Land and Environment Court of New South Wales CITATION : Ferguson v Liverpool City Council [2009] NSWLEC 20 APPELLANT Leanne Ferguson PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 60006 of 2008; 60007 of 2008 CORAM: Pain J KEY ISSUES: APPEAL :- appeal against conviction - appeal dismissed Crimes (Appeal and Review) Act 2001 s 31(2)(a), s 33, s 37 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10(1)(a), s 10(5) Protection of the Environment Operations Act 1997 s 94(4), s 143 Chokr v Liverpool City Council [2008] NSWLEC 58 CASES CITED: Denning v Department of Environment and Conservation (2007) 153 LGERA 200 Latoudis v Casey (1990) 170 CLR 534 DATES OF HEARING: 25 February 2009 EX TEMPORE JUDGMENT DATE : 25 February 2009 APPELLANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr J Tunks (solicitor) SOLICITORS Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 25 February 2009 60006 of 2008, 6007 of 2008 Ferguson v Liverpool City Council EX TEMPORE JUDGMENT 1 Her Honour: The Appellant has filed two Class 6 appeals against conviction in relation to two decisions of the local court at Liverpool on 1 April 2008. She lodged appeals with the local court on 1 May 2008 outside the 28 day period specified in s 31(2)(a) of the Crimes (Appeal and Review) Act 2001 (the Review Act). The appeal was sent erroneously to the District Court before coming to this Court. An extension of time for appeal can be granted under s 33 provided that is within three months of the conviction as has occurred in this matter. Filing an appeal in the local court/District Court is considered an appeal to this Court: Denning v Department of Environment and Conservation (2007) 153 LGERA 200; Chokr v Liverpool City Council [2008] NSWLEC 58. I give leave for the appeals to be filed in this Court outside the 28 day period in s 31(2)(a). The Appellant is not legally represented. 2 In matter no 60006 of 2008 the Appellant was convicted of an offence under s 143 of the Protection of the Environment Operations Act 1997 (the POEO Act) being the owner of waste that was dumped illegally. Section 143 relevantly provides: (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. Maximum penalty: (a) in the case of a corporation—$1,000,000, or (b) in the case of an individual—$250,000. … (3) Defence—owner of waste It is a defence in any proceedings against an owner of waste for an offence under this section if the owner did not transport the waste and establishes: (a) that the commission of the offence was due to causes over which the owner had no control, and (b) that the owner took reasonable precautions and exercised due diligence to prevent the commission of the offence. 3 The magistrate found the offence proved but discharged the Appellant without any conviction being recorded under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). While no conviction was recorded against the Appellant, for the purpose of this appeal the Appellant has the same right as if she had been convicted of the offence pursuant to s 10(5) of the CSP Act. The Appellant was otherwise ordered to pay court costs of $70. 4 In matter no 60007 of 2008 the Appellant was convicted in the local court of an offence of failing to pay an administrative fee of $320 as required by a clean up notice issued by the Council dated 14 June 2007. That offence arises under s 94(4) of the POEO Act and attracts a maximum penalty of $22,000. Section 94 provides: (1) The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving clean-up notices. (2) A person who is given a clean-up notice by a regulatory authority must within 30 days pay the prescribed fee to the authority. (3) The regulatory authority may: (a) extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or (b) waive payment of the whole or any part of the fee, on the authority's own initiative or on the application of a person to whom subsection (2) applies. (4) A person who does not pay the fee within the time provided under this section is guilty of an offence. The Appellant was ordered to pay the administrative fee of $320, a fine of $50 and court costs of $70. 5 Both matters came before the local court because the Appellant contested two penalty infringement notices issued by the Council in relation to the offences (local court transcript 1 January 2008, p 16, line 41). 6 Under s 37 of the Review Act appeals are a rehearing on the basis of the transcript of the evidence before the local court. That generally also includes the evidence tendered before the local court. I have before me the transcript of the local court proceedings and the evidence tendered before the local court. 7 I asked the Appellant if she wished to rely on fresh evidence and she does not wish to do so. Her only submission was that she did not do anything and is not guilty of either charge. 8 The Council's solicitor made brief submissions essentially identifying some relevant parts of the transcript before the local court and identifying all the exhibits which were before the local court. Matter no 60006 of 2008 9 In matter no 60006 of 2008, in the proceedings before the local court Mr Kearney, Liverpool Council officer, gave sworn oral evidence that his duties were the enforcement of the POEO Act. On 18 May 2007 he conducted a routine inspection of an illegal dumping "hot spot" along Twenty Seventh Avenue, West Hoxton and found a pile of waste. The pile consisted of small garbage bags of household garbage, a plastic tub and small furniture items. He found a letter addressed to someone with the surname Ferguson in one of the bags. He found another letter in the plastic tub. He identified two letters as being those he found one addressed to Kevin Ferguson (dated January 2007) and one to Leeanne Ferguson (dated March 2007) both addressed to 21 Galloway Street Busby. These letters were tendered with no objection (exhibit 1). He took photographs of the site on that day where the rubbish was dumped and these were tendered (exhibit 2). He took the letters and photographs back to the Council offices and gave them to Mr Elkhoury, Council officer, who took over the investigation. 