Environment Protection Authority v Bartter Enterprises Pty Ltd

Charge and elements of the offence

1. The Defendant has been charged that on or about 29 June 2018 at the Premises it committed an offence against s 64(1) of the POEO Act, which provides that: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
2. The elements of the offence are that: 1. The Defendant must be the holder of a licence; and 2. Any person contravened a condition of the licence.
3. The Defendant admits that it is the holder of a licence, namely Environmental Protection Licence No. 1329. However, it denies that a condition of the EPL has been contravened. Further, the Defendant does not rely upon any of the statutory defences in s 64(2) of the POEO Act.
4. The parties were at one with the description of the offence as a "status offence": if a condition of an environmental protection license is contravened it matters not why and how it was contravened or by whom: Environment Protection Authority v Werris Creek Coal Pty Ltd; Environment Protection Authority v Holley [2009] NSWLEC 124 at [1].
5. The Prosecutor submitted that the offence was one of strict liability and, as such, permitted the defence of an "honest and reasonable mistake of fact": Proudman v Dayman (1941) 67 CLR 536 at 540 (Dixon J). The Defendant suggested that the offence was one more akin to absolute liability, thereby, precluding such a defence. The dispute as to the nature of the offence need not be determined in these proceedings as the Defendant has expressly stated that it does not rely on such a defence in these proceedings and, therefore, this dispute does not arise for determination. The determination of this matter does not turn on whether the charge be a strict or an absolute liability offence, as however it was characterised, there is no mental element required to be proven as an essential element of the offence.
6. The Prosecutor contends that the relevant condition of the EPL that has been contravened is condition O2.1(a). Condition O2.1 of the EPL provided: O2 Maintenance of plant and equipment O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity: a) must be maintained in a proper and efficient condition; and b) must be operated in a proper and efficient manner.
7. In the Dictionary to the POEO Act "plant" is defined as meaning: plant means any plant, equipment, apparatus, device, machine or mechanism, and includes any vessel, dredge, unit of rolling stock or crane, but does not include a motor vehicle.
8. The person said to have contravened the EPL was the Defendant's contractor, Gordon Bros, and the manner of the contravention is particularised in the Prosecutor's Amended Summons as: The Defendant's contractor (Gordon Brothers) failed to maintain the Defendant's ammonia refrigeration system and associated pipework installed at the Premises (Plant) in a proper and efficient condition, during the replacement of ceiling mounted fan-coil units serving the southern end of the top blast freezer, by opening the tagged ammonia liquid valve causing equal or less than 2.2 kilograms (estimated) of anhydrous ammonia to escape into the surrounding atmosphere. The Defendant's contractor failed to maintain the Plant in a proper and efficient condition by: Opening the tagged ammonia liquid valve while the bottom cover base plate on the Danfoss PM valve was removed. Not conducting a leak test using dry nitrogen. Not conducting an evacuation process to remove air in the refrigeration circuit and not using a gauge to measure the vacuum achieved prior to opening the tagged ammonia liquid valve.
9. The Defendant does not deny that: 1. Gordon Bros was its contractor; 2. The ammonia refrigeration system and associated pipework was plant installed or used in connection with the licensed activity; and 3. The factual events as pleaded occurred or that such events had the consequences as particularised.
10. The Defendant's sole contention is that, on a proper construction of condition O2.1(a) of the EPL, the events did not comprise a failure to maintain the ammonia refrigeration system and associated pipework in a proper and efficient condition and, therefore, the Prosecutor has failed to establish an essential element of the offence as charged.

Approach to construction

1. It was common ground that the EPL as a statutory instrument (s 3(1) of the Interpretation Act 1987) should be construed according to the ordinary principles of statutory construction: Environment Protection Authority v Grafil Pty Ltd (2019) 238 LGERA 147 at 257. Thereby, requiring the provisions of the EPL and the POEO Act are to be construed according to the text, context and purpose of the relevant provisions.

