Environment Protection Authority v Waight

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50019 of 1999 and 50020 of 1999

27 May 2003 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v MICHAEL JEFFREY WAIGHT Defendant Judgment

1 The defendant, Michael Jeffrey Waight, has been found guilty of contempt of orders of this Court. This judgment concerns punishment for that contempt. 2 The defendant breached some orders made under s 14 of the Environmental Offences and Penalties Act 1989. Those orders were made in respect of the remediation of the property at lot 204 Old Northern Road, Glenorie ("the property"). I will refer to the orders that were breached as "the remediation orders". The terms of the remediation orders and the nature of their breach is set out in Environment Protection Authority v Waight [2003] NSWLEC 93 ("the contempt judgment") and it is unnecessary to repeat those matters. Suffice it to say that each of the remediation orders referred to work designed to restore the environmental damage occasioned by the offences with respect to which the defendant was convicted: Environment Protection Authority v Waight (No 3) [2001] NSWLEC 126) ("the principal judgment"). 3 Part 55 r 13 of the Supreme Court Rules 1970 relevantly provides as follows: 13(1) Where the contemnor is not a corporation, the Court may punish by committal to a correctional centre or fine or both. (2) … (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security. 4 It has been held that pt 55 r 13 is declaratory of the Court's powers and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314. 5 Two passages from the judgment of Kirby P (as he then was) in Maniam (No 2) set out the approach to punishment for contempt. The first passage, which appears at p 314, is as follows: A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way … 6 The second passage is to be found on p 316: It is appropriate to evaluate the opponent's conduct, relevant to punishment, by having regard to the objective seriousness of the offence found; the considerations relevant to his culpability; and the considerations relevant to demonstrating contrition or otherwise apt for evaluating his conduct. 7 Mr Buchanan SC, appearing for the prosecutor, raised a number of matters relating to the considerations expressed in that passage. They are as follows:

(1) It was submitted that the defendant was plainly uncontrite. This was exemplified, in Mr Buchanan's submission, by the defendant's attitude to order 8(a) which required the removal of the artificial embankment. As I noted in par 47(7) of the contempt judgment, the defendant asserted that the two registered bush regenerators with whom he had dealings had each expressed an opinion that the artificial embankment not be removed. More significantly, according to Mr Buchanan, the defendant was still endeavouring, in March 2003 (approximately contemporaneously with the hearing of the charge of contempt), to obtain professional advice that the artificial embankment should not be removed. This was revealed in the report dated March 2003 of Mr Saul, of Microclimate, a bush regeneration firm, where questions raised by the defendant upon which the latter's advice was sought, included the question: "Should the mound along the creek line be removed?". However, as I shall presently explain, this attitude of the defendant shows not so much a lack of contrition, but is, instead, a manifestation of the defendant's inability to focus his attention on the specific requirements of the remediation orders. Mr Buchanan also submitted that the defendant was at risk of re-offending because he was convicted of disobeying the law in respect of two offences (as found in the principal judgment) and convicted of contempt for failure to comply with the remediation orders (as found in the contempt judgment). This indicates, in Mr Buchanan's submission, a continuing attitude of disobedience to the law. I am unable to accept this submission. The defendant did disobey the law in respect of the two offences, but he pleaded guilty to each of them (see par 1 of the principal judgment) and his failure to comply with the remediation orders is, as I note in pars 7(2) and 10 below, more an indication of ineptitude than a continuing attitude of disobedience.

