Clean Ocean Foundation Inc v Environment Protection Authority
[2003] VSC 335
•9 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 5417 of 2003
| CLEAN OCEAN FOUNDATION INC | Appellant |
| v | |
| ENVIRONMENT PROTECTION AUTHORITY | First Respondent |
| and MELBOURNE WATER | Second Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2003 | |
DATE OF JUDGMENT: | 9 September 2003 | |
CASE MAY BE CITED AS: | Clean Ocean Foundation v EPA | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 335 | |
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APPEAL FROM TRIBUNAL – Appeal against an order of the Victorian Civil and Administrative Tribunal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – grant of works approval under s.19B Environment Protection Act 1970 – application for review of works approval decision - whether Tribunal erred in law in holding that the proceeding was misconceived and lacking in substance – meaning of phrase “frivolous, vexatious, misconceived or lacking in substance” – Tribunal decision set aside – matter remitted to Tribunal for hearing and determination.
Victorian Civil and Administrative Tribunal Act 1998 – ss. 75(1), 98, 148
Environment Protection Act 1970 – ss. 19B, 32, 33B
Equal Opportunity Act 1984 – s.44C
Administrative Appeals Tribunal Act 1975 – s.33(1)
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Ungar v City of Malvern [1979] 1 VR 259
Haberfield v Department of Veterans’ Affairs (2002) 121 FCR 233
Pearce v Button (1986) 8 FCR 408
Spurling v Development Underwriting (Vic.) Pty Ltd (1973) VR 1
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr JL Evans | Michael Morehead & Associates |
| For the First Respondent | Mr SR Molesworth QC | Mark Payton |
HER HONOUR:
Introduction
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”) on 21 March 2003, in its Planning List. Leave to appeal was granted by this Court on 27 June 2003, pursuant to section 148 of the VCAT Act. There was no appearance for the second respondent (“Melbourne Water”), which indicated through counsel for the first respondent (“the EPA”) that it proposed to take no further action in the matter and would abide by the judgment of the Court.
The order of the Tribunal which is under appeal reads:
This proceeding is dismissed pursuant to section 75(1) of [the VCAT Act] as misconceived and lacking in substance.
Section 75 of the VCAT Act reads, so far as relevant:
75.Summary dismissal of unjustified proceedings
(1)At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion¾
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is otherwise an abuse of process.
.. .
(4)An order under sub-section (1) . . . may be made on the application of a party or on the Tribunal’s own initiative.
(5)For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
The grounds of appeal on which the appellant (“the Foundation”) relies are to the following effect:
1.The Tribunal erred in law, in holding that the proceeding was misconceived and lacking in substance.
2.Further, the Tribunal erred in law, in holding that the proceeding was misconceived and lacking in substance, in circumstances where it found (at paragraph 14 of the reasons) that the applicant contended in its revised statement of grounds filed by the applicant in the proceeding on 15 November 2002 that the water discharge to be produced on the use of the works will display acute toxicity, and that if the water discharge will display acute toxicity, that such a finding would be inconsistent with the State Environment Protection Policy, Waters of Victoria 1988.
3.The Tribunal erred in law, in that it failed to take into account, in making its determination that the proceeding was misconceived and lacking in substance, the matters raised by paragraphs 6 and 7 of the particulars to the revised statement of grounds filed by the applicant in the proceeding on 15 November 2002 and that if it had done so, it should not have made its determination.
4.The Tribunal erred in law, in that in making its determination, it wrongly took into account, and wrongly concluded as a matter of fact on the evidence available to it, that the water discharge to be produced on the use of the works would consist wholly of fresh water.
On 11 July 2002, the EPA issued to Melbourne Water a Works Approval under section 19B of the Environment Protection Act 1970 (“the Act”) for certain works to be carried out at premises described as:
Eastern Treatment Plant, Thompson Rd, Bangholme Vic 3175. Discharging via South Eastern Outfall in the vicinity of Boags Rocks, Vic.
