This case concerned the imposition of civil penalties on Rocky Lamattina & Sons Pty Ltd for the clearing of trees which provided habitat to the South-Eastern Red-Tailed Black Cockatoo Calyptorhynchus banksii, in contravention of s 18(3) of the Environment Protection and Biodiversity Conservation Act 1999.

The Minister initially brought proceedings against both the company and Mr. Rocco Lamattina seeking injunctive relief, declaratory relief and the imposition of civil penalties. Ultimately, proceedings against Mr. Lamattina were dropped and the company admitted to contravening s 18(3) of the Act. The Minister and the company prepared an agreed statement of facts, setting out the law and facts in relation to the various claims against the company, including an agreed upon penalty of $110,000.

Justice Mansfield heard the case and rejected the penalty agreed by the parties as being too low. He stated

Having regard to the matters raised by the joint submissions, and the matters I have discussed, in my view the penalty proposed by the joint submissions is not within the permissible range. The contravention was not within the least serious category of contraventions. The deliberate nature of the conduct, the indifference to its potential consequences, and its significance in relation to the endangered species, and the need for the Court to fix a penalty which will operate as a deterrent to those who might otherwise be minded to clear native vegetation contrary to s 18(3) of the EPBC Act all point to a penalty significantly greater than that suggested, even taking into account all the matters which weigh in the first respondent’s favour to fix a low pecuniary penalty.

The facts of the case were admitted by the parties. The following is adapted from the summary given by Justice Mansfield in his judgment.

Between April 2004 and July 2005, the respondent caused the clearance of at least 170 trees from a property in South Australia. The trees were of the species E. leucoxylon, E. camaldulensis and E. fasciculosa. The trees removed from the property included an undetermined number of very old, large trees and also an undetermined number of younger trees.

These trees were potential habitat for the South Eastern Red-tailed Black Cockatoo (Calyptorhynchus banksii graptogyne), an endangered species under the EPBC Act. The property is within the known range of the Cockatoo and is part of an area mapped as nesting habitat that is critical for the survival of the species.

The parties agreed that clearance was likely to adversely affect habitat which is critical for the survival of the cockatoo. While the location of all nesting sites was not known, the property was within a region recognised as one of the remaining strongholds of nesting for cockatoos in South Australia and the area on the property which was cleared could have supported up to six nesting pairs.

The cockatoo has traditional nesting areas where it returns to breed. The removal of the potential nesting trees is likely to lead to reduced nesting success in this area and a reduced recruitment of new Cockatoos into the population. Most known nest trees of the cockatoo are paddock trees of the type removed, and there is little of this habitat type left in South Eastern South Australia.

In addition to a reduction in suitable nesting habitat for the Cockatoo, it is also likely that the clearance reduced the area of occupancy of the cockatoo with respect to the stringybark feeding habitat which adjoins the property. As the property will support fewer nesting pairs of cockatoos, fewer cockatoos will occupy and utilise the adjoining stringybark feeding habitat.

The decision was somewhat unusual because the Court was presented with an agreed statement of facts and a recommended penalty. Justice Mansfield observed that in those circumstances, he had to be satisfied of two things:

• That the EPBC Act had been contravened; and
• That the penalty was sufficient.

In assessing the appropriate penalty, his Honour applied the principles set out by Justice Sackville in his decision in Minister for the Environment and Heritage v Greentree (No 3). His Honour considered the following factors:

• The nature, extent and circumstances of the contravention
• Loss or damage caused by the contravention
• Whether the respondents have been previously found by a Court to have engaged in similar conduct
• The size of the contravening company, and whether the contravention arose out of the conduct of senior management
• The deliberateness of the contravention
• Whether the respondent was cooperative
• The object of deterrence
• Amounts of other penalties

It was suggested by the parties that the fact that the offending had not been profitable (because the cleared property was ultimately sold at a loss) was relevant. Justice Mansfield rejected this argument. In favour of the respondent, he noted that they were a small family company, experiencing financial difficulties, that this was the first time it had committed a contravention of s 18(3) and that the company had cooperated with the Minister. Against them, however, he noted that the contravening conduct was engaged in deliberately, that the company had been indifferent about the consequences of the conduct, that the conduct was significant in terms of its impact on an endangered species and that there was a need for the Court to a fix a penalty that would deter others from engaging in similar conduct. As such, he considered $110,000 was too low and doubled it to $220,000.

• The full decision is available on Austlii

• Environment Protection and Biodiversity Conservation Act

• Other examples of fines and enforcement action under the EPBC Act

• Minister for the Environment and Heritage v Wilson