Environment Protection Authority v Multiplex Constructions Pty Ltd

The defendant's knowledge of the pipeline and its contents

In the early 1990s - precisely when is not established by the evidence - the Domain bunkers were decommissioned. In early 1997 - again, precisely when is not established by the evidence - the Department of Defence employed TWCA Pty Ltd to carry out the cleaning and remediation of the Domain bunkers. It seems that TWCA Pty Ltd engaged Beralon Pty Ltd as its contractor to carry out the actual work of remediation which, I understand, included the use of high pressure water jets for cleaning out all oil and oil residues. It seems that Beralon Pty Ltd then subcontracted the work to another firm, Gardner Perrott.

In May 1997 Gardner Perrott commenced the work on the Domain bunkers. Mr K Welsh and Mr N Nordstrom were employed by Gardner Perrott. Mr Welsh gave evidence. He recalled seeing work being undertaken across the road (at Wharf 11) and seeing the name "Multiplex" on the fence, on a building and on hard hats and flak jackets worn by workmen on site. On 15 July 1997 Mr Welsh saw that an excavator, which had been digging in Lincoln Crescent, had apparently fractured a large cast iron pipeline under the road. The pipeline appeared to contain bunker oil. The pipeline appeared to come from the bunkers and went in the direction of Cowper Wharf Road. Mr Welsh saw Multiplex employees attend to the broken pipe.

Mr Nordstrom also saw the broken pipe. He thought that the pipe contained a residue of bunker oil and it appeared to have been flushed with kerosene or a cutting stock, which he describes as a derivative of diesel and used to break down heavy oils such as bunker oil. Mr Nordstorm also saw repairs made to the broken pipe.

The defendant called evidence from Mr S Brubaker, a self-employed excavator operator, who had been excavating for sewer trenches in Lincoln Crescent in May, June and July 1997. In the course of doing so Mr Brubaker exposed what he described as a concrete encased steel pipeline, but which was not broken. The presence of the pipeline was reported to the defendant's employees " because they were in charge of the site ". One of those employees was Mr Brett Levy. There is other evidence that Mr Levy was the defendant's foreman on the site. A piece of the concrete encasement to the pipe had, according to Mr Brubaker, flaked off the pipe. Because of the proximity of the pipeline to the location of the sewer trench, the excavation work had to be continued by hand.

Mr Levy's diary was tendered in evidence. It contains entries of who was employed on the project each day and notes of what was done each day. There is no reference in the diary to any broken pipe in Lincoln Crescent.

The prosecutor submits that Mr Brubaker, or some other subcontractor of the defendant, broke the oil pipeline in Lincoln Crescent, being the oil pipeline which runs from the Domain bunkers to the Garden Island fleet base. The prosecutor further submits that the defendant became aware of the break and of the fact that the pipeline contained oil.

The prosecutor also tendered a plan which was in the defendant's site office at Wharf 11 and which shows a number of services in the vicinity, including an " existing underground navy fuel (oil) pipeline " from the pumping station in Lincoln Crescent, along Lincoln Crescent and Cowper Wharf Road to the fleet base, with a branch pipeline along the Finger Wharf. The prosecutor submits that the defendant was thus aware of both the presence of the pipeline and the fact that it contained oil.

I do not have to resolve the disputed evidence between Mr Welsh and Mr Nordstrom, on the one hand, and Mr Brubaker and the evidence contained in Mr Levy's diary, on the other hand. There is other evidence, which is undisputed and which establishes that the defendant was aware of the existence of the pipeline and of the fact that it contained oil.

It seems that possibly as a result of the discovery of the pipeline in Lincoln Crescent the defendant made appropriate inquiries, which resulted in a facsimile sent by TWCA Pty Ltd to the defendant on 28 May 1997. The facsimile reads as follows: Attached is a diagram showing the extent of the current pipeline. It should be assumed that there is still furnace fuel oil remaining in the pipeline.

The position of the Commonwealth regarding the existing oil supply pipeline is as follows:

They have no objection to Multiplex capping off segments of the pipeline under its jurisdiction so long as the following criteria are met: · Multiplex will take full responsibility for any sections to be removed, their content and associated capping, both during and after removal.

· All statutory and EPA requirements relating to any works on the pipeline are to be strictly adhered to.

· Multiplex is to ensure that all caps fitted to the pipeline are fit for purpose and are of a design approved for use in the appropriate petrochemical installations.

· Multiplex is to keep the Commonwealth's agent (GHD/TWCA Pty Ltd) advised of all works relating to the pipeline at all times. In the particular case of the interference with your stormwater line in Lincoln Crescent, the Commonwealth would prefer that the pipeline be removed back to the boundary at the pump room of the Oil tanks site and capped at that location.

Please advised ( sic) of your intentions prior to commencing work on the pipeline.

The diagram referred to in the facsimile shows the pipeline, described as " existing underground navy fuel (oil) pipeline ", extending from the pumping station adjacent to the Domain bunkers along Lincoln Crescent and Cowper Wharf Road to the fleet base and also shows the branch line along the Finger Wharf.

Moreover, there is undisputed evidence that it was industry practice to treat all pipelines as " charged " or " live " unless the contrary was established; that is to say, to treat all pipelines as full. Evidence to this effect was given by Mr D Blair (Moltoni's operations manager), Mr S P King (general manager of Moltoni) and Mr C Manihera (Moltoni's excavator operator). No evidence was led to the contrary, so that all involved parties, namely Moltoni, McConnell Dowell and the defendant must be taken to have been aware of the industry practice. The statement in the facsimile, " it should be assumed that there is still furnace fuel oil remaining in the pipeline ", is itself no more than a statement of the industry practice.

Mr C C Alsop, who is the General Manager Port Services of Sydney Ports Corporation went to the Finger Wharf on being informed of the spill. He described in his evidence the steps taken to contain the spill and to recover the oil from the surface of the water. He estimated that approximately 48 tonnes of oil were recovered from Woolloomooloo Bay and up to about 12 tonnes of the spill had either evaporated or was dispersed. Mr Alsop conceded, however, that the estimation of the amount of oil in an oil spill is an inexact art and in this case the estimate could be plus or minus 50%, that is to say, it could have been as little as 30 tonnes or it could have been as much as 90 tonnes.

Dr I D Doig, an engineer experienced in the engineering of piping systems, calculated the volume of the pipes that fell into the water under the Finger Wharf on 25 February 1998 and the volume of pipes under the wharf which were undisturbed. The total volume of piping of both that which fell and that which remained but which could drain into the break in the piping was 41.370 cubic metres. Based on an assumption that the pipes had been completely filled with oil having the density of Shell marine fuel oil, this equated to a mass of 38.432 tonnes.

Following the spill the undisturbed pipes were purged of oil. Some estimate was made of the quantity of oil which was removed from those pipes still attached to the wharf, but these estimates are necessarily inaccurate since the water used to flush out the pipes was also removed together with the oil, resulting in the removal of oily water which had an average of about 8% by volume of oil. The best estimate seems to be that about 2400 litres of oil was removed in this manner.

I therefore find that, having regard to the concession made by Mr Alsop and the evidence in paragraph 122 and 123 above, the probable amount of oil which spilled into the bay was in the vicinity of about 40,000 litres.

Samples of the oil residue remaining in the pipes after the spill and of the oil slick were analysed by a chemist, Mr D K M Ho, who found that there was a 91-99% certainty of a match in one pair of samples, an inconclusive result with another pair of samples and a non-match with yet another pair of samples. Mr Ho also found, however, the existence of another oil, namely diesel, as well as fuel oil, which is consistent with an attempt at some time in the past to flush the pipeline with diesel.

Evidence allegedly demonstrating control by the defendant

Mr A Hawkins , an environmental protection officer employed by the prosecutor, went to the Finger Wharf on Wednesday, 25 February 1998 after the oil spill had occurred and met two employees of the defendant, Mr A Scionti and Mr R Fadel, (There is other evidence that Mr Scionti was the defendant's construction manager, having overall responsibility for the Finger Wharf project as well as for other projects; and that Mr Fadel was the defendant's site manager, responsible for the day-to-day operations on the Finger Wharf site and also responsible for industrial relations and occupational health and safety.) Mr Hawkins was informed that there had been an oil spill, that Sydney Ports was on the site and " they were containing the spill ". It is not clear to me whether the reference by Mr Hawkins to " they " is a reference to Sydney Ports Authority or to the defendant. Having regard to the context I infer that it is a reference to the Sydney Ports Authority.

Mr Hawkins returned to the Finger Wharf on Friday 27 February 1998 with Mr G Harper, an environment protection officer employed by the prosecutor. Mr Hawkins took some photographs. They met Mr A Stewart. (Other evidence establishes that Mr Stewart was the defendant's project manager, responsible for the construction, programming, subcontracting and procurement for both Wharf 11 and the Finger Wharf.) Mr Stewart showed Mr Hawkins and Mr Harper where the pipe had been broken. Further photographs were taken.

On Saturday 28 February 1998 Mr Hawkins again went to the Finger Wharf and took further photographs. He then attended a meeting on the Finger Wharf at which there were representatives of Sydney Ports Authority including Mr C Alsop, representatives of the defendant including Mr Stewart, representatives from McConnell Dowell and a representative from Gardner Perrott. The latter had been brought onto the site that morning to purge the remaining oil from the pipeline on the Finger Wharf.

On Monday 2 March 1998 Mr Hawkins attended a further meeting at the Finger Wharf at which those present were Mr Pullman and Mr Alsop of Sydney Ports Authority, Mr Stewart and Mr Fadel of the defendant, Mr S Sprattley of Gardner Perrot, a representative of McConnell Dowell, a representative or representatives of Moltoni and a representative of ABB Engineering Construction Pty Ltd. The latter had been called in to prepare a plan or work method for removing the pipes from the water and from underneath the wharf. Those at the meeting discussed three objectives: first , how to remove oil from the remaining portion of the pipeline under the Finger Wharf; second , how to remove the pipeline itself; and third , how to recover the pipes which were in the water. Mr Hawkins told the meeting that before any pipes were to be removed there had to be a plan in writing for the removal of both the oil and the pipes, which should be reviewed by the prosecutor for comment. Mr Hawkins said that if Mr Stewart obtained the plan for removing the pipes he could send it to the Environment Protection Authority for review.

On Tuesday 3 March 1998 Mr Hawkins, accompanied by Mr W Hicks, who was the manager of the prosecutor's Sydney Region Catchment Section, attended a meeting at the Finger Wharf. Most of those who had been at the meeting on the previous day were present. Mr Hicks told Mr Stewart that the work of removing the remaining pipes from the sea bed and from under the wharf, which pipes contained oil, raised a potential for further pollution and they may need to apply for a licence. However, following discussions within the Environment Protection Authority about the matter, Mr Hawkins subsequently told Mr Stewart that there was no need to apply for a licence.

On Friday 6 March 1998 Mr Hawkins attended a meeting at the Finger Wharf at which Mr Stewart was present, amongst others. Mr Hawkins thinks that there was discussion about the removal of the pipes under the Finger Wharf and that there was discussion about a draft work method statement that had been prepared. On the same day Mr Stewart sent a facsimile to Mr Hawkins on the defendant's letterhead together with a two page method statement or work procedure for stage 1 headed " ABB ". The prosecutor responded by facsimile on the same day setting out in its facsimile to the defendant its response to ABB's work procedure.

On 7 March 1998 Mr Stewart, again on the defendant's cover sheet, sent a facsimile to Mr Hawkins being three pages of work procedure for stage 2, also headed " ABB ".

On 9 March 1998 the prosecutor sent a facsimile to the defendant stating that it agreed in principle with the procedures outlined in the ABB work procedure document. Also on 9 March 1998 Mr Stewart sent a facsimile on the defendant's letterhead to the prosecutor, to the Office of Marine Administration, to Wharf Developments Pty Ltd and to the defendant's head office which included the work procedure for " Stage 2: pipe work section B " for the draining, cleaning and removal of pipe work, section B, from under the eastern side of the Finger Wharf.

On 10 March 1998 Mr Stewart sent a facsimile on the defendant's letterhead to the prosecutor, to the Office of Marine Administration and to Wharf Developments Pty Ltd which states: " Please find following for your review and approval ABB's Stage 2 method statement for pipe sections C, D, E and F ". The facsimile included both text and diagrams of the work procedure, headed " ABB ". On the same day Mr Hawkins sent a facsimile to the defendant setting out the prosecutor's response to ABB's work procedures for stage 2, sections B, C, D, E and F.

On 11 March 1998 Mr Harper received by facsimile from Sydney Ports Corporation a copy of its incident report dated 25 February 1998. The incident report shows that the incident was reported to the Corporation by Mr C Beveridge and Mr D Jones " working for company McDonnell/Dowell [sic]".

137 On 12 March 1998 Mr Stewart sent a facsimile on the defendant's letterhead to the prosecutor, to the Office of Marine Administration, to Wharf Developments Pty Ltd and to the defendant's head office, which facsimile included ABB's work procedure for stage 2 pipe work, sections G and H. On 13 March 1998 the prosecutor sent by facsimile its reply in which it stated that it agreed in principle with the procedures outlined in the document.

138. On 19 March 1998 Mr Hawkins, Mr Harper and Mr C McElwain (all of the prosecutor) met Mr Stewart at the Finger Wharf and took further photographs. Mr Hawkins asked Mr Stewart for and was given a map showing the location of the pipes under the Finger Wharf. The map was tendered by the prosecutor for the purpose of showing the location of the pipes as known to the defendant after the event.

139 On 26 June 1998 Mr Hawkins and another officer of the prosecutor, Mr K Hardy, went to the Finger Wharf and met Mr Beveridge of McConnell Dowell, who gave them a piece of pipe that had been retrieved. The piece of pipe was about 600 mm in length and had a diameter of 300mm.

In cross examination Mr Hawkins produced his notes of the meeting of 2 March 1998. The notes set out the three-aims or objectives which I have described in paragraph 130 above. The notes then contain the following, attributed to Mr Beveridge: " If you rig it and lift it, we'll spill oil ". The word " you " has been crossed out and the word " we'll " substituted. The note also states: " Overall co-ordination: McConnell Dowell ". It is suggested by the defendant that these notations imply that McConnell Dowell was the overall co-ordinator of at least the cleanup and recovery. It is not clear to me, however, whether an inference may also be made from this that McConnell Dowell was also the co-ordinator of the whole of the substructure works.

In his notes of an interview with Mr Manihera on 1 October 1998, Mr Hawkins recorded Mr Manihera as stating: " We knew pipes were there from the start but McConnell Dowell didn't want to worry about them until we got to them ". Mr Manihera is also recorded as having said, " I didn't take direction from MCD ", meaning McConnell Dowell, and that Mr D Blair was his boss.