The description of the works covered by the Works Approval reads:
This approval allows for the construction of an upgrade of the existing sewage treatment facility to include tertiary filtration to produce a final effluent quality necessary to maximise reuse. It also allows for the relocation of the discharge point further offshore so as to minimise environmental impacts on the intertidal rock platforms, subtidal ecosystems, adjoining beaches and the surf zone.
Sections 32 and 33B of the Act read, so far as relevant:
32. Jurisdiction of [the Victorian Civil and Administrative] Tribunal
(1)The Tribunal has jurisdiction to review decisions of the [Environment Protection] Authority, delegated agency or a litter authority with respect to¾
(a)works approvals;
.. .
as provided in this Part.
33B. Applications for review by third parties
(1)If the Authority or a delegated agency¾
(a)issues a works approval;
.. .
a person whose interests are affected by the decision (other than the applicant or licence holder) may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.
.. .
(2). . . an application for review under sub-section (1)(a) is to be based on either or both of the following grounds¾
(a). . .
(b)that if the works are completed in accordance with the works approval, the use of the works will result in a discharge, emission or deposit of waste which¾
(i)will be inconsistent with State environment protection policy established for the area in which the discharge, emission or deposit will occur; or
(ii)where there is no State environment protection policy established for that area, would cause pollution.
.. .
(4)If an application for review of a decision is made under this section the decision is suspended until the application is withdrawn or the review is determined.
It can be seen that the grounds on which an application for review may be brought are strictly limited.
On 31 July 2002 the Foundation, by its solicitor, applied to the Tribunal for review of the decision to grant the works approval. No issue arises as to the Foundation’s standing to bring that application.
A directions hearing was held before the Tribunal on 18 September 2002, and on 26 September 2002 the Tribunal ordered the Foundation to file and serve a written restatement of the grounds for its application and of the orders which it sought. The restatement was filed, and the adjourned directions hearing resumed on 1 November 2002. On 7 November 2002 the Tribunal made orders giving leave to the Foundation to file and serve a further revised statement of grounds. The orders included an invitation to the EPA and Melbourne Water to indicate whether they sought an opportunity to be heard on the question of whether the application for review should be dismissed as vexatious and an abuse of the process of the Tribunal.
Pursuant to the orders of 7 November 2002, the Foundation filed a revised statement of grounds dated 15 November 2002 and the EPA sought an opportunity to be heard in response to the invitation. A third directions hearing was held, following which the order here under appeal and set out at [2] above was made. The Tribunal was similarly constituted at each of the three directions hearings, and gave extensive reasons for each of its three decisions.
Submissions of the Appellant
The first ground of appeal
Mr Evans, for the Foundation, submitted that the decision under appeal was equivalent to a decision to strike out a pleading on the basis that it did not disclose a cause of action, and Mr Molesworth, for the EPA, did not challenge that submission. Mr Evans relied in principle on the judgment of Ormiston JA in State Electricity Commission of Victoria v Rabel[1] . His Honour was there concerned with the same expression, “frivolous, vexatious, misconceived or lacking in substance”, appearing in section 44C of the Equal Opportunity Act 1984, as appears in section 75 of the VCAT Act. He said at 108:
[1][1998] 1 VR 102 at 108 ff
. . . the basis for hearing the application is akin to that applicable under rules 23.01 and 23.03 of Chapter I of the Supreme Court Rules. Though evidence may be called it should be confined to that which shows that the complaint is either frivolous or vexatious (similar to that now allowed under rule 23.01: see rule 23.04) or that which shows that the complaint is so lacking in substance that it ought to be summarily terminated, together with any necessary answering material from the complainant.
And at 109:
. . . the test to be applied has been universally expressed in terms that, in order to dismiss summarily an action at a preliminary stage, it must be "very clear indeed" that the action is "absolutely hopeless" (per Dixon J. in Dey v. Victorian Railway Commissioners (1949) 78 C.L.R. 62 at 91) or "so clearly untenable that it cannot possibly succeed" (per Barwick C.J. in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at 130). Because the test is placed so high it is not difficult to characterise such a claim as itself "vexatious" in the sense that it constitutes an abuse of process and should be summarily brought to an end.