10 Mr Elkhoury also gave sworn oral evidence before the local court as to his responsibilities as a ranger for Liverpool Council, the identification of his written statement (exhibit 3), that he took photographs of the site (exhibit 4), the identification of the notice seeking information of the name of the tenants of 21 Galloway Street, Busby served on the Department of Housing (exhibit 5), and the identification of the clean up notice served on the Appellant (exhibit 6). The Appellant was asked if she wished to cross-examine Mr Elkoury and she declined. 11 In his statement (exhibit 3 in the local court) Mr Elkhoury sets out the facts that on 6 June 2007 following a complaint from Mr Kearney, Council officer, about dumped rubbish at Twenty Seventh Avenue, West Hoxton he went to that location and found waste dumped which included household waste. The waste consisted of three plastic bags of household waste, a large bag of household waste, timber panels and shelving. He went to 21 Galloway Street, Busby. The premises appeared to be vacant. A request for information was sent to the Department of Housing to identify the tenants who had resided at that address (exhibit 5 before the local court). The Department advised Mr Elkhoury the previous tenant was Ms Ferguson and that she now resided at 3 Ryeland Street, Miller. Mr Elkhoury sets out in his statement the interview he conducted with the Appellant on 14 June 2007. She confirmed the mail belonged to her and her son. She had not received the letter from the Electoral Commission addressed to her and found in the dumped waste. She has been at her current address since 30 April 2007 and uses skip bins and normal garbage bins. She had had rubbish stolen from her bins over an 18 month period. The bins were in the front yard. When asked why did not she secure the bin she said "convenience". She did not know how the mail in the dumped rubbish got there. 12 In the local court the Appellant also gave brief oral evidence that she refused to pay because she did not do anything, her mail had been stolen and she would not pay for something she did not do. She was at TAFE on 18 May 2007. She moved from Busby during April 2007. She was cross-examined by the Council's solicitor and stated that she had never received the letter from the Electoral Commission addressed to her found in the dumped waste, she did not recognise any of the other waste dumped, that her mail was being stolen for a long time, that rubbish had been stolen from the weekly garbage bin quite a few times while she was living at Galloway Street. The dumped rubbish was not hers and was not rubbish you would put in your weekly bin, she would put that sort of rubbish in a box trailer and take it to the tip when the trailer was full. She was asked if she took any precautions to prevent her rubbish being stolen. She replied it was convenient to keep it where it was and she did not see why she should have to change things all the time to suit others. She has not had any mail missing or rubbish stolen where she lives now. When she went to collect the dumped rubbish as required by the clean up notice she knew which pile to collect because of the photographs she was shown at the Council. When she got to the rubbish there was no mail that she could find. She was asked if she recorded that her mail was being stolen. She said that she spoke to the post lady and was told to go the police if she caught someone. The post lady also said to get a post office box but when she inquired she was told there were none available. She had no idea why anyone would take her rubbish and mail. 13 The Council submitted before the magistrate that the POEO Act had been amended in 1998 so that the onus is on an owner of waste to ensure that it is properly disposed of rather than just the person disposing of the waste. It was the Appellant's evidence that she was aware that her rubbish and mail was being stolen but she did not take any steps to prevent that from happening due to convenience. She could have taken steps to secure the bin at the rear of the property rather than leaving it at the front. 14 The magistrate found the offence proved beyond reasonable doubt as the Council had established ownership of the waste beyond reasonable doubt. He stated that it may well be that part of the waste was not the property of the defendant, but the Council is only required to have a reasonable suspicion. In relation to the defence available under s 143(3) he found no evidence that the defendant had exercised due diligence or taken reasonable precautions. He therefore found the offence proved. He discharged the defendant without recording a conviction. Finding 15 Section 143 of the POEO Act states that it is an offence to transport or cause or permit waste to be transported to a place that cannot be lawfully used for that waste by (a) the person who transports the waste and(b) the owner if not the person who did the transporting. Subsection (3) provides a defence for the owner of the waste if he/she did not transport the waste, the commission was due to causes over which he/she had no control and that he/she took reasonable precautions and exercised due diligence to prevent the commission of the offence. 