I have set out in some detail the evidence of Mr Hawkins because the prosecutor relies upon it (and upon other post-spill conduct on the part of the defendant) as showing that the defendant exercised control over what was happening on the Finger Wharf.

The defendant, however, asserts that the defendant's actions are equally explicable as those of a " good citizen " anxious to effect a cleanup after the event. It also seems to me that the defendant's actions are explicable as those of a contractor anxious to avoid any further interruption or delay to its programme of works. The defendant also asserts that the evidence of Mr Hawkins described in paragraph 140 and 141 above is consistent with the fact of McConnell Dowell being in control of the works and that the defendant's actions in forwarding the work method statements prepared by ABB Engineering to the prosecutor were done by it only at the prosecutor's request.

I make the observation at this stage that I am not satisfied on this evidence that the prosecutor has established beyond a reasonable doubt, or at all, that the defendant was relevantly in control of the work on the sub-structure either before or after the event.

Mr G J Harper , who is employed by the prosecutor as an environment protection officer, went to the Finger Wharf on Friday 27 February 1998 with Mr Scanes and Mr Scott, both of whom are employed by the prosecutor as environmental scientists. They met Mr Stewart, who took them to the section of the wharf where the pipeline had been broken. Mr Harper asked Mr Stewart what had happened. According to Mr Harper, " he said that he understood that some subcontractors to Multiplex had been working on one of the piers when the spill occurred. That seems to be all he knew at that point " . Also according to Mr Harper, Mr Stewart " said that the navy had led him to believe or Multiplex to believe that the pipe was clean and that the tanks around the Botanical Gardens had also been cleaned ". In cross-examination, however, Mr Harper agreed that it was possible that Mr Stewart said that it was " his understanding that the navy had said the pipes had been drained with residual oil remaining therein and the tanks at the Botanical Gardens had been cleaned out ".

Mr Harper took some samples of the oil from the water and took some photographs. He said, " We arranged with Mr Stewart that if any work was done on removing the pipes or any work was done on the pipes over the weekend, that he would contact the EPA's pollution line so that it could be arranged for Andy Hawkins to go out over the weekend and obtain a sample of oil from the pipe network ".

On Friday 13 March 1998 Mr Harper went to the Finger Wharf and had a conversation with Mr Stewart. Mr Harper said in his evidence: " Mr Stewart indicated that Multiplex had written to McConnell Dowell suggesting that McConnell Dowell were responsible for the mishap that had occurred ". On the same day Mr Harper took further photographs and samples of the oil.

On 24 March 1998 Mr Harper received an eight page facsimile from Mr Stewart on the defendant's letterhead. The facsimile contained two pages of a work method statement for the removal of oil from the remaining pipe under the Finger Wharf and the subsequent removal of the pipes when drained of oil. That facsimile cover sheet shows that it was also sent to the Office of Marine Administration, to Wharf Developments Pty Ltd and to the defendant's head office and states that it is forwarded " for your review and approval ". The facsimile includes a hazard identification schedule on a McConnell Dowell letterhead which lists each job step, the potential hazard and the means to be undertaken in relation to each job step. This suggests that McConnell Dowell had identified the potential hazard relating to each job step and was to do the actual work. On 27 March 1998 Mr Harper telephoned Mr Stewart and discussed with him some of the details of the work method statement.

In cross-examination Mr Harper agreed that the defendant's site office was not at the Finger Wharf but was at the end of Lincoln Crescent, near Wharf 11. Mr Harper also agrees that in his conversation with Mr Stewart on 27 March 1998 he understood that the work method statement had been prepared by and would be carried out by McConnell Dowell. A little later in his cross-examination in relation to that conversation the following exchange took place: Q: And he told you in that conversation that the work statement, the method statement, for the removal of bunker oil, pipeline and contents had been prepared by and the work would be conducted by McConnell-Dowell? A: Yes

Q: And you accepted at face value, didn't you? A: Yes.

Q: And you saw nothing from your observations that contradicted that statement? A: No.

Mr M Callaghan , an environmental protection officer employed by the prosecutor, went to the Finger Wharf with Mr Hawkins and Mr McElwain on 9 November 1998, more than eight months after the event. They met Mr Stewart at the defendant's site office, which was then located at the south western corner of the Finger Wharf near Cowper Wharf Road and they then inspected the wharf.

On 13 November 1998 Mr Callaghan conducted a record of interview with Mr Beveridge, the project manager of McConnell Dowell. Mr Callaghan said in his evidence that had he been conducting the investigation of this case " from day one " he would have interviewed or obtained statements from a large number of people involved with the project and with the clean up. Mr Callaghan also gave the following evidence: Mr Lloyd: Q: If McConnell-Dowell was the contractor and Moltoni was the subcontractor employing the workers that actually broke the pipe in performing their duties, you would have tried to speak to all the McConnell-Dowell employees as to their supervision, if I can use that expression, of Moltoni and the way Moltoni did its work? A: Not necessarily speak to all the McConnell-Dowell employees, but speak to those who were in control, had some control.

Q: I suppose a person that would have been useful to have spoken to if there was such a person would have been the demolition foreman of McConnell-Dowell? A: Yes.

Q: Were any statements to your knowledge obtained from Ian Smith, Tony White, Rob East, Andrew Andreou, Neil Jones David Hudson, Dion Jones, John Miow, Russell Faulkner, Michael Petracca, all of - and Ian Stewart, all of McConnell-Dowell? A: Not by me they weren't.

Mr Lloyd: If any statements have been taken from those people, I call for them.

Mr Lloyd: I'll rephrase it, your Honour. Q: Mr Callaghan, is it fair to say that so far as oral evidence that the prosecutor seeks to put before this court in the prosecution of my client, from McConnell-Dowell, as I understand the prosecutor's case, the only oral evidence appears to be some tape recordings of a record of interview that you had with Mr Beveridge? A: I'm not aware of any other evidence, but that's what I obtained, yes.

Q: And you weren't asked to interview anybody else from McConnell-Dowell to take a witness statement or a record of interview? A: I may have been.

Q: But you can't recall now? A: I can't recall who they were. If there were more - probably more than I was actually asked to get through, one reason or another I did.

Mr Callaghan had on 23 December 1998 taken a photocopy of one page of Mr Beveridge's diary, which was tendered in evidence. The document is in handwriting which is difficult to read. It is dated 6 November 1997, that is to say, before the spill. It is headed " Demolition Check list - Moltoni ". Amongst other items the document contains the following statements: " Supply all method statements, risk analysis, permits " and " All disposal to EPA standards ... ". The last item in the document is: " Remove and dispose of CI pipelines either side ". At the foot of the page there is written a sum, " $860,000 ".

Mr Callaghan had also obtained a facsimile from Sydney One Call Service on 8 December 1998 in the course of his investigation in order to see if anyone had made inquiries of that Service as to the presence of any services around the Finger Wharf site or leading to it. The facsimile from Sydney One Call Service states: " Please find a copy of inquiry No 974600293 processed on Friday 14 November 1997. The inquiry was issued in the name of Andrew Andreou of McConnell Dowell ....".

I have previously described some of the evidence of Mr Moltoni (in paragraphs 80-89 above). Mr Moltoni also said: During the course of the work, there were site meetings from time to time. These were not held on a regular basis. We received instructions from day to day or for up to several days to a week. Most of these directions were oral and came from McConnell Dowell supervisors.

In cross-examination Mr Moltoni conceded that he did not receive any instructions from the defendant relating to the works. The instructions came from McConnell Dowell. Moreover, when tendering for works, all his conversations were with Mr Beveridge. Mr Moltoni also said that Moltoni was paid by McConnell Dowell after Moltoni presented an invoice for the completed work to that time.

Mr Moltoni was aware of the existence of the pipeline when tendering for the job. He had seen the plan at the defendant's site office showing the location of the pipeline. In tendering for the job to McConnell Dowell he had submitted with the tender the Moltoni Group Profile which shows ( inter alia ) that Moltoni was a significant company with over 30 permanent employees and a turnover of over $8 million per annum, that it had a reputation for specialist and high risk demolition projects and that it has successfully completed major demolition projects including wharf demolition for the Fremantle Port Authority. Mr Moltoni agreed that he was satisfied in his own mind that in doing this job it conformed to the relevant Australian Standard. He also said that as far as demolition contractors in Australia are concerned, there are probably three or four that operate Australia-wide and Moltoni was in that group.

Mr Moltoni also gave the following evidence relating the inclusion of the pipeline in the tender: Q: When you first tendered for the job you were not told that the job involved the demolition of the oil pipeline under the wharf. This is back in July, August, September? A: No. Specifically the pipelines, any of the pipelines, were excluded from our scope.

Q: Then you said in your affidavit you had a conversation with Mr Beveridge on, I think, 5 or 6 November when you were asked to include that work? A: Mmm.

Q: By that stage you had already agreed a contract price, hadn't you? A: We'd narrowed down a contract price, yes.

Q: What was the price you first quoted? A: 875.

Q: So prior to being told you were doing this, it had gone down to 860? A: That's right.

Q: And when he asked you to include that other work - that is, the removal of the wharf oil pipeline, the pipeline underneath the wharf - did you have any discussion with him about price for the additional work? A: Yes, we did. He indicated that if we wanted the works we were to include the pipelines and the pipelines under the deck as part of our cost.

Q: That is, no extra price? A: No extra price.

Q: 'If you want the job, you have got to do that also'. A: That's right.

Before commencement of the work Mr Moltoni went personally on several occasions to see Mr R Rech of the WorkCover Authority of New South Wales. He did so firstly to touch base with the regulatory authority and secondly to run past him what he proposed to do.

In relation to the pipeline Mr Moltoni gave the following evidence: Q: I understand you at no time checked with Multiplex as to the status of any oil in the pipeline because it was inappropriate for you to do so, given that your contract was with McConnell-Dowell? A: That's right.

Mr Moltoni also said, however, that the defendant had safety officers who would from time to time ask Moltoni to keep the site clean; and that there were from time to time site occupational and health safety meetings at which representatives of the defendant were present, as well as representatives of McConnell-Dowell and any other sub-contractor who was on the site.

Mr D Blair was Moltoni's supervisor at the Finger Wharf. Part of his duties was to supervise Moltoni's workers. Mr Blair's evidence was that Moltoni's workers, including himself, got their day-to-day instructions from Mr John Miow, who he understood to be the supervisor of demolition with McConnell Dowell.

Soon after the pipeline was broken on 25 February 1998, a person who Mr Blair thought was from McConnell Dowell tried to close a valve which was on the main pipeline about half way along the wharf. Mr Blair subsequently, after giving it more thought, agreed that the person who turned the valve off was Russell Faulkner of McConnell Dowell. After a short time a group of people managed to close the valve using a monkey wrench. Over the following days Moltoni workers were involved in attaching a wire rope and bulldog clamp to the pipes that had partially fallen into the water. This was done, according to Mr Blair, to make the site safer because if the holding brackets failed then the wire rope would stop the pipes from falling further.

Mr Blair stated that he was never told that the main oil pipeline or any of the other pipes under the wharf might have been full or partly full of oil. If he had been so told he would not have allowed the Moltoni workers to continue to work near the pipes until they had been drained and removed because of the risk of damaging them. However, Mr Blair also said that he knew that it was industry practice in demolition work to treat all pipes as live. Mr Blair also agreed that the pipeline was not all on the same level and that it had hollows and elbows in it, in which one could always expect to find pools of oil or residual oil even if the pipeline was largely empty.

The pipeline had been exposed before the spill whilst working at the northern end of the wharf. The fact that the pipeline had been exposed was reported by Mr Blair to an employee of McConnell Dowell named Michael, but Moltoni continued to work in the vicinity of the pipes. Mr Blair subsequently identified Michael as being Michael Petracca. Mr Blair had, before the spill, a conversation with Mr Beveridge of McConnell Dowell. According to Mr Blair: " He just basically said the pipeline was empty ". There is no evidence, however, that anyone physically checked the pipeline to see whether it was either empty or charged. In the absence of any such checking I am inclined to the view that the industry practice ought to have been observed. There is no evidence, expert or otherwise, to suggest that under the circumstances the industry practice ought not to have been observed.

As to the question of the involvement of the defendant, Mr Blair gave the following evidence: Q: Personnel from Multiplex did not give you any instructions or directions in relation to what work you were to do or how you went about that work, did they? A: No.

Q: That is, you are agreeing with me? A: Yes.

Q: You received your instructions from McConnell-Dowell through a person by the name of John Meon? [sic] A: That's correct.

Q: And was he, as you understood it, the demolition supervisor from McConnell-Dowell? A: That's correct.

Mr Blair said that he was the sole supervisor of his own staff working under him. Moreover, the area in which Moltoni was working was barricaded to keep out persons other than demolition workers and signage was put up to warn people not to enter the barricaded area.

Mr S P King is Moltoni's general manager. On 14 November 1997 he visited the Finger Wharf with Mr Moltoni and inspected the site. The inspection included an inspection by both persons of the pipes underneath the wharf. Immediately after the inspection a conversation took place with Mr Beveridge in which Mr Beveridge said: " Multiplex have informed us that the pipes have been drained ". Again, this conversation was admitted as to the fact that it occurred but not as to the truth of what was said. Mr King admitted in cross-examination, however, that it was industry practice to treat all pipelines as live.

Mr King acknowledged that he was a signatory to the hazard identification register which had been subsequently forwarded by Mr Beveridge to the defendant with McDonnell Dowell's " work method statement and job safety analysis " on 14 November 1997. Mr King said that the hazard identification register was prepared on the assumption that there was residue oil in the pipeline. He was then asked the following question and gave the following answer: Q: What do you mean by residue oil? A: The inside of the pipeline would be coated with oil. It wouldn't be likely it would have been cleaned out 100 per cent.

Mr C Manihera , to whom I have previously referred, was employed by Moltoni on the Finger Wharf site as an excavator operator. His job was to operate an excavator to pull up the bearers, headstocks and concrete floor from sections of the wharf. He got his instructions from Mr Blair and he understood that Mr Blair got his instructions from McConnell Dowell.

Mr Manihera knew the oil pipeline was there. This is because he and Mr Blair would inspect the underside of the wharf whenever the excavator was moved to ensure that the piles would support the weight of the excavator. Mr Manihera was also aware of the industry practice to which I have previously referred. In this respect he gave the following evidence: Q: You had learned that it was industry practice in demolition to treat all pipelines as live, hadn't you? A: That's correct.

