Environmental Protection Agency v Hudson Timber Products Ltd

[2005] QPEC 69

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Environmental Protection Agency v Hudson Timber Products Ltd & Ors [2005] QPEC 069

PARTIES:

JAMES POURTILL, DIRECTOR GENERAL OF ENVIRONMENTAL PROTECTION AGENCY

Applicant

HUDSON TIMBER PRODUCTS LTD ACN 081809814

1^st Respondent

AUSTRALIAN HARDBOARDS LTD ACN 088183420

2^nd Respondent

BRUCE WILLIAM MCLEOD

3^rd Respondent

AH BREMER PARK PTY LTD ACN 098657188

4^th Respondent

FILE NO/S:

582/05

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

11 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2005

JUDGE:

Rackemann DCJ

ORDER:

Application dismissed

CATCHWORDS:

Practice and Procedure - Stay of Planning and Environment proceeding pending criminal hearing arising out of the same facts – whether real prospect of substantial prejudice – principles concerning exercise of discretion

Environmental Protection Act 1994 (Qld)

Cases cited:

Baker and Another v Commission of Federal Police (2000) FCA 1339

Bannister v Director General from the Department of Corrective Services [2005] 1 Qld R 117

Cameron’s Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Ltd (1984) 4 FCR 428

Environmental Protection Authority v Caltex Refinery Co Pty Ltd (1992) 178 CLR 477

Guglielmin v Trescowthick (No 3) [2005] FCA 139

Wootten J in McMahon v Gould (1982) 7ACLR 202

Yuill v Spedley Securities Ltd (in liq) (1992 )ACSR 272

COUNSEL:

H Fraser QC and E Wilson for the applicant

RP Devlin for the respondents

SOLICITORS:

Environmental Protection Agency for the applicant

McCullough Robertson for the respondents

1. These proceedings, which were commenced by originating application, are for interim enforcement orders and enforcement orders pursuant to section 507 of the Environmental Protection Act 1994. They relate to a long standing industry located proximate to the Bremer River. The industry produces effluent which is disposed of by irrigation. The second Respondent holds an Environmental Authority[1] to discharge the majority of the effluent onto its land.

   [1] SR1452

1. The irrigation of effluent has at least the potential for causing environmental harm. The Environmental Authority limits the contaminants which can be discharged. There was also an Environmental Management Plan (EMP). An EMP may authorise environmental harm which would otherwise be unlawful (Section 436). The EMP in this case included the option of building a wastewater treatment plant.  The second Respondent has advised its election to build that plant, but has not yet done so.

1. In February of this year the second and third Respondents were charged with multiple offences under the Environmental Protection Act, in relation to alleged breaches of the provisions of the EMP, the conditions of the Environmental Authority and for causing environmental harm. In the same month, the present proceedings were commenced.

1. The criminal proceedings and the present enforcement proceedings are parallel proceedings. They relate to the same subject matter, are bought by the same agency and evidence in relation to the enforcement proceedings is also likely to be relevant to the criminal proceedings. The Respondents in the present proceedings request a stay pending determination of the criminal proceedings.

1. The criminal proceedings have yet to proceed to a committal hearing. On the most recent indications, the four to six week committal is unlikely to be listed prior to January 2006.  If the defendants are to stand trial, it would take some 3 months for the indictment to be presented and a further period of some six months before the matter was tried. It is unlikely that the criminal proceedings will be resolved until the latter part of 2006.

1. The existence of parallel proceedings does not prevent this court from entertaining proceedings for enforcement orders or interim enforcement orders[2] . It was accepted however, on behalf of the Environmental Protection Agency, that the court has discretion to determine whether a stay should be granted.

   [2] It may be noted that the Environmental Protection Act authorises the court to make an enforcement order “whether or not there has been a prosecution for the offence” (Section 510 (2)

1. More is required than simply the existence of parallel proceedings in the criminal court, in order to persuade a court that proceedings in a civil jurisdiction should be stayed[3] . The Respondents to the present proceedings contended that a failure to grant a stay would result in prejudice in the criminal proceedings.  It has been said that, in the context of determining a stay application, the prospective prejudice should be a real prospect of substantial prejudice[4].  Ultimately however, there is a discretion to exercise on the basis of a consideration of all the relevant circumstances.

   [3]Elliot v Australian Prudential Regulation Authority [2004] FCA 582 at para 16

   [4]Bannister v Director General Department of Corrective Services [2005] 1 QdR 117 at 119 para 9.

1. In Bannister v Director General from the Department of Corrective Services [2005] 1 Qld R 117, Holmes J said, at [10]:

“There is a substantial body of authority dealing with applications for stay of civil proceedings pending determination of criminal charges. Generally speaking, courts have been disinclined to preclude any plaintiff from having his action tried by reason of criminal charges pending against the defendant however there is, of course, a balancing exercise involved.”

