Environment Protection Authority v Pannowitz

Environment Protection Authority v Pannowitz - [2006] NSWLEC 219 - NSWLEC 2006 case summary — Zoe

[4]

A PUBLICATION ORDER 2 The charge of contempt arises out of an order made by the Court in proceedings entitled Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175. That was a prosecution for an offence of unlawful transport of waste to a place that could not lawfully be used as a waste facility, contrary to the Protection of the Environment Operations Act 1997 ("the POEO Act"), s 143(1). The defendant corporation pleaded guilty and, by order made on 22 April 2005, was fined $40,000 and ordered to pay the prosecutor's costs. In addition, the Court made a publication order under s 250(1)(a) of the POEO Act as follows: Pursuant to sub-s 250(1)(a) of the Protection of the Environment Operations Act 1997 , within four (4) weeks of the date of this order, the defendant cause a notice to be placed once in the terms set out in Annexure "A" hereto - (a) In the Newcastle Herald , Saturday edition on page 3, at least a quarter page in size; and (b) In the Waste Management and Environment magazine at least a quarter page in size. 3 Annexure "A" is as follows: PUBLICATION ORDER Pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 (NSW) [Steepleton Pty Ltd logo] "On 21 April 2005 Steepleton Pty Limited and Kenneth Warren Pannowitz (a Director of Steepleton Pty Limited) were convicted and fined $40,000 and $20,000 respectively in the Land and Environment Court of New South Wales for transporting waste to a place that could not lawfully be used as a waste facility for that waste. This is an offence against section 143(1)(a) of the Protection of Environment Operations Act 1997 (NSW). The offences involved the unlawful transport of between 1310-1661 tonnes of predominantly building and demolition waste to premises at Phoenix Park. The disposal of the waste at the premises was unlawful because there was: (a) no environment protection licence issued by the Environment Protection Authority of the New South Wales for the waste facility; (b) no development consent from the local council (Maitland City Council); and (c) no approval from the Minister administering the Water Management Act 2000 (NSW) for a structure adjacent to a levee bank designed to prevent flooding from a tributary of the Hunter River. Steepleton Pty Limited and Kenneth Warren Pannowitz were prosecuted by the Environment Protection Authority and were ordered by the Land and Environment Court to place this notice in the Newcastle Herald and Waste Management and Environment magazine . [DEC logo] The Environment Protection Authority is now part of the Department of Environment and Conservation. 4 On 28 October 2005 the Federal Court of Australia made an order that Steepleton Pty Limited ("Steepleton") be wound up and appointed an official liquidator to that company.

[21]

JURISDICTION 9 The contempt with which Mr Pannowitz is charged is criminal contempt. The proceedings are criminal in nature (Witham v Holloway (1995) 183 CLR 525) and should be regarded as invoking the criminal jurisdiction (R v Hoser [2001] VSC 443 at [45]), which requires that the charge be proved beyond reasonable doubt. 10 The Land and Environment Court has power in its criminal jurisdiction (known as class 5 proceedings) to deal with allegations of contempt by parties in that jurisdiction. This power is found in the Land and Environment Court Act 1979 ("the Court Act"), s 67, which relevantly states: The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters: …. (d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, … 11 Although the jurisdiction to deal with contempt is derived from statute under s 67(d) of the Court Act, in this case the contempt charged is a common law offence. 12 In Environment Protection Authority v Waight (2003) 125 LGERA 399 at 404[13], Pearlman J held that s 67(d) confers a power upon this Court to punish for contempt of any of its orders, and that power extends to punishment for contempt of orders made in its class 5 jurisdiction pursuant to a remediation order under s 14 of the Environmental Offences and Penalties Act 1989 (since repealed). There is no distinction in practical effect between such a remediation order and an order for publication made under s 250(1)(a) of the POEO Act, as was made against Steepleton. 13 The original proceedings against Steepleton were class 5 proceedings in the criminal jurisdiction of the Court. Mr Pannowitz was not a party. Because Mr Pannowitz was not a party in the original proceedings, the prosecutor attempted to commence these proceedings against Mr Pannowitz in accordance with the procedure that applies in class 5 of the Court's jurisdiction, that is, by summons naming Mr Pannowitz as the defendant: s 41 of the Court Act. Even though the contempt charged is in connection with the principal proceedings, the proceedings seeking to punish a non-party for contempt of the type now under consideration ought to have been brought by a separate summons: Harkianakis v Skalkos (1997) 42 NSWLR 22 per Mason P at 25 and per Powell JA at 69. 14 I was informed from the bar table that the Registry refused to accept the filing of the summons and instead insisted that the prosecutor proceed by way of notice of motion for contempt in the original proceedings. Accordingly, the prosecutor filed the present notice of motion, naming Mr Pannowitz as defendant, even although he was not a party to the original proceedings. 15 In the case of an allegation of contempt against a non-party, such as this, I hold serious doubts as to whether the present proceeding is properly constituted. As already noted, Mr Pannowitz was not a party to the original proceedings against Steepleton, and was not joined as a party in those proceedings. When a non-party is alleged to have committed a contempt of court the correct procedure is that described in Harkianakis v Skalkos, noted above; that is, by the commencement of separate proceedings against that person by summons. The prosecutor cannot be blamed in this case - it attempted to adopt the correct course, but was prevented by the Registry's staff from doing so. 16 The defendant does not, however, take issue with the form of the proceedings and has not sought to object to the Court's jurisdiction to now deal with the charge of contempt brought against him. I am, accordingly, and with considerable diffidence, prepared to entertain the charge. Nevertheless, it is not for the registry to decline to accept an originating process for filing. If it were thought that it was the incorrect originating process, then it would be for the opposing party to move to set it aside. In the present case the opposing party, Mr Pannowitz, is legally represented and has not sought to raise the point.