Q: Meaning to treat a pipeline, if it was an oil pipeline, as potentially full? A: That's correct.

Q: And you had learnt that in a course run by WorkCover by TAFE prior to the time of this oil spill? A: That's correct.

Whilst he was working on the day of the spill Mr Manihera saw the pipes. He spoke to an employee of McConnell Dowell and said: " What do I do? " He was told: " Leave them, don't touch them. " Mr Manihera also said to Mr Blair: " What should I do? " Mr Blair said: " Leave them, don't touch them til I get back to you. " Mr Manihera then described in his affidavit what happened as follows: 16. We worked near the pipes and we chained up the last headstock, pulled it, it swung around and it clipped the main pipe. There were little hook brackets holding the main pipe to the timber. When the pipe was knocked, the hook straightened and the pipe went down like dominos. I could hear the pipe falling into the water.

17. I shut the excavator down straight away. Then I ran along to see what happened. The first thing I was worried about was to make sure no one was hurt. Then I reported it to a bloke named Reg. I think his name was Reg Fidel. After that, I reported it to David Blair.

18. When I looked at the pipes, there was oil pouring out into the water.

19. I then went to look for a shut off valve to stop more oil coming out of the pipes. I did this with another man. I think he worked with McConnell Dowell. I saw him shut the valve off. It took a while though because the valve was rusty. It was lucky we turned it off though - it stopped more oil going into the harbour.

20. David Blair and I got into a boat to see what the damage was underneath the wharf on that day. I saw pipes hanging down under the wharf and I could oil on the water [sic].

Mr Manihera also gave the following evidence: Q: And you say you reported it to a bloke named Reg Fadel. Why did you report it to him? A: I was - after I made sure no one was hurt, I started running down towards the office to report it and Reg was walking back through the main road and I reported it to Reg. I reported it to Reg because he was a higher authority.

Mr Manihera knew Mr Fadel as a person who would do safety inspections " to make sure all of us guys were keeping our safety standards up so just to take away any hazards where anyone might get hurt or anything. They would do it on all the contractor work and if they found something, they would come and approach us so we would have to go and fix it ". Mr Manihera then gave the following evidence: Q: Can you give us an example of what sort of thing Mr Fadel could tell you to do? A. If we had a barricade missing or a sign had fallen over, they would tell us to get the safety gear up to standard.

Q: You said "they". There was Mr Fadel and who else? A: Usually it was Reg Fadel and a couple of union guys.

Mr R Rech is employed by the WorkCover Authority of New South Wales as the Construction Team State Co-ordinator. He was at the time of the oil spill the Acting Co-ordinator. Mr Rech was called by the prosecutor to give evidence as an expert, although there is no evidence that he holds any formal qualifications. The evidence he gave was based, it seems, solely on his experience as an officer of WorkCover since 1986. He said that his evidence " demonstrates the performance that I would require from those involved in demolition ".

Mr Rech said that the holder of a licence under the Occupational Health & Safety (Demolition Licensing) Regulation 1996 who is undertaking demolition activities is responsible for how the demolition activity is conducted. In the present case, since the structure being demolished was less than 4 metres in height, a licence under the Regulation was not required. In Mr Rech's opinion, in the absence of a licence it is the head contractor who has the responsibility for the conduct of the demolition activities. It was his understanding of the situation at the Finger Wharf that the person conducting the demolition, namely Moltoni, was not in complete control of the demolition site, so that primary responsibility rested with the head contractor, here being the defendant, although some responsibility would also rest with the other contractors, being McConnell Dowell and Moltoni.

Mr Rech described what was involved in a proper risk assessment of the pipeline. That would have involved an assessment of whether or not it was securely attached to the underside of the wharf and to establish what are its contents. The former could be assessed, at least initially, by a visual inspection. As to the latter, an initial step would be to tap the pipeline with a hammer. Inspection or drainage points and end caps would enable the contents to be checked. It would also be necessary to identify whether any valves in the pipeline were open or shut or blocked. Mr Rech also said that a pipeline of this size needs to be treated as if it were " live " until it could be shown to be otherwise. He said: Given the size of the pipeline at the Finger Wharf, even if the pipeline was apparently empty, it is my view that it would need to be purged prior to its demolition to ensure that it did not contain inflammable, explosive or toxic gases or liquids. This is similar to the requirements in relation to decommissioning underground fuel tanks at service stations. ... Only after it has been established that the pipeline is not a risk could work commence nearby.

In Mr Rech's opinion, the work method statement and hazard identification of 24 March 1998 (which I have described in paragraph 148 above), which he had seen and which post-dates the spill, should have been in place and executed in the first instance. The method statement and hazard identification of 14 November 1997 (which I have described in paragraph 76 above) did not address the risk of explosion or pollution arising from the possibility of the pipeline being full or nearly full of oil.

Mr Rech had not seen, neither did he want to see, either the contracts or the particular clauses in the contracts which deal with the issue of control. It was put to Mr Rech in cross-examination that as a matter of law and logic, if there were contractual terms that affected who had control of the site (and of what was happening on the site) he would want to see them. Mr Rech said: " Under the Occupational Health & Safety Act they can't contractually contract out of their obligations", so he ignored the contracts. It was also put to Mr Rech in cross-examination that apart from the legal position, contractually it was necessary to know what was occurring on the site. Mr Rech said, " No. .... Under the Occupational Health & Safety Act that doesn't apply ". Mr Rech also said: " The legal contracts are not relevant as far as I am concerned as a WorkCover Inspector ....As far as the Occupational Health & Safety Act is concerned, Multiplex is in charge ". Mr Rech said that he also based his opinion on the fact that Mr McElwain told him that contractually the defendant was in control of the site. He said he took that for granted. He said that he had no reason to doubt it. According to Mr Rech, the defendant provided the site sheds, the facilities, security, chaired safety committee meetings, interacted with the unions, interacted with WorkCover and had a manager on site and accordingly it is responsible under the Occupational Health & Safety Act .

Mr Rech said that it is the custom and practice that where more than 20 people are employed on a construction site and where the majority of them wished to have a safety committee under the Occupational Health & Safety Act " the company must constitute a safety committee ".

Mr C S F McElwain is one of the solicitors having the conduct of these proceedings for the prosecutor and had the primary conduct of the matter. On 18 February 1999 he served notices under s 25 of the Pollution Control Act 1970 on Mr Scionti and on Mr Stewart requiring them to furnish the information specified in a number of questions set out in the notices.

Mr McElwain acknowledged in cross-examination that he could have served similar notices on a number of other persons or obtained witness statements from a number of other persons in addition to Mr Scionti and Mr Stewart, but had not done so. Those other persons included other employees of the defendant, employees of McConnell Dowell, Mr Brubaker, persons connected with TWCA Pty Ltd, persons connected with Gutteridge Haskins and Davey Pty Ltd, persons from ABB Engineering Construction Pty Ltd, persons from Gardner Perrott and persons from the Wharf at Woolloomooloo Pty Ltd. Mr McElwain further agreed that he had not obtained the minutes of safety walk meetings, service co-ordination meetings, occupational health and safety meetings or WorkCover meetings. Mr McElwain also said that he had not made any inquiries as to whether the pipeline on the Finger Wharf had been drained at any time.

The information required under s 25 of the Pollution Control Act is somewhat ambiguous. Many of the questions asked of Mr Scionti are ambiguous so that many of the answers do not necessarily relate to the Finger Wharf but could just as readily relate to Wharf 11. I think it is fair to say that Mr Scionti's answers assert that responsibility for the spill rests with McConnell Dowell. In particular Mr Scionti states that McConnell Dowell were told: " to check all services and make their own arrangements as their contract encompassed all demolition and service disconnections ". I observe that this statement is consistent with clause 24 of the contract between the defendant and McConnell Dowell. It is also consistent with the substructure programme submitted by McConnell Dowell to the defendant and accepted by the defendant on 4 December 1997, in which McConnell Dowell indicates that it will locate services.

Similarly, many of the questions asked by the defendant of Mr Stewart are ambiguous. Although Mr Stewart accepts that his position with the defendant entitled him to give directions to McConnell Dowell, no topic or subject is specified. Again, Mr Stewart's answers appear to throw liability upon McConnell Dowell and he states that he would expect McConnell Dowell to carry out the contract in a diligent manner.

The prosecutor relies on the above evidence, and in particular on the defendant's involvement in safety inspections (noted in paragraphs 171 and 177 above) and its chairing of safety committee meetings as demonstrating a sufficient degree of control over the works so as to make it liable for the spill. The safety inspections and safety committee meetings, however, seem to me to have been more concerned with general " housekeeping " matters rather than technical or structural matters.

Although Mr Stewart furnished the post-spill work method statements to the prosecutor, this appears to have been at the prosecutor's request (as noted in paragraph 130 above). I have previously observed that the defendant's involvement in the post-spill cleanup and rectification works, alleged by the prosecutor to demonstrate control over the works on the part of the defendant, is equally explicable for other reasons. (See paragraph 143 above.) It is to be noted that the spill was reported to the Sydney Ports Corporation by Mr Beveridge and Mr Jones of McConnell Dowell. The notations made by Mr Hawkins of the meeting of 2 March 1998 suggests that McConnell Dowell was the overall co-ordinator of the cleanup and recovery operation.

Other evidence points to McConnell Dowell as being relevantly in control, rather than the defendant.

As noted in paragraphs 148 and 149 above, it seems that McConnell Dowell had accepted, at least post-spill that it had to identify the potential hazard and to do the actual work. The evidence of Mr Callaghan, noted in paragraph 151 above, suggests that the investigation by the prosecutor was not as thorough as it should have been. The extract from Mr Beveridge's diary obtained by Mr Callaghan appears to confirm that Moltoni, as McConnell Dowell's sub-subcontractor, was to supply all work method statements, risk analysis and permits and to remove and dispose of the pipeline (see paragraph 152 above). Mr Moltoni's evidence, noted in paragraph 156 above, confirms that Moltoni was to include the removal of the pipeline in its work.

It seems that McConnell Dowell was involved in checking on the presence of services, as appears from its inquiry of Sydney One Call Service (noted in paragraph 153 above).

Mr Moltoni received day-to-day instructions from McConnell Dowell's supervisors, did not receive any instructions from the defendant relating to the works and when tendering for the works stated that all his conversations were with Mr Beveridge (as noted in paragraph 154 above). Mr Moltoni considered it inappropriate to check on the status of the pipeline with the defendant given that his contract was with McConnell Dowell (noted in paragraph 158 above).

When the pipeline had been exposed prior to the spill, Mr Blair reported this fact to Mr Petracca of McConnell Dowell. Mr Blair also said that personnel from the defendant did not give instructions or directions as to what work was to be done and how it was to be done and that he received his instructions from McConnell Dowell's demolition supervisor (as noted in paragraph 164 above). I have referred to Mr Manihera's evidence in paragraphs 141 and 167 above, which suggests that McConnell Dowell was controlling or directing the demolition work being carried out by Moltoni.

The opinions of Mr Rech were based, it seems, on his understanding of the operation of the Occupational Health & Safety Act, rather than on an understanding of either the contractual arrangements between the various parties or on an understanding of the actual roles performed by the various parties on the site. His statement that in the absence of a licence (which was not required) then it is the head contractor who has responsibility for the conduct of demolition activities was a statement (a) made from the point of view of the regulatory authority under the Occupational Health & Safety Act, (b) was made in ignorance of the various contractual obligations between the parties and (c) could easily apply to McConnell Dowell as the head contractor for the demolition activities. The defendant is, of course, not charged with any offence under the Occupational Health & Safety Act, but under a different Act.

I should refer to Mr Rech's statement that, even if the pipeline was apparently empty, it needed to be purged before its demolition. I also should refer to Mr Rech's further statement that in his opinion the post-spill work method statement of 24 March 1998 should have been in place and the previous method statement of 14 November 1997 was apparently inadequate. Mr Moltoni, Mr Blair and Mr King were, as I have said, aware that it was industry practice to treat such pipelines as " live ". Mr King said that the hazard identification in the 14 November 1997 method statement was prepared on the assumption that there was oil residue in the pipeline. Mr Rech's evidence suggests that the hazard identification in the work method statement of 14 November 1997 was thus inadequate. It seems to me that the actions of McConnell Dowell in engaging the services of Moltoni and of the defendant in approving Moltoni as a sub-subcontractor to McConnell Dowell were the acts of responsible bodies, having regard to Moltoni's experience and expertise in major demolition projects, noted in paragraph 155 above. In other words, I am of the opinion that both McConnell Dowell and the defendant were reasonably entitled to rely upon Moltoni's acknowledged experience and expertise in producing the hazard identification and method statement of 14 November 1997 Moreover, I am of the opinion that the defendant was reasonably entitled to rely upon the experience and expertise of McConnell Dowell in subcontracting to it the substructure works, including the hazard identification and method statements which McConnell Dowell furnished to the defendant.

I am thus left with the overall impression that the evidence that I have described in paragraphs 127 to 181 above does not satisfy me beyond reasonable doubt, or at all, that the defendant exercised such control over the works being performed by Moltoni or by McConnell Dowell as to render it criminally liable for the spill. Such evidence as exists which might implicate the defendant is counterbalanced, in my view, by evidence which is exculpatory of the defendant.

The prosecutor relies upon a large amount of documentary evidence which, it asserts, demonstrates that the defendant exercised such control over the site and the works being carried out thereon as to attract liability for the offence. The documents upon which the prosecutor relies fall into two major categories: those which precede the spill on 25 February 1998 and those which relate to the defendant's control over the cleanup activities and its aftermath after the spill. The defendant, on the other hand, asserts that much of the documentary material in evidence is exculpatory of the defendant.

The prosecutor relies in particular on a large number of documents which are said by it to supports its submission that the defendant exercised control of and responsibility for various aspects of the work, including the timing and scheduling of the work, access to the site, directions with respect to the work and the method of work, control over demolition activities and specific control over safety matters. The prosecutor also asserts that the material upon which it relies shows that the defendant had control over the cleanup activities after the spill on 25 February 1998, that the defendant relevantly had possession of the site and of the pollutant and that the defendant was aware of the hazard and of demolition work near the pipeline.

Whilst I acknowledge that many of the documents upon which the prosecutor relies support the propositions for which it contends, they do not lessen the impact of the subcontract between the defendant and McConnell Dowell and the sub-subcontract between McConnell Dowell and Moltoni. For example, whilst the defendant may initially have been responsible to its principal, Wharf Developments Pty Ltd, for general control of and responsibility for the works, the prosecutor's contentions overlook the fact that the defendant then passed control and responsibility to McConnell Dowell and specifically control and responsibility for the substructure works.