Prosecutor's submissions

1. The Prosecutor submitted that in condition O2.1(a) the word "maintain" was not a defined term and, therefore, should be given its ordinary and natural meaning as "to keep something up or preserve it in existence". Such meaning is determined by having regard to: 1. The text of the condition that uses the word as the transitive verb "maintain" expressed in the passive voice. It is not used as a term of art or science nor as a legal term; 2. References to dictionary definitions, such as the Macquarie Dictionary (online), where the relevant definition (having regard to the context of the EPL and the whole of the condition) would be:

• To preserve or provide for the preservation of (a building machine, road etc);
• To keep in due condition, operation or force; to keep unimpaired: to maintain order, maintain public highways. 1. The context of the EPL granted under the POEO Act where the legislative purpose is to ensure the protection of the environment from harm. This context indicates that an apposite sense to the word being to preserve something; 2. The purpose of the EPL, as identified in the statutory objects of the POEO Act, is to operate as a mechanism to implement the statutory purpose of the Act, in particular, the statutory object at s 3(d): (d) To reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, …

1. In addition, the Prosecutor relied on authority relating to similarly worded licence conditions: Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 at 41; Environment Protection Authority v Water Board (1993) 79 LGERA 103 at 117-118; Environmental Protection Authority v Sydney Water Corporation [1998] NSWLEC 144 at [16] and [69].
2. Based on a consideration of those authorities, and consistent with a proper application of it, it was submitted: 1. That the word "maintained" given its ordinary meaning means: to "preserve"; and 2. The words "efficient condition" take their meaning from the purpose of the licence and the statute under which it was made. Such meaning is to keep the item of plant in repair and a proper condition to that it may perform its design purpose.
3. Further, the Prosecutor submitted that there was nothing in a proper construction of condition O2.1 that indicated that "maintained" as referred to in subparagraph (a) was mutually exclusive from "operated" in subparagraph (b) of the condition. Given appropriate facts, there may in fact be overlap between the two concepts: Sherwood v The ANI Corporation Ltd [1988] NSWLEC 147 at p3.

Defendant's submissions

1. The Defendant submitted that the focus of the construction of the condition should be primarily upon its text. It also accepted that a construction of that text that is consistent with the language of the purpose of all of the provisions of the EPL is to be preferred. In this case, the text was clear and there was no ambiguity that required resolution.
2. Having regard to the text of the condition, the Defendant submitted that it was appropriate that the word "maintained" be construed in the context of the whole of the sentence, in particular, the reference to "condition". The use of the term "condition" conveys a meaning to the term "maintained" in that it is a reference to the state or physical condition of the plant. This is to be contrasted to the requirement of (b) that the plant be operated in a "manner". This term is a reference to the way in which the plant is being "operated". There is clear distinction between the two concepts - one being a physical state which is capable of being objectively assessed; and, the other is a functional, more dynamic consideration of the plant when functioning to achieve the end to which it was designed.
3. The Defendant contended that whilst the task of construction permits a consideration of the context of the statute under which the licence was issued, the Prosecutor's characterisation of that purpose was flawed in that the licensing provision did not have as its sole purpose to prevent pollution but rather an appropriate mechanism through which a balance could be struck between the protection of the environment and the carrying out of conduct that has the consequence of polluting the environment but, notwithstanding, is considered necessary and desirable and has an economic benefit.
4. Whilst a factual scenario may be formulated where the offending conduct was both a breach of the concept of it being maintained as well as a breach of the manner in which it was operated, this does not indicate that there is a statutory intention that there are not separate and distinct requirements for each part of the condition that would have to be met for such overlap to be available.
5. The relevant authorities dealing with similar licence conditions indicate that "maintained in a proper and efficient condition" means that the relevant plant must be in a condition permitting it to fulfil the function it is designed to serve: State Pollution Control Commission v Metropolitan Collieries Limited [1989] NSWLEC 225 at p13; Environment Protection Authority v Water Board at 118; Environment Protection Authority v Sydney Water Corporation at [69].

Findings on meaning of condition O2.1(a)

