Environment Protection Authority v Unomedical Pty Limited (No 2) [2009] NSWLEC 111

Land and Environment Court of New South Wales

CITATION : Environment Protection Authority v Unomedical Pty Limited (No 2) [2009] NSWLEC 111

PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Unomedical Pty Limited

FILE NUMBER(S) : 50046 of 2008

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- application for a site inspection - whether Court assisted in resolving issues of fact or understanding evidence by view - documentary evidence sufficient - application refused

LEGISLATION CITED: Evidence Act 1995 s 53 Protection of the Environment (Operations) Act 1997 s 128(2)

CASES CITED: Chotiputhsilpa v Waterhouse [2005] NSWCA 295

DATES OF HEARING: 29 June 2009

EX TEMPORE JUDGMENT DATE : 29 June 2009

PROSECUTOR Mr B Docking SOLICITOR Department of Environment and Climate Change LEGAL REPRESENTATIVES: DEFENDANT Mr I Lloyd QC SOLICITOR Henry Davis York

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

29 June 2009

50046 of 2008 Environment Protection Authority v Unomedical Pty Ltd (No 2)

EX TEMPORE JUDGMENT

JUDGMENT ON APPLICATION FOR SITE INSPECTION

HER HONOUR : 1 This is an application made by the defendant, Unomedical Pty Ltd, under s 53 of the Evidence Act 1995 for the Court to attend a view of the defendant's premises and site facilities. 2 The defendant is charged with, and has pleaded not guilty to, a breach of s 128(2) of the Protection of the Environment (Operations) Act 1997. The charge states: … from about 1 January 2002 to 26 July 2007 inclusive, at or near 11-17 Wilmette Place, Mona Vale in the said State, it committed an offence against section 128 of the Protection of the Environment Operations Act 1997, in that being the occupier of premises, it failed to carry on an activity in or on the premises by such practicable means as may have been necessary to prevent or minimise air pollution, where no emission standard or rate has been prescribed for the air impurity. 3 The alleged breach is claimed to have arisen as a result of the discharge of ethylene oxide during the manufacture, sterilisation and distribution process of single use medical instruments and products made by the defendant. 4 The application is opposed by the prosecutor, who states that in all the circumstances an inspection is unnecessary. 5 The defendant submits that a view is required so that the Court will be able to better understand the issues surrounding the sterilisation process during the charge period. In particular the defendant submits that inspection will assist the Court in understanding: (a) the proximity of resident receptors to the emission point;