Barbara Filipowski v Vopak Terminals Sydney Pty Limited [2006] NSWLEC 104

Land and Environment Court of New South Wales

CITATION : Barbara Filipowski v Vopak Terminals Sydney Pty Limited [2006] NSWLEC 104

PROSECUTOR: Barbara Filipowski PARTIES : DEFENDANT: Vopak Terminals Sydney Pty Limited

FILE NUMBER(S) : 50009 of 2005

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Marine pollution—discharge of petroleum from blown "gasket" in pipeline during transfer operation from ship—cause of gasket failure

LEGISLATION CITED: Marine Pollution Act 1987, s 27 Crimes Sentencing Procedure Act 1999, s 10

Cabonne Shire Council v Environment Protection Authority (2001) 115 LGER 304; Thorneloe v Filipowski (2001) 116 LGERA 56; CASES CITED: R v O'Neill (1979) 2 NSWLR 582; R v Olbrich (1999) 199 CLR 270; He Kaw Teh v The Queen (1985) 157 CLR 523

DATES OF HEARING: 14, 19/10/2005, 15/11/2005, 20/12/2005

DATE OF JUDGMENT: 03/07/2006

PROSECUTOR: Mr A Hill, Barrister SOLICITORS Dibbs Abbott Stillman LEGAL REPRESENTATIVES: DEFENDANT: Mr I Hemmings, Barrister SOLICITORS Corrs Chambers Westgarth

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

7 March 2006

50009 of 2005 BARBARA FILIPOWSKI v VOPAK TERMINALS SYDNEY PTY LIMITED

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 The Defendant has pleaded guilty to a charge of an offence against the Marine Pollution Act 1987, s 27(1) in that on 24 September 2003 it was the occupier of a place from which a discharge of oil occurred into State Waters, namely Port Botany. 2 The Marine Pollution Act, s 27 provides as follows: Prohibition of discharges to which Part applies (1) If a discharge to which this Part applies occurs, each appropriate person in relation to the discharge, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine not exceeding: (a) if the offender is a natural person—$500 000, or (b) if the offender is a body corporate—$10 000 000. (2) Subsection (1) does not apply to a discharge: (a) if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or (b) if the discharge was carried out by the holder of a licence under the Protection of the Environment Operations Act 1997 in accordance with that licence. 3 Section 27 appears in Part 4 of the Act which is headed "Pollution relating to transfer operations". Section 26 specifies the discharges to which Part 4 applies by providing as follows: Discharges to which Part applies This Part applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters: (a) from a ship or place on land in or in connection with a transfer operation, or (b) from any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, but does not apply: (c) to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, or at any other place prescribed for the purposes of this section, or (d) to a discharge to which Part 2 or 3 applies. 4 A number of terms employed by ss 26 and 27 are defined by the Act—either by Section 3 which defines terms for the purposes of the Act or by s 25 which defined terms for the purposes of Part 4. Of particular relevance to the present charge are the following definitions contained in s 25: appropriate person means : (a) in relation to a discharge from an apparatus on a ship: (i) the owner of the ship, or (ii) the master of the ship, or (iii) the owner of the apparatus, or (iv) the person in charge of the apparatus, and (b) in relation to a discharge from a ship: (i) the owner of the ship, or (ii) the master of the ship, or (iii) the person in charge of the transfer operation of the ship, and (c) in relation to a discharge from an apparatus on a place on land: (i) the occupier of the place, or (ii) the owner of the apparatus, or (iii) the person in charge of the apparatus, and (d) in relation to a discharge from a place on land the occupier of the place, and (e) in relation to a discharge from a purpose built pipeline: (i) the occupier of the land on which the pipeline is situated, or (ii) the person in charge of the pipeline, or (iii) the owner of the pipeline. occupier : (a) in relation to a place on land (other than a pipeline) means: