Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59

Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59

Both the 17 January and 24 January 2012 clean-up notices were lawfully issued by the regulatory authority on the objectively reasonable suspicion of a pollution incident, containing directions closely connected to the incident. The lack of compliance with the notices was not excused by unreasonable notice terms, impracticability, or cost, and no reasonable excuse or due diligence defence was established. Mr Osman-Kerim, the director, failed to prove on balance that he used due diligence. Thus, the offences under s 91(5) were proved beyond reasonable doubt.

Parties
Prosecutor: Environment Protection Authority; Defendant: Sydney Drum Machinery Pty Ltd; Defendant: Imad Osman-Kerim
Jurisdiction
Australia
Judgment Date
01 June 2016
Procedural Posture
Prosecution (class 5) / Post Trial, Judgment on Liability (guilt), Orders for Directions & Sentencing to Be Fixed
Outcome
Defendant (Imad Osman-Kerim) found guilty on two s 91(5) charges, guilty plea entered to s 64(1) offence, other charges dismissed.
Legal Topics
Pollution Incidents, Clean Up Notice Compliance, Reasonableness/unreasonableness in Administrative Law, Corporate Liability for Environmental Offences, Defence of Reasonable Excuse, Director's Due Diligence, Procedural Fairness
Environmental Law Administrative Law Criminal Law Pollution Incidents Clean Up Notice Compliance Reasonableness/unreasonableness in Administrative Law Corporate Liability for Environmental Offences Defence of Reasonable Excuse +2 more

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Parties

Environment Protection Authority

Prosecutor

Sydney Drum Machinery Pty Ltd

Defendant

Imad Osman-Kerim

Defendant

Procedural Posture

Prosecution (class 5) / Post Trial, Judgment on Liability (guilt), Orders for Directions & Sentencing to Be Fixed

Legal Issues

  1. 1 Whether the regulatory authority reasonably suspected a pollution incident occurred, justifying clean-up notice(s) under s 91(1) Protection of the Environment Operations Act 1997 (NSW)
  2. 2 Whether the directions in the clean-up notices were sufficiently connected to the pollution incident
  3. 3 Whether the terms of the notices were clear and reasonable

Ratio Decidendi

Both the 17 January and 24 January 2012 clean-up notices were lawfully issued by the regulatory authority on the objectively reasonable suspicion of a pollution incident, containing directions closely connected to the incident. The lack of compliance with the notices was not excused by unreasonable notice terms, impracticability, or cost, and no reasonable excuse or due diligence defence was established. Mr Osman-Kerim, the director, failed to prove on balance that he used due diligence. Thus, the offences under s 91(5) were proved beyond reasonable doubt.

Court Disposition

Defendant (Imad Osman-Kerim) found guilty on two s 91(5) charges, guilty plea entered to s 64(1) offence, other charges dismissed.

Orders

  • Plea of guilty entered by defendant to s 64(1) offence (proceedings 2016/158256/50010) recorded.
  • Defendant Imad Osman-Kerim found guilty for contravention of s 91(5) as director (proceedings 2016/158257/50011) for 24 January 2012–8 March 2012 period.