I do not propose to set out all of the documentary evidence upon which the parties have relied. To do so would result in a judgment of unwieldy proportions without progressing or advancing a resolution of the issues, since much of the documentary evidence which was tendered is equivocal. That is to say, many of the documents advance neither the prosecutor's case nor the defendant's case. By way of example, I now describe the first few documents upon which the prosecutor relies and which, the prosecutor submits, demonstrate the defendant's general control over and responsibility for the works.

The first such document is a development programme prepared by the defendant and dated 6 November 1995. This document is a typical table which sets out the various stages of the development and the estimated time for the completion of each such stage. As noted in paragraph 6 above, it must be remembered that the development is essentially a joint venture by both Walker Corporation and the defendant. This document is typical of the kind of exercise that any developer would prepare for its purposes and basic to its planning, financing and marketing of the project.

The next documents upon which the prosecutor relies are minutes of a building application committee meeting held at Sydney City Council on 22 May 1997. The aim of the meeting is said in the minutes as being: " To expedite the approval of the 'skeletal' DA for the Finger Wharf to allow work to commence on Wharf 11 ". Those present at the meeting included staff of Sydney City Council, Mr Robert Bird of Robert Bird & Partners, Mr J Adamus of Adamus Consulting Practice, Mr J Oultram of Clive Lucas Stapleton (architects), Mr J McInerney and Mr B Bennett of City Plan Services, Mr J Reddy of The Wharf at Woolloomooloo Pty Ltd, Mr G McGilvery and Mr M Rose of Walker Corporation Ltd and Mr R West, Mr A Scionti, Mr G Baxter and Ms C Hart of the defendant. The minutes note, inter alia , that the defendant required approval by 30 June 1997 for the Wharf 11 structural works and Level 1 slab, that the Finger Wharf substructure works, pile renewal and rectification approval is required by 1 August 1997, that a demolition approval is required for the stripping out of the Finger Wharf by 14 July 1997 and that the defendant and the Wharf at Woolloomooloo Pty Ltd had confirmed that a site rectification deed was being put in place for the project. Attached to the minutes is a table prepared by the defendant which sets out the time lines for the various approvals required. It seems to me that no particular significance can be attributed to these minutes and the attached table. As with the previous document they represent no more and no less than the kind of planning which any developer would undertake. It says nothing about who will do the work and who will control the work which is to be done.

The next document is a table setting out a preliminary development programme dated April 1997. It sets out time lines for finance, for Wharf 11 building application documentation, demolition and excavation and for the Finger Wharf building application documentation, substructure works and main constructions works. The comments which I have made in relation to the first two documents apply equally to this document. Indeed, by its reliance on such documents as these my immediate impression is that the prosecutor's case, having nothing better upon which to rely, is devoid of any substantial evidence implicating the defendant.

The next document upon which the prosecutor relies is a facsimile transmission from McConnell Dowell to the defendant dated 11 November 1997, seeking permission " pursuant to clause 16 of the draft subcontract agreement " to assign various portions of the work, and in particular to assign demolition to Moltoni Corporation Pty Ltd. The facsimile also states: " The contractors mentioned have been selected on the basis of their expertise on similar projects ... ". I note that this statement supports the defendant's submission that Moltoni was experienced in demolition work generally and in wharf demolition work in particular.

Next is a document of the defendant dated 5 December 1997 and said to be a quality compliance audit of McConnell Dowell's work and documentation. It seems to me that this document, rather than evidencing any form of control or direction by the defendant, is nothing more than a survey by the defendant to ensure that it was getting what it was paying for. That is to say, the defendant was checking to see whether McConnell Dowell was performing its part of the subcontract as it had agreed to do so that the defendant could be satisfied that what it was paying for was in fact being done.

The next document is a facsimile transmission dated 14 January 1998 sent by the defendant to Mr Beveridge which states: " Please find attached a description of incomplete works under the wharf. The attached needs to be rectified ASAP ". There is a two page list containing 35 items which accompanied the facsimile transmission, such list including the following: " Grid 30. North-south Central Roadway. Existing pipe to be removed ". ..." Grid 16. East-west Central Roadway. Remove existing pipe ". ... " Grid 22-23. Central Road. Remove old oil pipeline ". Most of the other items in the list require the removal of formwork. Again, this document appears to me to be explicable as the act of a principal to ensure that it is getting what it is paying for. It does not seem to me to be an attempt at telling McConnell Dowell how to do the work. It does, however, confirm the fact that McConnell Dowell had full knowledge of the existence of the pipeline.

The next document is a letter dated 22 January 1998 from the defendant to McConnell Dowell which states: " Due to the crane being serviced on Tuesday 27 January 1998 it will cease to operate after 3.00 pm. Please contact myself on 9358 2055 if this arrangement causes a problem ". The letter is signed " George Diamond. Site Engineer ". I must confess that I have no idea why the prosecutor relies upon this document. There is no evidence of what task the crane was performing on the site and no evidence of how it affected McConnell Dowell's work. I do not see how this letter advances the prosecutor's case, neither do I see its relevance. There are many other documents which fall into this category and about which I could make similar comments.

The next document is a report provided by McConnell Dowell to the defendant on the subject of building and apron piles dated 28 January 1998. The report lists by pile number the piles which have been completed and those which are currently under construction. The prosecutor notes that some of the piles would have been adjacent to the oil pipeline. It seems to me that this report was merely furnished by McConnell Dowell to the defendant for information. It is not evidence, as the prosecutor asserts, of any control exercised by the defendant over the works.

The next document is headed " Notes From Meeting With McConnell Dowell Subcontractors Wednesday 4/2/95 5 pm ". There is no evidence of who was present at the meeting, neither is there any evidence of who prepared the document. The prosecutor relies on a statement in the document which reads: " Bird Engineers not to give instructions directly to McConnell Dowell or subcontractor workers, but to give recommendations to MPX Management who will pass the message on through foremen ". I assume that the reference to Bird Engineers is a reference to Robert Bird & Partners. I should observe that no evidence was called to explain the role of Robert Bird & Partners.

Next is a facsimile transmission from the defendant to Mr Beveridge which states: " We confirm that static pile testing is not required. We do however require written certification from Hardcastle and Richards that the installed piles comply with their design. Please provide this certification for the 1st 24m. of piling for the main building & the north building piles to date. The certification needs to include the building raking piles ". It seems to me that all this facsimile transmission does is to require certification by McConnell Dowell's engineers, Hardcastle and Richards, that the piling complies with their design. That is to say, the defendant requires certification that McConnell Dowell had done its job and for which it is being paid by the defendant. This document does not, in my opinion, support the prosecutor's argument that the defendant was in control of the works being performed by McConnell Dowell. There is no suggestion that the defendant was by this facsimile instructing McConnell Dowell how it should be doing its work. The defendant was, on the contrary, relying upon others, namely Hardcastle and Richards, in relation to how the work should be done.

The abovementioned documents are the first few examples of those upon which the prosecutor relies. As I have said, I do not propose to go through each of the very large number of documents in evidence since this would become an unwieldy exercise. It is sufficient to say that I have read and re-read all the documentary material which has been tendered. As noted in the few examples given above, many of them do not necessarily demonstrate control over or responsibility for the works on the part of the defendant, but are equally explicable on the basis of the defendant ensuring that it was merely getting what it was paying for under its subcontract with McConnell Dowell. I have referred in paragraph 143 above to the defendant's explanation for its post-spill involvement in the cleanup and its aftermath. The additional documentary material relied upon does not persuade me beyond a reasonable doubt that the defendant had control of and responsibility for the works which were being performed by McConnell Dowell and whose subcontractor's employee was responsible for the oil spill which occurred on 25 February 1998.

I have set out (in paragraph 16 above) the five issues identified by the prosecutor and which it says are each satisfied in this case. It seems to me, however, that there is some overlapping of the issues. Issues (ii) and (iv), for example, appear to be in substance the same. It also seems to me that as between those two issues and issues (i) there is some overlapping. The prosecutor's own submissions tended to blur any distinction between these issues.

As I understand the prosecutor's submissions, it asserts that the defendant was the occupier of the Finger Wharf for the purpose of the definition of "occupier" in s 5 of the Clean Waters Act and was in control of the premises pursuant to its contract with Wharf Developments Pty Ltd. The defendant was accordingly in possession of the pollutant on premises which it controlled and the pollutant got into the waters of Woolloomooloo Bay as a direct result of being where it was (cf Majury v Sunbeam Corporation Ltd , at 662-663). The defendant was thus directly liable under s 16(1) of the Act.

Further or alternatively, the prosecutor relies upon the deeming provisions in s 16(2) of the Act: the defendant placed, or caused or permitted the pollutant to be placed in a position where it fell or descended, or was likely to fall or descend, into the waters of Woolloomooloo Bay (in this context the prosecutor referred to Environment Agency v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350 [1998] All ER 481 HL.)

In support of these assertions the prosecutor's counsel spent some days in submission canvassing the detailed evidence, both oral and documentary, upon which the prosecutor relies. Again, I do not propose in this judgment to set out all the detailed evidence to which the prosecutor's counsel referred. To do so would be to depart from what Kirby J has described as " the judicial trinity " for effective judgment writing: " brevity, simplicity and clarity " ( On the writing of judgments, 64 ALJ 691 at 704, 708). It is sufficient to note in a general way the nature and scope of the submissions as I understood them.

In the prosecutor's submission, inter alia , the defendant was in control of the premises pursuant to its contract with Wharf Developments Pty Ltd; the defendant controlled who went on to the site, approved the work methods, was responsible for safety on the site and gave directions as to the work methods and safety issues; the defendant was aware of the location of the pipeline and was told to assume the presence of marine fuel oil in the line; the defendant was in possession of the substance in the pipe; as a direct of result of where the oil was, being in the pipeline, it got into the waters of Woolloomooloo Bay; the defendant failed to tell McConnell Dowell or anyone else to assume that marine fuel oil remained in the pipes; the defendant failed to comply with the relevant Australian Standard for the demolition of structures (as required by condition 8 of the building approval); the defendant permitted work in the vicinity of the pipeline when the risk of damage thereto was apparent; and the defendant did not take specific precautions to prevent pollution by the presence of the hazard, namely the oil in the pipeline.

I now turn to issue (iii) as identified by the prosecutor, that of vicarious liability. The prosecutor submits that the defendant is liable for the acts and omissions of McConnell Dowell and its employees and of Moltoni and its employees. The prosecutor relies, in particular, on Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 and Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226. The prosecutor submits that there is no need for there to be a contract between the defendant and McConnell Dowell's employees, or between the defendant and Moltoni or Moltoni's employees, for the defendant to be vicariously liable for their acts or omissions. In this respect the defendant relies upon Mousell Bros v London & North Western Railway [1917] 2 KB 836. The prosecutor places importance on the fact that the offences created by s 16 are " result offences " as described in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 and Bathurst City Council v Environment Protection Authority (1995) 89 LGERA 79. Again, the prosecutor's counsel referred extensively to the evidence, both oral and documentary, which is said to support its submissions on this issue.

As to issue (v) as identified by the prosecutor, that is, the defendant owed a non-delegable duty of care to prevent the pollution of the waters of Woolloomooloo Bay, I have noted that the prosecutor relies on Burnie Ports Authority v General Jones Pty Ltd . The prosecutor submits that the principle of non-delegable duty established by Burnie Ports is separate from the defendant's contractual obligations, although the latter are relevant in determining the control that the defendant had over the Finger Wharf in terms of access and the work to be done. The prosecutor submits that there are two points of identity in this case with Burnie Ports : firstly, the presence of a pipeline which had furnace oil remaining in it and secondly , demolition activity occurring above and around it. There was a foreseeable risk of pollution unless precautions were taken to avoid that risk. The prosecutor concedes, however, that Burnie Ports has not been applied to attach vicarious liability to a defendant in a criminal case.

Finally, the prosecutor submits that a defendant cannot contract out of criminal liability; or put another way, the defendant cannot avoid liability for an offence under the Clean Waters Act by provisions of contract. The prosecutor, referring to May v O'Sullivan (1955) 92 CLR 654, also submits that since no one from the defendant has given evidence, it may thus be legitimate to more readily draw an inference of guilt.

I have attempted to summarise the prosecutor's principle submissions, as I understand them. The prosecutor also made a number of subsidiary submissions. For example, the prosecutor submits that the involvement of the defendant in the post-spill clean up and other conduct of the defendant is evidence of a consciousness of guilt on the part of the defendant. I comment on the prosecutor's subsidiary submissions as necessary in the course of these reasons.

The defendant's approach to the case is that there are three basic or essential allegations against it:

(1) The defendant by its acts and/or omissions directly introduced into the waters of Woolloomoolloo Bay oil which was, prior to the spill, in the possession of the defendant on land it occupied, or caused or permitted the same. (The prosecutor's issues (i), (ii) and (iv).)

(2) The defendant is vicariously liable for the acts and/or omissions of McConnell Dowell and/or Moltoni and their respective employees. (The prosecutor's issue (iii).)

(3) The defendant was under a non-delegable duty to protect the waters of Woolloomooloo Bay. (The prosecutor's issue (v).)

The defendant's approach to the issues is consistent with the view that I have taken of the issues identified by the prosecutor and which I have briefly discussed in paragraphs 207 to 213 above. In answer to the three basic allegations made against it the defendant says: (1) no sufficiently proximate act or omission on the part of the defendant caused the spill, (2) the evidence adduced by the prosecutor does not establish beyond reasonable doubt vicarious liability on the part of the defendant for the acts or omissions of McConnell Dowell and/or Moltoni or their employees and (3) the principle of a non-delegable duty to protect the waters of Woolloomooloo Bay is not an available head of liability under s 16(1) of the Clean Waters Act. The defendant also relies upon an overall defence to allegations (1) and (2) of honest and reasonable mistake, namely: that McConnell Dowell was taking steps to deal with potential hazards such as pollution or explosions in removing the pipeline; that the work method statements and the statements contained in the hazard identification register would not only reduce the possibility of explosion or pollution, but would if implemented eliminate fire and explosion risks as well as totally controlling oil spillage from pipe residues; and that McConnell Dowell had accepted and was carrying out its obligations under its contract with the defendant.

