Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Gosford City Council [2000] NSWLEC 154 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Gosford City Council FILE NUMBER(S) : 50013 of 2000 CORAM: Talbot J KEY ISSUES: Environmental Offences :- failure to comply with instructions on pesticide label - mitigating factors where employee responsible LEGISLATION CITED: Pesticides Act 1978 s 33(1), s 62 CASES CITED: R v Holder [1983] 3 NSWLR 245; R v Kalache [2000] NSWCCA 2 DATES OF HEARING: 26/06/2000 EX TEMPORE 06/26/2000 JUDGMENT DATE : PROSECUTOR: Mr W G Roser (Barrister) SOLICITORS: Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr P J Donnellan (Solicitor) SOLICITORS: P J Donnellan & Co JUDGMENT: IN THE LAND AND Matter No. 50013 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 26 June, 2000 Environment Protection Authority Prosecutor v Gosford City Council Defendant REASONS FOR JUDGMENT 1. Gosford City Council is charged that it committed an offence against the Pesticides Act 1978 ("the Act") by disregarding instructions on a label of a registered pesticide in that it carelessly disregarded the instruction on the label which was affixed to a container used for the purpose of treating an infestation of army grubs on the oval at the Kincumber High School, contrary to s 33(1) of the Act. 2. I should note at the outset that the activities of the council on that day were being carried out pursuant to a commercial arrangement, rather than in pursuit of its general administrative duties under the Local Government Act 1993 in that it had contracted to carry out the work on behalf of the school on a commercial basis. 3. It is acknowledged that the concentration of pesticide used on 29 March 1999 was some 26 times the prescribed concentration on the label. 4. The council has entered a plea of guilty. It entered that plea on the first return date before this Court on 10 May this year. 5. (Fault in recording equipment, tape L1 ends/tape A1 commences.) 6. The originating cause or explanation for the error that occurred on 29 March is twofold. 7. First, the person who was directly involved in the application of the pesticide did not read the label on the container at all. 8. Second, that employee had been directed following some earlier incidents to use a particular concentration in the application of that pesticide, namely, the rate of 30 litres for each 470 litres of water. The latter was the actual capacity of the tank used on the machine which the council owns. 9. The label required that the concentration of the pesticide be 30 millilitres for each 15 litres of water which, converted to the tank size of 470 litres, allowed for only 930 millilitres of insecticide to be used in this particular case, where a full tank was mixed. Hence, the prescribed concentration was exceeded 26 times. 10. The instruction that the employee had been given by his superiors was indeed even greater, as he had been told that 30 litres should be used for the particular tank of 470 litres and that would have resulted in a 30 times exceedence. 11. Mr Roser for the prosecutor relies on the evidence in the agreed statement of facts which shows that concentrations had been used in the order of 30 litres each time the tank was filled in the past. This reflects a course of conduct. 12. Mr Donnellan appears for the council and does not cavil with either the fact that there has been a course of conduct on the part of the council or that the disregard of the instructions on the label on this occasion did result in the concentration alleged by the prosecutor. 13. One factor that must be noted in the course of events which followed is that when it became apparent to at least two employees, and possibly three, that there had been an error, there was an immediate attempt to cover up the mistake in the calculation of the concentration. Indeed, some records kept by them on behalf of the council were falsified. 14. It was not until after some analysis had taken place and the result became available some three months later that there was an awareness on the part of anybody outside those particular employees that there had been an excessive use of the insecticide. It was not until a period of a further four or five months had elapsed that the particular employee who I regard as primarily responsible for the cover up "came clean" and explained what had happened. 15. There were two physical consequences of using the excess concentration. 16. First, there was some human reaction. A teacher at the school suffered a reaction in the form of some skin rash, nauseous condition and headaches. A further teacher reported similar symptoms, as did a student. There may have been others. Furthermore, between 42 and 50 wood ducks that frequent the site died. An analysis of their gut shows that the cause of their demise can be directly related to the concentration of pesticide consumed by them. 17. The Court has expert evidence which indicates that the particular chemicals involved can cause reactions such as mental confusion, stupor, dizziness, nausea, unconsciousness and respiratory failure. The expert concluded that the application of the chemical was directly responsible for the death of 42 to 50 ducks and that adverse effects on bird life were unlikely to have been restricted to the birds that died. 18. If what had occurred had been promptly reported immediately after the event, the expert tells the Court that steps could have been taken to reduce the impact upon persons using the field, being mainly students, although I am told that other members of the public also use it. This could have been achieved by irrigation and similar means using a special fertiliser that may have neutralised the effect of the chemical. As it turned out, administrative