> Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Truegain Pty Limited [2003] NSWLEC 277 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Truegain Pty Limited FILE NUMBER(S) : 50121 of 2002 CORAM: Talbot J KEY ISSUES: Prosecution :- whether special costs order justified following plea of guilty and conviction Criminal Procedure Act 1986 s 3, s 253, s 253(1), s 253(2), s 253(2)(b) LEGISLATION CITED: Land and Environment Court Act 1979 s 52 Supreme Court Rules 1970 Pt 52, Pt 52A Land and Environment Court Rules 1996 Pt 16 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 DATES OF HEARING: 27/10/2003, 28/10/2003 DATE OF JUDGMENT: 11/19/2003 PROSECUTOR Mr D J Galpin (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr I J Hemmings (Barrister) SOLICITORS Corrs Westgarth Chambers JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50121 of 2002 Talbot J 19 November 2003 Environment Protection Authority Prosecutor v Truegain Pty Limited Defendant Judgment Introduction The Offence 1 The defendant pleads guilty to the charge that on 17 December 2001 it polluted waters being a drain that runs along the eastern boundary of its premises at 62 Kyle Street, Rutherford ("the premises"). The original allegation that waters downstream were polluted has not been pursued. 2 The defendant carries on a business at the premises of receiving, storing and processing waste oils and oily water emulsions. The defendant refines and re-processes these products into re-usable petroleum-based products. 3 A wastewater treatment plant is located within a bunded area at the eastern side of the premises. The subject bund is constructed of four concrete walls and at the time of the incident the floor of the bund comprised two concrete slabs. The main slab was 150mm thick and the second slab, or apron slab, was 100mm thick. The two floor slabs were joined by an epoxy expansion joint, traversing the floor of the bund. 4 A concrete-lined stormwater drain runs along the eastern boundary of the premises ("the stormwater drain"). The stormwater drain is about two metres deep and is located down a steep embankment from the subject bund. The floor of the stormwater drain is about five metres down the embankment from the boundary of the premises and the subject bund. 5 On 17 December 2001 liquid escaped from the subject bund through a separation in the epoxy expansion joint between the two concrete floor slabs and some liquid entered the stormwater drain. 6 It is an agreed fact that the separation in the epoxy expansion joint was caused by a weak area of sub-material under the floor of the subject bund. The weak area under the subject bund caused the 100mm apron slab to sink and fall towards the stormwater drain by approximately 25mm. The movement of the 100mm apron slab caused the epoxy expansion joint between the two slabs to open, breaking the integrity of the subject bund. 7 There is a factual dispute as to whether the company failed to respond to a complaint raised by an adjoining owner and the Environment Protection Authority ("the EPA") on 14 December 2001. Nevertheless, it is clear from the evidence and not disputed that the defendant shut down the plant on 17 December 2001, promptly provided a report to the EPA, removed contaminated soil, water and vegetation from the drain under the subject bund and within two weeks commenced construction of new bunds onto the main concrete slab. 8 Since the incident the defendant has taken the following steps:- (1) Made physical changes to the bund; (2) Increased the frequency of boundary inspections to monthly; (3) Employed a full-time occupational health and safety and environmental officer; (4) Prepared and implemented a new Occupational Health and Safety and Environmental site project plan (including staff training); and (5) Established a neighbourhood complaint system. 9 At the time of the incident the EPA licensed the defendant to undertake petroleum refining up to 10,000 tonnes per annum and Hazardous, Industrial, Group A or Group B processing. 10 Following inspection of the premises by EPA officers in January 2000 the company, Australian Waste Oil Refineries Pty Ltd, received a Penalty Infringement Notice. Otherwise, there is no record of any prior offence in respect of the operation of the premises. 11 These proceedings were commenced on 10 December 2002 and the first return date was 21 January 2003. The defendant entered a plea of guilty on 8 April 2003, which was the first mention date after the EPA had informed the defendant that all the prosecutor's evidence had been filed and served. 