1. In carrying out that balancing exercise, some assistance may be obtained from the following guidelines set out by Wootten J in McMahon v Gould (1982) 7ACLR 202 at 206:

“(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);
(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with (Jefferson v Bhetcha at 905);
(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e) The court’s task is one of “the balancing of justice between the parties” (Jefferson Ltd v Bhetcha at 904, taking account of all relevant factors);
(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 405);
(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below;
(h) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right that same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgement, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5);
(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);
(j) In this regard factors which may be relevant include

i)the possibility of publicity that might reach and     influence jurors in the civil proceedings (ibid at 905);

ii)        the proximity of the criminal hearing (ibid at 905);

iii)the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905);

iv)the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);

v)whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 735-6);

vi)the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant’s obligation to the plaintiff;
(l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton).”

1. Those guidelines should not be seen as necessarily exhaustive, as indeed subparagraph (f) itself suggests[5].  The relevant circumstances of the particular case must be considered.

   [5] Indeed there is some suggestion, in the authorities, that they may be reconsidered – see Yuill v Spedley Securities Ltd (in liq) (1992 )ACSR 272 at 173-275 per Kirby P and Baker and Another v Commission of Federal Police (2000) FCA 1339 per Gyles J.

1. Counsel properly and helpfully referred me to a number of other cases which are part of the “substantial body of authority” referred to by Holmes J.  It is unnecessary, for present purposes, for me to traverse that in further detail.

1. While the application for a stay was in respect of the proceedings as a whole, I am satisfied that it would be appropriate, at this stage, to only consider a stay of the proceedings for interim enforcement orders. The application for interim enforcement orders has been set down to be heard next month and directions have been made. The proceedings, in so far as they relate to the (final) enforcement orders, have not progressed. No trial date has been set, no directions have been made in relation to pre trial procedure and there is no indication that the applicant, in these proceedings, is threatening to progress that matter. Indeed Senior Counsel for the Environmental Protection Agency confirmed that he holds no instructions to seek to progress that aspect of the matter at this time. It is unnecessary therefore to consider, at this time, an application for a stay of the proceedings for final relief.

1. That the question of a stay only arises, at this time, with respect to the application for interim enforcement orders, is a matter of significance.

1. It has already been observed that the proceedings, in so far as they relate to an application for interim enforcement orders, is set down for hearing next month. Judgement would ordinarily be expected by the end of this year. In the case of the criminal proceedings however, the committal is not expected to occur until next year, with any trial to be not before the second half of 2006. It would seem unlikely therefore, that the defendants in the criminal proceedings will be faced with onerous consequences in relation to preparation for proceedings in two jurisdictions at the one time. It is more likely that the preparation of the criminal proceedings might become somewhat more advanced by reason of the earlier hearing of the application for interim enforcement orders[6].

   [6] For a discussion of the burden of preparing two proceedings where the factual basis overlaps see Guglielmin v Trescowthick (No 3) [2005] FCA 139 Mansfield J at para 42.

1. The likely substantial delay between the hearing and determination of the application for interim enforcement orders and the likely hearing of the criminal proceedings also makes it less likely that any adverse publicity arising from the former would prejudice the defendants in obtaining a fair trial in the criminal proceedings.  The risk is unlikely to be as great or greater than the risk associated with any publicity surrounding the committal proceedings, which would likely be closer in time to the trial[7].  A concern was expressed that a jury might be influenced by the fact of judgment in this court (on a lower standard of proof), but the only judgment with which we are currently concerned is that on the application for interim, rather than final, orders.

   [7] See Cameron’s Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Ltd (1984) 4 FCR 428 at 434

1. On the other hand, the likely delay in finalisation of the criminal proceedings, seen in the context of the current proximity of the hearing in relation to interim enforcement orders, means that, if a stay were granted, there would likely be a very substantial delay in the present proceedings. That is a matter of significance, particularly in a case like this, where the proceedings in this court are not concerned with the determination of rights which are purely personal to the parties, but involve matters of public importance relating to the protection of the environment.

1. Mr Mortimer, a senior principal scientist employed by the Environmental Protection Agency deposed that, following a site visit, he formed the opinion there was only approximately two months capacity in the onsite ponds for storage of effluent and that the potential for carbon to wash from the site into the Bremer River is increasing daily. He detailed concerns, in relation to future impacts, attributable to current effluent storage, treatment and irrigation practices.  He holds concerns in relation to the wet weather integrity of catch dams and contours, direct irrigation of mill effluent (by bypassing the settling ponds) and the failure to provide conditions conducive to bacterial breakdown of carbon fibre in the effluent stream.  He also holds concerns as to the performance of the proposed wastewater treatment plant, if design and performance criteria are not met.

1. The Respondents were granted leave to file and read an affidavit of Rex Hills, the general manager of the second Respondent. The affidavit takes issue with the factual basis upon which Mr Mortimer formed the opinions which gave rise to his concerns.

1. It is not possible for that conflict to be fully examined or determined in the context of the stay application. If Mr Hills is found to be correct, then the court might be persuaded not to grant interim enforcement orders. There is however, at least a significant public interest in the court promptly determining whether interim enforcement orders are appropriate in the circumstances.

