Environment Protection Authority v Quaker Houghton Australia Pty Ltd [2025] VSC 481

1 The Plaintiff, the Environment Protection Authority ('EPA'), commenced this proceeding against the Defendant, Quaker Houghton Australia Pty Ltd ('QHA'), by way of writ and statement of claim on 23 December 2024. The Plaintiff sought declarations, pecuniary penalties, an adverse publicity order, a compensation order and ancillary orders, in relation to the contravention of sections 25(1) and 133(1) of the Environment Protection Act 2017 (Vic) ('EP Act') on 3 January 2023 by QHA.

2 Following a Court ordered mediation conducted on 2 May 2025, QHA agreed to admit to the contraventions of sections 25(1) and 133(1) of the EP Act and relief on the terms set out in the signed minute of proposed consent orders filed with the Court on 8 May 2025.

3 Accordingly, the parties jointly seek the Court's approval of their respective orders. The parties have provided a statement of agreed facts, joint submissions, and have made brief oral submissions to support the proposed consent orders.

4 The joint submissions provided by counsel are comprehensive, careful and of great assistance to the Court. I commend counsel and the solicitors in this matter for their aid in this regard. They have made my task easier than what it might otherwise have been.

5 After hearing the parties through their counsel and considering the joint submissions and the agreed statements of facts, I am satisfied to adopt the joint submissions as my reasoning for my determination against QHA.

6 There would be no utility in the Court discussing at length the facts, law and the application of the law to the facts, as the joint submissions provided by the parties and annexed to these reasons provide exactly that.

7 With the consent of the parties, I annex the joint written submissions as Annexure A, and the statement of agreed facts as Annexure B, to this judgment. This will enable anyone who wishes to understand the basis for the state of satisfaction that I have reached with regard to the admitted contraventions by QHA and the penalties that they and EPA have agreed to are appropriate.

8 Thus, it is sufficient to provide merely a summary of the matter below.

9 The EPA is Victoria's environmental regulator established under section 356 of the EP Act. QHA is a body corporate that conducts an industrial chemical manufacturing and processing business in which liquids are blended together to make lubricants and similar products.

10 QHA's business is situated at 287 Wickham Road, Moorabbin, Victoria ('Premises'). The Premises has a tank farm consisting of 13 aboveground storage tanks ('ASTs'). Various liquids used in the production of the lubricants and like products at the Premises are stored in the ASTs, the largest of which has a capacity of 30,000L.

11 As at 3 January 2023, one of the ASTs was storing approximately 28,133L of an oleic acid product called "Palmera A1813" ('Oleic Acid Product'). The Oleic Acid Product was to be used by QHA in its lubricant manufacturing process. According to the Safety Data Sheet, the Oleic Acid Product is readily biodegradable, is not classified as hazardous to health or the environment, and is not toxic. The Safety Data Sheet for the Oleic Acid Product advises: "Do not allow undiluted product or large quantities of it to reach ground water, water course or sewage system".

12 On 3 January 2023, the compression fitting connecting the sight glass to the top of the AST failed, resulting in the sight glass detaching and falling outside the bunded area of the tank farm. The Oleic Acid Product dissipated from the sight glass and was released into a stormwater pit at the Premises and flowed into the public stormwater drainage network (the 'Industrial Waste').

13 The deposit of the Industrial Waste caused an oil layer, white clumps and white sludge to accumulate on the beaches at Elwood Beach and St Kilda Beach in the days following 3 January 2023. The cleanup of the deposit at the Elwood and St Kilda Beaches was managed by the State Response Control Centre, Victoria's primary control centre for the management of emergencies.

14 On 3 January 2023, the Premises were closed due to the Christmas period. As such, the loss of the Oleic Acid Product was first detected on 5 January 2023 when QHA operators returned from leave. On detection, QHA took immediate corrective and investigative actions, including notifying the EPA of the incident on 10 January 2023. QHA has continued to take further substantial improvement actions and investments to eliminate and reduce the risk of a similar incident reoccurring.

15 On the basis of what I have summarised above, and as more fully developed in the joint submissions based on the statement of agreed facts, I am satisfied that:

(a) QHA contravened sections 25(1) and 133(1) of the EP Act by depositing 28,133L of the Oleic Acid Product stored in an aboveground tank at the Premises into the public stormwater drain network, and failed so far as reasonably practicable to use and install plant and equipment in a manner that minimised the risk of the harm.

(b) Pursuant to section 313(1) of the EP Act, QHA is to pay to the Department of Transport and Planning $21,054 compensation in respect of the cleanup costs incurred by that Department.

(c) Pursuant to section 315(1)(a) of the EP Act, QHA is to pay to the EPA a single pecuniary penalty of $260,000 in respect of its contraventions of sections 25(1) and 133(1) of the EP Act.

(d) Pursuant to section 330 of the EP Act, within 30 days of this order, QHA is to publish, at its own expense, a written adverse publicity notice in The News Bayside - Chelsea Mordialloc Mentone News (or equivalent).

(e) The pecuniary penalty referred to above is to be paid to the EPA within 30 days of the date of this order.

(f) QHA is to provide evidence of the payment to the Department of Transport and Planning as outlined above within 30 days of the date of this order.

(g) QHA is to pay the EPA's costs in these proceedings, fixed in the sum of $18,946.

16 I am accordingly satisfied to make the orders that the parties seek by consent.

17 Finally, as stated at the hearing, I commend the parties on reaching an appropriate outcome of this litigation and assisting the Court in this regard. The Defendant is to be commended for its acceptance of the consequences caused by the pollution incident and in taking appropriate remedial and reporting actions. This is not to diminish the seriousness of the impact on the environment of the pollution incident but to recognise that the Defendant took its environmental and corporate responsibility seriously, including by working with the EPA to bring this litigation to finality. I also acknowledge the manner in which the EPA has undertaken its regulatory role and in assisting the Court to determine an appropriate penalty.

QUAKER HOUGHTON AUSTRALIA PTY LTD (ACN 000 014 175)

1. By its writ and statement of claim dated 23 December 2024, the Plaintiff, Environment Protection Authority (EPA), seeks declarations, pecuniary penalties, an adverse publicity order, a compensation order and ancillary orders in relation to contraventions of s 25(1) and s 133(1) the Environment Protection Act 2017 (Vic) (EP Act) on 3 January 2023 by the Defendant, Quaker Houghton Australia Pty Ltd (QHA).
2. Following a Court ordered mediation conducted on 2 May 2025, QHA agreed to admit the contraventions of s 25(1) and s 133(1) and relief on the terms set out in the minutes of proposed consent orders filed with the Court on 8 May 2025 (Consent Minute). The Consent Minute provides for:

(a) the making of two declarations;

(b) a civil penalty of $260,000, pursuant to s 315(1)(a) of the EP Act;

(c) a compensation order totalling $21,054, pursuant to s 313(1) of the EP Act;

(d) an order that QHA pay the EPA's costs, fixed in the sum of $18,946; and

(e) the publication of an adverse publicity order, pursuant to s 330 of the EP Act.