1. The text of the condition should be the starting point of any construction of its meaning. Where a term is not defined it is to be given its ordinary meaning, determined by the text and context. In this case, whilst the focus is upon the word "maintained" that word cannot be properly construed without reference to the whole of the condition, importantly, the balance of the phrase in which it is found. The pairing of the term "maintained" (the action) with the objective of "a proper and efficient condition" indicates the meaning of the term used. It is intended, by the text, to be an act (maintained) that produces a state of affairs (condition). That textual indication is consistent with the term "maintained" being a reference to the preservation of the state of "proper and efficient condition".
2. The condition, when read as a whole, reinforces the appropriateness of that construction. Condition O2.1 indicates that the provision of subparagraph (a) is different to that referred to in subparagraph (b). Subparagraph (a) directs attention to the plant being maintained in a …condition; whereas sub-paragraph (b) directs attention to the plant being operated in a …manner. That distinction in terms is identifying a difference in the meaning such that subparagraph (a) is looking to the state of the plant and the plant being preserved in that state; whereas subparagraph (b) is directed at the manner in which that plant is used and whether such use is appropriate to the purpose for which it was designed. The first is an assessment of what was the state the plant at the relevant date - and the second is whether the plant was being used to achieve its design purpose in a way that was appropriate for its design purpose at the relevant date.
3. Condition O2.1 requires both maintenance and operation to be proper and efficient, however, in this case the Defendant has only been charged with respect to the condition of the plant, that is, relating to how the plant was maintained as opposed to operated. That is why it is necessary in this case to only ask whether the contravention of condition O2.1 was as a result of the plant not being maintained in a proper and efficient manner.
4. The state in which the plant is to be maintained is also to be derived from the text and context of the legislative provision. As has been observed, the reference to proper and efficient condition must be read as not being at large but rather referring to the environmental protective functions of that plant and equipment: Genkem at 41. The fact that the condition, in the context of the EPL as a whole, is intended to control or limit the capacity of the plant and equipment to cause an unacceptable environmental impact indicates that it is appropriate to constrain the meaning of those words to that object, as opposed to the efficiency being measured by some ancillary desire or function of the user - for example, in this case, the plant achieving a desired temperature range within the Premises.
5. The reference to maintaining the plant in a certain condition must also be construed consistent with that context. That is, the plant must be preserved in a state that it is able to perform the function of environmental protection that it was designed to perform.
6. Adopting similar approaches to the construction of a phrase such as "a proper and efficient condition" in similar licence conditions past authority (for which there is no reason not to adopt) has also determined a similar meaning, namely, to keep something in existence in a state which enables it to serve the purpose for which it exists: Environment Protection Authority v Water Board at 118; and Environment Protection Authority v Sydney Water Corporation at [69] ; and State Pollution Control Commission v Metropolitan Collieries Limited at p13.
7. The Defendant's observation that the POEO Act, being the statutory context for the licensing regime, is one that permits economic activity as well as protecting the environment does not alter the construction of the condition as that dual function is fundamentally still protective. That is, whilst a licence under the POEO Act regime may permit some pollution, it sets the appropriate limits of that pollution and protects the environment from unacceptable impacts that would occur if the licence conditions were not met. The protective regime of the legislation may recognise that some pollution is acceptable in some circumstances, but the primary objective of the legislative regime is the protection of the environment from unacceptable impact from pollution. Therefore, there is no statutory warrant from the legislative regime that would indicate a different meaning to be given to either the term "maintained" as meaning preserve or "proper and efficient condition" as meaning something other than the performance capacity of the plant to provide the relevantly determined environmental protection as required by the licence.
8. For those reasons, the appropriate construction of the reference to the concept of the plant being "maintained" in condition O2.1(a) is a reference to the state (its physical state) of that plant, in that the plant is in a state that permits it, at the relevant time, to perform in the manner in which it was designed for the purpose it was designed, when considered in the context of its ability to manage impacts on the environment. That is, to the extent that the design of the plant had some capacity to protect the environment in the manner envisaged by the terms of the EPL it was to be in a state that permitted an achievement of that goal.
9. In order to determine whether there has been a contravention of condition O2.1(a) it is necessary to determine what is the relevant plant and what is the purpose the plant is intended to serve to protect the environment. Upon determining that purpose the question then arises as to whether the relevant plant was not maintained in a state that enabled it to serve that design purpose.

What is the function that the plant was designed to perform?

1. The parties characterise the plant and the purpose it was designed to serve in ways that are subtly different in important respects.

Prosecutor's submissions

1. The Prosecutor contends that the Southern Circuit is to be viewed as a whole and that the design purpose of that circuit is to contain ammonia so that it was not released to the atmosphere.
2. The Prosecutor submitted that by opening the ammonia supply valve whilst the PM suction valve was missing its Base Plate the Southern Circuit was not "maintained" in a proper and efficient condition as it did not have the physical integrity to contain the ammonia within the circuit. As a consequence, the Southern Circuit was not, at the relevant time, maintained (preserved) in a proper and efficient condition (a state capable of containing liquid ammonia without release).
3. The Prosecutor also submitted that the release occurred as a consequence of conduct that itself comprised maintenance of the plant by Gordon Bros within the meaning of the word in condition O2.1(a).
4. If, contrary to the Prosecutor's submission, the act of opening the valve is found to comprise the operation of the plant as referred to in condition O2.1(b), such a finding would not preclude a finding that by the same conduct Gordon Bros failed to maintain the circuit in a proper and efficient condition.