1. Confining consideration of the stay application to the proceedings for interim enforcement orders also obviates a concern that pre-hearing processes, particularly disclosure, would effectively circumvent the third Respondent’s privilege against self incrimination. Three of the respondents to these proceedings are companies. Those companies would not be entitled to claim privilege against self incrimination[8] and might therefore be compelled to disclose documents (if any) which might be used to incriminate the third Respondent in the criminal proceedings. The pre trial processes, as directed in respect of the hearing of the application for interim enforcement orders however, do not require the parties to carry out disclosure. The obligation of the Respondents is to file any affidavit material upon which they intend to rely in the proceedings. What the Respondents choose to rely on is a matter for them.

   [8]Environmental Protection Authority v Caltex Refinery Co Pty Ltd (1992) 178 CLR 477.

1. The Respondents’ case on prejudice focused on the prejudice which, it was claimed, would arise in the criminal proceedings as a consequence of effectively giving up the right to silence, by electing to adduce evidence and by cross examining the applicant’s witnesses in this court. In particular, it was said that the scientific experts relied upon by the Environmental Protection Agency would be confronted with contrary expert opinion and be subject to cross examination which would put them on notice of the areas of attack upon their evidence, in advance of the hearing of the criminal proceedings.  This, it was said, raises the prospect of evidence being tailored in the criminal proceedings.

1. There are a number of things to observe in relation to that submission.

1. As counsel for the Respondents acknowledged, the concern relates to the committal stage rather than any subsequent trial in the criminal proceedings. In the event of a trial, the defendants would be required, by section 590B of the Criminal Code, to give advance notice of their expert evidence, including the identity of the expert, any finding or opinion and a copy of the expert report upon which the finding or the opinion is based. The experts called by the prosecuting authority at trial would also have been made available, for cross examination, at the earlier committal hearing.

1. Further, the risk of tailoring expert opinion evidence, with which the Respondents are concerned, is in a somewhat different category to the risk of a witness of fact fabricating a story, tailored to the evidence, when presented with an opportunity and a motive for doing so[9].

   [9] Compare Guglielmin v Trescowthick (No 3) [2005] FCA 139 Mansfield J see para 36

1. Counsel for the Respondents did not suggest that the experts called by the Environmental Protection Agency would consciously fabricate opinions or attempt to mislead the court in the subsequent committal proceedings by reason of material which they had seen, or questions they had been asked, in the hearing in this court, on the application for interim enforcement orders. Rather, it was put more on the basis of the prospect of some subconscious tailoring, resulting from the advantage of knowing the areas on which they would be attacked.

1. While that forewarning might afford some advantage, it should also be noted that, in the case of expert opinion evidence of this kind, the basis for the relevant opinion, including the assumed factual basis and the process of reasoning, is disclosed and can be tested, including so as to reveal conscious or unconscious “tailoring”.

1. Indeed it is because conflicts in expert opinion evidence of this kind are usually resolved by an objective examination of the differences in assumed facts and processes of reasoning, rather than more subjective considerations such as the demeanour of a witness, that such conflicts are sometimes more easily and reliably resolved than conflicts between witnesses of fact.

1. In this case the affidavit material containing the expert opinion evidence to be relied upon by the applicant has been filed in advance[10].  Any subsequent alteration of position by those experts, either in the hearing of the application for interim enforcement orders or, more relevantly for present purposes, in the subsequent committal, will be able to be demonstrated with the assistance of reference to the earlier affidavit material and the reasons for any alteration will be open to close examination.

   [10]There was some suggestion that some further material might be forthcoming prior to hearing, but that was not confirmed.

1. The experts relied upon by the Environmental Protection Agency will only be advantaged in the committal hearing, in this respect, to the extent that the Respondents to the current proceedings choose to adduce evidence and cross examine on matters of relevance to the criminal proceedings. It was contended, on behalf of the Respondents, that the interim enforcement orders sought are of such gravity that the Respondents effectively have no choice but to respond.

1. The matters in issue in the criminal proceedings are, of course, the commission of the offences with which the second and third Respondents are charged.  Enforcement orders may only be made where the court is satisfied that an offence has been committed or will be committed unless restrained (Section 510). In the case of an application for interim enforcement orders the court may make such an order, pending a decision of the proceeding, “if the court is satisfied that it would be appropriate to make the order (s 509).” The Respondents have already, through the affidavit of Mr Hills, adduced evidence disputing the basis for concerns to which interim enforcement orders might be directed.  There is the prospect that the substance of the defence to the criminal proceeding will be disclosed if the Respondents choose to go further and fully respond to the material on which the Environmental Protection Agency relies.  The extent to which they do so, in responding to the application for interim orders, is however, a matter for them.

1. While the desire of the defendants to the criminal proceedings to keep their “powder dry” is understandable, I do not consider that the prospect of any prejudice arising from the hearing of the application for interim enforcement orders is such as to persuade me to grant a stay in the circumstances otherwise discussed, including the public interest in a prompt determination of whether interim enforcement orders are appropriate.

1. The application is dismissed.