As to issue (1) as identified by the defendant, it submits that the prosecutor must prove that the defendant caused the oil to get into the waters of Woolloomooloo Bay; that what caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense; and that none of the omissions relied upon by the prosecutor could ever as a practical question of fact using one's ordinary common sense establish beyond reasonable doubt that the defendant caused the oil to find its way into Woolloomooloo Bay. The defendant also submits that as a matter of common sense the immediate and proximate cause of the oil getting into Woolloomooloo Bay was the negligent act of an employee of Moltoni. A further causative act, according to the submission, was the failure of McConnell Dowell (which had undertaken the responsibility to remove the pipeline and its contents) and of Moltoni to ensure that the pipeline was purged or cleared of its contents prior to the spill. The only acts or omissions proven beyond reasonable doubt to have caused the pollution are the acts of Moltoni's employees or, at the very least, the Court could not find beyond reasonable doubt that any acts or omissions of the defendant caused the pollution.

The defendant also submits that the acts or omissions of Moltoni and of employees of McConnell Dowell are novus actus interveniens in relation to causation of the spill, should it ever be found that the defendant's acts or omissions had causal significance; and that no act or omission on the part of the defendant can be said to constitute the legal or proximate cause of the oil spill.

The defendant submits that the following circumstances, or any of them, exclude any acts or omissions of the defendant as a causative factor: the negligence of Mr Manahera in striking the oil pipe, having earlier been told by Mr Blair to leave it alone, the failure of McConnell Dowell to have purged the pipeline of oil, knowing the industry practice to treat it as " live ", or the assurance given by Mr Beveridge to Mr Moltoni in November 1997 that the pipeline had been drained. The defendant submits that these things could not in any way be regarded as " in the general run of things as a matter of ordinary occurrence " but rather were " so far out of the ordinary course of things that in the circumstances any [acts or omissions] of the defendant fade into the background ". The defendant also referred in this context to Empress Car Co (Abertillery) Ltd v National Rivers Authority .

The defendant submits that Majury v Sunbeam Corporation Ltd is not authority for the proposition that s 16(1) creates an offence not requiring proof of causation. The prosecutor seems to have made the submission that the defendant is liable because it simply " possessed " the oil in the pipeline. Majury makes it clear, however, that causation still has to be proved beyond reasonable doubt. The defendant submits that a recent decision of the Court of Criminal Appeal, Environmental & Earth Sciences Pty Ltd v Environment Protection Authority [1999] NSWCCA 192, confirms the necessity for causation to be proved. It has never been held that s 16(1) creates an offence of absolute liability (as distinct from one of strict liability in which no mens rea needs to be proved).

The defendant further submits on this issue that the prosecutor has failed to prove beyond reasonable doubt that the defendant was either in possession of the oil in the pipeline or that the pipeline was on land occupied by the defendant at the relevant time. The defendant submits that at all relevant times McConnell Dowell and/or Moltoni were the persons in possession, occupation or control of the pipeline.

As to issue (2) as identified by the defendant, that of vicarious liability, there is here an unusual situation that a person whose act breached the pipeline is an employee of a sub-subcontractor to a subcontractor to the defendant. The defendant submits that it is thus necessary for a court to consider not only the extent to which the defendant had an involvement in the work of the subcontractor, to consider not only the relationship between McConnell Dowell and Moltoni, but also to consider what relationship, if any, existed between the defendant and Moltoni. The defendant submits that the cases in this Court of Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279, Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226 and Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51 adequately state the principles of law dealing with questions of vicarious liability in prosecutions under s 16(1) of the Clean Waters Act. The defendant also relies upon Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 as demonstrating that the liability of a principal for the acts of an independent contractor is not unlimited and, when the principles to which that case refers are applied to the facts of this case, could not result in an adverse finding against the defendant on this issue.

225. The particular facts relied upon by the defendant to refute the allegation of vicarious liability include the following: Moltoni received no instructions from the defendant, other than safety directions consistent with the duties of the safety committee established under the relevant legislation; Moltoni spoke only to Mr Berveridge of McConnell Dowell during the tendering process, not to the defendant; Moltoni never checked the status of the pipeline with the defendant because its contract was with McConnell Dowell; when demolition was occurring the area was barricaded by Moltoni; the hazard identification register was completed by McConnell Dowell and Mr King signed and dated it; when the pipe was found to be close to the works Mr Blair of Moltoni reported that fact to Mr Petracca of McConnell Dowell; the only evidence of control over Moltoni is of McConnell Dowell exercising control over Moltoni and not the defendant exercising control over Moltoni; the defendant subcontracted the substructure works to Mr Connell Dowell because of the latter's acknowledged expertise in such works; the Moltoni tender documents reveal the unquestionable expertise of Moltoni in demolition works and in particular in wharf demolition; and the defendant did not control and supervise either McConnell Dowell or Moltoni in the manner in which the work was done.

226. As to issue (3) as identified by the defendant, it submits that the concept of a non-delegable duty of care does not appear to have been previously applied so as to impose criminal liability for a strict liability offence such as 16(1) of the Clean Waters Act. The offence in this case is not a " status " offence, the hallmark of which is the nomination of a class or status of person under a statutory obligation, such as a licensee or occupier, so as to give rise to liability for a non-delegable statutory obligation. The defendant relies on R v Winson [1969] 1 QB 371, in which Lord Parker CJ, speaking for the Court of Appeal, said that the doctrine of delegation " comes into play and only comes into play in cases ... to which knowledge is inherent "; that is, those offences requiring mens rea .

227. The defendant further submits that if, despite its submission that s 16(1) does not impose a non-delegable duty, the court finds to the contrary, then the factual matrix of this case does not come within the classes of case in which the existence of a non-delegable duty has been recognised, such as employer/employee, hospital/patient, school/student and claims that previously came under the rule in Rylands v Fletcher [1866] LR 1 Ex.265. The defendant submits that expansion of the principle beyond these classes of case is to be exercised with caution (relying upon Northern Sandblasting Pty Ltd v Harris (1995) 188 CLR 313, per Kirby J at 399 ff). Alternatively, the critical aspect of proximity which may elevate the ordinary duty of care to the special duty of care is what is described as the " central feature of control ", which the defendant did not have. The defendant submits that either the owner of the wharf and of the pipeline (the Marine Ministerial Holding Corporation), the owner of the oil (the Commonwealth of Australia), the ultimate developer (the Wharf at Woolloomooloo Pty Ltd) or the entity responsible for the design and construct contract (Wharf Developments Pty Ltd) better sit within the notion of a " central feature of control ". Also absent in this case, in the defendant's submission, are key factors found in the tort cases of non-delegable duty of care and said to be required before the duty applies, including the special dependence or vulnerability on the part of an identifiable injured party.

228. As with the prosecutor's submissions I have attempted to summarise only the defendant's principal submissions. I comment on the defendant's subsidiary submissions as necessary in the course of these reasons.

229. It is, I think, convenient to consider the issues in the way they have been identified by the defendant and which I have noted in paragraph 216 above. As I have also noted, the issues identified by the prosecutor tend to overlap, particularly the prosecutor's issues (i), (ii) and (iv). There is even some overlapping of the prosecutor's issues (iii) and (v). It is to a consideration of the issues as identified by the defendant that I now turn.

Issue (1): Did the defendant pollute the waters of Woolloomooloo Bay or place, cause or permit the pollutant to be placed in a position where it fell or was likely to fall into those waters .

230. I have reformulated this issue to encapsulate the prosecutor's issues (i), (ii) and (iv) and the defendant's issue (1).

231. I have set out in paragraph 15 above the provisions of s 16(1) and (2) of the Clean Waters Act. As noted in the same paragraph, the prosecutor relies upon both subsection (1) and on the deeming provision in subsection (2). As to subparagraph (1) I have noted in paragraph 208 above the prosecutor's submission that the defendant was in possession of the pollutant and was in control of the premises. I have also noted the prosecutor's assertion that the defendant was within the definition of " occupier " in s 5 of the Clean Waters Act: 'Occupier', in relation to any premises, means the person in occupation or control of the premises ...

232. I accept the defendant's submission that the definition of " occupier " is inapplicable. Nowhere in s 16 does the word " occupier " appear. The word does, however, appear elsewhere in the Act, for example, in ss 17 and 18. The limited operation of a definition in a statute is explained by Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation (1956) 118 CLR 628 at 635: The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland ( Statutes and Statutory Construction , 2nd Ed., vol.2, p. 687), "Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves".

233. It follows that where a word is defined in a statute having a particular meaning, that is an artificial meaning which applies solely to the use of that word in the statute. The ordinary meaning of the word does not apply. Conversely, if a word is not defined then the word should be construed according to its ordinary meaning ( Louinder v Stuckey [1984] 2 NSWLR 354 at 357, 360 CA). Insofar as the prosecutor asserts that the defendant was the occupier of the Finger Wharf, the defined meaning of the word " occupier " has no application and the ordinary meaning of that word must apply, so far as it may be relevant.

234. The prosecutor also relies on the definition of " pollute " (s 5), a word which is used in both subsections (1) and (2) of s 16: " pollute", in relation to any waters, means: (a) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed; or

(b) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters; or

(c) ..., and "pollutant" and "pollution" have corresponding interpretations;

235. It can be seen that the offence is established if, pursuant to the deeming provisions in subsection (2) of s 16 it is proved that the defendant placed the pollutant (the marine fuel oil) in a position where it falls or descends, or is likely to fall or descend into the waters, or caused or permitted such matter to be placed in such a position. Moreover, the definition of " pollute " is extended to include acts of omission.

236. In Majury v Sunbeam Corporation Ltd , McClemens CJ at CL considered the effect of similar provisions of the Clean Waters Act. The Act was amended after this decision, but not in a material way. The definition of " pollute " with which McClemens CJ at CL was concerned was relevantly as follows: (a) to place in or on the waters any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed; or

Section 16(1), in the form in which it was considered by McClemens CJ at CL, so far as was material, provided: A person shall not ... cause ... any waters to be polluted . 237. McClemens CJ at CL rejected a submission by the defendant in that case that to justify a conviction the prosecution has to prove a placing in or on the water and a causal connection between that placing and the pollution: and the further submission that before there could be a conviction there had to be an active act of placing in or on the water, such as would happen if a man went to the side of a river and threw in the contents of a garbage tin. His Honour said (at 662-663): In my opinion, there is a placing in or on the water, if the pollutant in the possession of the defendant and on his land gets into the water as a direct result of its being where it is; in other words, if the defendant causes it to get there .

238. McClemens CJ at CL then turned to the question of whether the defendant caused the waters to be polluted. In this respect his Honour referred to and applied the decision of the House of Lords in Alphacell Ltd v Woodward [1972] AC 824. That was a prosecution under the English Rivers (Prevention of Pollution) Act 1951, s 2(1) of which provides: .... a person commits an offence ... (a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter ...

His Honour relied upon the case only for the purpose of considering the proper definition of the word " cause ". His Honour noted (at 663) that Lord Wilberforce (at 834) analysed the distinction between " causing " and " knowingly permitting " and emphasised that " causing " must be given a common sense meaning. His Honour noted (at 664) that Viscount Dilhorne said (at 839-840): What, then, is meant by the word " caused " in the subsection? If a man, intending to secure a particular result, does an act which brings that about, he causes that result. If he deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, may he not also be said to have caused those results even though they may not have been intended by him?

Finally, his Honour referred (at 664) to the judgment of Lord Pearson who expressed the view (at 847) that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.

239. The facts in Majury , briefly stated, are that the defendant occupied land upon which was erected a factory and three holding tanks containing potassium cupro cyanide. Between two of the tanks there was a valve on a connecting pipe. The valve was faulty, causing the chemical to escape and drain into the Cooks River. There was no want of proper care on the part of the defendant. McClemens CJ at CL noted that it was conceded that the defendant was the occupier of the premises; and his Honour found as a fact that the process of storing the chemicals was under the exclusive control of the defendant.

240. In applying Alphacell to these facts, McClemens CJ at CL said (at 664): I find as a question of fact that the defendant caused the pollution here. In fairness to the defendants I also find specifically that there is no evidence of want of proper care on its part, but that is not the test. The test is whether it caused the pollution. In my opinion it did. There is no question here of the act of a third party or the act of God.

241. Majury was approved and adopted by the Court of Criminal Appeal in Environmental & Earth Sciences Pty Ltd v Environmental Protection Authority [1999] NSW CCA 192. In that case the appellant had engaged a subcontractor to remove underground tanks at a decommissioned service station and to remove and treat contaminated soil. The contaminated soil was removed to adjoining land where a process of bio-remediation was adopted to allow the removal of contamination of the soil by hydrocarbons. The appellant was responsible for supervising the manner and method of disposal of the contaminated soil and the work was carried out under its instruction. The appellant's site supervisor supervised the excavations, the on-site placement of soil and on-site validation. Certain bunds were erected by the appellant, hay bale were put in place and silt fences were erected. The work was not executed properly and dirty water bypassed the bunds, the hay bales and the silt fences. One hay bale had been removed. Dirty water flowed downhill from the site and entered a creek. The Court found that there could be no reasonable basis for the conclusion that the works were properly executed and proper supervision was maintained.

242. Apart from its endorsement of Majury , I do not derive any assistance from this case. The defendant was, as noted above, responsible for supervising the manner and method of the works. The work was not executed properly and was not properly supervised. Under those circumstances it is not surprising that the verdict of guilty was upheld. Those facts are, however, quite different from those of the present case, in which the prosecutor has not proved that the defendant supervised the manner and method of the work being performed by McConnell Dowell or by Moltoni or their respective employees.

243. In Alphacell Ltd v Woodward , upon which McClemens CJ at CL relied, the appellants had a manufacturing plant in which wash water was run into two settling tanks and then recirculated and reused. There were two pumps which drew the water out of the settling tanks. At the bottom of the intake pipes of each pump there was a rose, similar to the rose of a watering can, intended to keep out foreign matter while admitting a sufficient flow of water. The pumps failed when bracken, ferns and leaves which had entered the intake pipes through the holes in the rose became wrapped around each impeller. The water overflowed the tanks into a river. The defendant was convicted by magistrates of an offence which was created if a person " causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter ".

244. In the House of Lords, both Viscount Dilhorne and Lord Salmon doubted that the word " knowingly " before " permits " made any difference to the meaning of the word " permits ". Lord Salmon thought that the word " knowingly " is probably otiose (at 849). Viscount Dilhorne (at 840) said that whether the inclusion of the word " knowingly " before " permits " makes any difference to the meaning of " permits " is open to doubt, quoting Lord Godard CJ in Lomas v Peek [1947] 2 AllER 574, 575: If a man permits a thing to be done, it means that he gives permission for it to be done, and if a man gives permission for a thing to be done, he knows what is to be done or is being done, ...

245. As to the meaning of the word " causes " in this context, I have referred to the references in the judgments in Alphacell Ltd v Woodward which were relied upon by McClemens CJ at CL in Majury v Sunbeam Corporation Ltd . In addition to the passages relied upon by McClemens CJ at CL there are other passages from the judgments in Alphacell Ltd v Woodward to which I wish to return.

