MONOGRAPH 40 volume 1

47 Research monograph 40 2. Findings director is the “alter ego” of the company. 354 The rationale for this principle is that the effective cost of the penalty imposed on the corporation is borne by the individual. Put another way, the same source of money would be used to pay the fines imposed on both the corporate and individual defendants. 355 In the study period, there were only nine offenders prosecuted for Tier 1 offences ( POEO Act , Pt 5.2 and s 114). The nine Tier 1 offences are summarised in Table 2 . Every one of the nine were prosecuted on the basis of negligence, not wilfulness. This supports the claim that proving both elements of a Tier 1 pollution offence were wilfully committed makes it extremely difficult for the prosecutor to secure a conviction. In fact, following EPA v N , 356 there has only been one conviction for the wilful Tier 1 offence, and that was secured in 1997 in EPA v Gardner 357 (discussed below and in Case study 1 ). Gardner was the last case before the LEC where a charge of wilfully pollute was laid by a prosecutor. 358 Six of the nine Tier 1 matters involved prosecutions for offences under s 115(1): the negligent disposal of waste in a manner that harms or is likely to harm the environment. The remaining three prosecutions involved offences under s 116(2) or the provisions of a preceding Act: 359 negligently causes a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment. The commission of each of the Tier 1 waste offences was financially motivated — largely, to save money by avoiding the cost of lawfully disposing of the waste through a licensed waste facility. 360 This can be contrasted with the Tier 1 pollute waters offences, where it was ascertained for both offences that there was no financial motive and no financial gain. There were two Tier 1 offences that directly relate to “corporations”. However, of the remaining six offences, five involved the prosecution of directors, principals or managers of various corporations. Thus, of the individual defendants charged and prosecuted for Tier 1 pollution offences, only one was an “ordinary Joe” individual who was not a director of a corporation (or other position holder) held responsible for the company’s commission of the environmental offence (in Table 2 , the case involving the sole individual is colour-coded). From Table 2 , it also may be seen that: • one Tier 1 pollution offence proceeded by way of prosecuting the corporation and the company director (or other position holder) liable for the environmental offence under the “special executive liability” provisions of s 169 (case pair 1a and 1b) • another Tier 1 offence proceeded by way of separately but jointly prosecuting the Director and operational Manager of the company under the “special executive liability” provisions of section 169 (case pair 4a and 4b) • a third Tier 1 offence involved the prosecution of a corporation (Warringah Golf Club Ltd) and one of its employees (the golf course superintendent), held jointly (but not equally) responsible for a serious water pollution offence (case pair 5a and 5b). 354 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 per Biscoe J at [52]–[63] citing the Federal Court decisions of ACCC v ABB Transmission & Distribution Ltd (No 2) [2002] FCA 559; (2002) 190 ALR 169 per Finkelstein J at [45] and Minister for the Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317; and The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (No 2) [2012] NSWLEC 95. In Palfrey v Spiteri [2014] NSWSC 842, Garling J expounded the principle and cited Greentree and Kinnarney with approval. 355 EPA v Alcobell Pty Ltd, EPA v Campbell [2015] NSWLEC 123 per Pain J at [120], [121]. 356 (1992) 26 NSWLR 352. 357 EPA v Gardner (unrep, 7/11/97, NSWLEC). 358 The environmental crime sentencing database did not disclose any further cases. For prudence, targeted searches of LEC judgments on the Commission’s JIRS employing the search term “wilfully” were also conducted which also did not uncover any additional offences. 359 Two of the three cases involved prosecutions for offences under s 116 of the POEO Act . The other was an offence under s 6(1)(a) of the EOP Act (rep). 360 The specific text in each judgment in which the court describes the financial motivation to each offence is provided in Table 2 .