D'Anastasi v Environment Protection Authority - [2010] NSWLEC 260

Reported Decision: (2010) 181 LGERA 412

Land and Environment Court

of New South Wales

CITATION: D’Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANT
Charles D'Anastasi
RESPONDENT
Environment Protection Authority

FILE NUMBER(S): 40881 of 2010

CORAM: Pain J

KEY ISSUES: JUDICIAL REVIEW :- validity of statutory notice - jurisdictional fact - whether notice can require information beyond personal knowledge of recipient - whether notice valid if requires inquiries to be made - whether duty to act fairly/reasonably in terms of notice - principles of construction of statutory notices

LEGISLATION CITED: Clean Waters Act 1970
Income Tax Act 1986 (Cth)
Interpretation Act 1987 s33
National Parks and Wildlife Act 1974
Native Vegetation Act 2003
Pesticides Act 1999 s3, s4, s40, s72(2)(b), s73
Protection of the Environment Operations Act 1997 s3, s7, s184, s186(b1), s188, s193, s195, s211
Trade Practices Act 1974 (Cth)

CASES CITED: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Cessnock City Council v Qintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52
Currency Brokers (Australia) Pty Ltd v Corporate Affairs Commission (NSW) (1986) 5 NSWLR 483
Environment Protection Authority v Cockburn [1995] NSWLEC 83
Environment Protection Authority v Multi-Fill Pty Ltd (1997) 93 LGERA 131
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (Smorgon case) (1979) 143 CLR 499
Great Lakes Council v Mood [2007] NSWLEC 705; (2007) 157 LGERA 35
Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources [2007] NSWLEC 39
Integrated Financial Group Pty Ltd v Australian Securities & Investments Commission [2004] WASC 75; (2004) 183 FLR 8
Kioa v West [1985] HCA 81; (1985) 150 CLR 550
Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA, 194 CLR 355
Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1
Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129
Southon v Beaumont [2008] NSWLEC 12; (2008) 158 LGERA 232
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707

DATES OF HEARING: 9 December 2010

DATE OF JUDGMENT:
16 December 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr J DuPree
SOLICITOR
Russo & Partners
RESPONDENT
Ms M England
SOLICITOR
Department of Environment Climate Change and Water

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

16 December 2010

40881 of 2010 D’Anastasi v Environment Protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 260
Decision Date: 16 December 2010

CaseChat Overview and Summary

Charles D'Anastasi is challenging the validity of a notice issued by the Environment Protection Authority (EPA) under s 193 of the Protection of the Environment Operations Act 1997 (the PEO Act). The notice seeks information and records in relation to an investigation into the suspected misuse of pesticides on three specified lots in Glenorie. The notice requires the Applicant to answer 54 questions, many of which require information beyond his personal knowledge, and to provide any or all records relating to the use or application of pesticides at or on the premises in three different periods of months or weeks. The Applicant argues that the notice is beyond power, impossible to answer, unfair, unreasonable, and a fishing expedition. The EPA argues that the notice is within its statutory powers, clear and comprehensible, and that the Applicant is required to make reasonable inquiries in the time specified. The Court found that the notice is within the broad powers of an authorised officer under s 193. The notice is not restricted to matters within the personal knowledge of the recipient, and there is no basis for reading such a requirement into the statute. A notice under s 193 can require the recipient to make inquiries of third parties in order to provide information about "all persons". The Court rejected the argument that the notice requires the Applicant to do impossible things and found that it is not impossible to answer. The Court also rejected the argument that the notice is unfair, unreasonable, or a fishing expedition. The Court found that the Applicant has a duty to use his best endeavours to answer the questions in the notice following the making of inquiries and give answers he believes are correct within the time frame specified. The Court lifted the injunction, dismissed the summons, and ordered the Applicant to answer the notice within 10 business days of the publication of the Court's reasons for judgment in the proceedings. The Court also ordered that the costs of the proceedings are reserved until 4 pm Friday 17 December 2010.

Orders