Darwen & Stewart v Pacific Reef Fisheries (Australia) Pty Ltd

[2011] QPEC 17

[2011] QPEC 17

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3181 of 2008

KEITH ALEXANDER DARWEN	First Applicant
and
GARY WILLIAM STEWART	Second Applicant
and
PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD	First Respondent

and

BURDEKIN SHIRE COUNCIL                Second Respondent

and

CHIEF EXECUTIVE, ENVIRONMENTAL        Third Respondent
PROTECTION AGENCY

BRISBANE

..DATE 18/02/2011

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 4.1.50(2)

Joint application by two cane farmers alleging environmental harm by the respondent's aquaculture activities and seeking enforcement orders - one applicant engages separate solicitors - court refused to permit applicant to proceed while there is separate representation on the applicant side - consideration of appropriate orders for "disclosure" of information about and from bores sunk to test ground waters (which respondent feared it may not have) - whether external "mediation" or arbitration by independent senior counsel should be ordered
HIS HONOUR:  The Court has made an order in terms of the

initialled draft providing for the future conduct of this
originating application.  It is calculated to lead to a
hearing in the June pool which may cause some difficulties for
the first respondent which has had recently a change of
solicitor.

The matter now has a single applicant, Mr Darwen, who is a
cane farmer with a farm adjoining land where an aquaculture activity is conducted by the first respondent. The complaint which he and the former co-applicant Mr Stewart made was that salty water is being allowed to escape from the first respondent's ponds and that the effect that that phenomenon has on the groundwater is harming the cane farms. It's sought to establish against the first respondent that it's causing environmental harm for the purposes of the Environmental Protection Act 1994.

Relief is sought along the broad lines of having the
aquaculture activity cease or alternatively enforcement orders
are to be made to require more efficient and/or more
frequent lining of ponds.

The original two applicants came to have separate legal
representation when Mr Stewart engaged the services of
Shine Lawyers rather than Anderssen and Co who had got the
proceeding going.

On 3 February 2011 that caused a difficulty in the way of
the application of Mr Darwen which for the purposes of that
day I had interpreted as an application on a review date for
further disclosure.

Mr Andreatidis for the first respondent asserted, and I was
inclined to think soundly, that he ought not to have to face
an application by one only of the appellants while the other
was separately represented by new solicitors who appeared for
the purpose of seeking additional time so that they could
obtain proper instructions for the purpose of advising
Mr Stewart.

I took the view that the Court in those circumstances ought
not to tolerate a situation in which on the applicant or
plaintiff's side of the record there is more than one set of
legal representatives. See Smits v Moreton bay Regional Council [2009] QPEC 63 at [14]_cf and Ogle v Pine Rivers Shire Council [2005] QPELR 291 at [27].

Given that the proceeding is an originating application, I
don't think there would have been any difficulties in
Mr Stewart being made a respondent, although in this
jurisdiction there can often be serious difficulties about
finding a role for a litigant who wished to be involved in an
appeal. Cf Ogle at [28].

The matter was adjourned to today upon my intimation that
Mr Darwen was likely to be granted the relief which I'd
understood him to be seeking, Mr Andreatidis having indicated
that his client had no objection in principle to providing
what was sought, and further intimation that Mr Stewart was
likely to find himself transferred to the respondent's side of
the record where he could have whatever representation he
chose and still be in a position to seek relief for the
protection of his farm.  I am grateful to Mr Allen, counsel for Mr Darwen, for a reference to Holden v The Silkstone and Dodworth Coal and Iron Company Limited (1931) 45 LT (NS) 53 which confirms that, as the party initiating a situation of separate representation, Mr Stewart is the one to go to the respondent’s side of the record. 

When the matter came on again today, Shine Lawyers appeared
for Mr Stewart seeking leave to read and file a notice of
withdrawal.  There's no difficulty raised by any other party
to that, so under rule 15 of The Planning and Environment Court Rules 2010 that withdrawal will presumably become effective in 14 days.  For practical purposes, the matter was allowed to proceed as an application by Mr Darwen alone.

The Court has had to consider some interesting issues
including the terms in which a Court direction to the first
respondent requiring it to provide certain information ought
to be couched.  Mr Andreatidis was concerned that his client
not be placed in the position where it was the subject of an
order with which it might not be able to comply.  I would be
surprised if the Court would be so unreasonable as to visit
adverse consequences on a party in that situation.
The information which is sought relates to the location of
bores which have been sunk to test the groundwater on the
first respondent's property in particular but also it seems
outside it.

The Court hears that the applicant's expert hydrogeologist
Mr Lait is unable to prepare his expert report without knowing
accurately the locations of bores, readings or results from
which he has.

The application is premised on the first respondent having
information in that regard, which extends also to other details such as the depth of bores and the like, based on a CSIRO report, “Groundwater Level and Salinity in the Trent Road Area North Burdekin Water Bore” of July 2005.

That document, a copy of which was handed to the Court by
Mr Allan, indicates, for example, in the table at page 47 that
in its research the CSIRO used information from bores that had
been sunk by the first respondent, likewise by the applicants.
The assumption is made that for the bores with the prefix PRF
the first respondent had the information which is replicated
in the CSIRO report.  That is not necessarily a basis for a
reliable conclusion that the first respondent has that
information available now or indeed ever had it.

Matters have been resolved by the Court's order requiring the
first respondent to make available the best information which
it has and provision has been made for Mr Lait to enter the
site if the details aren't forthcoming so that he can form his
own conclusions about locations of bores, et cetera.

What was called "disclosure" but is not disclosure in its
traditional sense was also sought of information from bores
after May 2009, after which date there is no information
available to the applicants as yet.

The parties understand the continuing obligation to make
disclosure.  It would seem a reaonsable assumption that such information gets recorded in “documents”.It's a matter of judgment at what points in time further disclosure ought to be made, but there's provision in the order for such disclosure as is possible to bring matters up-to-date to be made.

There were arguments about timetabling of future steps.  As
indicated, the Court's been able to indulge the first
applicant's wish to have an early hearing.

The parties were able to get to a stage where the respondent's
material would be in just before Easter.  Inadvertently the
order requires something to be done by Good Friday but I've
chosen to leave it in that state.

A certain amount of time was taken in debating whether or not
there ought to be a reference to an external ”mediation”, three eminent Senior Counsel, one a former Judge, being
Indicated for the role, and a maximum cost of $10,000, which may well prove inadequate given the large amount of material that might have to be considered.  It is not clear that any of the gentlemen named would be available.

Mr Andreatidis did not present as wholly against the notion of
going to Senior Counsel, who might be seen as more of a
commercial arbitrator in the circumstances, given Mr Allen’s reference to the mediator “making findings”, but suggested that it might be appropriate to attempt mediation before the Registrar of the Court as a short-term measure.

I thought that was sensible, notwithstanding that the issues
here are very different from those that would normally be
taken before a Registrar for mediation.

The application of the first applicant for outside mediation
has been adjourned to the next mention date of April the 6th.
Nothing is lost by doing that because the referring order
Mr Allen prepared contemplated that the mediator would be
provided with all of the lay and expert evidence which, as I
said, is not going to be available, even if things work
according to the timetable, until Easter.

The outside mediation was seen as occurring in May.  On a future Date, the judge can determine whether there's a good case for it.  If the exercise produced an outcome, it would save a lot of time and trouble for all concerned, including the Court, since a 10 day hearing is what's contemplated.

What I've said might be of assistance for me or another judge
who has to look at this matter in the future.

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