[23]

He said: "I don't fucking care mate. Everything is going to ICAC. I have never been humiliated so fucking much in all my life. It's all lies. Council was dumping there, we have photos of the council's truck. I just want to thank you. You're an arsehole - you are all a bunch of fucking arseholes. You won't get any money out of me - I'll go bankrupt. No fucking way you'll get my money. See you in the Supreme Court" 20 Mr Pannowitz agrees that he made a telephone call to Mr Anderson that day. He denies that he used the words attributed to him. He states that the words he did use were: I am still going to have you investigated by ICAC. I am not forgetting this and I still intend to take it further. In any event I am going to appeal to the Supreme Court. I have already spoken to the courthouse for the Land and Environment Court and they are going to send me out some papers to appeal. 21 Mr Anderson is clearly a careful and thorough solicitor. He made a very full contemporaneous note of the conversation. I thus have no hesitation in accepting his version of the conversation in preference to that of Mr Pannowitz whose recollection is set out in an affidavit sworn some 11 months after the conversation took place. 22 On 11 May 2005, whilst at the Raymond terrace office, Mr Pannowitz asked Mr Single to place the advertisement in the Newcastle Herald. According to both Mr Pannowitz and Mr Single, Mr Pannowitz handed to Mr Single page 14 of the 15-page judgment, which contains the orders of the Court and all but the last few lines of the form of notice that Steepleton was ordered to publish - that is, the form of notice down to the words "…prosecuted by Environment" were contained on page 14. The balance of the form of the notice appears on page 15, which was not given to Mr Single. Mr Pannowitz asked Mr Single to type out the advertisement and fax a copy to the Newcastle Herald to be published in the Saturday paper on page 3, and to make sure that it covered a quarter of a page. 23 According to Mr Single, when he started to type, Mr Pannowitz said: "Put a heading "Steepleton Pty Limited" in the middle of the page at the top". Both Mr Pannowitz and Mr Single say that Mr Pannowitz also told Mr Single to put at the bottom: "This matter has been referred by Steepleton to ICAC for further investigation"; and Mr Pannowitz also said to Mr Single: "Make sure it is this size". Mr Single prepared the advertisement as instructed and added in handwriting the words, "Must be this size". 24 On 12 May 2005, Ms Nicole Gibson, a client account manager for Newcastle Newspapers Pty Ltd received a facsimile from Steepleton together with an advertisement and a request that it be published on page 3 of the Saturday edition of the Newcastle Herald. She telephoned Mr Pannowitz and said to him: The booking deadline for Saturday was 1 pm yesterday. I can't run it on page 3 because of other bookings and the size. All we can do is page 4 and 10 cm by 2 columns, not 4. It's the best we can do. What do you want to do? 25 Mr Pannowitz said: "We've got to get it in. Print it on page 4 at that size". 26 On the same day Ms Gemma Moylan, a trainee copy assistant employed by Newcastle Newspapers Pty Ltd, prepared a proof for the advertisement and sent a copy of it to Mr Pannowitz by facsimile. On 13 May 2005 she contacted the office of Husky Holdings Pty Ltd and spoke to a person at that office asking whether the proof had been received and could she have approval for publication. The person she spoke to replied: "Yes, go ahead."

