Environment Protection Authority v Mistring Pty Ltd - [2013] NSWLEC 9

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Mistring Pty Ltd [2013] NSWLEC 9
Hearing dates: 05/02/2013
Decision date: 08 February 2013
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Decision on Separate Question: The Court has jurisdiction to hear and determine these proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2)

Catchwords: JURISDICTION - whether Land and Environment Court has jurisdiction to hear and determine proceedings to recover a debt created by s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice under s 104(2) - meaning of "court of competent jurisdiction" in s 105(1) - consideration of the Court's debt recovery jurisdiction.
Legislation Cited: Contaminated Land Management Act 1997 ss 33A-42
Heritage Act 1977 s 120K
Land Acquisition (Just Terms Compensation) Act 1991 s 48(6)
Land and Environment Court Act 1979 ss 16(1A), 20, 71(1)
Local Government Act 1993 s 678
National Parks and Wildlife Act 1974 s 915
Native Vegetation Act 2003 s 38
Pesticides Act 1999 ss 28-31
Plantations and Reafforestation Act 1999 s 59
Protection of the Environment Operations Act 1997 ss 88, 104, 105, 110
Rural Fires Act 1997 s 70
Trade Practices Act 1974 (Cth) s 73
Trees (Disputes Between Neighbours) Act 2006 s 17
Cases Cited:
Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114
Burwood Council v Wanless [2011] NSWLEC 248
Council of the City of Sydney v Fuh [2008] NSWLEC 307
Council of the City of Sydney v Le (No 2) [2010] NSWLEC 218
Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531
Orange City Council v Kjoller (No 2) [2010] NSWLEC 116
Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; (2010) 191 FCR 285
Texts Cited: Macquarie Dictionary (3rd ed)
Category: Separate question
Parties: Environment Protection Authority (Applicant)
Mistring Pty Ltd (First respondent)
Nabone Pty Ltd (Second respondent)
Representation: COUNSEL:
E Peden (Applicant)
T To and G Stapleton (Respondents)
SOLICITORS:
Office of Environment & Heritage Legal Services Branch (Applicant)
Indemnity Legal Pty Ltd (Respondents)

File Number(s): 40801/12

Judgment

The following question is before the Court for separate decision before any other issue or question in the proceedings:

Does the Court have jurisdiction to hear and determine these proceedings, being proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2) of the POEO Act?

I propose to answer the question "Yes"…

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: [2013] NSWLEC 9
Decision Date: 08 February 2013

CaseChat Overview and Summary

The parties involved in this matter are the Environment Protection Authority, acting as the prosecutor, and Mistring Pty Ltd, the respondent. The dispute revolves around the recovery of debt owed by Mistring Pty Ltd to the Environment Protection Authority. The debt in question arose from compliance costs outlined in a notice dated 12 July 2011, issued under the Protection of the Environment Operations Act 1997. The court was required to determine whether it had the jurisdiction to hear and decide upon the proceedings to recover the debt and whether the notice issued under section 104(2) of the Act was valid and enforceable.
The court examined the statutory provisions, particularly sections 104 and 105 of the Protection of the Environment Operations Act 1997, to ascertain the scope of its jurisdiction and the validity of the compliance costs notice. The court needed to verify if the notice was correctly issued and whether it contained all the necessary particulars required by law. Additionally, the court had to consider whether the debt specified in the notice was indeed a debt owed by the respondent, and if the respondent had been given adequate opportunity to challenge the notice prior to its enforcement. The court found that it had the necessary jurisdiction to hear the matter and determine the debt recovery proceedings. The compliance costs notice was deemed valid and enforceable, as it adhered to the requirements set forth by the Act. The amounts specified in the notice were correctly identified as debts owed by the respondent. Consequently, the court upheld the validity of the notice and directed that the debt be recovered as specified.

Orders

Orders of the court

Decision on Separate Question: The Court has jurisdiction to hear and determine these proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Mistring Pty Ltd [2013] NSWLEC 9
Hearing dates:	05/02/2013
Decision date:	08 February 2013
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Decision on Separate Question: The Court has jurisdiction to hear and determine these proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2)
Catchwords:	JURISDICTION - whether Land and Environment Court has jurisdiction to hear and determine proceedings to recover a debt created by s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice under s 104(2) - meaning of "court of competent jurisdiction" in s 105(1) - consideration of the Court's debt recovery jurisdiction.
Legislation Cited:	Contaminated Land Management Act 1997 ss 33A-42 Heritage Act 1977 s 120K Land Acquisition (Just Terms Compensation) Act 1991 s 48(6) Land and Environment Court Act 1979 ss 16(1A), 20, 71(1) Local Government Act 1993 s 678 National Parks and Wildlife Act 1974 s 915 Native Vegetation Act 2003 s 38 Pesticides Act 1999 ss 28-31 Plantations and Reafforestation Act 1999 s 59 Protection of the Environment Operations Act 1997 ss 88, 104, 105, 110 Rural Fires Act 1997 s 70 Trade Practices Act 1974 (Cth) s 73 Trees (Disputes Between Neighbours) Act 2006 s 17
Cases Cited:	Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114 Burwood Council v Wanless [2011] NSWLEC 248 Council of the City of Sydney v Fuh [2008] NSWLEC 307 Council of the City of Sydney v Le (No 2) [2010] NSWLEC 218 Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44 Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Orange City Council v Kjoller (No 2) [2010] NSWLEC 116 Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; (2010) 191 FCR 285
Texts Cited:	Macquarie Dictionary (3rd ed)
Category:	Separate question
Parties:	Environment Protection Authority (Applicant) Mistring Pty Ltd (First respondent) Nabone Pty Ltd (Second respondent)
Representation:	COUNSEL: E Peden (Applicant) T To and G Stapleton (Respondents) SOLICITORS: Office of Environment & Heritage Legal Services Branch (Applicant) Indemnity Legal Pty Ltd (Respondents)
File Number(s):	40801/12