1. The sum of the above pecuniary orders totals $300,000.
2. On 2 June 2025, the parties filed a statement of agreed facts (SOAF) in support of the Consent Minute. Neither party relies on any additional evidence.

1. The following factual summary is adapted from the SOAF.
2. The EPA is Victoria's environmental regulator established under section 356 of the EP Act. QHA is a body corporate that conducts an industrial chemical manufacturing and processing business in which liquids are blended together to make lubricants and similar products.[1]
3. QHA's business is situated at 287 Wickham Road, Moorabbin, VIC 3189 (Premises). The Premises has a tank farm consisting of 13 aboveground storage tanks (ASTs) that were installed between approximately 1970 and 2006. Various liquids used in the production of the lubricants and like products at the Premises are stored in the ASTs, the largest of which has a capacity of 30,000L.[2]
4. As at 3 January 2023, one of the ASTs was storing approximately 28,133 litres of an oleic acid product called "Palmera A1813" (Oleic Acid Product). The Oleic Acid Product is derived from palm oil. It is largely constituted by oleic acid, but also contained low concentrations of linoleic acid, palmitic acid, lauric acid and stearic acid. The Oleic Acid Product was to be used by QHA in its lubricant manufacturing process. According to the Safety Data Sheet, Oleic Acid Product is readily biodegradable, is not classified as hazardous to health or the environment, and is not toxic. The Safety Data Sheet for the Oleic Acid Product advises: "Do not allow undiluted product or large quantities of it to reach ground water, water course or sewage system."[3]
5. On 3 January 2023, the compression fitting connecting the sight glass to the top of AST failed, resulting in the sight glass detaching and falling outside the bunded area of the tank farm. The Oleic Acid Product dissipated from the sight glass and was released into a stormwater pit at the Premises and flowed into the public stormwater drainage network.[4]
6. The public stormwater drainage network runs from Wickham Road to Hawthorn Street in Brighton East, and then to the mouth of the Elwood Canal, above ground. The above ground section is mostly a concrete-lined channel that is referred to as both the Elster Canal and the Elwood Canal. It runs ultimately to Elwood outlet, where collected stormwater is deposited into the ocean, and which is proximate to the Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds.[5]
7. The deposit of the Oleic Acid Product caused an oil layer to develop in the oceans at Elwood Beach and St Kilda Beach, and white clumps and white sludge to accumulate on the beaches at Elwood Beach and St Kilda Beach in the days following 3 January 2023.[6] Dead toadfish were also observed. Photographs evidencing these observations are provided at Part H of the SOAF.[7]
8. The cleanup of the deposit at the Elwood Beach and St Kilda Beaches was managed by the State Response Control Centre, Victoria's primary control centre for the management of emergencies. The Centre engaged the Department of Transport and Planning (DTP), which contracted with the Oil Response Company of Australia to conduct the cleanup. The cleanup cost incurred by DTP totalled $21,054. While QHA has not yet compensated it,[8] by paragraph 1 the Consent Minute, QHA has agreed to pay DTP this amount.
9. On 3 January 2023, the Premises were closed due to the Christmas period.[9] As such, the loss of the Oleic Acid Product was first detected on 5 January 2023 when QHA operators returned from leave.[10] On detection, QHA took immediate corrective and investigative actions, including notifying the EPA of the incident on 10 January 2023.[11] QHA has continued to take further substantial improvement actions and investments to eliminate and reduce the risk of a similar incident reoccurring.[12]

C1. QHA's admitted contravention of section 133(1)

1. QHA admits that, on 3 January 2023, it contravened s 133(1) of the EP Act.[13] Section 133(1) relevantly provides:
   1. Duties of persons depositing industrial waste

(1) A person must not deposit or abandon industrial waste at a place or premises, unless the place or premises is authorised to receive industrial waste.

1. For the purposes of s 133(1), QHA admits, and it is the case, that:

(a) it is a "person" for the purposes of s 133(1);[14]

(b) the release of the 28,133 litres of the Oleic Acid Product constituted a parting with the possession of waste, and was thus a "deposit" for the purposes of ss 3 and 133(1);[15]

(c) on the deposit, the 28,133 litres of the Oleic Acid Product altered the environment in the manner pleaded at Part H in the SOAF, and was thus "waste" for the purposes of ss 3 and 133(1);[16]

(d) the waste arose from QHA's Business, and was thus "industrial waste" for the purposes of ss 3 and 133(1);[17] and

(e) the public stormwater drainage network was not authorised to receive the industrial waste.[18]

C2. QHA's admitted contravention of its general environmental duty in s 25(1)

1. QHA admits that, on 3 January 2023, it contravened its general environmental duty in s 25(1) of the EP Act (by force of s 25(4)(a)).[19] Section 25 relevantly provides:
   1. General environmental duty

(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable...

(4) Without limiting subsection (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable -

(a) use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;

1. For the purposes of s 25(1), QHA admits, and it is the case, that:

(a) it is a "person" for the purposes of s 25(1);[20]

(b) QHA's Business involves the storage or possession of liquids and other substances, being an "activity" for the purposes of ss 3 and 25 of the EP Act;[21]

(c) the activity gives rise to a risk of an adverse effect on the environment, and thus to a "harm" to the environment for the purposes of ss 4 and 25(1) of the EP Act;[22] and

(d) QHA had a duty to minimise this risk of harm so far as is practicable for the purposes of s 25(1) of the EP Act.[23]

1. QHA admits that the particular risk of harm arising from QHA's business is due to:

(a) the potential deposit of the liquids that are stored and used in the production of the lubricants and like products into the public stormwater drainage network;

(b) therefrom, the potential introduction of these liquids into the Elwood Beach, Elster Canal, Elwood Canal, St Kilda Beach, and St Kilda Pier surrounds;

(c) therefrom, and depending on the characteristics of each liquid stored and used in production:

(i) the potential adverse effect on the amenity of the waterways at the Elster Canal, Elwood Canal, Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds; and

(ii) the potential adverse effect on the land and aquatic wildlife present at the Elster Canal, Elwood Canal, Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds (Harm).[24]

1. Insofar as the Oleic Acid Product is concerned, the harm has the potential to result in an adverse effect on the environment in the following manner (depending on the volume of oleic acid that is released into an aquatic environment, and the nature and condition of any such receiving environment):

(a) the potential development of an oil layer forming a barrier to oxygen exchange between air and water, and the subsequent depletion of oxygen in water for consumption by aquatic wildlife;

(b) the potential for the oleic acid to degrade, resulting in bacteria consuming the oxygen present in the water and the subsequent depletion of oxygen in water for consumption by aquatic wildlife;