246. Lord Wilberforce, after noting (at 834) that the relevant words are " ...if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter; ... said: The subsection evidently contemplates two things - causing, which must involve some active operation or chain of operations involving as the result the pollution of the stream; knowingly permitting , which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge.

247. After stating that " causing " must be given a common sense meaning, Lord Wilberforce said: There may be difficulties where acts of third persons or natural forces are concerned ... .

248. Viscount Dilhorne noted (at 838) that the immediate cause in that case was the blocking of the impellers. He continued: " When the works were operating, there was, under the system they had instituted, bound to be an overflow into the river unless the pumps provided were of sufficient capacity and working sufficiently to prevent that happening .... In these circumstances I see no escape from the conclusion that it was the acts of the appellants that caused the pollution ". After making the statement referred to by McClemens CJ at CL and which I have quoted in para 238 above, Viscount Dilhorne also said (at 840): We have not here to consider what the position would be if pollution were caused by an inadvertent and unintentional act. In such case it might be said that the doer of the act had not caused the pollution although the act had caused it. Here the acts done by the appellants were intentional. They were acts calculated to lead to the river being polluted if the acts done by the appellants, the installation and operation of the pumps, were ineffective to prevent it. Where a person intentionally does certain things which produce a certain result, then it can truly be said that he has caused that result, and here in my opinion the act intentionally by the appellants caused the pollution.

249. Lord Pearson said (at 845): Nevertheless, I think that the magistrates and the majority of the Divisional Court were right in holding that the overflow was caused by the activities of the appellants. Those were positive activities and they directly brought about the overflow. What other cause was there? There was no intervening act of a trespasser and no act of God.

250. Lord Cross of Chelsea said (at 846) that the section shows " that a man cannot be guilty of causing polluting matter to enter a stream unless at the least he does some positive act in the chain of acts and events leading to that result ". In upholding the finding of guilty in that case Lord Cross said: The appellants having started to operate their plant on that day could only escape being held to have caused polluted effluent to enter the river if they proved that the overflow of the tank had been brought about by some other event which could barely be regarded as being beyond their ability to foresee or control .

251. Lord Salmon said (at 847) that although the appellants clearly did not cause the pollution intentionally, they caused the pollution by the active operation of their plant. Lord Salmon also said: There was no intervening act of a third party, nor was there any act of God to which it could be attributed. The appellants had been responsible for the design of the plant, everything within their works was under their control; they had chosen all the equipment.

252. Both parties in the present case have relied upon the House of Lords case of Environment Agency v Empress Car Co (Arbertillery) Ltd . In that case the defendant maintained a diesel tank in a yard which was drained directly into a river. The tank was surrounded by a bund to contain spillage, but the defendant had overridden this protection by fixing an extension pipe to the outlet of the tank so as to connect it to a drum standing outside the bund. It appears to have been more convenient to the defendant to draw diesel from the drum than directly from the tank. The outlet from the tank was governed by a tap which had no lock. The tap was opened by a person unknown and the entire contents of the tank ran into the drum, overflowed into the yard and then into the river. The defendant was charged with an offence against a provision as follows: A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter into any controlled waters.

253. The case was about whether the defendant caused polluting matter to enter the river. In upholding the original conviction of the defendant by the Crown Court the House of Lords held that there was evidence upon which it was open to the Crown Court to find that the defendant had caused the pollution. The principal judgment was delivered by Lord Hoffmann. After referring to the statement of Lord Wilberforce in Alphacell Ltd v Woodward which I have set out in paragraph 246 above, Lord Hoffman, said (at 354): Putting the matter shortly, if the charge is " causing " the prosecution must prove that the pollution was caused by something which the defendant did, rather than merely fail to prevent. It is, however, very important to notice that this requirement is not because of anything inherent in the notion of " causing ". It is because of the structure of the subsection which imposes liability under two separate heads: the first limb simply for doing something which causes the pollution and the second for knowingly failing to prevent the pollution. The notion of causing is present in both limbs: under the first limb, what the defendant did must have caused the pollution and under the second limb, his omission must have caused it. ... Liability under the first limb, without proof or knowledge, therefore requires that the defendant must have done something.

254. Lord Hoffmann went on to state (at 355) that it was not a requirement that the positive act of the defendant be the immediate cause: The only question was whether something which the defendant had done, whether immediately or antecedently, had caused the pollution.

In the present case, the Crown Court found that the escape was caused by the way the company maintained its tank of diesel fuel. Maintaining a tank of diesel is doing something and therefore, provided that it was open to the court to find the necessary causal connection established, they were in my view entitled to convict.

255. Lord Hoffmann proceeded to express the opinion that the active intervention of a third party may, but does not necessarily, negative causal connection. At p 359 Lord Hoffmann said: While liability under section 85(1) is strict and therefore includes liability for certain deliberate acts of third parties and (by parity of reasoning) natural events, it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendant's land, irrespective of how this happened. It must still be possible to say that the defendant caused the pollution. Take, for example, the lagoons of effluent in Price v Cromack [1975] 1 WLR 988. They leaked effluent into the river and I have said that in my view the justices were entitled to hold that the pollution had been caused by the defendant maintaining leaky lagoons. But suppose that they emptied into the river because a wall had been breached by a bomb planted by terrorists. I think that it would be very difficult to say, as a matter of common sense, that the defendant had caused the pollution.

256. On the question of third party involvement or a natural event, Lord Hoffmann also said that foreseeability is not the criterion for deciding whether a person caused something or not. As to the deliberate acts of third parties " ... it seems to me that the distinction between ordinary and extraordinary is the only common sense criterion by which one can distinguish those acts which will negative causal connection from those which will not " (at 361). Finally, Lord Hoffmann said (at 362): The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.

257. On the question of third party involvement or a natural event, Lord Clyde said (at 363): Furthermore, in determining whether the prosecution has proved that the defendant caused the pollutant to enter the waters account has to be taken of natural forces, acts of God and the actions of third parties, if the evidence justifies taking such considerations into account either as contributing causes or even as excluding any operation of the defendant as a causative factor.

258. The Australian authorities, like the English authorities to which I have referred, support the view that the word " knowingly " is otiose and also construe the word " permits " as meaning " to intentionally allow ". Examples of such cases are Broad v Parish (1941) 64 CLR 588 at 595, Starke J; Miller v Williams (1990) 53 SASR 82 at 87-92; and Regina v Lonie & Anor [1999] NSWCCA 319 at [87] et seq. In Miller v Williams Cox J said (at 90) that there does not have to be actual knowledge - " a belief that a contravention is highly likely or probable will suffice ". Cox J drew a distinction between knowing that something will happen and having reason to anticipate or suspect that it will happen: " the latter is entirely consistent with complete unsuspecting ignorance on a defendant's part ... but it does not put the test high enough for a crime ... ".

259. In Regina v Lonie & Anor the relevant phrase was " suffers or permits ". Smart AJ, speaking for the Court of Criminal Appeal said at [89] that the question of " permitting " is usually one of fact. Smart AJ at [90] adopted what was said by Gavan Duffy and Starke JJ in Adelaide Corporation v Australasian Performing Rights Association (1928) 40 CLR 481 at 504: Mere inactivity or failure to take some steps [by the owner of the town hall] to prevent the performance of the work [a song in a vocal concert by another] does not necessarily establish permission ... It is a question of fact in each case what is the true inference to be drawn ... .

260. In applying the principles which emerge from the abovementioned cases I draw the following conclusions. Subsection (1) of s 16 of the Clean Waters Act is fairly straightforward and clear: a person shall not pollute waters. The offence is clearly established if a person puts a pollutant into waters. In the present case, for example, Mr Manahera infringed this subsection, since it was he who broke the pipe which contained the oil, which then fell into the waters of Woolloomooloo Bay. There is no doubt that he polluted the waters. He placed or otherwise introduced into or on the waters, within the expanded definition of " pollute ", a pollutant. I set aside for later consideration the issue of vicarious liability. I do not think it can be said that the defendant polluted the waters in this sense.

261. I have noted the prosecutor's submission that the defendant was directly liable under subsection (1) because it was in possession of the pollutant on premises which were under its control and the pollutant got into the waters as a direct result of being where it was. I have also noted the prosecutor's reliance on Majury v Sunbeam Corporation Ltd for this submission.

262. I do not agree with the submission. In Majury , upon which the prosecutor relies, the offence was: " a person shall not ... cause ... any waters to be polluted ". The word " cause " is no longer part of subsection (1). The submission is only vindicated by recourse to subsection (2). It is under subsection (2) that a defendant may become liable by being in possession of the pollutant on premises which are under its control and the pollutant gets into the waters as a direct result of being where it is. In applying the deeming provision of subsection (2), however, the concept of causing extends liability in a common sense way to the natural consequences of what the defendant may have done or omitted to do. This includes liability for the ordinary or natural consequences of the defendant's conduct, but not for any extraordinary consequences or other contributing causes which exclude any operation of the defendant as a causative factor.

263. Having regard to the meaning given by the courts to the words " permits ", namely, " to intentionally allow ", I do not think there is sufficient evidence in this case to require a finding beyond reasonable doubt that the defendant permitted the pollution of waters within the meaning of subsection (2). I have previously referred to both McConnell Dowell and Moltoni's respective expertise in demolition work and in particular in the demolition of wharf structures. I have also previously referred to the preparation by Moltoni of a work method for the removal of the oil pipes, of which work method Moltoni said: " This will eliminate fire and explosion risks as well as totally controlling oil spillage from pipe residues ". In my opinion the only basis upon which the prosecutor might be able to establish liability on the defendant under the subsection is by reliance on the word " causes ": that is to say on an assertion that the defendant caused the pollutant, which was in its possession on premises which were under its control, to be placed in a position where it fell or was likely to fall into the waters.

264 I have set out (in paragraph 211 above) some of the facts upon which the prosecutor relies in submitting that the defendant is liable under the deeming provision in subclause (2) of s 16. I have also set out (in paragraph 218 - 222) the defendant's principal submissions on this issue.

265. The defendant did not, under the terms of its subcontract with McConnell Dowell, exercise control over the manner in which the work was being done (as noted in paragraph 102 above). I have previously expressed the view (in paragraphs 103 and 109 above) that the provisions of the subcontract do not satisfy me beyond a reasonable doubt that the defendant was relevantly in control of the site or of the works which were being performed by McConnell Dowell and by McConnell Dowell's sub-subcontractor, Moltoni.

266. I have also previously expressed the view (in paragraph 107 above) that the terms of the subcontract do not require the defendants' approval of work methods for work carried out by McConnell Dowell or by its sub-subcontractor. I have referred in this context to clause 3A(f) of the subcontract (noted in paragraph 48 above) and there is nothing in the documentary evidence upon which the prosecutor relies to suggest that the defendant approved work methods.

267. I have noted the nature of the involvement of the defendant in safety matters on the site as described in the evidence of Mr Moltoni and Mr Manahera (in paragraphs 159 and 171 above) and which seem to relate to " housekeeping " matters rather than controlling the method of carrying out structural work. I reject the opinions of Mr Rech. He said that he based his opinions on the fact that Mr McElwain had told him that contractually the defendant was in control of the site and he took that for granted. He was not interested in establishing the contractual position which affected who had control of the site or in establishing what was actually happening on the site. There is evidence that the defendant established a safety committee to deal with occupational health and safety matters and that representatives of the defendant were members of that committee. The Occupational Health & Safety Act 1993 requires that there be such a committee when a group of workers under different employers are engaged on the same site. A major priority was the safety of workers. The opinions of Mr Rech as to liability under the Occupational Health and Safety Act are of no relevance, however, to questions of criminal liability under the Clean Waters Act.

268. Mr Moltoni said that most of the directions on the site were given by McConnell Dowell supervisors and he did not receive any instructions from the defendant. When tendering for the works all of Mr Moltoni's conversations were with Mr Beveridge. Moltoni was paid by McConnell Dowell (see paragraph 154 above). Mr Moltoni said that at no time did he check with the defendant as to the status of any oil in the pipeline because his contract was with McConnell Dowell (see paragraph 158 above). Mr Blair's evidence was that Moltoni's workers got their day to day instructions from Mr John Miow of McConnell Dowell (see paragraph 160 above). Similarly, Mr Blair said that personnel from the defendant did not give instructions or directions in relation to the work. Such instructions came from the demolition supervisor of McConnell Dowell (see paragraph 164 above). I have also referred (in paragraph 167 above) to Mr Manahera's evidence that he got his instructions from Mr Blair and he understood that Mr Blair got his instructions from McConnell Dowell.

269. I have set out (in paragraphs 182-191 above) my conclusions relating to the evidence of what actually happened on the site and which left me with the impression that I cannot be satisfied beyond a reasonable doubt that the defendant exercised control over the method and manner of the doing of the substructure works. The overall impression to be gained from the whole of the evidence is that control and responsibility for the substructure works had been passed to McConnell Dowell (as I have noted in paragraph 194 above).

270. The prosecutor relies, inter alia , upon directions passed on to McConnell Dowell by the defendant and which were issued by Robert Bird & Partners Pty Ltd. I have noted that no one from Robert Bird & Partners Pty Ltd was called to give evidence and explain its role. In the absence of such evidence I can only draw assumptions. The main assumption which I draw is that Robert Bird & Partners Pty Ltd was the structural engineer acting for The Wharf at Woolloomooloo Pty Ltd. This appears from the Specification and Scope of Works prepared by Robert Bird & Partners Pty Ltd, the cover sheet of which states that it is prepared for the Wharf at Woolloomooloo Pty Ltd. It seems to me that, in the absence of direct evidence on the point, the defendant's involvement was at most to simply pass on directions given by Robert Bird & Partners acting for The Wharf at Woolloomooloo Pty Ltd (the proprietor) relating to the design of the works.

271. The defendant has pointed out the absence of any witnesses from The Wharf at Woolloomooloo Pty Ltd, Wharf Developments Pty Ltd, Robert Bird & Partners Pty Ltd or McConnell Dowell (amongst others) to explain their various roles and responsibilities in relation to the Finger Wharf project. The evidence establishes that the defendant had some involvement in progressing and scheduling of the work on the Finger Wharf; involvement in some safety issues arising from occupational health and safety legislation; and in ensuring that the quality and structural stability of the completed works was in accordance with the subcontract. The evidence shows that the area in which Moltoni was working was barricaded to keep out persons other than demolition workers and signage was put up to warn people not to enter the barricaded area. The evidence does not establish beyond a reasonable doubt who actually physically occupied or controlled the Finger Wharf while the substructure work was being carried out or which was the subject of the substructure works. And that is to say, I am left with the impression that control and responsibility for the substructure works was with McConnell Dowell and its sub-subcontractor, Moltoni.