[37]

It has come to the EPA's attention that according to certain persons involved in the waste industry on the NSW Central Coast, you have been alleging that Mr Terry Muir, a specialist investigator with the EPA, has a corrupt relationship with you. These people have stated to EPA officers that you have told them that Mr Muir is "in your pocket', he is "in your employ" and he has protected you from being prosecuted by the EPA. The EPA regards very seriously any accusation that any one of its officers has been engaged in corrupt conduct. If you have any information that any EPA officer has been involved in corrupt conduct then should immediately provide the EPA and/or the Independent Commission Against Corruption (ICAC) with this information. I should also add that the EPA views very seriously any false allegations of corruption against its officers and will take the strongest action if this is the case. A person may be prosecuted under the Crimes Act 1900 and under the Independent Commission Against Corruption Act 1988 for falsely accusing an EPA officer of corrupt conduct. A person guilty of these offences may receive a sentence of up to 7 years imprisonment. If you wish to discuss this matter, please contact [name] on [telephone number]. Yours sincerely [Signature] Executive Director Legal Services 38 Mr Pannowitz says that, at about the time of the investigation by the EPA of the original charge against Steepleton, he became aware of allegations made by Mr Mitchell Bennett, an officer of the EPA based in Newcastle, that there were elements of corruption in the investigation of the offences. Mr Terry Muir was the investigating officer of the EPA into those offences. 39 Shortly after receiving the letter dated 15 January 2003, Mr Pannowitz made a telephone call to Mr Gordon Plath, a solicitor employed by the EPA, during which the following conversation took place: Pannowitz: "You have got to be joking accusing me of bribery. I have read the letter." Plath: "If you deny it, OK, we'll accept that. If you've got any more complaints you should go to ICAC." Pannowitz: "OK. I'll do just that." 40 Shortly after this conversation, Mr Pannowitz made a telephone call to the Independent Commission Against Corruption. He says that the person to whom he spoke said: "Wait until the matter is fully investigated. ICAC cannot make any investigations whilst there are proceedings pending." 41 In his oral evidence, Mr Pannowitz said that he (and Steepleton) had been unfairly prosecuted; he put the additional words in the notice because he wanted to clear his name; he did not believe at the time that it was a mistake to include the additional words; and although he did not think at the time that it was wrong to do so, he now realises it was wrong. 42 I find, however, that this explanation is difficult to accept and is not consistent with the conversation recorded by Mr Anderson shortly before the publication of the notice noted in par [19] above. In that conversation Mr Pannowitz states his intention (i) that "everything is going to ICAC" - as he subsequently stated in the notice; (ii) that the fines would not be paid - and they have not, despite his evidence that he intends to pay; and (iii) that "I'll go bankrupt" - and Steepleton has since gone into liquidation and an order has been made that it be wound up. 43 This conversation demonstrates, in my opinion, Mr Pannowitz's state of mind shortly before he caused the publication of the notice and is in contrast with his state of mind now expressed to the Court, well after the event. 44 That is to say, I am satisfied beyond a reasonable doubt that Mr Pannowitz expressed the clear intention to deliberately undermine, frustrate or interfere with the administration of justice. 45 Mr Pannowitz says that he still has a desire to refer the EPA's handling of the investigation against Steepleton to the ICAC, but is awaiting the conclusion of these proceedings before doing so. 46 I note, however, that the statement which was added to the form of notice which was published in the Newcastle Herald asserts that this matter "has been" referred to ICAC, which is plainly incorrect. 47 As to the absence from the published notice of the logos of Steepleton and the prosecutor, Mr Pannowitz says that Steepleton did not have a logo and he did not know what a logo is. I accept this explanation. 48 On 17 June 2005 Mr Anderson sent a letter on behalf of the prosecutor to Messrs Thompson Norrie, solicitors, who were by now acting for Mr Pannowitz. The letter draws attention to the form of the notice that was published in the Newcastle Herald, states that proceedings for contempt have been authorised, but prior to commencing such proceedings, the publication of a correction in the form suggested in the letter is invited, in which event the EPA may determine not to commence proceedings for contempt. 49 By letter dated 23 June 2005, Messrs Thompson Norrie replied that their client was not prepared to take the suggested steps to publish a notice of correction and that they had instructions to approach the Court and have the matter re-listed for further directions in relation to the publication order. However, no such approach to the Court was made. 50 I have referred (in par [8] above) to the four ways in which it is said that the contempt was committed, namely: (1) interference with the due course of justice; (b) aiding and abetting a contempt committed by Steepleton; (2) scandalising the court; and (3) aiding and abetting Steepleton in scandalising the court. I now turn to consider the elements of each kind of contempt, and whether those elements have been satisfied in the present case.