(c) the potential ingestion of these substances by aquatic life; and

(d) overall potential injury and death to aquatic wildlife.[25]

1. QHA admits that it failed to use plant and equipment in a manner that minimises the risk of the Harm: see s 25(4)(a). In particular, QHA admits that it failed, so far as reasonably practicable, to use plant and equipment in a manner that minimised the risk of the harm in that it had not installed a stormwater isolation valve that could operate to prevent liquids and other substances passing freely into the public stormwater drainage network in the event of an unintentional discharge of liquids and other substances stored at the Premises.[26]

1. The parties jointly seek that the Court make declarations that record the two admitted contraventions.
2. The Court has a wide discretionary power to make declarations under s 315(1)(b) of the EP Act and s 36 of the Supreme Court Act 1986 (Vic) which it "is not possible or desirable to fetter." The factors relevant to the consideration of the appropriateness of declaratory relief in a particular circumstance have been described as follows:[27]

"(1) The declaratory relief "must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions".

(2) The plaintiff or applicant must have a "real interest" in seeking the relief.

(3) There must be a "proper contradictor" in the sense of a person who has "a true interest to oppose the declaration sought". In appropriate cases, this requirement may be fulfilled notwithstanding the declarations are sought by consent.

(4) Declaratory relief may not appropriate where the "declaration will produce no foreseeable consequences for the parties."

1. Each of these requirements is satisfied in this case:

(a) the proposed declarations determine what is a live controversy between the parties. The matters in issue have been identified and particularised by the parties with precision;

(b) being the regulator of the EP Act, the EPA has a genuine interest in seeking the declaratory relief;

(c) being the subject of the declarations, QHA has an interest in opposing the declaratory relief sought which is sufficient to make them a proper contradictor;[28]

(d) the declaration would have consequences. In particular, declaratory relief in this case serves to:

(i) record the Court's disapproval of the contravening conduct;

(ii) vindicate the EPA's claim that QHA contravened the EP Act;

(iii) assist the EPA in carrying out its duties under the EP Act going forward;

(iv) assist to clarify the law;

(v) inform the public of QHA's contravening conduct; and

(vi) deter others from contravening the EP Act.[29]

E. The proposed compensation order in favour of DTP

1. The parties jointly seek that the Court impose a compensation order under s 313 requiring QHA to pay $21,054 to DTP for its cleanup cost. Section 313 of the EP Act provides:
   1. Compensation orders

(1) In any proceedings for an offence against, or a contravention of, this Act or the regulations (including an application under section 309), a Court may make a compensation order if the Court finds that -

(a) the person against whom the proceedings were taken has contravened a provision of this Act or the regulations or a condition of a permission or notice issued or granted under this Act; and

(b) the Authority or another person (the injured person) has suffered or may suffer injury, loss or damage as a result of the contravention.

(2) Without limiting subsection (1), an order under that subsection may require the person against whom the proceedings are brought to pay compensation to the Authority or the injured person for -

(a) any injury, loss or damage suffered by the Authority or the injured person as a result of the contravention; or

(b) any costs reasonably incurred by the Authority or the injured person in the course of taking action to prevent, minimise or remedy any injury, loss or damage suffered by the Authority or the injured person as a result of the contravention; or

(c) any costs reasonably incurred by the Authority in the course of taking action to prevent, minimise or remedy any harm to human health or the environment caused by the contravention.

1. The Court can be satisfied that DTP is an "injured person" for the purposes of s 313(1)(b), in that it has suffered the financial loss as a result of QHA's contravention. The Court can further be satisfied that the order against QHA to compensate DTP meets s 313(2)(b).
2. Making a compensation order in the circumstances of this matter furthers the "polluter pays" principle of environmental protection found in s 17 of the EP Act.

1. The parties jointly seek that the Court make an adverse publicity order under s 330 of the EP Act which provides:
   1. Adverse publicity orders

The Court may order the person to do one or more of the following -

(a) take any specified action that the Court considers reasonably necessary to publicise -

(i) the person's offence or contravention; or

(ii) any impacts on human health or the environment or other consequences arising or resulting from the offence or contravention; and

(iii) any penalties imposed, or other orders made, as a result of the commission of the offence or contravention; and

(iv) any additional information the Court considers appropriate;

(b) take any specified action that the Court considers reasonably necessary to notify a specified person or class of person of the matters listed in paragraph (a).

1. The Consent Minute proposes that QHA be required, within 30 days of the making of the final orders in the proceedings, to publish, at its own expense, a written adverse publicity notice (Notice) printed in The News Bayside - Chelsea Mordialloc Mentone News (or equivalent). The proposed terms of the Notice, as agreed between the parties, are attached at Annexure A.
2. The Court can be satisfied that the proposed terms of the Notice give effect to the protective and punitive purposes of the adverse publicity order, and that it is appropriately drafted to educate the local community and the general public as to the nature of the contravening conduct.[30]

1. The parties jointly seek that the Court impose a single pecuniary penalty in respect of the two contraventions, in the amount of $260,000.[31] The Court's power to order a civil penalty is found in s 315(1), which provides:
   1. Civil penalty orders

(1) The Court may make one or more of the following orders in relation to a person who has contravened a civil penalty provision -

(a) an order that the person pay a pecuniary penalty of not more than the maximum penalty referred to in column 3 or 4 of the item of the table in section 314 in respect of the civil penalty provision;

(b) any other order that the Court considers appropriate.

1. Section 315 refers to the items of the table to sub-s 314(3). The table lists in column 2 the provisions of the EP Act that constitute a civil penalty provision, and columns 3 and 4 the applicable maximum civil penalty in relation to each listed civil penalty provision. The table relevantly provides that each of section 25(1) and s 133(1) is a civil penalty provision, contravention of which by a body corporate may attract a statutory maximum civil penalty of 10,000 penalty units:
   1. Civil penalty provision

(1) A provision of this Act that is set out in the table to subsection (3) is a civil penalty provision. ...

Maximum penalty for contravention by a natural person

Maximum penalty for contravention by a body corporate

Section 25(1) (Breach of general environmental duty)

Section 133(1) (Unlawful deposit of industrial waste)

G2. The Court's approach where relief is agreed

1. It is highly desirable for the Court to accept the parties' agreed position on the pecuniary penalty amount. In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (the Agreed Penalties Case), the plurality of the High Court said at paragraphs [56]-[59]:

Moreover, in criminal proceedings the imposition of punishment is a uniquely judicial exercise of intuitive or instinctive synthesis of the sentencing facts as found by the sentencing judge (consistently with the jury's verdict) and the judge's relative weighting and application of relevant sentencing considerations in accordance with established sentencing principle. There is no room in an exercise of that nature for the judge to take account of the Crown's opinion as to an appropriate length of sentence. ...