Defendant's submissions

1. If the Southern Circuit is viewed as a collection of individual elements, each of the elements performed the purpose that they were designed to serve. In this case, the ammonia supply valve that introduced ammonia into the Southern Circuit did not malfunction, as it released the ammonia into the circuit. The PM suction valve with the removed Base Plate permitted the release of the ammonia into the atmosphere, however, the venting of gases within the Southern Circuit during the carrying out of works was what that particular component was intended to achieve at the relevant time - it too had not malfunctioned but had performed its design purpose. The Defendant says that it was the action of Mr Hayes of turning the properly functioning ammonia supply valve that caused the escape of ammonia, not the state of the plant. To that extent, if any characterisation is to be placed on that event it is manner of operation rather than maintenance of the plant.
2. Inherent in the Defendant's submission is that the relevant plant is to be considered in its constituent parts. This is apparent from its written submissions at [22], [65]-[67], [107] (emphasis added): 22. The prosecutor made broad reference to the Southern Circuit being in a "condition" where ammonia was introduced, and it could not hold the ammonia. But the prosecutor cannot point to any item of plant which did not function correctly. The liquid ammonia valve performed its design function. The error was by the operator in prematurely opening that valve. This is an action. Not a condition of plant. The prosecutor conflates these. 65. The evidence does not establish that any item of plant or, if the Court prefers, any part of the collation of items of plant it prefers to compendiously refer to as "plant", was broken, blocked, or had malfunctioned or in any way did not fulfil its design function. 66. If the Court asks itself the question: what item or items of plant was in a condition that it was not capable of fulfilling its design function, the Court will be left without an answer. 107. The defendant has put the essence of its case both in opening and above (at [14] - [27]). The argument is simple, not elaborate and is consistent with the relevant decided cases. Little amplification is required. There are two important steps in the argument: • Step 1: Consistently with the decided cases, the Court would accept that an item of plant in order to be considered to be in a proper and efficient condition must be in a condition such that it is capable of fulfilling its design function. • Step 2: The Court properly must pose for itself the question: what item of plant or component/s of plant has the prosecutor established was not in a condition enabling it to fulfil its design function. The answer is that no item or component of plant falls into the category.
3. The requirement of the plant to be maintained in a proper and efficient condition does not relate to the net consequence of a course of conduct, it is intended to relate to: faults; breakages; malfunctioning; and other physical failures of the plant itself. It would make a nonsense of the condition that not fulfilling its design function could occur because it was an item of plant that was taken out of service to permit the works to be carried out safely. Such a contention is said to be consistent with what was observed by Talbot J in Environment Protection Authority v Sydney Water Corporation at [74] that: It would be curious if the defendant could be found to have failed to meet an obligation to maintain the plant while it was in the course of undertaking that very procedure. The method of operating the plant during maintenance might have to be modified according to the extent that the work might interfere with the efficient and proper manner of operation. However, that is distinct from maintaining any part of the plant, or even the whole of it, in an efficient condition. Again it is important to bear in mind the specific obligation which arises under Condition L4 in the present context.
4. The Defendant submitted that the Prosecutor had asked the wrong question by asking whether the work was maintenance work and whether that maintenance work was carried out in a proper and efficient manner. The condition requires the plant to be maintained in a proper and efficient condition not whether the work being carried out was maintenance or proper and efficient. The condition concerns the condition of the plant and not general activities of maintenance.
5. The work being carried out was not maintenance of existing plant but the supply and installation of new plant. The obligation imposed by the condition only arises on plant that has been installed at the Premises. Until the plant was commissioned it was not installed and, therefore, it is not maintenance of plant.
6. Whilst there may be some circumstances where there is overlap between a breach in the operation of the plant as referred to in condition O2.1(b) and maintenance in condition O2.1(a), such overlap does not permit a conflation of the two parts of the condition nor does it arise on the facts of this case. In this case, the valve that was opened was in good working order, therefore, the state of the plant was properly maintained. It was a decision of an operator to open the valve (that was otherwise functioning in the manner it was intended, namely, to release ammonia into the circuit) and, therefore, this was an act of operation rather than a defect in the state of the plant.
7. Further, the expert evidence of the refrigeration engineer, Mr Fryer (Exhibit M), does not assert that the relevant plant was not maintained in a proper and efficient manner and he accepts removal of Base Plate was appropriate in the circumstances.

