Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Keogh [2000] NSWLEC 273 APPLICANT Environment Protection Authority PARTIES : DEFENDANT KEOGH FILE NUMBER(S) : 50088 of 2000 CORAM: Cowdroy J KEY ISSUES: Prosecution :- application for stay of execution of judgment - custodial sentence - application refused LEGISLATION CITED: Supreme Court Rules 1970 Pt 42 r 12, Pt 44 r 5 Land and Environment Court Rules 1996 Pt 15 r 9 CASES CITED: Farrell v Bridge (1993) 81 LGERA 76 ; Attorney General v Times Newspapers Limited 1974 AC 307 DATES OF HEARING: 27/10/00 EX TEMPORE 10/27/2000 JUDGMENT DATE : PROSECUTOR Mr T Howard (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr W Davison SC with Ms M Painter (Barrister) SOLICITORS Peter Adams & Co JUDGMENT: IN THE LAND AND MATTER No. 50088 of 1998 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 27/10/00 Environment Protection Authority Prosecutor v Allan Andrew Keogh Defendant JUDGMENT 1. By notice of motion dated 26 October 2000 the defendant seeks a stay of execution of a judgment of this Court and the orders that were made on 20 October 2000. On that day the commencement of the custodial sentence was postponed for a period of seven days for the express purpose and at the request of the defendant, to allow him to organise his affairs. 2. The application before the Court today has been made pursuant to the provisions of Pt 42 r 12 of the Supreme Court Rules 1970 ("the Rules") and/or Pt 44 r 5 of the Rules. Each of those sections give power to the Court, in limited circumstances, to vary an order made by the Court. Part 6 r 1 of the Land and Environment Court Rules 1996 ("the LEC Rules") adopts Pt 42 and Pt 44 of the Rules. Pursuant to Pt 15 r 9 the LEC Rules there is limited provision to set aside or vary an order of the Court. 3. In this instance the order of the Court made on 20 October 2000 has been taken out by the registrar. Accordingly, there is no provision pursuant to Pt 15 r 9 of the LEC Rules which would permit the Court to entertain the present application. However, by virtue of the adoption of the Rules such an application may be made. 4. In substance, a stay is sought. In Farrell v Bridge (1993) 81 LGERA 76 Bignold J determined that the provisions of Pt 42 and Pt 44 of the Rules entitle this Court to exercise the power provided by those provisions. For the present purposes, the Court will consider that it should follow the decision of Justice Bignold and permit the application to be entertained by the Court pursuant to those parts of the Rules. 5. Two issues arise from the present application. The evidence in support establishes that a company known as Tyre Cycle Pty Limited has the facility to dispose of the tyres presently existing upon the waste dump and that the defendant is in a position to make arrangements for that to be done. It is estimated, according to the defendant, that it would take 90 days to clear the site of tyres, leaving the matter of bailed plastic which would be removed within the same time frame. Mr Davidson SC, who appears for the defendant submits that this represents the first realistic opportunity for the defendant to comply with the orders of the Court. 6. The proposals which are now submitted were made in a similar way to the Court on 4 February 1999. On that occasion much evidence was given by the defendant of the means by which he was to dispose of the tyres if afforded the opportunity. He said he had built a ramp down to the tyres so they could be removed from the lowest level of the land. He gave evidence of a shredder being bought from Brisbane to shred the tyres. It was for these reasons that the Court considered that the interests of the community of having the waste removed justified a postponement of any custodial sentence. 7. The Court has no confidence whatsoever that the defendant will comply with the orders of 26 August 1999. As is set out clearly in the Court's judgement of 20 October 2000 the defendant consented to orders of the Court in response to the charge that he committed offences against the Waste Minimisation and Management Act 1995. The defendant was granted a period of six months by the prosecutor in which to clear the site. Nothing was done. When the charge of contempt was brought before the Court, contempt of the Court's orders was proved. The Court, upon the promise by Mr Keogh to clear the site, allowed him a further two months before passing sentence. Again no action was taken by the defendant to comply with the Court orders. 8. When judgment imposing the custodial sentence was delivered in 26 August 1999 for the contempt charge, a further period of 12 months was granted for the defendant to clear the site on the faith of his explanation that he had a viable and workable plan which would ensure the remediation of the site. That trust was again misplaced. The explanations that were given by the defendant on 20 October 2000 for non-fulfilment of the orders of 26 August 1999 were regarded by the Court as spurious. 9. There is, however, a more important matter which justifies the Court rejecting the application. That is the fact that the penalty has been imposed as a mark of the public disapproval of the conduct of the defendant. The penalty has been imposed as a punishment for disobeying the orders of the Court such disobedience has continued now on three occasions. That disobedience, the Court finds, has been deliberate. 10. In Attorney General v Times Newspapers Limited 1974 AC 273 at 307, Lord Diplock succinctly stated the offence of contempt of court when he said:- My lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decisions on disputes as to their legal rights and obligations towards one another, individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. I regard those statements as being totally apt to the present circumstances. 12. The court dismisses the application and orders that the custodial sentence take place forthwith. Orders 13. The Court orders that:- 1. The notice of motion by the respondent for a stay of proceedings is dismissed. 2. The custodial sentence be carried out forthwith. 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.