In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy... [I]t is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate.

Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and ... highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty.[32]

1. When deciding to impose an agreed penalty, the Court must be satisfied that it has the power to make the proposed order,[33] and that the orders sought are appropriate.[34] Once the Court has satisfied itself of these matters, it is to exercise restraint in scrutinising proposed settlements.[35] That is particularly so in circumstances such as the present, where the consenting parties are legally represented and able to understand and evaluate the desirability of the settlement.[36]
2. An agreed penalty may be adopted if the Court considers it appropriate, even if the Court "might otherwise have been disposed to select some other figure".[37] As Wigney J recognised in ACCC v Australia and New Zealand Banking Group Ltd,[38] when faced with civil penalty proceedings that have settled on the basis of agreed facts and agreement on penalty, the Court is to consider whether the agreed penalty is "an appropriate penalty having regard to all relevant matters".[39] Provided it meets that description, then it is "highly desirable" that the agreement be accepted.[40]

G3. Factors relevant to assessing the appropriateness of the agreed penalty

1. In fixing a civil penalty, the principal concern for the Court is with "specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners".[41] The concepts of punishment, retribution and rehabilitation in criminal sentencing have no role to play.[42]
2. The civil penalty to be arrived at should have sufficient "sting"[43] to deter QHA from repeating the conduct, and to deter others who might be tempted to engage in like conduct.[44] It must be fixed with a view to ensuring that it is not accepted as simply the cost of doing business.[45] The penalty amounts arrived at must not be seen to give contraveners an advantage over those who absorb the cost of compliance, must be seen to validate the behaviour and efforts of those who choose to comply, and must send a warning to those who choose not to comply.[46]
3. Significantly, the penalty to be imposed is not subject to constraints derived from the criminal law concept of proportionality between the seriousness of the offence and the penalty imposed. Rather, what is sought "some reasonable relationship between the theoretical maximum and the final penalty imposed" assessed in terms of what is needed to achieve deterrence,[47] where the maximum penalty is "but one yardstick that ordinarily must be applied" and is to be "treated as one of a number of relevant factors".[48]
4. Sub-section 315(2) of the EP Act contains a non-exhaustive list of the matters the Court may consider when determining the amount of a civil penalty order:
   1. Civil penalty orders

(2) For the purposes of determining the amount of a civil penalty order under this Part, the Court may have regard to any relevant matter including, but not limited to the following -

(a) the nature and extent of the conduct constituting the contravention;

(b) the nature and extent of any loss or damage suffered as a result of the conduct including the cost of remedying any harm;

(c) the circumstances in which the contravention took place;

(d) whether the person who contravenes a civil penalty provision had previously contravened a civil penalty provision;

(e) any enforceable undertaking that is accepted by the Authority in relation to the conduct.

1. The Court is referred to the SOAF which addresses relevant s 315(2) considerations as follows:

(a) the nature and extent of the conduct constituting the contravention - SOAF at [17], [35]-[36].

(b) the nature and extent of any loss or damage suffered as a result of the conduct including the cost of remedying any harm - SOAF at [30]-[34];

(c) the circumstances in which the contravention took place - SOAF at [13]-[14], [17]-[18];

(d) whether the person who contravenes a civil penalty provision had previously contravened a civil penalty provision - SOAF at [42].[49]

1. The task of the Court is to fix an appropriate penalty that pays regard to the particular circumstances in which the contraventions have occurred,[50] assessed by reference to the EP Act as a whole,[51] and the need to sustain public confidence in the statutory regime.[52]
2. In light of the above matters, the parties jointly identify both the factors that support a high penalty, and those that support a low penalty, so that the Court may be satisfied that the parties' proposed penalty is appropriate in all of the circumstances.

1. The parties have identified 3 factors that support the imposition of a high penalty in this proceeding.
2. First, there are the applicable maximum penalties available to be imposed for contraventions of s 133(1) and s 25 of the EP Act. As mentioned above, s 314 of the EP Act stipulates the applicable maximum penalty for both contraventions is 10,000 penalty units. At the time of the offending, therefore, the applicable maximums were:

1. Careful attention to this applicable maximum is required, for the legislature has provided for it. However, the Court does not use the statutory maximum as a means to plot where the contravention may fit on a scale of seriousness. Proportionality (in this sense) has no role to play.[53]
2. Second, there is the nature and size of QHA, and its revenue and profitability.[54] The relevance of this factor was explained by Goldberg J in ACCC v Leahy Petroleum Pty Ltd (No 3):

The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention_._[55]

1. QHA is a wholly-owned subsidiary of Quaker Houghton, a business listed on the New York Stock Exchange. The group describes itself as a global leader in industrial process fluids, has operations in over 25 countries, and employs 4,440 employees globally.[56] There are cases where the fact that the entity found to have contravened a statutory provision and liable to civil penalty is controlled by a parent company with such resources has been treated as relevant to deterrence.[57]
2. QHA, itself, solely operates out of the Premises. It employs 37 employees across Australia for the conduct of its Australian business.[58] In the FY22 to FY23 financial years, QHA recorded revenue of approximately $46.5 million and $58 million with net profit after tax of approximately $2.5 million and $5 million respectively.[59]
3. Third, and finally, there is the resulting environmental harm that was caused by the deposit (for the purposes of s 133(1)) and the failure to manage risk (for the purposes of s 25(1)). Evidence of the risk manifesting is not an element that must be proved for contravention of either s 133(1) or s 25(1) of the EP Act, but is a relevant factor in determining the seriousness of QHA's breach of these provisions and therefore penalty.[60] The oil spill altered the amenity of the St Kilda and Elwood beaches for beachgoers on the days following 3 January 2025, a point in time in which both beaches will be in popular use. The parties agree that it is more likely than not that the oil layer that developed caused the death of the three dead toadfish identified on the beaches by the EPA at the time.[61]