12 There is a Statement of Agreed Facts ("SOAF") in evidence. The following Supplementation Statement of Facts has been tendered by the prosecutor without objection:- (1) The liquid that escaped from the defendant's premises was a black oily liquid comprising a mix a waste oils and wastewater ("the liquid"); (2) The liquid ran down the embankment below the bunded wastewater treatment plant into the stormwater drain; (3) The liquid spread downstream and was observed up to about 110 metres downstream in the drain on 18 December 2001; (4) There is no precise knowledge of the volume of the liquid that escaped, however, estimates range from 30 litres of oil to 200 litres of oily liquid; (5) The liquid left stains on the embankment and browned off grasses on the embankment, which were then removed. The liquid contaminated waters in the stormwater drain and coated reeds and grasses in the stormwater drain; (6) The prosecutor will not submit that the liquid in fact made it into the creek. 13 The creek referred to in the Supplementary Statement of Facts is Stony Creek, which runs south from its junction with the stormwater drain and then east through the Westside Golf Course. 14 The only evidence of actual harm caused by the discharge to the stormwater drain is that grasses and vegetation were stained black. The prosecutor has not proved beyond reasonable doubt that the liquid killed any reeds but seeks to raise the inference that certain brown patches adjacent to where the spill occurred indicated harm and probably death of the plants. The defendant has provided evidence from an ecologist that he was not satisfied that the reeds were actually harmed. Irrespective of who is right, there is no evidence of harm to any living species apart from some reeds. The Court accepts that actual harm, if it did in fact occur, was inconsequential. 15 However, likely harm is a matter to be taken into account pursuant to s 241 of the Protection of the Environment Operations Act 1997. It is axiomatic that the contents of the discharge, particularly oil, have a potential to cause harm to vegetation and aquatic life. There is no direct evidence of the environmental state of the drain but it can be inferred that any toxic substance that enters it can reasonably be expected to reach Stony Creek in adverse weather conditions. However, the likelihood of that occurring has not been canvassed, presumably as a consequence of the concession made by the prosecutor in the SOAF that the allegation of pollution is confined to the drain. 16 Based on the evidence comprised in the SOAF, those parts of affidavits which have been read and the oral evidence, the Court concludes that the actual seriousness of the offence is at the lowest end of the range. The discharge of the liquid occurred under circumstances where there was a reasonable expectation that it would be contained within the bunded area. Although there had been earlier occurrences of undermining of the concrete slab remedial action had been taken. There was no external sign that the epoxy expansion joint had deteriorated to the extent that it would allow an escape. Nevertheless, there was physical evidence of the discharge outside the property along the bank of the drain where staining of vegetation had occurred and on the waters of the drain. Contemporaneous complaints of odour from adjoining occupiers suggest, but do not prove, that the odours should have alerted the defendant to the existence of a problem. 17 The defendant entered a plea of guilty at a relevantly early opportunity and co-operated with the prosecutor in an efficient disposal of the proceedings, particularly by participating in the process of formulating a SOAF. The amount of actual harm is insignificant. 18 The prior record in respect of the premises comprises only a penalty infringement notice issued by the EPA in February 2000. It related to odour emissions detectable in residential premises as a consequence of alleged unsatisfactory industrial housekeeping in respect of the handling of petroleum products and wastewaters. The penalty notice was issued to a different company but the defendant appears to take no issue on that account. The company has expressed regret and contrition through its director, Paul Andrew Lucas, who has given evidence by affidavit and orally. The Court's view is that the company is unlikely to act irresponsibly in its approach to environmental obligations in the future. 