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

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

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.

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.

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.

The criminal proceedings…

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.

Continue reading Environmental Protection Agency v Hudson Timber Products Ltd

Details

AGLC: Environmental Protection Agency v Hudson Timber Products Ltd [2005] QPEC 69
Case: [2005] QPEC 69
Decision Date: 11 August 2005

CaseChat Overview and Summary

Environmental Protection Agency sought a stay of planning and environment proceedings against Hudson Timber Products Ltd, pending the outcome of criminal proceedings arising from the same facts. The dispute centred around whether there was a real prospect of substantial prejudice if the planning and environment proceedings were not stayed, and if the exercise of the court's discretion warranted a stay. The Federal Court had to determine the principles governing the exercise of such discretion.

The court considered the factors relevant to determining whether there was a real prospect of substantial prejudice, including the overlap between the issues in the two proceedings, the timing of the proceedings, and the potential for prejudice to the respondent. The court also examined the principles concerning the exercise of discretion to stay proceedings, including the need to balance the interests of justice and the public interest. Ultimately, the court found that there was no real prospect of substantial prejudice and that the exercise of the court's discretion did not warrant a stay.

Accordingly, the court dismissed the application for a stay. The planning and environment proceedings against Hudson Timber Products Ltd were not stayed, and the court found that there was no real prospect of substantial prejudice if the proceedings were not stayed. The court's decision was based on a careful consideration of the relevant principles and factors, and the court was satisfied that the interests of justice and the public interest were best served by allowing the proceedings to continue.

Orders

Orders of the court

Application dismissed

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.

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