(2) The prosecutor contended that, since the expiry of the remediation orders and since the hearing of the charge, the defendant had made no attempt to remediate the property as the remediation orders required. In particular, the prosecutor relied upon the affidavit of Mr J Thompson, an environment protection officer in the employ of the prosecutor, who gave evidence of a visit to the property on 6 May 2003 during which he made observations to the effect that the remediation orders remained unfulfilled. This submission, in my opinion, goes to the nub of this whole case. The defendant has failed to comply with the remediation orders, but it has not been for want of doing something at all. As I said in the principal judgment at par 51, the defendant went upon the property many times and did many things, but all of them were sporadic, ineffective and uncoordinated. A manifestation of the defendant's ineptitude is revealed by three documents tendered on his behalf at the punishment hearing. First, a problem with all of these documents is that none of them refer directly to the remediation orders. They do not use the terms which were carefully defined in the remediation orders, such as "the embankment" and "the artificial embankment". One of them invites "a representative of the Land & Environment Court" to come to the property to hear an explanation of work being carried out, but it makes no reference to the principal judgment or to the contempt judgment. Secondly, not one of the documents refers totally and unequivocally to the remediation orders. The first document is a list of qualifications of the personnel of Microclimate (to whom I have referred in par 7(1)). The second is the March 2003 report of Microclimate (to which I also referred in par 7(1)). There could not be a plainer example than this document of the defendant's inability to focus on the task at hand. First, it lists four items of work Microclimate had been asked to perform. Only one of them, being a reference to manual removal of weeds in the creek line, directly points to the remediation orders. It then sets out responses to five questions asked by the defendant. None of these questions is directly related to the remediation orders. Next it sets out a list of native plants and a list of weed species found on the property. Neither of these lists is directly required by any of the remediation orders. It also contains an invoice and a brief description of work already done. The third document is a bush regeneration report outlining work done on the property by Microclimate on 9 May 2003 (a date subsequent to the date of the contempt judgment). Some of the work described, but not all of it, appears to relate to the remediation orders. Thus there was planting of indigenous tubestock on the zig-zag track, and on the artificial embankment. Only the former was required by the remediation orders (order 1(d)), and then only upon the areas of the embankment disturbed by works in complying with other orders. Order 8(b) required planting but only after the artificial embankment had been removed (which has not been done). There was also some weeding carried out. Only part of that weeding is referrable to the remediation orders, namely, the weeding in and adjacent to the creek line for approximately 50 metres. Order 9(a) required weeding of the affected creek, that expression being defined as a particular section of the creek, longer than 50 metres. There was weeding of the artificial embankment and the embankment itself - this was not required by the remediation orders. There follows a dissertation about the appropriate weeding on the property, and a number of recommendations about carrying out weeding (including, yet again, a comment that the artificial embankment should not be disturbed). The defendant also tendered a set of 34 photographs of various parts of the property taken both before and after the date of the contempt judgment. This evidence suffers from the same defects as the three documents referred to above - it is not directly focussed on the remediation orders. Seven of the photographs show native tubestock planted on the zig-zag track, but there is nothing to indicate that the planting took place on the areas specified in order 1(d). Three photographs contain captions indicating that "rubble" has been removed from the affected creek, which would accord, at least in part, with the obligation in order 9(b) to remove non-indigenous material deposited in and about the affected creek. But the photographs do not readily depict what the caption suggests, nor do they provide evidence of full compliance with order 9(b). The remaining 24 photographs have no direct connection with compliance with the remediation orders.

(3) The prosecutor points to the finding, at par 47(8) of the contempt judgment, that the defendant, when cross-examined, prevaricated or gave unresponsive or argumentative answers. Mr Buchanan submitted that the defendant has given no good reason for his failure to comply with the remediation orders, and that the defendant displays an attitude of truculence and resentment that he is required to carry out the remediation orders. I agree with Mr Buchanan's submission in this regard, but I am persuaded that the defendant's attitude stems from a misplaced notion that he was in fact carrying out the remediation orders and his consequential belief that any assertion to the contrary is unfounded. He is completely wrong in his attitude.

(4) Mr Buchanan emphasised the fact that, in the principal judgment at pars 350, 364, 373 and 378, Sheahan J took into account, in sentencing the defendant for the two offences, the onerous responsibility cast upon the defendant by all the orders made under s 14 and his willingness to carry out remediation works. In Mr Buchanan's submission, the defendant sought leniency in his sentence by reference to the orders made under s 14 yet he failed to comply with the remediation orders, indicating an attitude of "thumbing his nose at the Court".