1. The parties identify 5 factors that support the imposition of a low penalty in this proceeding.
2. First, there is the isolated nature of the contravention, and the improbability of the events of 3 January 2023. QHA has operated the Premises using sight glasses on its ASTs for at least 47 years without another known or recorded incident of a sight glass coming adrift from its tank and falling outside of the AST bunded area.[62] It was also an untimely day for the sight glass to fail in this particular way, with employees on a Christmas shutdown period of leave, which meant that the incident went undetected.
3. Second, there is QHA's cooperation that has spanned from the commencement of the EPA's investigation and to the agreement to these submissions. QHA self-reported to the incident to the EPA on 10 January 2023 and has cooperated with the EPA in its inquiries during the investigation.[63] It has admitted its contravening conduct following a mediation, entered into the SOAF, agreed to these submissions, agreed to the Consent Minute and agreed to the terms of the Notice at Annexure A. This cooperation has avoided the need to conduct a trial on the merits, and avoided the need for this Court to have a contested hearing on the form of relief. This cooperation has saved the costs and resources of the EPA and this Court. It is evidence of QHA being willing to facilitate the course of justice, and penalties should therefore be appropriately moderated.[64]
4. Third, there is QHA's efforts to rectify its contravening conduct. Since the incident, QHA has implemented a number of initiatives that have improved the way in which it manages the risk of the Harm.[65] This includes capital works (both completed and scheduled) which will cost QHA an estimated $185,300 - $235,300. Most importantly, QHA has installed a stop isolation valve to relevant stormwater pit that connects to the public stormwater drainage network. This installation of this valve will mean that QHA can prevent spilled substances or fire water leaving the Premises.[66] The valve is manually operated and is supported by a written procedure.[67] These corrective actions (together with its agreement to compensate the DTP) is evidence of a corporate culture in place that is more likely to be conducive to EP Act compliance in the future. The need to specifically deter QHA must therefore be appropriately moderated.
5. Fourth, this is QHA's first contravention of the EP Act, or its predecessor legislation. That QHA has not been found to contravene the EP Act in the past suggests the need to specifically deter is not particularly acute vis-à-vis other contraveners.
6. Fifth, there is evidence of contrition and remorse by reason of all of the above considerations. The contrition and remorse exhibited by QHA by its co-operation and self-initiated rectification suggests that the need to specifically deter it ought to be properly moderated.

1. The parties agree that two additional tools should be deployed in this proceeding that would further moderate the penalty.
2. First, the Court should order a single penalty pursuant to s 323 of the EP Act, which provides:
   1. Multiple contraventions of civil penalty provisions

(1) Subject to subsection (2), the Court may order that a person pay a single civil penalty for multiple contraventions of a civil penalty provision if -

(a) the multiple contraventions are based on the same facts; or

(b) the multiple contraventions form, or are part of, a series of contraventions of the same or a similar nature.

(2) A single civil penalty ordered under subsection (1) must not exceed the sum of the maximum penalties that the Court may have ordered if separate civil penalties were ordered for each of the contraventions.

1. In this proceeding, QHA's contraventions of s 133(1) and s 25(1) can be seen as "a series of contraventions", or contraventions of "a similar nature", given that both contraventions arise from the same substratum of fact. Whilst the contraventions turn on different considerations (being the act of the unlawful deposit of Oleic Acid Product, and act of failing to manage the risk associated with its storage of Oleic Acid Product), this does not deny that both contraventions do ultimately derive from the same course of conduct that occurred on 3 January 2023. Thus, s 323 can apply, and its application moderates the level of penalty to be imposed.
2. Second, there is the principle of totality, which is a discretionary tool that can be deployed as a "final check," and can play a significant role. The totality principle ensures that the penalty to be imposed on a wrongdoer, considered as a whole, is "just and appropriate".[68] The concern is to ensure that the penalty to be imposed should not exceed what is proper for the entire body of contravening conduct, when looked at as a whole.[69] This principle is particularly relevant where multiple contraventions arise from a single course of conduct.[70]

G7. Conclusion on the parties' proposed penalty

1. The parties' proposed $260,000 penalty is approximately 7% of the aggregate maximum of $3,698,400.
2. In light of the matters outlined above, the parties jointly submit that the Court may be satisfied that the agreed and proposed civil penalty in the amount of $260,000 it is appropriate in all of the circumstances, such that it should not be departed from.

1. Finally, the parties' agreed order that QHA pay the EPA's costs, fixed in the sum of $18,946. The Court should make this order as costs follow the event.
2. For the foregoing reasons, the proposed orders should be made.

OIL SPILL AT ELWOOD BEACH AND ST KILDA BEACH ON 3 JANUARY 2023

The Supreme Court of Victoria has ordered Quaker Houghton Australia Pty Ltd to publish this adverse publicity notice.

The Supreme Court of Victoria has ordered Quaker Houghton Australia Pty Ltd (QHA) to pay a penalty, compensation and legal costs totalling $300,000 for two contraventions of the Environment Protection Act 2017 (Vic) (EP Act) that occurred on 3 January 2023.

• QHA's failure to comply with its general environmental duty under section 25 of the EP Act;
• QHA's deposit of industrial waste into the public stormwater drain network in contravention of section 133 of the EP Act.

On 3 January 2023, an incident occurred whereby the sight glass level indicator on an above ground storage tank that contained oleic acid product (a non-hazardous, versatile fatty acid) detached and fell outside the bunded area. This occurred during a time when the site was unmanned during a scheduled holiday shutdown.

This allowed approximately 28,133 litres of the oleic acid product to flow from the tank via the sight glass, and into an adjacent stormwater pit. The oleic acid then travelled into the public stormwater drainage network.

The public stormwater drainage network is connected to the Elster Canal and Elwood Canal. The stormwater that is collected by the drainage network is discharged into ocean waters proximate to Elwood Beach and St Kilda Beach.

This meant that, in the days that followed, the oleic acid product was deposited into the Elwood Beach and St Kilda Beach waters. The deposit caused an oil layer to develop in the ocean waters, with white clumps and white sludge observed on the beaches. Several dead toad fish were also observed among the white clumps and sludge.

The penalty ordered by the Court was $260,000. The Court ordered that QHA pay the costs of the cleanup of the deposit at the beaches ($21,054), which was managed by the Department of Transport and Planning at the time. The Court also ordered that QHA pay the EPA's legal costs incurred in commencing the action (amounting to $18,946).

This was the first time QHA has been found to contravene Victoria's environmental laws since commencing operations at the site in 1958. QHA has expressed remorse for its contraventions, and it is to be noted that this incident was not as a result of intentional or reckless conduct. Since the incident, QHA has taken substantial steps to ensure that the risk of a similar incident reoccurring is minimised, so far as reasonably practicable.

Further information about the incident and the Court's orders can be found in the Court's judgment (accessible at www.austlii.edu.au) and on the EPA's website (www.epa.vic.gov.au).

QUAKER HOUGHTON AUSTRALIA PTY LTD (ACN 000 014 175)

1. The Plaintiff, Environment Protection Authority (EPA), is and was at all material times:

(a) a body corporate established under section 356 of the Environment Protection Act 2017 (Vic) (EP Act), that may sue and be sued;

(b) able to apply to this Court for the imposition of a civil penalty order for contraventions of sections 25 and 133 of the EP Act, pursuant to section 314(2) of the EP Act; and

(c) able to apply for the orders specified in Division 2 of Part 11.6 of the EP Act, pursuant to section 328(3) of the EP Act.

1. The Defendant, Quaker Houghton Australia Pty Ltd (QHA), is and was at all material times:

(a) a body corporate established under the Corporations Act 2001 (Cth), that may sue and be sued;

(b) a "person" for the purposes of sections 25(1), 133(1), 314(3)(a), 313(2)(b) and 330 of the EP Act;

(c) "in the course of conducting a business or an undertaking" for the purposes of section 314(3)(a) of the EP Act.

