicitor has emphasised that in this particular case there is no allegation that what was observed within the stormwater structures contained within the Defendant’s premises actually discharged into the waters of Stone Quarry Creek. It is established however, and admitted, that the stormwater system within the Defendant’s premises ultimately links into the stormwater drainage system that operates within that particular area of the Council’s jurisdiction and that ultimately that system discharges into Stone Quarry Creek.

6. The evidence has not established exactly how the paint substance found its way into the grate system within the Defendant’s premises nor, importantly, has it established the quantity of that substance. However, in the affidavit of Mr Norman Brodie, the Managing Director of the Defendant and in the affidavit and report of Mr Noel Child, a Consulting Engineer, both these witnesses suggest and state that the amount of paint substance that found its way into the grate system within the Defendant’s premises was small. Mr Child, the Consulting Engineer, assumed on the basis of what he had been told that the paint observed in the grate and stormwater system within the Defendant’s premises was caused by either spray drift during the painting exercise or drips of paint dripping down the side of the large containers of paint employed for that purpose—44 gallon drum type structures—and that his estimate and assumption was that something like one or two litres may have been involved.

7. In the course of cross-examination, he was shown some photographs which were tendered in the Prosecution case depicting fluid substance in various parts of the internal stormwater system located on the Defendant’s premises and he was asked in the light of that photographic evidence whether he would wish to change his opinion on the estimate of paint that may have found its way into the system. He did not change his opinion that the amount was small and he suggested that the photographic evidence showed a significant amount of dilution of what may have been some paint material. As I say, at the end of the day, I am left in great doubt as to both how paint found its way into the grate system, how much found its way into the grate system and why it found its way into the grate system.

8. Both Mr Brodie and Mr Child have expressed the opinion that if the Company’s “work procedure” in relation to painting of pallets had been observed then the incident would not have happened. These opinions were not challenged in cross-examination but they do, I think, depend upon a literal adherence to the relevant text of the work instruction. For example, both witnesses referred to this particular instruction that has long been issued by the Defendant Company to its employees on the subject of painting pallets and I am reading from version 10 dated 4 August 2000 which was the version in force at the time the incident occurred.

9. The instruction contemplates the undertaking of the painting of pallets in two situations—one where the painting occurs in an area which is bunded and the other where it is not bunded. The present case has established that the area in which the painting was undertaken was not bunded in the sense of being bunded by some permanent structures. Both the witnesses have drawn attention to this particular aspect of the instruction:

The designated painting area shall be inspected by a site supervisor to ensure that the area is suitable, that any runoff or spills can be contained and would not be able to enter any drains or waterways.

10. It is immediately apparent that such an instruction propounds a test and a criterion which is only as good as the person called upon to make it. In one sense, the instruction could have said “painting will occur in circumstances where no pollution occurs” but in truth that is a statement of aspiration rather than a statement of practical attainability.

11. I do not criticise the work instruction which the Defendant has obviously had in place for a long while and I accept that it is Defendant’s submission that a study of its contents reveals that the primary aim is concerned to protect the environment. I accept that. However, I simply draw attention to the particular aspect of the instruction which the two witnesses on behalf of the Defendants have relied upon in expressing their opinions. If that particular instruction had been carried out, this incident would not have happened. It is a bit like saying if it did not rain today I would not get wet if I went out without an umbrella. I do not say that flippantly. It is a pious aspiration but it falls well short, in my respectful opinion, of being an achievable and attainable practical means of ensuring that no pollution occurs.

12. Prosecuting Solicitor, in its helpful address drew attention to the provisions of s 241 of the Act which are required to be taken into consideration by the Court in imposing a penalty. But before I come to it I should at once go to the application made on behalf of the Defendant for the Court to conditionally discharge the Defendant or alternatively to dismiss the charge pursuant to the provisions of s 10 of the Crimes Sentencing Procedure Act 1999. The application was made on the basis of the unblemished record for some 30 years by the Defendant in undertaking its business of pallet and timber repair and of the fact that the incident in the present case did not cause any actual environmental harm (a matter admitted by the Prosecutor), and that the extent of culpability on the part of the Defendant, that is the company itself, would be adjudged by the Court to be very slight.

13. This latter submission was founded upon the analysis of the liability of an employer for an employee’s actions, in the judgment of Giles JA, in giving the principal judgment of the Court of Criminal Appeal in Cabonne Shire Council v Environmental Authority (2001) 115 LGERA 304 where his Honour draws the distinction between the liability of the employing authority and that of the employee in circumstances where the charge is brought against the employer for an action or default by the employee. His Honour helpfully points out that in terms of assessing the criminal culpability of the employer, it is necessary to be satisfied whether the act of the employee was something over which the employer exercised real control, and more particularly, whether the employee in default committing the offence, involved him in a disobedience or abandonment of instructions such as work instructions or work safety practices that the employer had in place.