19 In the whole of the circumstances, the Court has formed the view that it is appropriate for the defendant to be convicted and to incur a monetary penalty by way of a fine in the sum of $7,500. Costs 20 At the conclusion of the hearing Mr Hemmings made a submission on behalf of the defendant that the company was entitled to set-off against the costs otherwise payable by it to the prosecutor in respect of costs allegedly incurred unnecessarily by the defendant in respect of evidence filed, served and presumably relied upon by the prosecutor until after the plea of guilty had been entered and a SOAF settled. There is no evidence before the Court as to the extent, nature or ultimate relevance of evidence, which was filed and served but not relied upon, particularly in respect of that part of the material which is the subject of the defendant's complaint. If I properly understood Mr Hemmings' argument at the time, his submission is that the Court should exercise its discretion in awarding costs in favour of the prosecutor to the extent only that allows for costs thrown away by not only the prosecutor but also the defendant to be set-off against the total claim of the prosecutor. Neither party was sufficiently prepared to fully argue the issue raised by the defendant and, accordingly, I made directions that further submissions be submitted in writing. 21 In his written submissions, Mr Galpin, on behalf of the prosecutor, relies upon the provisions of s 253 of the Criminal Procedure Act 1986 and, in particular, s 253(1) which applies where an accused person is convicted. Pursuant to that section the Court has a discretion to award costs to the prosecutor but not to the defendant. Subject to the exercise of the discretion judicially it is broad and unfettered bearing in mind the objective to compensate the successful party rather than to punish the unsuccessful party (Latoudis v Casey (1990) 170 CLR 534). 22 Mr Galpin contends that the special order requested by the defendant would involve a de-facto award of costs to the defendant by setting-off of those costs against the prosecutor's costs. He says it would, in effect, award costs to the defendant in circumstances where the Court has no power to award costs to the defendant. In any event, it is the prosecutor's case that there are no special circumstances and, in particular, that there is no evidence of impropriety or disentitling conduct on the part of the prosecutor. Even if the Court has a power to award costs by a special order, Mr Galpin argues that the mere fact that particular evidence filed by the prosecutor was not read or was not ultimately incorporated into the SOAF does not justify the making of that order. The Court is not aware of the circumstances under which the evidence was prepared, the subsequent procedure, interlocutory exchanges between the parties or the circumstances under which the SOAF was prepared. Without evidence of those facts the Court is not in a position to determine the issue in an informed manner. 23 Mr Hemmings submits that the question of costs be deferred or reserved until there is a further opportunity to file evidence and the defendant has considered the Court's judgment on penalty. 24 Section 253(2) dictates that the costs payable by an accused person are to be determined by agreement between the prosecutor and the accused person, and if no such agreement can be reached, in accordance with the rules. Pursuant to s 3 "rules" means rules made for the purpose of the Court to which the relevant provision applies. Part 16 of the Land and Environment Court Rules 1996 provides that in assessing and allowing costs the Court and the Registrar or Assistant Registrar as taxing officers are to act in accordance with Pt 52 and Pt 52A of the Supreme Court Rules 1970 ("the SC Rules") so far as those Parts can apply. The Court is satisfied that Pt 52A of the SC Rules are relevant rules for the purpose of s 253(2)(b). Those rules provide machinery for the determination of the quantum of the prosecutor's costs. The provisions of the Land and Environment Court Act 1979 previously relevant to costs were repealed by the recent amendments made to the Criminal Procedure Act. In the same way as the former s 52 of the Court Act required the Court to make a costs order at the time of conviction or acquittal, s 253(1) is in the same terms. The submission to the contrary made by Mr Hemmings, therefore, cannot be adopted. It is nevertheless apparent from his submission that the evidentiary issues the defendant seeks to raise are matters that can be properly addressed during the assessment process. That is how the argument should be resolved if the parties cannot agree. 25 The Court will make an order in general terms that the defendant pay the prosecutor's costs of the proceedings. Formal orders 26 The formal orders of the Court are as follows: (1) The offence as charged in the summons is proved. (2) The defendant is convicted of the charge in the summons. (3) The defendant is ordered to pay a monetary penalty by way of a fine in the sum of $7,500. (4) The defendant is ordered to pay the prosecutor's costs of the proceedings. (5) The exhibits may be returned. 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.