1. QHA's business and its environmental surrounds

1. QHA conducts an industrial chemical manufacturing and processing business in which liquids are blended together to make lubricants and similar products (Business).
2. The Business is situated at 287 Wickham Road, Moorabbin, VIC 3189 (Premises).
3. The Premises has a main tank farm consisting of 13 aboveground storage tanks (ASTs) which were installed between approximately 1970 and 2006. Various liquids that are used in the production of the lubricants and like products at the Premises are stored in the ASTs, the largest of which has a capacity of 30,000L.
4. The following photograph shows part of the tank farm, and the size of some of the ASTs:

1. The Premises contains stormwater pits, and a stormwater drain network intended to collect stormwater from the facility for drainage into the public stormwater drainage network. The Premises contains stormwater pits that are intended to collect stormwater from the Premises, and feed it into the South East Water drainage easement that lies within and along the northern boundary of the Premises. Stormwater coming from sites located adjacent and upgradient of the Premises also feed into the same South East Water drainage easement that services the Premises. Stormwater in the South East Water drainage easement discharges into the public stormwater drainage network at Wickham Road in the vicinity of the Premises.
2. The public stormwater drainage network at Wickham Road in the vicinity of the Premises to Hawthorn Street in Brighton East, and then to the mouth of the Elwood Canal, above ground. The above ground section is mostly a concrete lined channel that is referred to as both the Elster Canal and the Elwood Canal.
3. The public stormwater drainage network runs ultimately to Elwood outlet, where collected stormwater is deposited into the ocean, and which is proximate to the Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds.

1. QHA's Business involves the storage or possession of liquids and other substances, being an "activity" for the purposes of sections 3 and 25 of the EP Act.
2. The activity gives rise to a risk of an adverse effect on the environment, and thus a "harm" to the environment for the purposes of sections 4 and 25(1) of the EP Act, being:

(a) the potential deposit of the liquids that are stored and used in the production of the lubricants and like products into the public stormwater drain network;

(b) therefrom, the potential introduction of these liquids into the Elwood Beach, Elster Canal, Elwood Canal, St Kilda Beach, and St Kilda Pier surrounds;

(c) therefrom, and depending on the characteristics of each liquid stored and used in production:

(i) the potential adverse effect on the amenity of the waterways at the Elster Canal, Elwood Canal, Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds; and

(ii) the potential adverse effect on the land and aquatic wildlife present at the Elster Canal, Elwood Canal, Elwood Beach, St Kilda Beach, and St Kilda Pier surrounds (Harm).

1. In the premises, and at all material times, QHA had a duty to minimise this risk of Harm so far as is practicable for the purposes of section 25(1) of the EP Act.

1. The potential for Harm arising from the Oleic Acid Product "Palmera A1813"

1. As at 3 January 2023, and in one of the ASTs known as Tank 46 (T46), QHA was storing approximately 28,133 litres of an oleic acid product called "Palmera A1813" supplied by its manufacturer KLK Oleo (Oleic Acid Product). The Oleic Acid Product is primarily derived from palm oil. It is largely constituted by oleic acid, but also contained low concentrations of linoleic acid, palmitic acid, lauric acid and stearic acid.
2. Oleic acid is more commonly derived from olive oil. It is a fatty acid that acts as an emulsifier, lubricant, and surfactant and is used in various industries and applications, including food, personal care, manufacturing, and pharmaceuticals. QHA was storing the Oleic Acid Products for use in the production of its lubricants and similar products.
3. Depending on the volume of oleic acid that is released into an aquatic environment, and the nature and condition of any such receiving environment, the potential Harms that could result include:

(a) the potential development of an oil layer forming a barrier to oxygen exchange between air and water, and the subsequent depletion of oxygen in water for consumption by aquatic wildlife;

(b) the potential for the oleic acid to degrade, resulting in bacteria consuming the oxygen present in the water and the subsequent depletion of oxygen in water for consumption by aquatic wildlife; and

(c) the potential ingestion of these substances by aquatic life; and

(d) the overall potential injury and death to aquatic wildlife.

1. The Safety Data Sheet for the Oleic Acid Product provides the following information:

(a) under heading "2 Hazard identification":

1. Classification of the substance or mixture. The substance is not classified, according to the Globally Harmonised System (GHS);

(b) under heading "3 Composition and information of the ingredients of the hazardous chemical":

1. Additional information. This product is not classified as hazardous to health or environment according to GHS;

(c) under heading "11 Toxicological information":

1. Based on available data, the classification criteria are not met; and

(d) under heading "12 Ecological information":

1. Persistence and degradability. Readily biodegradable.
2. General notes: Do not allow undiluted product or large quantities of it to reach ground water, water course or sewage system.

1. Section 133(1): Deposit of industrial waste into the public stormwater drain network

1. On 3 January 2023, the compression fitting connecting the sight glass to the top of T46 failed, resulting in the sight glass detaching from T46 and falling outside the bunded area of the tank farm. This failure would have been visible to the naked eye, but occurred when the Premises were closed over Christmas from 22 December 2022 to 5 January 2023. The failure of the sight glass was thus detected on 5 January 2023.
2. In total, 28,133 litres of the Oleic Acid Product from T46 was released into a stormwater pit, which flowed into the South East Water drainage easement, and consequently, into the public stormwater drainage network.
3. The release of the 28,133 litres of the Oleic Acid Product constituted a parting with the possession of waste and was thus a "deposit" for the purposes of sections 3 and 133(1) EP Act.
4. On the deposit, the 28,133 litres of the Oleic Acid Product altered the environment in the manner pleaded at Part G below and was thus "waste" for the purposes of sections 3 and 133(1) EP Act.
5. The waste arose from QHA's Business and was thus "industrial waste" for the purposes of sections 3 and 133(1) of the EP Act.
6. The public stormwater drain network was not authorised to receive the industrial waste.
7. In the above premises, QHA contravened section 133(1) of the EP Act on 3 January 2023.

1. Section 25(1): Failure to use plant and equipment to minimise the risk of Harm

1. On 3 January 2023, QHA failed, so far as reasonably practicable, to use plant and equipment in a manner that minimised the risk of the Harm.
2. In particular, it was reasonably practicable to install a stormwater isolation valve that could operate to prevent liquids and other substances passing freely into the public stormwater waste system in the event of an unintentional discharge of liquids and other substances stored at the Premises.
3. As at 3 January 2023, QHA had not installed a stormwater isolation valve.
4. In the above premises, QHA contravened section 25(1) of the EP Act (by force of 25(4)(a)) on 3 January 2023.