(5) Mr Buchanan submitted that the defendant's conduct should be found to be contumacious. He said that it indicates that the defendant has no intention of complying with the remediation orders. He has intended, and still intends, to prevaricate, to cavil at some of the remediation orders, and to blame other persons (such as the present owners of the property, and Mr Jack, the registered bush regenerator whom the defendant initially engaged). 8 The prosecutor categorises the defendant's contempt as serious, and seeks an order that the defendant be committed to prison, and that the remediation orders be varied so as to extend the time for their compliance. In the prosecutor's submission, a fine would be inadequate, and only the actual serving of a term of imprisonment would be proportionate to the seriousness of the contempt. 9 In the defendant's defence, his counsel, Mr Laucis, submitted that his actions in breaching the remediation orders were not contumacious. Mr Laucis referred to passages in the contempt judgment (at pars 47(3) and 51) where I found the defendant's actions to involve an ineffective and often misplaced effort to take some action having regard to the remediation orders, and where I found that he failed to set about compliance with any of the remediation orders in any direct or comprehensive way. In Mr Laucis's words, the defendant has not been as effective as he intended to be. 10 In my opinion, as I said in par 7(2), this is the nub of the problem. The defendant has breached the remediation orders. But he has done so because of his ineptitude and incompetence, not in flagrant defiance. I am not satisfied beyond reasonable doubt that his contempt is contumacious. However, I am satisfied, to the same standard, that his contempt is wilful in the sense that it involves deliberate breaches that were not casual, accidental or unintentional (see par 59 of the contempt judgment). 11 In view of this finding, punishment by way of committal to prison would be disproportionate to the defendant's contempt. I consider in the circumstances that an appropriate punishment would be a fine. 12 In fixing an appropriate fine, I am mindful of three matters. The first is the assertion, made by Mr Laucis from the bar table, that the prosecutor's costs amount to $47,000. It is appropriate to order the defendant to pay the prosecutor's costs, but the amount is very large and I take it into account in fixing the fine. 13 The second is the fact that there were, in total, 13 orders imposed upon the defendant under s 14. Only six of these were the subject of the charge of contempt, and of those six, only four were found to have been breached. I have no evidence as to whether the defendant has complied with the seven orders which were not subject to the charge of contempt, but I take into account in the defendant's favour that the prosecutor has not formally charged the defendant with contempt of any of those remaining orders. 14 The third matter is the defendant's means. No evidence as to the defendant's current and general financial circumstances was adduced on his behalf. The only matter brought to the Court's attention was that the defendant has entered into an arrangement to pay the amount of fines imposed upon him in the principal judgment, $150,000 in total, by way of monthly instalment of $1250 and that, as at 12 May 2003, he had paid a total of $22,500. 15 In all the circumstances I have outlined, I consider that a fine of $15,000 is an appropriate and proportionate punishment. I am, however, concerned to ensure that the coercive purpose of the contempt proceedings is fulfilled. There is a need for the remediation orders to be carried out. They were imposed, as I noted in par 2, to remedy the environmental consequences of the commission of the two offences, and it is imperative, in my opinion, that the work required by the remediation orders is done. 16 In this connection, I note that the defendant's notice of motion seeking an extension of time within which to carry out the remediation orders was withdrawn in the face of the prosecutor's announcement that it would oppose that notice of motion on the basis that a party guilty of contempt should not be heard in respect of an application made to the Court (see Permewan Wright Consolidated Pty Ltd v Attorney General (1994) 35 NSWLR 365 at 369). However, the prosecutor is also concerned to see that the work required by the remediation orders is carried out, and it made a formal application for an extension of time. 17 Each of the remediation orders specified a time for compliance. Order 1(d) specified three months, and each of the other orders, 8(b), 9(a) and 9(b), specified six months. I think it is appropriate for the Court, upon the prosecutor's application, to extend the time for compliance of each order to a period of six months from the date of this judgment. 18 Taking into account the amount of the fine which I consider to be appropriate, the need for the Court to coerce the defendant into compliance with the remediation orders, and the Court's power under pt 55 r 13(3) to suspend punishment on terms, I have concluded that I should impose upon the defendant a suspended punishment by way of a fine of $15,000, the imposition and payment of which is conditional upon the defendant not having complied with each of the remediation orders within the extended period of six months. 19 I add a postscript. The findings I have made in the contempt judgment and in this judgment give me no confidence that the defendant on his own is capable of complying with the remediation orders. But the obligation to do so is his. It seems to me that the defendant is more likely to achieve compliance if he seeks professional help to do so, and if both he and his professional adviser focus their attention exclusively and unreservedly on complying with each of the remediation orders to the letter. 20 In accordance with the foregoing, I make the following formal orders:

(1) Note the finding made on 6 May 2003 that the defendant is guilty of contempt of orders 1(d), 8(a), 9(a) and 9(b) made by this Court on 22 June 2001.

(2) Impose upon the defendant a suspended punishment by way of a fine in the amount of $15,000, imposition and payment of which is conditional upon the defendant failing to comply with any one or more of orders 1(d), 8(a), 9(a) and 9(b) within a period of six months from the date of this judgment.

(3) Upon the prosecutor's application, extend the time for compliance with orders 1(d), 8(a), 9(a) and 9(b) to the date being six months from the date of this judgment.

(4) Order the defendant to pay the costs of the prosecutor in respect of the contempt proceedings as agreed or as assessed.

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