And at 110:
In my opinion there is very good reason indeed for courts and tribunals to act with the greatest of caution before dismissing a claim as groundless, whatever adjective or phrase is used to give (or reiterate) that power. It is expressed in a passage from the judgement of O'Connor J. in Burton v. Shire of Bairnsdale [(1908) 7 CLR 76 at 92], a passage repeated with approval by Dixon J. in Dey v. Victorian Railways Commissioners at 91-2, as follows:
Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.
He concluded:
The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary tribunal hearing. Whatever test may be acceptable at other stages of the administrative process or during the conduct of an ordinary tribunal hearing, a complaint cannot be dismissed under section 44C or its successor unless it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing.
Mr Molesworth submitted that the gravamen of the judgment of Ormiston JA in Rabel was the direction that “courts and tribunals should act with the greatest of caution before dismissing a claim as groundless”. In his submission the Tribunal had acted with great caution in giving the Foundation three opportunities to put its claim in order before dismissing the claim, and that approach was supported by the decision in Rabel.
However, the exercise of great caution is not, of itself, sufficient to satisfy the test in that case. What is significant in Rabel is what is said about the reasons why such caution should be exercised.
The revised statement of grounds dated 15 November 2002 contained eleven “particulars” of the application for review. Mr Evans submitted that the Tribunal was wrong in finding that revised statement to be wholly bad. If all the contents of the revised statement were deleted save for the first sentence of the first particular and the whole of the sixth and seventh particulars, it was apparent that the application, if based on those remaining particulars, was appropriate to proceed to an ordinary Tribunal hearing. He accepted that the material which he proposed should be deleted was unsustainable. In his submission the Tribunal ought to have treated the application as relying solely on those three particulars, rather than dismissing it altogether.
With those deletions made, the revised statement of grounds reads as follows (omitting formal parts):
The applicant for review relies upon section 33B(2)(b)(i) of [the Act] in that the use of the works will result in a discharge, emission or deposit of waste, which will be inconsistent with the State Environmental Protection Policy (Waters of Victoria) (“the SEPP”).
Particulars
1.The discharge of treated effluent offshore by a minimum distance of 2 kilometres will be inconsistent with Clause 17 of the SEPP, which requires that water discharges shall not display acute toxicity.
6.The proposed discharge of treated effluent off-shore at a minimum distance of 2 kilometres will cause a plume of insufficiently diluted effluent to drift on-shore into special beneficial use zones which will be inconsistent with Clause 4 of the SEPP which states:-
The overall goal of this policy is to attain and maintain levels of water quality which are sufficient to protect the specified beneficial uses of the surface waters of the policy area.
7.Directly on-shore from the proposed outfall discharge point is an area of the coastal segment that includes an area used for water based recreation (Clause 7) and for the spawning of aquatic species where the level of water quality required to protect their beneficial use (Clause 8) is defined by water quality indicators and objectives set out in Schedule B of the SEPP.
The second ground of appeal
At the time of the hearing before the Tribunal on 20 December 2002 and of the making of the order under appeal on 21 March 2003, the relevant version of the SEPP was the version declared by the Governor in Council on 23 February 1988 to come into effect on 15 March 1988 (“the 1988 SEPP”). Clause 17 of the 1988 SEPP, relied upon in ground 1 of the revised statement of grounds, reads so far as relevant:
17. Waste Discharge Toxicity
Water discharges shall not display acute toxicity.
The toxicity of waste discharges will be assessed by the [Environment Protection] Authority prior to the granting of works approvals or licences. Where appropriate, toxicity testing will be required.
Where such tests are carried out, the waste shall be deemed to be acutely toxic if more than 50% of a representative test species nominated by the Authority die within a 96 hour toxicity test using 100% waste.