1. QHA admits that, on 3 January 2023, it contravened s 133(1) of the EP Act by depositing 28,133 litres of Industrial Waste into the public stormwater drain network, in circumstances where the public stormwater drain network was not authorised to receive the Industrial Waste.
2. QHA admits that, on 3 January 2023, it contravened section 25(1) of the EP Act by failing, so far as is reasonably practicable, to use plant and equipment in a manner that minimised the risk of the harm in that QHA failed to install a stormwater isolation valve that could operate to prevent the Industrial Waste passing freely into public stormwater drain network.

1. Manifestation of the risk of the Harm, and the cleanup cost incurred by the Department of Transport and Planning

1. The deposit of the Oleic Acid Product caused an oil layer to develop in the oceans at Elwood Beach and St Kilda Beach, and white clumps and white sludge to accumulate on the beaches at Elwood Beach and St Kilda Beach in the days following 3 January 2023.
2. The following photos taken by the EPA on 5 January 2025 depict the oil layer that developed in the oceans at Elwood Beach and St Kilda Beach:

1. The following photos taken by the EPA on 5 January 2025 depict the clumps and sludge:

1. It is more likely than not that the Oleic Acid Product caused the death of toadfish that were found washed up on shore at St Kilda Beach. The following photos depict up to 3 dead toadfish among white clumps that had formed on the beach:

1. The cleanup of the deposit at the Elwood Beach and St Kilda Beaches was managed by the State Response Control Centre, Victoria's primary control centre for the management of emergencies. The Centre engaged the Department of Transport and Planning, who contracted with the Oil Response Company of Australia to conduct the cleanup. The cleanup cost the Department of Transport and Planning $21,054, and QHA has not compensated it.

1. QHA has operated the Premises using sight glasses on its ASTs for at least 47 years without another known or recorded incident of a sight glass coming adrift from its tank and falling outside of the AST bunded area in the manner described at paragraph 17.
2. When QHA became aware of the circumstances described at paragraph 17, it took the following actions:

(a) manually closed the sight glass valve at the base of T46 to ensure that no further Oleic Acid Product could be released;

(b) investigated how much Oleic Acid Product was lost from T46 by checking the tank level and product inventories;

(c) investigated the root cause for the loss of Oleic Acid Product from T46, including reviewing the available CCTV footage;

(d) identified that the most likely cause for the loss of Oleic Acid Product from T46 was as described at paragraph 17 and as set out further here, involved, in combination:

1. the failure of the compression fitting connecting the sight glass to the top of T46, resulting in the sight glass dismounting from the tank;
2. the failure of the cable ties used to strap the sight glass to T46, such as the ties falling off or falling down the sight glass under the weight of the sight glass, resulting in the sight glass falling over and outside of the tank farm bund. Had the sight glass fallen within the tank farm bund, the Oleic Acid Product would have been contained and isolated from the stormwater drainage system;
3. the sight glass valve being open, which was the usual practice for stocktake efficiency purposes. Had the valve been closed, the Oleic Acid Product release would have been limited to less than 1 litre (being the volume of Oleic Acid Product contained in the sight glass); and
4. the above circumstances occurring during the Christmas shutdown period when QHA staff were not present to take usual spill containment actions;

(e) on 9 January 2021, reported the incident to South East Water;

(f) on 10 January 2025, reported the incident to the EPA by its notifiable incident hotline in which QHA was provided with a notifiable incident number;

(g) on 11 January 2025, submitted the completed Notifiable Incident Form disclosing all known details of the incident, and steps taken to investigate the root cause of the incident and address the risk of a similar incident occurring; and

(h) identified a suite of corrective actions that QHA could implement to eliminate or reduce the risk of a similar incident occurring so far as reasonably practicable.

1. QHA then undertook the following corrective actions to minimise the risk of a similar incident occurring, including in periods where the Premises is unmanned:

(a) it immediately reviewed the practice of leaving sight glass valves open, and consequently:

1. implemented a new practice whereby all sight glass valves are closed except when in "use", being when AST stock levels are being checked or during refilling activities; and
2. trained its Moorabbin facility operators in the new sight glass management practice;

(b) replaced all cable tie style straps around existing sight glasses with metal hose clamps attached to the backing board (where appropriate) or otherwise with stainless steel cable ties. This provides a secondary attachment mechanism to secure the sight glasses to the tanks, thereby eliminating the risk of a sight glass fully detaching from an AST in the unlikely event that the top fitting dismounts; and

(c) at a cost of approximately $13,600 (including GST), installed electronic level indicators on the 4 ASTs in the main tank farm with the highest throughput and therefore used most frequently. This work was completed by end July 2023. This action assists to reduce reliance on the sight glasses on the tanks where levels are needing to be taken (and therefore the sight glass valve needing to be opened) most frequently.

1. Further improvements QHA has made or is investigating in relation to its liquid handling and storage activities at the Premises more generally include:

(a) at a cost of approximately $7,000 (including GST), installed a stop valve to stormwater within the South East Water easement along the northern boundary of the Premises. This work was completed by end January 2024. The valve can be manually closed to prevent spilled substances or fire water from leaving the Premises via the stormwater drainage network;

(b) prepared and implemented a new Emergency Stormwater Valve Procedure which sets out how and when to use of the stop valve to stormwater at the Premises, and addresses training requirements in respect of the procedure;

(c) at a cost of approximately $8,200 (including GST) installed permanent hard pipe plumbing with automatic ball valve sump which drains to the trade waste treatment system. This work was completed by April 2025;

(d) at a cost of approximately $56,500 (including GST), is currently undertaking further capex improvement works to increase the height and capacity of the back bund surrounding Tank 4 and also to address aging cracks in the main tank farm bund; and

(e) at a cost of approximately $100,000 to $150,000, a further staged program of work to reduce reliance on sight glasses at the Premises. The first stage will be completed in the next 3 to 6 months and will involve the installation of new electronic level indicators with independent high-level detection/ alarm instrumentation on the 3 ASTs in the back bund area. The second stage is to rollout the same on the remaining ASTs in the main tank farm, with additional works to integrate the multiple level indicators into a centralised electronic display.

1. QHA is the named Defendant and the entity liable to give relief in this proceeding. QHA is a wholly owned subsidiary of Quaker Chemical Corporation d/b/a Quaker Houghton ("Quaker Houghton"), a business listed on the New York Stock Exchange. The group describes itself as a global leader in industrial process fluids, and has operations in over 25 countries. The group is headquartered in the United States of America, and the group employs approximately 4,400 employees globally.
2. QHA operates out of the Premises in Australia. At the time of entering into this statement, QHA is employing 37 employees for the conduct of its Business.
3. The table below outlines QHA's available revenue and net profit after tax (NPAT) on and from the first financial year the contravening conduct was engaged in:

1. QHA has not previously been found to have contravened the EP Act or the predecessor legislation, the Environment Protection Act 1970 (Vic).