Findings on purpose of plant

1. The Southern Circuit was an integrated system. It relied upon a series of valves and pipes to allow the function of refrigeration of the building whilst containing the refrigerant (ammonia) within that circuit. Each of the separate elements of the circuit must, therefore, be considered the relevant plant for the purposes of the present circumstances. To view the individual elements of that circuit, valve by valve and pipe by pipe, is inappropriate when the plant operates as a circuit and each element performs part only of the function for which the circuit was designed. This is not a case where a single isolated piece of plant is able to operate, in isolation, in order to achieve the design purpose. This clear design interdependence between the composite parts in this case has the consequence that the Southern Circuit as a whole must be considered as the relevant plant for the purposes of condition O2.1(a). To consider the plant as separate components would fail to recognise that the independent parts cannot achieve the design purpose of the plant as an individual element. Each component part has a role to play in achieving the design purpose and therefore must be treated as parts of a single integrated whole.
2. The Southern Circuit was designed to function, for the purposes of the EPL, as a containment system for the ammonia. It was designed to be capable of containing the ammonia within the circuit whether the circuit was in operation or had been taken off-line such that it was not operating. The evidence is uncontroversial that: prior to the work being undertaken by Gordon Bros the Southern Circuit performed this function; after the commencement of work and prior to the release of ammonia from the ammonia supply valve by Mr Hayes, the Southern Circuit also performed this function.
3. However, at the relevant time the Southern Circuit was in neither of these states: it was not in an enclosed state; nor was it off-line so as to preclude the ingress of ammonia into the circuit. At the relevant time the Southern Circuit was in the intermediate state of having ammonia introduced into the plant whilst the plant had no capacity to contain it. Whilst the introduction was facilitated by an appropriately functioning ammonia supply valve, operated prematurely in the process of works, at that time the plant was not maintained in a state where it could appropriately contain the ammonia and as such, that plant, being the Southern Circuit, was not maintained (preserved) at the relevant time to accept the introduction of ammonia into the circuit so as to prevent its release to the atmosphere.
4. The Defendant's contention that 20. It is true to say that, at the time of the incident, the PM Suction Valve was not able to perform its operating design function, because its base plate had been removed. However, the circumstance that the base plate had been removed cannot be said to constitute a failure to maintain the plant in a proper and efficient condition. That is because the requirement to maintain plant in a proper and efficient condition cannot sensibly apply when the plant has been taken out of service. 21. The base plate had been deliberately removed by Tony Mitchell of Sprint during the period the unit was out of service for the venting of any residual ammonia. It was fulfilling the function it was designed to fulfil while the unit was out of service. Moreover, the charge does not focus on the removal of the base plate, but, rather, on the opening of the ammonia supply valve while the base plate was removed and it is not alleged that Sprint or Mr Mitchell contravened the obligation to maintain the plant in a proper and efficient condition. Indeed, the prosecutor acknowledged this to be the case in address, and does not allege that the leaving off of the base plate was a failure to maintain in proper and efficient condition. focusses on the reason or manner of the contravention rather than whether the contravention of condition O2.1(a) did in fact occur. As noted above, it is true to say that whilst the Southern Circuit was off-line the removal of the Base Plate could not be a contravention. This is so because the ammonia was being contained within the circuit at the point of the closed ammonia supply valve and, therefore, was able to perform the design function of containing ammonia. That state was achieving the design function. However, with the ammonia supply valve open the lack of a Base Plate on the PM suction valve had the consequence that the Southern Circuit was not able to perform its design function. The Defendant's distinction in its submissions at [20] (recited above) that the PM suction valve was unable to perform its "operating" design function is importing into the words of the condition a limitation that is not apparent from the text or context. The Southern Circuit, properly and efficiently maintained, must at all times perform its design function of containing ammonia. Whilst this design function may be achieved through different means when the plant is operating or when it is off-line, the design function must still be met in order that the terms of condition O2.1(a) not be contravened.
5. The evidence also discloses that the valve was "tagged-out", in that it had been designated by a tag tied to it that it should not be used. The process of tagging-out the valve, however, did not alter the physical state of the plant or its capacity to perform any relevant function. It was a direction to a user but not a physical barrier to the turning of the valve.
6. The action being conducted by Mr Hayes was not an action independent of the plant - but it was an action that altered the state of the plant at the relevant time. The actions were not authorised and were contrary to the SWMS that prohibited the opening of the valve until such time as the Southern Circuit had been tested to ensure that it had been reinstated to the enclosed state. This did not occur, and the plant remained unable to contain ammonia. It was the state of the plant that permitted the unauthorised action to have a consequence.
7. The fact that the release of the ammonia occurred during work that could be characterised as "maintenance" of the plant is not the relevant enquiry. The condition does not relate to the characterisation of the action of a person but the state of the plant. Therefore, it is not necessary to determine whether Gordon Bros was carrying out work that could be described as maintenance work as such a characterisation does not relate to whether the contravention of the condition occurred.
8. It is also not necessary to determine whether the release of the ammonia could be properly characterised as a breach of condition O2.1(b) in that it was caused by the failure to operate the plant in a proper and efficient condition, as that is not the offence with which the Defendant has been charged. The only relevant question is whether the plant was not maintained in a proper and efficient condition, and to answer that question the cause of the emission does not cease to be properly characterised as maintenance merely because it could also be characterised as operation. Both parties agreed that there may be factual circumstances where a contravention could be caused by an action that was both maintenance and operation. If the cause was not a failure to maintain the plant in a proper and efficient condition, for this offence, it matters not how the cause of the contravention could be otherwise characterised. The plant is either not maintained in a proper and efficient condition or it is.
9. Further, if it was necessary to determine whether the introduction of the ammonia to the Southern Circuit was "operating" the plant, I would find that it was not. As outlined above, the design purpose of the plant, for the purpose of the condition, was to contain ammonia. The release in ammonia did not occur whilst the plant was in operation, that is, it was not functioning to provide refrigeration whilst containing ammonia. The turning of the valve was not so that the plant would operate (perform its intended function) it was to inappropriately test the Southern Circuit. Further, even if the turning of the ammonia supply valve was an action in the operation of the plant in breach of condition O2.1(b) the release of the ammonia was from the state of the Southern Circuit and would therefore also be a breach of condition O2.1(a).
10. The submission that condition O2.1(a) could not operate on the plant at the relevant date as it was yet to be commissioned after installation is also an enquiry that does not alter the outcome of this case. Whilst the Southern Circuit was offline and preventing the escape of ammonia, its state was meeting the condition. The ammonia supply valve and the Base Plate were not a part of the circuit being replaced, therefore they were installed and even on the Defendant's case this proposition cannot arise on the facts of this case.

