Land and Environment Court of New South Wales CITATION : State Pollution Control Commission v Metropolitan Collieries Limited [1989] NSWLEC 237 APPLICANT State Pollution Control Commission PARTIES : RESPONDENT Metropolitan Colleries Limited FILE NUMBER(S) : 50032 -40 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Clean Waters Act CASES CITED: Smyth v Caralis & Ors 18 December 1987 (unreported); McEwan v Seely 21 FLR 131, DATES OF HEARING: DATE OF JUDGMENT: 09/01/1989 LEGAL REPRESENTATIVES: JUDGMENT: His Honour: I refer to the decision of the Court on 18 August 1989. Metropolitan Collieries Limited were convicted of four charges and acquitted of five. The most serious offence was charge No 50036, namely, that in breach of the Clean Waters Act the Company placed material above Camp Creek where it was likely to enter the creek. The placing of materials was deliberate and the Company cannot but have known that what it was doing was in breach of the Clean Waters Act. I am satisfied that there was a serious risk of environmental damage. I fine the Company the sum of $15000.00. Charges Nos 50034, 50035 and 50037 arise out of the imposition by the SPCC of additional conditions to the Clean Waters Licence. These additional conditions were imposed on or about 9 March 1988. The conditions were not reimposed when the Licence was issued in 1989 and that circumstance is relied on by the Company to demonstrate the trivial nature of the conditions. On behalf of the SPCC it has been submitted that the failure to reimpose the conditions was an oversight. However, it would seem to me that I must assume that the SPCC is presently not overly concerned that the additional conditions are not included in the current licence. As is clear from the evidence, no environmental damage was caused by the breaches and the likelihood of any could only be described as negligible. However, the Company knew that it was under an obligation to comply with the terms of its Licence. If it believed that the conditions sought to be imposed by the SPCC were unreasonable or unnecessary, it could have exercised its right s of appeal. Mr Tobias has submitted that I should infer that the Company was unaware of its appellate rights. I doubt whether that excuse would ever be acceptable but, however that may be, I do not accept it in this case. Metropolitan Collieries Limited is one of the major coal mining companies. I am not prepared to infer that it did not know about its rights of appeal under the relevant environmental legislation. What emerged as the more likely explanation is that the Company considered that the additional conditions were unreasonable and unnecessary and thereupon determined to ignore them. It would seem to me that charges Nos 50034, 50035 and 50037 should be dealt with together. The gravamen is not that environmental damage was done but that the Company simply determined to ignore the SPCC's requirements. Accordingly, with respect to offence No 50035, I impose a penalty of $10,000.00 and, with respect to offences Nos 50034 and 50037, $100.00 each. I order that the amount of $25,200 being moneys ordered to be paid be paid to the Registrar to be dealt with according to law. Costs I propose to make no order as to costs. In Smyth v Caralis & Ors 18 December 1987 (unreported), the Court determined that it would adopt the policy articulated in McEwan v Seely 21 FLR 131, namely, that generally speaking an acquitted defendant is entitled to its costs unless it has by its conduct brought the proceedings or their continuation upon itself or unless some other consideration is present which makes it unjust to award it costs. Mr Joseph has submitted that the SPCC is entitled to its costs with respect to the charges which led to convictions but that no order should be made with respect to those charges which were dismissed. He submits, in effect, that there was "probably one prosecution and one defence" and that because there was a conviction I should order the Company to pay the SPCC's costs. I do not accept this submission. There were nine separate charges. If I were required to apportion the amount of time spent in the proceedings to the charges, I would be inclined to the view that more time was spent with respect to those charges which were ultimately dismissed. Although, strictly speaking, the SPCC should pay the Company's costs with respect to those charges which were dismissed and the Company should pay the SPCC's costs with respect to the charges which resulted in a conviction, I think, in the circumstances of the present case, the more appropriate course is for me to order that there be no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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