1. On 10 January 2023, and in compliance with its duty to report notifiable incidents to the EPA under section 32 of the Act, QHA self-reported to the EPA the fact that the incident occurred by the EPA's notifiable incident hotline number.
2. On 11 January 2023, QHA submitted to the EPA a completed Notifiable Incident Form that set out the known details of the incident, QHA's investigation findings as to the root cause of the incident and the steps QHA was taking to minimise the risk of a similar incident occurring.
3. Since QHA's self-reporting of the 3 January 2023 incident to the EPA, and at all material times, QHA has co-operated with the EPA in its investigation into the matters the subject of the contravening conduct. This includes:

(a) on 27 and 28 June 2023, cooperating with EPA Officers who attended the Premises on an unnotified basis to undertake a site inspection and take samples from T46;

(b) on 7 September 2023, meeting its compliance obligation under EPA Environmental Action Notice EAN-00005046 (dated 27 July 2023) by the submission of a report by Resolve Environmental (dated 5 September 2023) providing a detailed assessment of QHA's liquid handling and storage practices at the Premises, as required by that notice;

(c) on 6 November 2023, meeting its compliance obligation under EPA Information Gathering Notice IGN-00005692 (dated 20 October 2023) with the submission of all the documents as required by that notice;

(d) on 5 February 2024, providing the EPA with a written report in lieu of recording an interview as offered by the EPA on 8 January 2024 in relation to allegations that QHA breached section 25(1) and section 133(1) on 3 January 2023; and

(e) on 18 December 2024, co-operating with the EPA Officer who attended the Premises to undertake a site inspection and make inquiries with respect to QHA's first flush system.

1. On 2 May 2025, QHA agreed to make the admissions specified in Part F above at the conclusion of a mediation, and agreed in principle to the relief that is sought in the proposed orders (Mediation).
2. On 2 June 2025, QHA entered into this Statement of Agreed Facts.
3. On 8 May 2025, QHA agreed to a proposed form of declarations and orders.
4. QHA has agreed to pay EPA's costs of this proceeding, fixed in the sum of $18,946.
5. The above co-operative steps have avoided the cost and resources that would have been required for the conduct of a contested trial.

[27] Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd & Anor [2016] VSC 42, [22] (citations omitted).

[28] ACCC v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378, [30].

[29] See, eg, ACCC v CFMEU [2006] FCA 1730; (2007) ATPR 42-140, [6].

[30] ASIC v Commonwealth Bank of Australia (No 2) [2021] FCA 966, [12]-[17].

[31] The Consent Minute at paragraph 4 proposes that the penalty amount is to be paid to the EPA within 30 days of the date of the Court's final orders (pursuant to s 315(1)(b)).

[32] Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, [57]-[58]. As applied by the Supreme Court of Victoria from time to time, see e.g., Labour Hire Licensing v Cameron Workforce Pty Ltd [2025] VSC 185, [33]; Essential Services Commission v Sumo Power Pty Ltd [2024] VSC 758, [262]; Energy Safe Victoria v AusNet Electricity Services Pty Ltd [2024] VSC 385, [12(a)].

[33] ACCC v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79, [17].

[34] ACCC v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79, [17]; ACCC v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548, [1].

[35] Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, [58]-[59]; ACCC v Target Australia Pty Ltd [(2001]) ATPR 41-840, [24]. See also the Agreed Penalties Case [2015] HCA 46; (2015) 258 CLR 482, [58].

[36] ACCC v REIWA [1999] FCA 18; (1999) 161 ALR 79, [20]-[21]; ACCC v Econovite Pty Ltd [2003] FCA 964; [2003] ATPR 41-959, [11]; ACCC v Woolworths (South Australia) Pty Ltd [2003] FCA 530; (2003) 198 ALR 417, 424-425.

[37] Agreed Penalties Case [2015] HCA 46; (2015) 258 CLR 482, [47] citing NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285, 291.

[38] [2016] FCA 1516; (2016) 118 ACSR 124.

[39] ACCC v Australia and New Zealand Banking Group Ltd [2016] FCA 1516; (2016) 118 ACSR 124, [103]. See also ASIC v Golden Financial Group Pty Ltd (No 2) [2017] FCA 1267, [14]-[15]; ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405, [70]-[73]; ASIC v Financial Circle Pty Ltd [2018] FCA 1644, [150]; ASIC v Project Management (Aust) Pty Ltd [2019] FCA 47, [8].

[40] ACCC v Australia and New Zealand Banking Group Ltd [2016] FCA 1516; (2016) 118 ACSR 124, [160].

[41] ABCC v CFMEU (2018) 262 CLR 157, [116]; ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [9].

[42] ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [15], citing Agreed Penalties Case [2015] HCA 46; (2015) 258 CLR 482, [55].

[43] ABCC v CFMEU (2018) 262 CLR 157, [116].

[44] Agreed Penalties Case [2015] HCA 46; (2015) 258 CLR 482, [55].

[45] ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [15]-[17].

[46] ACMA v Limni Enterprises Pty Ltd [2022] FCA 795, [61].

[47] Fair Work Ombudsman v Commonwealth Bank of Australia [2024] FCA 81, [37]-[38], citing ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [156].

[48] ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [53]-[54], citing ACCC v Reckitt Benckiser (Australia) (2016) 340 ALR 25 at [155]-[156].

[49] In respect of s 315(2)(e), no enforceable undertaking is in place.

[50] ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [19]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560, [91].

[51] ASIC v Australia and New Zealand Banking Group [2018] FCA 155, [22(5)].

[52] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560, [91].

[53] ABCC v Pattinson [2022] HCA 13; (2022) 274 CLR 450, [53]; ACCC v Reckitt Benkiser (2016) 340 ALR 25, [155]-[156].

[54] ACCC v Navman Australia Pty Ltd [2007] FCA 2061; (2007) ATPR 42-208, [115]; ACCC v Ford Motor Company of Australia Ltd [2018] FCA 703; (2018) 360 ALR 124, [43]; ACCC v Meriton Property Services Pty Ltd [No 2] [2018] FCA 1125, [26]-[27].

[55] [2005] FCA 265; (2005) 215 ALR 301, [39]; Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 4) [2023] FCA 1592, [35].

[57] See for e.g. ASIC v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69, [185] (Lee J); ASIC v Ultiqa Lifestyle Promotions Limited (in liq) (No 2) [2022] FCA 1228, [45] (Downes J).

[60] DPP (Vic) v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676, [3], [200]; DPP (Vic) v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660, [41], [127].

[64] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383, [76].

[68] Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, [3]-[5], [18]-[35].

[69] ACCC v Energy Australia Pty Ltd [2014] FCA 336; (2014) 234 FCR 343, [100]-[102], citing ACCC v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 75 FCR 238, 53.