D'Anastasi v Environment Protection Authority (No 2)

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Land and Environment Court


of New South Wales


CITATION: D’Anastasi v Environment Protection Authority and Anor (No 2) [2010] NSWLEC 268
PARTIES: APPLICANT
Charles D'Anastasi
FIRST RESPONDENT
Environment Protection Authority
SECOND RESPONDENT
Gregory Abood
FILE NUMBER(S): 40881 of 2010
CORAM: Pain J
KEY ISSUES: PRACTICE AND PROCEDURE :- application for stay of judgment pending determination of appeal - exercise of discretion where appeal rendered nugatory if stay not granted as against public interest consideration that enforcement of environmental laws rendered ineffective if stay granted
LEGISLATION CITED: Land and Environment Court Act 1979 s58, s59
Pesticides Act 1999 s3, s72, Pt 2
Protection of the Environment Operations Act 1997 s193, s211
CASES CITED: AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors [2009] NSWSC 1029
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 134 ALR 460; (1996) 70 ALJR 306
Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52
Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 121
D’Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260
Frith v Sipple NSWCA, Moffitt P, Hutley and Mahoney JJA, 11 September 1978, unreported
New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602
Robb & Rees v Law Society of the Australian Capital Territory FCA, Finn J, 21 June 1996, unreported
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41
Weller v Williams [2010] NSWSC 741
DATES OF HEARING: 22 December 2010
EX TEMPORE JUDGMENT DATE: 22 December 2010
LEGAL REPRESENTATIVES: APPLICANT
Mr J Dupree
SOLICITOR
Russo & Partners

FIRST AND SECOND RESPONDENTS
Mr A Hill (solicitor)
SOLICITOR
Department of Environment Climate Change and Water


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Pain J

      22 December 2010

      40881 of 2010 D’Anastasi v Environment Protection Authority and Anor (No 2)

      EX TEMPORE JUDGMENT

1 Her Honour: The Applicant has filed a Notice of Appeal in the Court of Appeal of NSW dated 22 December 2010 against my finding in D’Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260 (D’Anastasi No 1) dismissing a judicial review challenge to a statutory notice requiring information and records issued by the Second Respondent, Mr Abood, an authorised officer under the Protection of the Environment Operations Act 1997 (the PEO Act) appointed by the First Respondent, the Environment Protection Authority (the EPA). I dismissed the summons on 16 December 2010 and ordered that the notice be answered in 10 business days from the date of the judgment inter alia. The Applicant has also filed a Notice of Motion dated 20 December 2010 seeking a stay of my orders made on 16 December 2010 pending the appeal, the subject of this judgment.

2 Section 58 of the Land and Environment Court Act 1979 (the Court Act) provides for the lodging of…

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Details
Case
[2010] NSWLEC 268
Decision Date

CaseChat Overview and Summary

The case of D’Anastasi v Environment Protection Authority (No 2) involved an application for a stay of judgment pending the determination of an appeal by Charles D'Anastasi against a decision of Pain J dismissing his challenge to a statutory notice issued by the Environment Protection Authority (EPA). The EPA, represented by Gregory Abood, opposed the stay. The court was required to decide whether the appeal rendered nugatory if a stay was not granted and whether the balance of convenience favoured granting a stay. The key issues included the discretion to grant a stay under the Land and Environment Court Act 1979 and the balance of convenience in light of the public interest in enforcing environmental laws. The court considered the precedents in Alexander v Cambridge Credit Corporation Ltd, Chen v Marcolongo; Chen v Lym International Pty Ltd, and Trad v Harbour Radio Pty Ltd, among others. In its judgment, the court found that while the appeal raised arguable matters with reasonable prospects of success, the balance of convenience favoured not granting a stay due to the importance of enforcing environmental laws and the potential public interest in the effective administration of the Pesticides Act. The court held that the appeal's prospects of success and the balance of convenience did not justify a stay. Consequently, the court dismissed the applicant's notice of motion and ordered that the applicant pay the respondents' costs of the motion.

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