D'Anastasi v Environment Protection Authority (No 2) - [2010] NSWLEC 268

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…

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 268
Decision Date: 22 December 2010

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.

Orders