Does the offending conduct comprise a failure of the plant to be "maintained in a proper and efficient condition"?

1. The question then arises whether the release of the ammonia to the atmosphere on the relevant date was a consequence of a failure to comply with the provisions of condition O2.1(a), in that it resulted from a failure to maintain the plant, being the Southern Circuit refrigeration plant, in a proper and efficient condition.
2. For the reasons outlined above, condition O2.1(a) required the Southern Circuit to be in a physical state that it was capable of containing ammonia within that circuit without release to the atmosphere. It was not as at the time ammonia was introduced into the Southern Circuit it was not in a physical state that allowed that ammonia to be contained within the Southern Circuit. Therefore, at the relevant time, the relevant plant comprised by the Southern Circuit, was not in a state that enabled it to achieve its design purpose. The introduction of the ammonia into the Southern Circuit was carried out by a person, namely, Gordon Bros employee. As a consequence, I find that there was a breach of condition O2.1(a) of the EPL.

Conclusions and Orders

1. For the reasons outlined above, the Court finds that the offence has been proven beyond reasonable doubt, that contrary to the provisions of s 64 of the POEO Act: 1. The Defendant was the holder of an EPL; 2. A person, being the Defendant's contractor Gordon Bros, did fail to maintain the plant comprising the Southern Circuit in a proper and efficient condition in that: 1. It introduced ammonia into the Southern Circuit when that circuit was not capable of containing ammonia within the circuit; and 2. The ammonia was released from the Southern Circuit into the atmosphere.
2. Accordingly, the Court Orders: 1. The Defendant is found guilty of the charge in the Amended Summons filed 12 March 2020; 2. The matter is listed for mention before Duggan J at 9:15am on 28 August 2020 for directions and (if appropriate) to obtain a date for a hearing on sentence; and 3. The exhibits are returned.

Amendments 21 September 2020 - Typographical errors - [57] third line replace "manner" with "condition"; [73] at (2) replace "manner" with "condition". 21 May 2021 - Replace third sentence in [10] with "He placed out of service tags, inter alia, on the Ammonia liquid supply valves on the Northern and Southern Circuits, which remained in place up to and during the 29 June 2018 incident". 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. Decision last updated: 21 May 2021