Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited [2015] NSWLEC 139

Land and Environment Court New South Wales

Medium Neutral Citation: Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited [2015] NSWLEC 139 Hearing dates: 6 and 14 August 2015 Date of orders: 28 August 2015 Decision date: 28 August 2015 Jurisdiction: Class 5 Before: Moore AJ Decision: In Proceedings No 50317 of 2015, see orders at [158] In Proceedings No 50318 of 2015, see orders at [159] Catchwords: ENVIRONMENTAL OFFENCES – discharge of oil into State waters – prosecution of vessel's engineer – sentence – objective circumstances – failure by a vessel's engineer to conduct a fuel transfer in prescribed manner – spill of 8000L of diesel fuel – no actual but real risk of environmental harm – offence by engineer of more than low objective seriousness – subjective circumstances – assistance in the clean-up of the spill – co-operation with the prosecutor – contrition and remorse – no prior offences – fine of $81,000 ENVIRONMENTAL OFFENCES – discharge of oil into State waters – prosecution of vessel's operator – sentence – objective circumstances – failure by vessel's engineer to conduct a fuel transfer in prescribed manner – spill of 8000L of diesel fuel – no actual but real risk of environmental harm – measures taken to avoid harm to the environment – offence by vessel operator of low objective seriousness –subjective circumstances – existing preventative procedures – future additional preventative procedures – assistance in the clean-up of the spill – co-operation with the prosecutor – contrition and remorse – reimbursement of clean-up costs – no prior offences – fine of $600,000 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Fines Act 1996 Marine Pollution Act 1987 Marine Pollution Act 2012 Ports and Maritime Administration Act 1995 Ports and Maritime Administration Regulation 2012 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Orange City Council [1995] NSWLEC 103 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 Filipowski v Fratelli D'Amato S.r.l and Ors [2000] NSWLEC 50 Filipowski v Frey [2005] NSWLEC 661 Filipowski v Hemina Holdings S.A.; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 421 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH [2013] NSWLEC 210; Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217 Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210 Plath v Rawson [2009] NSWLEC 178; 170 LGERA 253 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 Veen v The Queen [No 2] (1988) 164 CLR 465 Click here to enter text. Category: Principal judgment Parties: Newcastle Port Corporation trading as Port Authority of New South Wales (Prosecutor) Graham John Dudgeon (Defendant in Matter 50317 of 2015) Svitzer Australia Pty Limited (Defendant in Matter 50318 of 2015) Representation: Counsel: Mr E Cox, barrister (Prosecutor) Mr G Nell SC with him Mr G Gee, barrister (Defendants)