14. I accept, of course, the need to analyse with great care the criminal culpability of a employer who is liable vicariously for the actions of his employee as expounded in the Cabonne judgment. I have some difficulty however in applying it directly to the present case because I do not know, nor has it been established to my satisfaction on the balance of probabilities, that the employee responsible for the commission of this particular offence actually disobeyed the work instruction or did something for which it would be inappropriate to attribute criminal culpability to the employer albeit where the employer remains liable vicariously for the act. This goes back to what I said earlier about the opinions proffered on behalf of the Defendant both by its Managing Director and its Consulting Engineer that there must have been a want of compliance with the work instruction for this incident to have happened. I must confess it is a little bit of the chicken and the egg type argument and ultimately, I am not persuaded by it.

15. The Prosecuting Solicitor opposes the exercise in favour of the Defendant of the discretion conferred by the Crimes Sentencing Procedure Act 1999, s 10 and draws my attention to a recent judgment of Sheahan J in Environment Protection Authority v Transfield Pty Limited 2001 NSWLEC 45 where his Honour said the following in relation to an application then before him for relief under s 10 and I quote from paragraph 34:

While this is indeed a relatively minor breach of the law it should attract a monetary penalty as industry must be vigilant to meet the community’s expectations and aspirations for the environment. The Defendant had come under minor but adverse notice from the EPA in regard to this project and the EPA had provided some information to guide the Defendant in further anticipating and mitigating the consequences of an incident such as this.

16. In the exercise of my discretion, I do not think it is appropriate to grant the Defendant the benefit of discharge pursuant to s 10 of the Crimes Sentencing Procedure Act 1999. However, I accept as being most relevant to the question of appropriate penalty a number of mitigating circumstances which operate in favour of the Defendant. I include, in particular, its unchallenged and unblemished environmental record over the past 30 years of being engaged in their particular business. I accept as genuine the contrition expressed by Mr Brodie, the Managing Director of the Company, for this incident. I accept the Company’s commitment to the protection of the environment in the carrying out of its business and I accept that the Company does impress upon its employees and train them to observe the appropriate work instruction including this work instruction on the painting of pallets. I also accept the evidence of Mr Child that in the main that work instruction is a sound instruction for this particular activity although he recommended some minor improvements in the case of an area which is not bunded.

17. I should also mention that the Defendant’s association with the premises at Picton was a very brief association. It went into occupation in February and left by July in the same year to go to new premises that had become available to it at Marulan, at which premises bunding arrangements are in place.

18. I also give full account in mitigation and reduction of penalty to the plea of guilty entered at the earliest opportunity and to the fact that the company, through its Managing Director acted with commendable alacrity and diligence in ensuring that there were no adverse consequences from the incident and that as soon as he became aware of the incident the Managing Director was at the site and ensured that the premises were totally cleaned up (which they were) with no evidence on the following day of the observance of any paint substance in the gutter outside the premises in Argyle Street which is the gutter to which the stormwater infrastructure at the Defendant’s temporary premises in Picton ultimately discharges together with other industrialists in that area.

19. I also take into account in favour of the Defendant in terms of penalty, the fact that the incident was a minor pollution incident; no actual harm to the environment having been alleged; contained and cleaned up within a matter of hours with no ongoing adverse consequences for the community or for the environment.

20. I also would regard the Defendant’s culpability or responsibility for this incident as being significantly attenuated by its diligence in ensuring proper work practice, work instruction and the like.

21. It would appear, and I am satisfied on the balance of probabilities (which is the appropriate onus for the Defendant to establish anything in its favour) that the amount of paint material that found its way into the stormwater system within the Defendant’s then premises was of a very small quantity and probably comprised the matters referred to by Mr Child in his report, namely that a spray drift and paint particles dripping down the side of the paint containers being washed down in an area that was not fully bunded.

22. In all of the circumstances concerning my evaluation of the objective gravity of the offence and the subjective culpability of the Defendant this offence is located at the very low end of the spectrum of overall gravity. I would regard it in terms of objective gravity and subjective culpability as warranting no more than ten per cent of the maximum penalty prescribed by the Act. That maximum in the case of a corporation such as the Defendant is $250,000 and ten per cent of that is $25,000.

23. I would further reduce that $25,000 by a factor overall of 50 per cent reflecting the matters in mitigation that I have earlier mentioned, including the fact that this is the first offence by a company which has had an unblemished environmental record for 30 years and is genuinely contrite for the offence. The incident appears to have been a minor one and the company pleaded guilty at the first opportunity. In all the circumstances, I would therefore propose to convict the company and to impose a fine, reflecting the reductions that I have mentioned, in the sum of $12,500.

24. For all the foregoing reasons I make the following orders:

1. The Defendant is convicted of the offence as charged.

2. A penalty of $12,500 is imposed in respect of the conviction.

3. The Defendant is ordered to pay the reasonable costs of the Prosecutor in the sum agreed or failing agreement as assessed in accordance with the provisions of the Land and Environment Court Act 1979 s 52(2).
4. The exhibits should remain with the Court papers.