[41]

[96] What the plaintiff has to establish is that the conduct of the defendant had an inherent tendency, as a matter of practical reality, to interfere with the administration of justice, not that the conduct actually produced an interference with the course of justice in the particular case. Hence, the defendant's conduct would be capable of amounting to a contempt of court, even though the defendant's conduct did not in fact cause Mr S to believe that the envelope contained a threat, reward or inducement and did not in fact cause the jury to be discharged. In Attorney General v John Fairfax & Sons Ltd (1980) 1 NSWLR 362 the Court of Appeal said at 368:- "Without purporting to state the test exhaustively, it can be said that contempt can be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively, by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings has been, or what it probably will be". 56 In the present case, the purpose of the order for publication is to be gleaned from the terms of the order, which speaks for itself: Mayas at 355 per McHugh JA, Attorney-General v Punch Ltd [2003] 1 AC 1046 at 1056 [40], [48]; 1061 [64]; 1063 [76] and 1072 [126]. Moreover, in the present case the purpose of the order is clearly in the reasons for judgment (at par [69]); and Mr Pannowitz had a copy of the reasons for judgment, although he was not personally bound by the order. Mr Pannowitz was the sole director of Steepleton and was thus the responsible officer for Steepleton's action. Where a person who is a director of a corporation causes the corporation to breach an order of the court which binds it, then, along with the corporation, the director is liable to be convicted of contempt. In the present case the prosecutor has not proceeded against Steepleton for the reason that a liquidator was appointed on 28 October 2005 and a winding up order has been made. The defendant's knowledge of the Court's publication order

[49]

66 The facts described in pars [24] to [26] above clearly show that Mr Pannowitz asked that the notice be published on page 4 of the newspaper and that it be the size of 10cm by 2 columns (being approximately one-sixteenth of a page in size), not 4 columns. This conclusion is based upon the evidence of Ms Nicole Gibson and Ms Gemma Moylan, both employees of Newcastle Newspapers Pty Ltd, neither of whom were cross-examined. Mr Pannowitz's evidence differs from that of Ms Gibson and Ms Moylan. In his affidavit of 23 March 2006 he claims he did not speak directly to Ms Gibson, rather it was his employee, Mr Single. In oral evidence Mr Pannowitz said he may have spoken with Ms Gibson, but that she indicated there was a possibility the advertisement could be placed on page 3. Mr Pannowitz's evidence is clearly contradictory in itself. Moreover, the affidavit of Mr Kieron O'Toole, also an employee of Newcastle Newspapers, corroborates the evidence of Ms Gibson and Ms Moylan and makes it clear that there was no chance that the advertisement could appear on page 3, and that Mr Pannowitz's consent on behalf of Steepleton was required for the advertisement to appear on page 4 and at a size of 10cm by 2 columns. None of the employees of Newcastle Newspapers were cross-examined. Thus, their evidence is unchallenged and taken to be accepted by the defendant. I prefer their evidence to that of Mr Pannowitz where differences occur, and accept their evidence beyond reasonable doubt. This evidence, combined with the tangible evidence of the advertisement as it appeared in the Newcastle Herald on 14 May 2005 proves beyond reasonable doubt that Mr Pannowitz asked that the notice be published on page 4 instead of page 3 of the newspaper and at one-sixteenth the size of the page instead of at least a quarter page in size. 67 Mr D P M O'Dowd, appearing for Mr Pannowitz, argues that it was impossible for him to comply the Court's publication order because, as stated by Ms Gibson, by the time he sought to place the advertisement page 3 was booked and only one-sixteenth of a page was available on page 4. I accept, however, the prosecutor's contention that the situation in which Mr Pannowitz found himself in was caused by his own delay in placing the advertisement. Mr Pannowitz had four weeks within which to comply with the Court's publication order, yet he left it until the last moment to take any steps to place the advertisement as required. There has been no evidence that, if sufficient time been allowed, the advertisement could have not been published in the Newcastle Herald in compliance with the court's order. Further, there is no evidence that the defendant made any attempt to approach the Court to modify the size and placement requirements imposed by the Court's publication order. Thus the "impossibility" of compliance with the court's order can be attributed to the defendant's inaction and cannot be held up as a defence. (b) Omissions from the advertisement

[56]