272. This case is quite unlike Majury v Sunbeam Corporation Ltd in which it was conceded that the defendant was the occupier of the premises and the process of storing the pollutant was found to be under the exclusive control of the defendant. In the present case the defendant was not the sole occupier of the Finger Wharf. As noted in para 271 above, it is not clear whether the defendant was the occupier of that part of the Finger Wharf while the substructure work was being carried out or which was the subject of the substructure works. The evidence is unclear as to how many occupiers there were of the Finger Wharf at various times and particularly at the time of the oil spill. I have referred (in paragraph 92 above) to the design and construct contract, which does not give exclusive possession of the Finger Wharf to the defendant, but reserves to Wharf Developments, to the Marine Ministerial Holding Corporation and to the mortgagee bank and any of their agents and employees access to the site for any purpose. In the present case the evidence does not satisfy me beyond a reasonable doubt that the defendant was relevantly in possession of or in control of the Finger Wharf, the pipeline or the oil in the pipeline during the substructure works. (I have noted, amongst other things, that the defendant's site office was at that time in Lincoln Crescent, adjacent to Wharf 11).

273 In short, the evidence does not satisfy me beyond a reasonable doubt that the defendant was in possession of the pollutant on premises which it controlled; that is to say, that the defendant was relatively in control of the site and of the manner in which the works were being performed thereon at the time. Neither am I satisfied beyond a reasonable doubt that the defendant caused the pollutant to be placed in a position where it fell or was likely to fall into the waters, within the principles discussed in paragraphs 236-262 above.

274 It is settled law that s 16(1) of the Clean Waters Act can attract vicarious criminal liability so as to make a master vicariously responsible for the acts of an employee ( Tiger Nominees Pty Ltd v State Pollution Control Commission [1992] 25 NSWLR 715.

It is therefore necessary to consider the nature of vicarious liability and what circumstances must exist to give rise to such liability.

The concept of vicarious liability is a development of the law of torts, in that one person becomes liable for something that someone else has done. It most commonly applies to employers, who will be held liable for the torts of their employees. Vicarious liability is a form of strict liability, whereby the person held to be vicariously liable for the tort need not have been personally at fault. Vicarious liability may arise even if the occurrence of the tortious act, or the omission of the other person, is unknown to the party found to be vicariously liable ( Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36). Historically, an employer or master is responsible to third persons for the tortious actions or omissions of employees or servants which have occurred in the course of the employment or service. In Bartonshill Coal Co v McGuire (1858) 3 Macq 300, Lord Chelmsford LC said (at 306): " Every act which is done by a servant in the course of his duty is regarded as done by his master's orders and consequently is the same as if it were his master's own act ".

The cases make a distinction between the acts of employees and acts of independent contractors. The basic principle is that head contractor will not usually be vicariously liable in negligence to a third party for the negligent acts or omissions of an independent contractor or subcontractor. In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, Dixon J said (at 48): In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.

There are two exceptions to this principle: (i) where the principal has directly authorised the doing of the tortious act ( Stoneman v Lyons (1975) 8 ALR 173); and (ii) where the principal engages the independent contractor to exercise a duty of the principal and the independent contractor fails to do so ( Smith v Lewis (1945) 70 CLR 256, Perl Exporting Ltd v Camden LBC [1984] 1 QB 342, Dorset Yacht Co Ltd v Home Office [1970] AC 1004 and Kondis v State Transport Authority (1984) 154 CLR 652).

The distinction between employees and contractors has been modified to meet the ever-widening definition of employee (Chin B, Losing control: The difference between employees and independent contractors after Vabu v Commissioner of Taxation (1996) 34 Law Society Journal (No 10) p 52). It is to be noted, however, that in the case of Vabu Pty Ltd v The Commissioner of Taxation (Court of Appeal, 6 September 1996, unreported) Meagher and Sheller JJA held that there was no employer/employee relationship between a courier company and the couriers who worked for it. The Court found that the couriers worked for themselves rather than providing " their labour in the service of another ".

Liability for the acts and omissions of an independent contractor may arise if the work done was " subject to the control and direction of the employer in the actual execution of the work " ( Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396). Thus, vicarious liability of a principal for an independent contractor may arise through " direct authorisation of the tortious act " ( Kondis v State Transport Authority (1984) 154 CLR 672 at 698, per Brennan J).

It is self-evident that the question whether vicarious liability exists ultimately depends upon the circumstances of the case ( Mount Albert Borough Council v Johnson [1979] 2 NZLR 234, Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279). The rationale behind imposing vicarious liability upon an employer has traditionally been the nature and degree of control exercised by the employer over the " actual performance of the work " of the employee ( Honeywill & Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191; [1933] All ER 77). The degree of control is not necessarily the determining factor of the existence of vicarious liability. The High Court, in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, moved away from the " control test " to determine whether an employer/employee relationship existed. Following this trend, Meagher JA said in Vabu Pty Ltd v The Commissioner of Taxation that " the old test of control is now superseded by something more flexible ". Control, however, is still one of the main factors in determining both the relationship between the parties and whether a non-delegable duty exists ( Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 1428, 146 ALR 572 which I discuss under issue (3)).

In Stevens v Brodribb Sawmilling Company Pty Ltd Mason J stated: " The existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment " (at 24). In that case, a sawmiller (Brodribb) had general supervision over the operations of sniggers and truckers, but did not exercise control over the method by which sniggers and truckers carried out their work. Evidence was adduced that the sniggers and truckers provided and maintained their own equipment, set their own hours of work and were paid according to the volume of timber delivered to the mill (at 25). The High Court held unanimously that neither a trucker nor a snigger in that case were employees of the sawmiller. Thus, Brodribb could not be held vicariously liable for the actions of one snigger whose negligence formed the cause of action in that case.

I turn now to some of the cases in this Court in which, following the decision of the Court of Criminal Appeal in Tiger Nominees , the question of vicarious liability appears to have been considered.

In State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387, Cripps J followed Tiger Nominees in finding the defendant responsible under s 16(1) of the Clean Waters Act for the acts of an employee of a contractor. In that case, however, Cripps J also found that the Senior Engineer of the defendant exercised or purported to exercise detailed control over the manner of the doing of the work by the contractor's employee (at 394). Cripps J also said that if the contractor's employee had been an employee of the defendant it could not be doubted that the defendant would be responsible for his acts; that the circumstance that his wages were paid by the subcontractor, in the circumstances of the case, made very little difference; and that the employee was there to do what he was directed to do, not by the subcontractor, but by the defendant's senior engineer, who not only claimed a right to control but purported to exercise control (at 394). An appeal against the conviction in this case was dismissed ( Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 CCA).

In Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226, I applied Tiger Nominees in holding the defendant liable under s 16(1) of the Clean Waters Act for the acts of a contractor. In so holding I found that the defendant by both itself and its agents (a firm of consulting engineers) was involved in the design and supervision of the works being undertaken by the contractor; the defendant instructed the contractor in and about the construction of the works; and the defendant was aware of the contractor's failure to comply with instructions given by the defendant.

In Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51, Talbot J found that the defendant was not vicariously liable when heating oil escaped into a creek from a fuel bunker and associated heating system, the maintenance of which had been entrusted by the defendant to an independent contractor. Talbot J said (at 55): It is not enough to show only that oil was discharged into the creek from the defendant's premises.

For the defendant to be guilty, the prosecution must show what the actus reus was and that the act was one for which the defendant was responsible.

Talbot J said (at 55) that the terms of the contractor's engagement must be examined to determine whether his actions were the subject of sufficient control to create vicarious liability. Talbot J then continued: Control includes the power of deciding what must be done, the manner of its doing, the means to be employed, the time when and the place where it shall be done. The existence of control is not the only criteria to determine the relationship. Other relevant matters include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and the provision for holidays, the deduction of income tax and the delegation of work by a putative employee: ...

In that case, Talbot J found that the contractor was responsible for the operation of the heating system, the defendant did not effect any direct or real control over the manner in which the contractor undertook his work and there was no evidence of control or direction by the defendant over the contractor. Talbot J held that the prosecutor had not proved beyond reasonable doubt that the defendant was vicariously liable for the acts of the contractor.

In Environment Protection Authority v Munters Pty Ltd it was alleged that the defendant, which operated a factory at North Albury, placed or caused to be placed a pollutant into waters. Pearlman J was satisfied beyond reasonable doubt that the pollutant was placed in a position on the defendant's premises where it descended into a drain and thence into an open channel. The critical question identified by her Honour was whether the defendant placed or caused to be placed the pollutant in the relevant position. The evidence was that Mr Cutajar, who owns and drives a prime mover, was under contract with Brambles (Tanker Division) to deliver a bulk load of resinox to the defendant's premises. He was directed by an employee of the defendant to back the tanker up to a bunded area in which there was a storage tank. Mr Cutajar joined two hoses from the tanker. The defendant's employee placed the hose into a manhole in the storage tank. Mr Cutajar then commenced decanting the liquid. Resinox leaked from a drip at a join in the hoses. Pearlman J said (at 288-289): The prosecutor contended that the employees of the defendant exercised sufficient control over the actions of Mr Cutajar sufficient to make the defendant liable for any spill that might have occurred as a result of Mr Cutajar's actions.

However, the evidence does not support such a conclusion. Mr Cutajar was an independent contractor, under contract to Brambles to collect and deliver a load of resinox. The only direction given by the employees of the defendant to Mr Cutajar was where to park his tanker. Apart from placing the hose in the appropriate storage tank, the employees had nothing to do with the decanting operation. Mr Monahan and Mr Schreiber said they were not present during the decanting operation. No directions were given to Mr Cutajar as to how he should carry out the decanting operation, nor as to the time when he should commence or terminate that operation, nor was he supervised during that operation. Furthermore, when Mr Cutajar observed the drip from the join in the hoses, he approached Mr Schreiber inside the factory building, and asked for a bucket which was given to him. Mr Cutajar acted on his own in regard to his endeavours to contain the drip.

In summary, I am not satisfied beyond reasonable doubt that the defendant caused the spill of resinox when transferring the liquid on 20 June, and I am not satisfied beyond reasonable doubt that, if the spill was caused by Mr Cutajar, he was acting under the control or direction of the defendant so as to make the defendant liable for the spill.

In applying the principles which emerge from all the abovementioned cases to the facts in the present case, I am led to the conclusion that the main factor (although not the only factor) on which vicarious liability has been founded, that of control and direction, is absent. Unlike the case of State Pollution Control Commission v Australian Iron & Steel Ltd , the evidence in this case does not satisfy me beyond a reasonable doubt that the defendant exercised detailed control over the manner of the doing of the work which led to the oil spill. Unlike the case of Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd , the evidence in this case does not satisfy me beyond a reasonable doubt that the defendant was supervising the works or instructing the subcontractor or the sub-subcontractor in and about the construction of the works. Like the case of Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd , the evidence in this case suggests that the defendant did not effect any direct or real control over the manner in which the work which led to the oil spill was undertaken, neither does the evidence suggest that the defendant exercised control or direction over the subcontractor or sub-subcontractor. Like the defendant in Environment Protection Authority v Munters Ltd , the evidence in this case suggests that the directions given by the defendant were in relation to what should be done but not how the work should be carried out; the employees of Moltoni were not supervised by the defendant; and Moltoni's employees took their instructions from either Mr Blair or from employees of McConnell Dowell.

I have referred throughout this judgment to the detailed facts. Some of those facts which demonstrate an absence of the element of control and direction on the part of the defendant include ( inter alia ): the defendant's site office was at the northern end of Wharf 11 in Lincoln Crescent in February 1998; Moltoni, as noted above, received no instructions from the defendant, although the defendant's safety officers would give directions consistent with the duties of the safety committee under the relevant legislation; Moltoni only spoke to Mr Beveridge during the tendering process and not to the defendant; Moltoni did not check the status of the oil pipeline with the defendants because its contract was with McConnell Dowell; the area in which Moltoni was working was barricaded by Moltoni; the hazard identification register was completed by McConnell Dowell; the work method statement was prepared by Moltoni; when work was being carried out in the vicinity of the pipeline Mr Blair reported that fact to Mr Petracca of McConnell Dowell; there is an absence of evidence of control or direction by the defendant over the work being performed by Moltoni; such evidence as is adduced suggests that McConnell Dowell exercised control and direction over the work being performed by Moltoni; and both McConnell Dowell and Moltoni's tender documents refer to their respective expertise in the area of demolition and in particular in relation to wharf demolition.

I thus conclude that I am left with a reasonable doubt that the defendant is vicariously liable for the act of pollution which occurred in this case.

As the defendant pointed out in submissions, this head of liability has not previously been applied to give rise to criminal liability for an offence such as s 16(1) of the Clean Waters Act.

The concept of a non-delegable duty is, like vicarious liability, a child of the law of torts. As with vicarious liability, it is, I think, necessary to consider the nature of the duty and the circumstances which must exist to give rise to such a duty.

A principal will be liable for the negligence of an independent contractor if either: (a) the principal failed to exercise reasonable care in choosing a competent independent contractor ( Torrette House Pty Ltd v Berkman (1940) 62 CLR 637); or

(b) the principal is under a non-delegable duty (which I discuss below). (The evidence in the present case shows that the defendant as principal has satisfied the first requirement. That is to say, the defendant exercised reasonable care in choosing a competent independent contractor.)

A non-delegable duty is one which cannot be renounced or delegated. A non-delegable duty is a higher, more stringent personal duty to ensure that reasonable care is taken. In many situations, an employer's duty of care does not extend beyond the general common law duty to exercise reasonable skill and care in engaging employees and contractors or in supervising work conditions or methods. The common law duty will usually be met by engaging a competent contractor to perform certain work which requires a specific skill or expertise which the employer does not have ( D & F Estates & Ors v Church Commissioners for England & Ors [1989] 1 AC 177). In other situations a principal will have a wider personal duty to use reasonable care. Such a duty cannot be delegated to either an employee or to an independent contractor.

The classes of case in which a non-delegable duty may arise are not closed. It is clear, however, that there must be a particular relationship between the parties whereby it is appropriate to impose the duty, such a relationship usually involving the key elements of control or supervision as having been undertaken by the principal ( Rylands v Fletcher [1866] LR 1 Exch 265, Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Kondis v State Transport Authority ). In Burnie Port Authority v General Jones Pty Ltd , Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said (at 550): It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor.