The latter portion of the first particular, as originally drafted, and the second to fifth particulars included material relying on the deeming provision which the Tribunal found, rightly as Mr Evans conceded, to be misconceived. As the Tribunal also noted, a deeming provision is not a definition, and the 1988 SEPP contains no definition of “acute toxicity”. Mr Evans submitted that the first sentence of the first particular was a statement capable of assessment on the basis of evidence to be called, and that the Tribunal in paragraph 14 of its reasons for decision (“the reasons”) had said as much. Accordingly, the matter should be remitted to the Tribunal for hearing and determination in accordance with that ground.
Mr Evans conceded that there was a difficulty with that submission arising from the replacement of the 1988 SEPP, with effect from 3 June 2003, by the operation of a document entitled Variation to State Environment Protection Policy (Waters of Victoria) (“the 2003 SEPP”) which was declared on that date by the Lieutenant-Governor as the Governor’s deputy.
The effect of that replacement appears, in the present context, from the decision in Ungar v City of Malvern[2] in which the relevant responsible authority, in the exercise of a discretion conferred upon it by the Melbourne and Metropolitan Planning Scheme, had refused an application for a permit for the use of certain land as a commercial car park. By the time the owner’s appeal to the Town Planning Appeals Tribunal against that decision came on for hearing, the planning scheme had been amended, with the result that it was no longer permissible to grant a permit for the use of the land in question for that purpose. The Full Court (Young CJ, Menhennitt and Crockett JJ) found that the Town Planning Appeals Tribunal was correct in disallowing the appeal. The relevant law to be applied was the law as it existed at the time the appeal came to be determined; that is, the amended planning scheme. The institution of the appeal did not entitle the appellant to have his application determined in accordance with the law as it existed at the date on which the appeal was instituted.
[2][1979] 1 VR 259
Accordingly, Mr Evans submitted, if his client were successful and the proceeding were remitted to the Tribunal, the question of whether the first particular was established under section 33B(2)(b)(i) would fall to be determined according to the terms of the 2003 SEPP rather than the 1988 SEPP, which had been in force at the time of the Tribunal’s hearing and order. His client’s right to have the decision to issue the works approval reviewed under section 33B of the Act remained; but the review must be determined according to the 2003 SEPP. He conceded that the replacement of the SEPP introduced a degree of artificiality into the proceeding before this Court; but nevertheless submitted that the proceeding was in effect a challenge to a document which, even if it could no longer stand, should have been left standing at the time of the review by the Tribunal. I am satisfied that the effect of the 2003 SEPP is a matter for the future; my concern is with the validity of the decision of the Tribunal, taken on the basis of the law as it stood at the time of that decision.
I note Mr Molesworth’s submission that the first sentence of the first particular cannot be dealt with out of context. However, it seems to me that, although it was sought at the hearing before the Tribunal to justify that sentence on a ground which is conceded to be untenable (and which it is not necessary to canvass here), that should not rule out the possibility that that sentence, standing alone, may be justifiable on some other basis which may provide for the plaintiff an arguable case which should be allowed to be resolved at a full hearing. The gist of the passages cited above from the judgment of Ormiston JA in Rabel is that a claim which is not wholly bad should be allowed to proceed to determination.
The third ground of appeal
The sixth and seventh particulars rely on Clause 4 of the 1988 SEPP, which reads:
4. Policy Goal
The overall goal of this policy is to attain and maintain levels of water quality which are sufficient to protect the specified beneficial uses of the surface waters of the policy area.
Mr Evans submitted, and I accept, that Clause 4 of the 1988 SEPP must necessarily be read with Clause 13, which commences with the following sentence:
The [EPA] shall ensure that any works approval, licence or licence amendment which is granted is consistent with this policy, and shall refuse any application which is not.
In his submission, the sixth and seventh particulars were, like the first particular as amended, statements which could be proved as matters of fact, if the evidence were available to support them. That was a matter to be determined by the Tribunal on a hearing of the substantive issue under section 33B(2)(b)(i) of the Act.