(2)` AIDING AND ABETTING A CONTEMPT COMMITTED BY STEEPLETON 78 It is contempt to aid and abet a contempt committed by another: Attorney -General v Punch Ltd [2003] 1 AC 1046. The contempt is committed not because the third party - Mr Pannowitz - is in breach of the order. The order does not bind the third party. The contempt is committed because the purpose of the court in making the order is intentionally frustrated: Attorney-General v Punch at 1050. 79 It is also settled law that a secondary participant who abets, counsels or procures the commission of an offence, is regarded a principal offender: Giorgianni v The Queen (1985) 156 CLR 473 at 490-491. There is no requirement that the commission of the offence result in the conviction of another person: Giorgianni at 491. The terms "aid, abet, counsel or procure" are declaratory of the common law concept of secondary participation: Giorgianni at 492. 80 To aid, abet, counsel or procure the commission of an offence by another involves a deliberate act. I set aside, for the purpose of the present discussion, the concept of wilful blindness which, in some circumstances is equivalent to a deliberate act. A deliberate commission or omission which is in breach of an order will constitute wilful disobedience unless it is casual, accidental or unintentional: Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113. 81 There can be no doubt that Steepleton committed the principal offence. It committed a breach of the Court's publication order in the six respects described in par [6] above. Mr Pannowitz was the director of Steepleton. He caused Steppleton to publish the advertisement. There is no doubt that he aided, abetted, counselled and procured Steepleton to disobey the order of the Court. 82 I have accepted, however, Mr Pannowitz' explanation for the omission of the logo of Steepleton - it did not have one. I have also accepted his explanation for the omission from the notice of those words which follow word "Environment". I am not satisfied that this omission, including the "strap" ("the Environment Protection Authority is now part of the Department of Environment and Conservation") and the logo of the Department, was deliberate. Mr Pannowitz has satisfied me that these omissions were casual, accidental and unintentional in the sense described in Mudginberri. 83 The other departures from the form of the notice ordered by the Court, noted in par [76] above, were, I find, deliberate. Mr Pannowitz agreed to the insertion of the notice on page 4 of the Newcastle Herald, rather than page 3; and he agreed to the notice being two columns in width rather than a quarter page in size. As I have observed, it seems that Mr Pannowitz left it to the last moment to place the advertisement and this would appear to have at least resulted in the size of the notice being what it was, and possibly also the position of the notice in the Newcastle Herald. It is incontestable that Mr Pannowitz deliberately caused the additional words to be inserted. In other words, I find beyond a reasonable doubt that Mr Pannowitz aided and abetted a contempt of court committed by Steepleton in the three respects described in par [76] above.

[57]

(3) SCANDALISING THE COURT 84 The offence of scandalising the court is a recognised form of criminal contempt: R V Hoser and Kotabi Pty Ltd [2001] VSC 443 at [45]; Hoser v R; Ex parte Attorney-General (Vic) [2003] VCSA 194 at [16]. The jurisdiction of the courts to punish such contempt exists for the purpose of preventing interferences with the course of justice: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 - 443. In that case, Rich J said (at 442): But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. … The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. 85 The above stated views of Rich J have been adopted and reaffirmed in Re Colina; Ex parte Torney (1999) 200 CLR 386, by Gleeson CJ and Gummow J at 390 [2]. 86 In Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887, Hope JA held (at 910 - 911) that: …it may and generally will constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office. 87 In Gallagher v Durack (1983) 152 CLR 238, the High Court (Gibbs CJ, Mason, Wilson and Brennan JJ) said (at 243) that the authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. 88 In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Mason CJ said (at 31-32) that scandalising the court is a well-recognised form of criminal contempt and that it consists of acts done or writing published which is calculated to bring a court or a judge of that court into contempt or to lower his or her authority. 89 The prosecutor is not required to show that the comments actually did undermine the standing of the court or a judge of the court. It is sufficient if the advertisement had the tendency to do so, viewed objectively. In determining whether the advertisement had that tendency, it is to be judged by reference to its impact upon the ordinary reader, or a reasonable person: R v Brett [1950] VLR 226 at 232; Bell v Stewart (1920) 28 CLR 419 at 425 - 426; R v Hoser and Kotabi Pty Ltd at [52], Hoser v R; Ex parte Attorney-General (Vic) at [16]. 90 In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, the High Court (Dixon CJ, Fullager, Kitto and Taylor JJ) said (at 371): The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances. 91 The tendency is to be judged at the time of publication and is not determined by the fact that for some reason no harm has resulted: R v David Syme & Co Ltd [1982] VR 173, Hoser v R; Ex parte Attorney-General (Vic) at [27]. 92 Viewed objectively, the use of the words "This matter" in the phrase "This matter has been referred by Steepleton to ICAC for further investigation" clearly suggests that the Court and its determination in the original proceedings is or has been referred by Mr Pannowitz to the ICAC. That is to say, there is an allegation by Mr Pannowitz of corrupt conduct by the Court in arriving at its judgment. Viewed objectively, the words had an inherent tendency to scandalise the Court. I am satisfied beyond a reasonable doubt that by causing the additional words to be published Mr Pannowitz committed contempt by scandalising the Court.

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