By way of example, if a principal engages an independent contractor to do particular work which involves a particular risk, of which the principal is or can reasonably be assumed to be aware, the principal may have a personal responsibility to instruct the contractor as to the nature of the risk and to supervise the work to be done ( Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 CA).

The notion of a non-delegable duty of care was introduced as long ago as 1937 in England in Wilsons and Clyde Coal Co Ltd v English [1938] AC 57, [1937] 3 All ER 628 in which it was held that the duty to provide adequate supervision and a safe system of work is non-delegable. (Earlier references to the concept of a non-delegable duty are, however, found in Pickard v Smith (1861) 142 ER 535 and Dalton v Angus Co (1881) 6 App Cas 740.)

I have referred (in paragraph 297 above) to the recognition by the High Court that a non-delegable duty of care is a duty which arises because a person engages another to perform work and becomes liable for the negligence of the person thus engaged, notwithstanding that the person who owes the duty has exercised reasonable care in engaging that person (see also Stevens v Brodribb Sawmilling Co Pty Ltd at 32, per Mason J and Northern Sandblasting Pty Ltd v Harris at 1435). The duty may arise notwithstanding that the person who has been engaged is an independent contractor for whom the person owing the duty would not be vicariously liable. Similarly, in Kondis v State Transport Authority it was held that a non-delegable duty is a duty which arises in certain circumstances where a principal who engages another (such as a contractor) to undertake work is liable for the negligence of the person engaged notwithstanding that the principal exercised reasonable care in the selection of the person engaged.

A non-delegable duty is not generated by the foreseeability of an incident which results in a tort. It is the relationship of proximity between the parties which gives rise to a non-delegable duty ( Northern Sandblasting Pty Ltd v Harris at 1446). In Burnie Port Authority v General Jones Pty Ltd , Mason CJ, Dean, Dawson, Toohey and Gaudron JJ said (at 551): " Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person ( The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J)".

A principal will be liable for the negligence of anyone who is engaged to carry out the principal's duty to provide safe equipment in a safe system of work for employees ( Wilson & Clyde Coal Co Ltd v English; Kondis v State Transport Authority ). If the principal reasonably delegates the duty to provide a safe system of work to a qualified employee or independent contractor, however, he is less likely to be held liable for the torts of that employee or of the servants of the independent contractor to whom the duty is delegated ( Whitham v Shire of Bright [1959] VR 790).

In Stevens v Brodribb Sawmilling Co Pty Ltd the plaintiff argued that there are two exceptions to the rule that a principal is not liable for the negligence of independent contractors: (a) in the case of extra-hazardous activities and (b) where the principal is in breach of a non-delegable duty. As to (a) the leading case on this issue is Honeywill and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd , in which it was held that when a person employs another to carry out work of an extra-hazardous character, there is a duty to take special precautions to ensure safety. Such a duty cannot be delegated to independent contractors. It should be noted, however, that the English cases on this aspect of vicarious liability have not been followed in Australia. In Stevens v Brodribb Sawmilling Co Pty Ltd Mason J said (at 30) that this exception " has no place in Australian law ". As to (b) it was held that the facts in that case were essentially different from those of cases in which such a duty has been found to exist and the question did not arise for consideration.

On the question of non-delegable duty the case of Northern Sandblasting Pty Ltd v Harris appears to suggest that there is a trend to broadening the class of relationship in which such a duty may arise . In Northern Sandblasting the High Court held, by majority, that a landlord of a residential property had a duty of care to his tenants to inspect and maintain the premises to ensure that the electrical wiring is not faulty and that the premises are safe. It was also held by majority that the negligence on the part of the electrician, who was engaged by the landlord to fix a stove on the premises and which might foreseeably cause injury to the tenants, did not impose a non-delegable duty on the landlord. Only Toohey and McHugh JJ held that the landlord had a personal, non-delegable duty to the tenants to ensure that due care was reasonably exercised in the repair of the stove. This duty, according to the minority, could not be delegated to the electrician. The basis for a finding of a non-delegable duty in this case was the special vulnerability and dependence of the child plaintiff, who was severely injured as a result of the faulty wiring and negligently repaired stove. Moreover, McHugh J held that it did not make any difference that only a licensed person could, by law, carry out the repairs and stated that when the electrician negligently repaired the stove " he caused the landlord to breach the duty it owed to the plaintiff " (at 1457). According to the majority, the landlord was able to delegate its duty of care (to detect faulty wiring and to maintain the premises in a safe condition) owing to the tenants by engaging a competent professional electrician who could be expected to have the necessary expertise and experience to detect the faulty wiring and to repair the stove independently of the landlord's supervision and control.

I return to the question of whether the duty to ensure a safe system of work is a non-delegable duty. In the case of employers, there is a duty imposed upon the employer to make reasonable arrangements to ensure that the workplace and the systems of work are reasonably safe (see, for example, Karatzidis v Victorian Railways Commissioner [1971] VR 360). In Hetherington v Mirvac Pty Ltd [1999] NSWSC 443 the plaintiff alleged negligence arising out of a breach of a duty of care owed by the developer/head contractor to provide a safe system of work. The plaintiff was a tiler who had been injured when he fell through fibro sheeting onto a concrete floor on a construction site. The system of contracting on the site was complex. The plaintiff was an employee of a sub-subcontracting company to Mirvac Pty Ltd (the head contractor). The contractual situation was thus not dissimilar to the present case. The plaintiff sued Mirvac in negligence alleging breach of its duty to provide a safe system of work. Wood CJ at CL said that " had Mirvac or Boral [the subcontractor] been directly involved in the co-ordination or supervision of the works, or had the works been carried out by subcontractors in close physical proximity, or had there been any suspicion that this roof possessed any special risk, then liability might have ensued ". Wood CJ at CL held that the sub-subcontractor was competent to control its system of work without the supervision of either Mirvac or Boral. Furthermore, the plaintiff was not in a position of particular vulnerability, which may give rise to a non-delegable duty as in Northern Sandblasting Pty Ltd v Harris . Wood CJ at CL found that the plaintiff had knowledge of the dangers of stepping onto unsupported fibro. His Honour concluded that any obligation to provide a safe place or system of work, or suitable plant and equipment rested directly on the plaintiff's employer, that is to say, on the sub-subcontractor.

In Kondis v State Transport Authority an independent contractor dropped part of a crane on an employee of the principal. The High Court held that the employer had breached its duty to provide a safe system of work because it had failed to supervise the operation of the crane and to instruct the employee not to stand under the jib of the crane during its operation. The duty to provide a safe system of work was held to be a non-delegable duty. Mason J said: " There is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of persons to whom the duty is owed " (at 687). This element was referred to in Burnie Port Authority v General Jones Pty Ltd (at 551) as the " central element of control ", whereby there exists a special relationship between the parties to ensure that due care is exercised.

As noted in the statement quoted (in para 306) above from the judgment of Mason J in Kondis v State Transport Authority , the existence of a non-delegable duty of care may be dependent upon the particular relationship between the parties. For example, where an employer engages an independent contractor to carry out his own personal duties which might usually be done by its own employee, the duty of care owed is more likely to be non-delegable ( Davie v New Merton Board Mills Ltd [1959] AC 604 at 646, cited in Kondis v State Transport Authority at 683). In such circumstances the duty cannot be delegated to a competent, independent contractor even although the principal is certain that the contractor has the necessary expertise to carry out the work for which it is engaged ( Kondis v State Transport Authority at 679). On the other hand, if an independent contractor is engaged to perform work in a specific way, the principal cannot be held vicariously liable in negligence for injury sustained by employees of the independent contractor incurred in the course of carrying out that work ( Boral Roof Tiles Ltd v O'Brien , Court of Appeal, 15 December 1994, unreported).

The common law also imposes a duty on a principal to warn and supervise where unusual or unexpected risks are reasonably foreseeable ( O'Connor v Commissioner for Government Transport (1984) 100 CLR 255).

In Taylor Woodrow Homes Builders Pty Ltd v Chitarra (Full Court of Supreme Court of Western Australia, 30 December 1994, unreported) the Court held (by majority) that a principal owed a duty of care to an employee of a contractor to warn the employee of additional risk of personal injuries involved in the use of a new building material used for the roof of a domestic house. The Court below had found that the duty to warn had been breached because of the proximity of the relationship between the principal and the employee of the contractor and the existence of a duty of care not to put the employee of the contractor at risk. Counsel for the appellant submitted that the appellant did not supervise the work of the employee of the contractor: it " merely checked progress ". The building site was under the control of the contractor and it was " common practice in the industry for roofing carpenters to inspect timber supplied and was not common practice for the person ordering the timber to inspect it ". In spite of this evidence two of the three judges held that the principal was responsible for the safety of the employee of the independent contractor.

In my opinion the prosecutor has not established beyond reasonable doubt that the circumstances of the present case give rise to a non-delegable duty of care on the part of the defendant. I have previously referred to the fact that the defendant exercised reasonable care in engaging a competent subcontractor having a specific expertise in demolition work and, in particular, in the demolition of wharf structures. The sub-subcontractor had a similar specific expertise. That, however, is not determinative of whether a non-delegable duty exists. It is a factor, however, which makes it less likely that a principal will be held liable under this heading. The duty does exist if there is a special dependence or vulnerability on the part of the person exposed to the risk. This appears to be an essential ingredient of the duty. No such special dependence or vulnerability has been demonstrated in the present case. In the absence of such evidence then it seems to me that, like the landlord in Northern Sandblasting Pty Ltd v Harris , the defendant in this case was able to delegate its duty of care to those who could be expected to have the necessary knowledge and expertise to carry out the demolition work independently of the defendant's supervision and control.

As to the non-delegable duty to provide a safe system of work, the defendant engaged McConnell Dowell as a competent experienced contractor to carry out a particular task. I have noted above that McConnell Dowell was aware of the industry practice to treat all pipelines as being "live". Neither McConnell Dowell nor Moltoni were in a position of special dependence or vulnerability which may give rise to a non-delegable duty (cf Northern Sandblasting v Harris ). Moreover, Moltoni, as an independent, competent sub-subcontractor was responsible for its own system of work and the way in which the work it was contracted to do should be carried out. Given the nature of the contractual relationship between the defendant and Moltoni and the industry practice and the lack of proximity (physical or otherwise) between the head contractor and the sub-subcontractor, I conclude that the defendant did not owe a non-delegable duty to provide a safe system of work. That is to say, the necessary elements which give rise to the duty now asserted by the prosecutor have not been established and, accordingly, have not been breached.

As to the duty to warn, in the present case the evidence shows that the defendant was aware of the existence of the pipes and of the fact that there was oil in the pipes. The defendant was also thus aware of the possible risk of the pipes leaking oil into the water in the course of the demolition of the original wharf structure. This knowledge does not, however, necessarily translate into a duty to warn of the foreseeable risk involved. In the present case both McConnell Dowell and Moltoni were also aware of the risk. I have noted above that they were aware of the industry practice to treat all pipe lines such as that with which this case is concerned, as being "live". Since both McConnell Dowell and Moltoni were aware of the industry practice they should and could have reasonably foreseen the possibility of oil spilling in the event that the pipes were disturbed and taken the necessary precautions to prevent pollution from occurring. Moreover, in the present case the hazard identification register prepared by McConnell Dowell on 14 November 1997 clearly identifies the risk of both explosion and pollution arising from the removal of the oil/fuel pipe lines, the risk of falling debris occurring during the removal of timber and of concrete units and the work method statement also prepared by McConnell Dowell on or about the same date refers to the risk of fire and explosions as well as oil spillage in the course of removal of the oil pipes. I have also previously referred to the work method statement furnished by Moltoni to McConnell Dowell on 7 November 1997 in which Moltoni recognises the need to totally control oil spillage from pipe residues. In my opinion, both McConnell Dowell's knowledge and Moltoni's knowledge of the industry practice and of the risk of oil being present in the pipe line relieves the defendant in this case of any duty to warn them of that risk.

I have referred to the prosecutor's submission that the involvement of the defendant in the post-spill cleanup and related conduct of the defendant is evidence of a consciousness of guilt. I have also referred to possible explanations for such conduct, including that the defendant was merely acting as would any " good citizen " in such an event; and that the defendant would be naturally anxious to avoid any delay to its programme of works. I also note, in this context, the effect of cl 39 of the design and construct contract to which I have referred in paras 40 and 96 above.

The obligation of the prosecutor, in a case such as this, is to exclude all reasonable hypotheses consistent with the innocence of the defendant. The guilt of the defendant should not only be a rational inference but it should be the only rational inference that could be drawn from the circumstances ( Environment Protection Authority v Munters Ltd , at 287, per Pearlman J). I do not think that the only rational inference that could be drawn from the defendant's conduct is a consciousness of guilt as alleged by the prosecutor. The prosecutor has not excluded other plausible explanations for the post-spill actions of the defendant. I reject the prosecutor's submission as to the inference which should be drawn from the circumstances.

I next refer to the prosecutor's submissions that a defendant cannot contract out of criminal liability; and specifically that a defendant cannot avoid liability for an offence under the Clean Waters Act by the provisions of a contract. In my opinion, however, where a defendant's liability is dependent upon obligations said to arise pursuant to a contract, it is not a question of contracting out of criminal liability. In another way, if the defendant's liability for a criminal offence is said to arise as a consequence of contractual obligations, such as design, supervision, control and direction, but such obligations are absent, then no criminal liability arises. That is to say, there is no criminal liability to contract out of. That is the case here. The criminal liability of the defendant is said by the prosecutor to be based on, inter alia , its contractual obligations. The prosecutor, however, has not established that the contractual obligations on the part of the defendant give rise to criminal liability in the first instance. I reject the prosecutor's submission.

I next refer to the prosecutor's submissiion that since no one from the defendant gave evidence, it may be legitimate to more readily draw an inference of guilt. Reference was made by the prosecutor to May v O'Sullivan . That is a case, however, which concerned the consequences of a defendant's failure to call evidence once there was a case to answer. In my opinion I am required to refrain from speculation as to why no one from the defendant was called and to refrain from speculation as to what evidence they might have given ( Re Newland (1997) 98 A Crim R 455 CCA, per Gleeson CJ at 462). I am required to decide the case only on the evidence which is before the Court. Bearing in mind that the prosecutor throughout carries the onus of proving the guilt of the defendant beyond reasonable doubt, I draw no inference from the failure of the defendant to call any representative of the defendant.

For all the foregoing reasons I find that the prosecutor has failed to establish beyond reasonable doubt that the defendant is guilty of the offence as charged. Accordingly the defendant must be acquitted and the summons dismissed.

In accordance with the prosecutor's request, however, I refrain from making formal orders in order to enable it to consider its position. I stand the matter over for seven days for mention or for the making of formal orders.

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