precautions were taken and the oval was not used for some weeks until the principal could be satisfied it was safe to do so. 19. Prima facie, without considering directly the council's involvement, the actions of its employees, for which it is vicariously liable, amount to an act of blatant disregard of the requirements of the section in that the employee directly responsible for the application had never read the label. Accepting that an employee of that type may well be the type of person who requires supervision, and further may not be the sort of person who can easily follow instructions that involve calculations and details in order to meet the prescriptions of a particular label, then those persons who might have been expected to understand such matters clearly got it wrong, assuming they read the label. However the event occurred there has been a very significant careless disregard of the requirements of the Act. 20. Mr Donnellan made a substantial submission in respect of the mitigating factors the Court might take into account. First, of course, there is the credit that the defendant must be given for the early plea of guilty. Second, he notes the council has already paid the prosecutor's costs in the sum of $12,000. 21. The council itself has cooperated from the outset by making officers available. Those officers may have let the council down rather badly by failing to provide a frank and honest disclosure. Nevertheless, they were always available to the prosecutor together with any documentary material that the prosecutor asked for in the course of its investigation. 22. Mr Donnellan has informed the Court that there are now protocols in place which have improved the supervision and control of the use of substances in this category, thereby seeking to limit the prospect of recurrence and early detection of error. 23. The system of recording has been changed so that the books and reports kept are less open to tampering. Regular audits of the material used now take place. 24. Mr Donnellan submits the council has learnt from the experience. It is conscious of the lapse that occurred and its responsibility to ensure that it does not recur. 25. Mr Donnellan refers to the provisions of s 62 of the Act which provide that any employer can be held responsible for the act of its employees. The council is in a position to say that the council as a corporate body did not authorise or permit the contravention by the employee in any formal way. However, it must acknowledge, and does, that the defence of using all due diligence to prevent the contravention is not open to it. In so doing Mr Donnellan recognises that the procedures followed by council up to 29 March 1999 could have been more effective. Even so, the council records were falsified. To some extent this was a matter left open by the council's failure to have in place a system of cross checking and auditing. 26. I accept that the council as a corporate body comprising the councillors and the executives involved in the day to day administration of the council may not have been aware of the particular circumstances under which pesticides were being used. Nevertheless, they bear the responsibility to ensure that procedures are in place which recognise the serious nature of the obligation the council has in dealing with chemicals and which reflect an understanding of the environmental impacts which can occur, including any danger that might be caused to its own employees. 27. Although Mr Donnellan says to me that the facts do not demonstrate the council has heretofore had a cavalier approach, it is difficult to discriminate between what might be described as a cavalier approach and the conduct of a system which is totally inadequate and, to use his words, to a large extent primitive. It was a system that was open to abuse. 28. I accept the submission by Mr Roser that this particular occurrence resulted in a worst case. It was not the worst case that could possibly occur, although it was something more than a mid range category of offence. 29. Without the mitigating factors it certainly would have attracted a penalty in excess of 50 per cent of the maximum of $44,000 prescribed by the legislation. I am satisfied, however, that the council's early plea of guilty, even though to some extent it may amount to nothing more than acceptance of the inevitable ( R v Holder [1983] 3 NSWLR 245 as explained in R v Kalache [2000] NSWCCA 2), its expressed contrition, the steps that it has taken to deal with the future conduct of this aspect of its business and the deception which occurred on the part of the employees are mitigating factors even though the deception occurred after the event and does not have a great deal of bearing on the commission of the offence itself. The fact remains that the council did not have in place appropriate procedures and protocols to guard against this sort of thing happening, as far as it is practical to do so in an organisation such as a council. 30. I have had regard to the range of penalties which heretofore have been imposed in respect of this legislation. I also take into account the fact that the council is a public body carrying out an administrative function in the public interest, counterbalanced on this occasion by the fact that it was involved in a non government enterprise. An appropriate penalty in the circumstances is $16,000. 31. The orders that I make are:- 1. The defendant is convicted. 2. The defendant is ordered to pay a penalty in the sum of $16,000. 32. I make no order as to costs as I am informed that that matter has been dealt with and no further action is required in that respect. 33. The exhibits may be returned. 34. I allow 14 days to pay the fine. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.