16 The first issue to determine is whether it has been established by the Council that the dumped waste belonged in whole or part to the Appellant. The evidence that establishes beyond reasonable doubt that at least some of the rubbish belonged to the Appellant is the two letters addressed to her and her son found by the Mr Kearney, Council officer amongst the dumped rubbish. One letter was found in a plastic bag of household waste suggesting it is highly likely the letter and the waste were from the same location namely the house where the appellant was then living. The other letter was found in a plastic tub in the same pile of waste suggesting that also came from the Appellant's house. The Appellant's oral evidence before the local court that she did not recognise all the rubbish does not overcome the very clear evidence of the letters being found in some of that rubbish. The Council did not allege that the Appellant transported the dumped waste so that the defence in ss (3) becomes relevant. 17 The onus is on the Appellant under that subsection to prove on the balance of probabilities that she had no control over the commission of the offence and that she had taken reasonable precautions and exercised due diligence to prevent the commission of the offence. No evidence on this issue has been provided by the Appellant either before the local court or in this appeal before me. The evidence relevant (see end par 11 above) to this issue was obtained by the Council as found in the statement of Mr Elkhoury and in the cross-examination of the Appellant in the local court where she stated that she did not take any steps to prevent the theft of rubbish from her bin or mail box although this had been taking place over an 18 month period. The facts before me are that the letters addressed to 21 Galloway Street, Busby found in the dumped waste were dated January and March 2007, the Appellant moved from those premises during April 2007 and the letters were found at West Hoxton in May 2007. The letters were presumably stolen along with rubbish towards the end of the period the Appellant lived in Busby. Given that she bears the onus of establishing the defence available under s 143(3) and has not provided any evidence of taking precautions and exercising due diligence no defence to the offence has been established. 18 I consider there is no basis for disturbing the magistrate's determination of guilt so that the appeal against conviction is dismissed. I note that no conviction is recorded as provided by s 10(1) of the CSP Act. Matter no 60007 of 2008 19 Matter no 60007 of 2008 is the appeal in relation to the non-payment of the administrative fee for the clean up notice. The evidence before the local court is located in the statement of Mr Elkhoury (exhibit 3) that he issued a clean up notice no 201 on 14 June 2007 to the Appellant following the interview with her on the same day. The clean up notice was exhibit 6 before the local court. His statement says that he told the Appellant that there was an administration fee which could be waived if she applied for it to be. On 25 July 2007 he searched the Council's debtor records to see if the administration fee had been waived and it had not been. He telephoned the Appellant to remind her the fee was due on 26 July 2007 or otherwise a $500 fine will be issued. She stated that she would not be paying. Finding 20 The offence under s 94(4) is a strict liability offence. The Appellant could have applied for a waiver of the administration fee (s 94(3)) and did not do so. She did not give an explanation for why she did not apply when I asked her in Court. In the absence of any mitigating circumstance which I can take into account the offence has been proved beyond reasonable doubt. There is no basis for upholding the appeal against the conviction and the appeal in this matter is dismissed. It follows that the magistrate's decision stands. Costs of this appeal 21 The Council's solicitor is instructed to seek an order for costs in its favour if the appeals are unsuccessful, as they have been. The council has been brought to the appeal by the appellant and has incurred costs in doing so. The matter was set down previously for hearing of one day and vacated on that day due to the non-appearance of the Appellant because of ill health. Due to the history of the matter with numerous additional appearances being necessary the Council's costs are over $6,000 according to submissions from the bar table. The Appellant is on a carer's pension and has four children and very limited ability to pay any amount for costs. I note that she has been ordered to pay costs in the local court. It is appropriate that some costs of the Council ought be paid by the Appellant given that costs are compensatory (Latoudis v Casey (1990) 170 CLR 534) but I consider a limitation of costs is appropriate given the limited means of the Appellant. The terms of an order will be made following further discussion with the parties. Having had a brief discussion the order is that the Appellant must pay the Council's costs limited to $2,000 which order is not enforceable for two years. Orders 22 The Court makes the following orders: Matter no 60006 of 2008: 1. The appeal is dismissed. Matter 60007 of 2008: 1. The appeal is dismissed. Costs in both appeals 1. The Appellant must pay the Council's costs of both appeals limited to $2,000 which order is not enforceable for two years. 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.