Environment Protection Authority v Hanna - [2010] NSWLEC 254

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hanna [2010] NSWLEC 254
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Environment Protection Authority
RESPONDENT
Dib Hanna Abdallah Hanna

FILE NUMBER(S): 40811 of 2010

CORAM: Craig J

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- interlocutory injunction - usual undertaking as to damages - form of order

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Administration Act 1991, s 5
Protection of the Environment Operations Act 1997, s 143

CASES CITED: Environment Protection Authority v Hanna [2010] NSWLEC 98

DATES OF HEARING: 6 December 2010

EX TEMPORE JUDGMENT DATE: 6 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
P Barley (Solicitor)
SOLICITORS
Department of Environment, Climate Change and Water
RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

6 December 2010

40811 of 2010 ENVIRONMENT PROTECTION AUTHORITY v HANNA

EX TEMPORE JUDGMENT

1 HIS HONOUR: The Environment Protection Authority (the Authority) has commenced proceedings in Class 4 of this Court’s jurisdiction seeking declaratory and injunctive relief against Dib Hannah Abdallah Hanna. The relief that it seeks is founded upon alleged breaches by Mr Hanna of s 143 of the Protection of the Environment Operations Act 1997 (the Act). In short it is alleged that Mr Hanna has breached the Act by transporting and dumping waste at places which are neither approved nor licensed for the receipt of the dumped waste.

2 The Authority’s proceedings have been fixed for final hearing in March 2011. An appearance has been entered on behalf of Mr Hanna by Mr Safi, solicitor, who apparently informed the Registrar at an earlier call over that the hearing would be defended. The hearing has been fixed on that basis. However, no evidence has yet been filed on behalf of the defendant.

3 The Authority now moves by Notice of Motion for interlocutory relief. It is said that the conduct of Mr Hanna is demonstrated to be such that, pending the final hearing of the proceedings, it is likely that further dumping of waste will occur in breach of the Act and, importantly, contrary to the public interest.

4 The order sought in the Notice of Motion for interlocutory relief is framed as follows:

“An order that until judgment or further order, the Respondent be restrained from transporting waste to a place that cannot lawfully be used as a waste facility for that waste”

5 The Notice of Motion first came before me on Friday last, 3 December, as Duty Judge. At that time there was no appearance by or on behalf of Mr Hanna. The solicitor appearing for the Authority informed me of a recent conversation had with Mr Safi, to the effect that he would not be appearing at the hearing…

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 254
Decision Date: 6 December 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with proceedings brought by the Environment Protection Authority (EPA) against Dib Hanna Abdallah Hanna, seeking both declaratory and injunctive relief due to alleged breaches of section 143 of the Protection of the Environment Operations Act 1997. The EPA's claims are based on allegations that Mr. Hanna transported and dumped waste at locations that were not approved or licensed for such activities. These actions were deemed to be in breach of the Act and contrary to the public interest.

The court was tasked with deciding whether to grant the EPA's request for interlocutory relief to prevent further alleged breaches of the Act by Mr. Hanna. The EPA argued that, given Mr. Hanna's prior convictions and the evidence presented in the current proceedings, there was a significant likelihood that further unlawful dumping would occur if an interim order was not put in place. Additionally, the EPA highlighted that Mr. Hanna had not filed any evidence in defence, which could be interpreted as an admission of the allegations. The court needed to weigh the balance of convenience and decide whether an interlocutory injunction should be granted in the absence of the usual undertaking as to damages.

The court, after reviewing the evidence, concluded that there was a serious question to be tried regarding whether Mr. Hanna's actions constituted breaches of the Act. Given Mr. Hanna's prior convictions and the uncontested evidence presented, the balance of convenience favoured granting the injunction. The court also noted that the EPA, as a statutory body representing the Crown, might not need to provide an undertaking as to damages. The court, therefore, decided to grant the injunction but framed it in a manner that specifically described the vehicles, types of waste, and locations involved to ensure it effectively preserved the status quo without unduly restricting Mr. Hanna's lawful activities.

In conclusion, the court issued an order restraining Mr. Hanna from using specified vehicles to transport certain types of waste to places not licensed to receive such waste, pending the final hearing of the case. The court also ordered Mr. Hanna to pay the EPA's costs associated with the interlocutory motion. This decision effectively prevents further alleged unlawful waste disposal activities by Mr. Hanna until the final determination of the case.

Orders