I note that the Tribunal, in the reasons, made no specific reference to those two particulars. Again, I accept that they are statements which may provide for the plaintiff an arguable case which should be allowed to be resolved at a full hearing.
The fourth ground of appeal
The essence of Mr Evans’s submission under this head is that the Tribunal’s findings of fact as to acute toxicity, in paragraphs 21 and 22 of the reasons, were not based on evidence, but on assertions made on behalf of the respondents. It appears that substantial documentary material was put before the Tribunal by the respondents, and assertions made by counsel for the respondents on the basis of that material. It is clear from the reasons, read with the reasons for the decisions made at the first two directions hearings, that no witnesses were called at any of the directions hearings. Thus the documentary material was unsupported by oral evidence, and untested. I note that in its reasons for the decisions made at the first two directions hearings the Tribunal refers to the need for the parties, at a future directions hearing, to be in a position to specify what expert and other witnesses would be called at the substantive hearing.
The findings of fact in question relate to the content of the effluent presently discharged into the ocean at Boags Rocks, and of the effluent expected to be discharged after the carrying out of the works the subject of the works approval. That is a matter for expert evidence. I note that the Tribunal, in paragraph 21 of the reasons, states that the assertions which it relied upon were “not contradicted” and “not challenged”. However, as contradiction or challenge would have required expert evidence, and it is clear that the matter of what evidence was to be called was in abeyance at that stage, it is difficult to see how the material could have been challenged by the Foundation at the directions hearings.
Section 98 of the VCAT Act provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit. Those are privileges to be exercised with care, and remembering always that the Tribunal is, by the operation of the same section, bound by the rules of natural justice.
In Haberfield v Department of Veterans’ Affairs[3] Sackville J was concerned with the provision in section 33(1)(c) of the (Commonwealth) Administrative Appeals Tribunal Act 1975 to the effect that the Administrative Appeals Tribunal was not bound by the rules of evidence. His Honour said, “[That tribunal] is, however, obliged to adopt “fair procedures which are appropriate and adapted to the circumstances of the particular case”.
[3](2002) 121 FCR 233 at 245
In Pearce v Button[4] Lockhart J said that a judge should be slow to exercise a power to dispense with compliance with the rules of evidence “where there is a real dispute about matters which go to the heart of the case”. Nothing could go further to the heart of the case than an application to strike out the plaintiff’s claim.
[4]8 FCR 408 at 422
Mr Molesworth submitted that the Tribunal made its findings of fact as an expert tribunal, thus relying implicitly on the well-known passage from the judgment of Stephen J in Spurling v Development Underwriting (Vic.) Pty. Ltd. (1973) VR 1 at 11, which reads:
In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.
. . . the essence of an expert tribunal is that it is expected to some extent to bring to bear its own expertise; . . .
However, while the Tribunal, in its Planning List, is by definition expert in planning matters, I have no reason to suppose that, as constituted in the present case, it was necessarily expert in the chemical content of the material to be discharged from the works which are the subject of the works approval.
Mr Molesworth further submitted that the Tribunal’s decision was based on its findings of fact and therefore the appeal was an appeal on a question of fact rather than a question of law, and accordingly not available under section 148 of the VCAT Act. However, the question before me is the question as to whether the Foundation’s application is misconceived or lacking in substance, and section 75(5) of that Act [5] expressly provides that that question is a question of law. Further, the question of whether there was evidence before the Tribunal on which it could come to the conclusion to which it did come is also a question of law.
[5]see [3] above
Mr Evans submitted, and I accept, that had it been intended to call evidence of the kind referred to by Ormiston JA in the first passage from Rabel extracted in [11] above, this should have been done on notice. It was an error of law to effectively strike out the application on the basis of findings of fact relying on untested assertions made on behalf of the party seeking to have the matter struck out.
Conclusion
For the reasons given, the decision under appeal will be set aside and the matter remitted to the Tribunal, differently constituted, for hearing and determination. Counsel may wish to make submissions as to the form of the orders to be made and as to costs.
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