EPA v Patrick Distribution Pty Limited [2005] NSWLEC 433

Land and Environment Court of New South Wales

CITATION : EPA v Patrick Distribution Pty Limited [2005] NSWLEC 433

PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Patrick Distribution Pty Limited

FILE NUMBER(S) : 50001 of 2005

CORAM: Talbot J

KEY ISSUES: Prosecution :- application for stay of proceedings.

Land and Environment Court Rules 1996 LEGISLATION CITED: Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998

Duncan and Another v Crews and Others (2001) 161 FLR 250 ; CASES CITED: Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; Jago v The District Court of New South Wales And Others (1999) 168 CLR 23

DATES OF HEARING: 04/08/2005

DATE OF JUDGMENT: 08/09/2005

PROSECUTOR Mr S J Rushton SC SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES:

DEFENDANT Ms P E McDonald (Barrister) SOLICITORS Blake Dawson Waldron

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

9 August 2005

50001 of 2005 EPA v Patrick Distribution Pty Limited

JUDGMENT 1 Talbot J: Patrick Distribution Pty Limited ("the defendant") has filed a Notice of Motion seeking an order permanently staying the proceedings. 2 By summons issued on 17 February 2005, it is alleged that on 25 February 2004 on the Great Western Highway at the foot of the pass from Mount Victoria to Little Hartley the defendant, as prime contractor, used a vehicle to transport dangerous goods when the vehicle did not comply with chapter 8 of the Australian Code for the Transport of Dangerous Goods by Road and Rail ("the ADG Code") contrary to subregulation 8.3 of the Road Transport Reform (Dangerous Goods) (New South Wales) Regulation 1998. Regulation 8.3 provides that a prime contractor must not use a vehicle to transport dangerous goods by road unless the vehicle and its equipment comply with chapter 8 of the ADG Code. Paragraph 8.1.1(1)(b) requires that a vehicle used to transport dangerous goods must be free of any defect that is likely to create a risk in transporting the goods. 3 The evidence of the prosecutor includes an affidavit sworn 15 March 2005 by Robert Stait, a Roads and Traffic Authority ("RTA") inspector. The affidavit annexes a statement prepared by Mr Stait on 25 August 2004. The statement prepared by Mr Stait includes observations made by him at the RTA Mount Boyce Heavy Vehicle Checking Station on 28 February 2004. The observations relate to the condition of tyres and brake linings. The evidence of Mr Stait is for the purpose of establishing that there was insufficient tread depth on certain tyres of the trailer and that the left rear and right centre brake linings on the trailer were excessively worn. 4 Following service of the summons and the evidence of Mr Stait the defendant's solicitors made an enquiry from the prosecutor as to the present whereabouts of the vehicle. On 15 April 2005 the solicitor for the Environment Protection Authority ("the prosecutor") advised the defendant's solicitors that she understood the last known location of the subject vehicle was Royans Smash Repairs, 17-23 Alfred Road Chipping Norton and that advice was expected from the vehicle's insurer as to its current location. Subsequently, by letter dated 12 May 2005 the solicitor for the prosecutor advised that the prime mover bearing a South Australian registration plate was bought by Universal Truck Wreckers of 56 Mitchell Street Shepparton, Victoria on 29 September 2004 and that the trailer bearing a NSW registration plate was returned to the trailer's owner Mr Robert Douglas. The last known address of Mr Douglas in Kempsey was supplied. 5 It is common ground that the vehicle was never owned or under the control of the defendant nor was it ever seized or placed into the possession of the prosecutor.