Farrell v Dayban Pty Limited

[1989] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION:	Farrell v Dayban Pty Limited [1989] NSWLEC 204
PARTIES:	APPPLICANT Farrell RESPONDENT Dayban Pty Ltd
FILE NUMBER(S):	50044 - 50062 of 1989
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Waste Disposal Act 1970 Land and Environment Act Noise Control Act 1970 Clean Air Act Clean Waters Act Coastal Protection Act Environmental Planning and Assessment Act Environmentally Hazardous Chemicals Act Biological Control Act
CASES CITED:	Jackson v Sterling Industries Limited 1987 162 CLR 612; Sydney City Council v Lewy 58 LGRA 221 ; Gouriet v Union of Post Office Workers [1978] AC 435 ; Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1.; West Mersey Constabulary v Bagenar 1982 1WLR 127, Chief Constable of Kent v V & Anor 1983 1 QB; Chief Constable of Hampshire v A Limited 1985 1 QB; Smyth v Caralis & Ors 18 December 1987
DATES OF HEARING:
DATE OF JUDGMENT:	06/07/1989
LEGAL REPRESENTATIVES:	APPLICANT Mr Farrell RESPONDENT Mr Simpkins

JUDGMENT:

His Honour: Dayban Pty Limited (Dayban) is charged with nineteen separate offences under the Waste Disposal Act 1970. The Class 5 proceedings are within the jurisdiction of the Land and Environment Court, being proceedings under s 55 of the Waste Disposal Act 1970 (see s 21 of the Land and Environment Court Act which gives the Court jurisdiction to hear and dispose of in a summary manner proceedings, inter alia, under s 55 of the Waste Disposal Act 1970). Furthermore, the Waste Disposal Act 1970 is relevantly a "planning or environmental law" as defined in s 20 of the Land and Environment Court Act and, accordingly, the Land and Environment Court has the same civil jurisdiction as the Supreme Court would have (but for the Land and Environment Court Act) to hear and dispose of proceedings under the Waste Disposal Act. It is provided by s 20(4) that the provisions of the Supreme Court Act and the Rules made thereunder relating to enforcement of judgments and orders apply to the Land and Environment Court. Secti

on 23 of the Land and Environment Court Act provides:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate".

The prosecutor, Mr Farrell, an authorised officer of the Metropolitan Waste Disposal Authority (the Authority) a statutory corporation established under the Waste Disposal Act and having, inter alia, the powers and functions to do such incidental acts as may be necessary or expedient for the exercise and performance of its responsibilities has moved the Land and Environment Court for orders in the abovementioned criminal proceedings in the nature of Mareva injunctions. It is made clear by the affidavit of Mr Farrell that he seeks the orders as prosecutor because he is fearful that Dayban, if convicted, will not be able to pay the fines or costs that may be awarded against it. The Authority has revoked Dayban's licence under the Waste Disposal Act pursuant to s 23(4) for reasons associated with the subject prosecutions. Dayban is proposing to dispose of its assets. Mr Farrell has expressed the opinion that if Dayban were fined and an order for costs were made, the sale of its assets as proposed would render "n

ugatory any prosecution of an offender against the Act".

I am prepared to assume:

1. A strong prima facie case (as that expression is understood in the criminal law) has been established in respect of each of the offences.

2. That it is more likely than not that in each case Dayban will, on conviction, be ordered to pay a fine and that in each case it will be ordered to pay the costs of the prosecutor.

3. I am prepared to assume that it is more likely than not that a daily penalty will be imposed and that, if it is, it is likely that Dayban may incur fines totalling $325.000 and will come under an obligation to pay costs of $15,000.

4. I am prepared to assume that unless restrained by an order of the Court, Dayban will dispose of its equipment and the goodwill of its business.

I wish to make it clear, however, that the abovementioned assumptions are made for the purpose only of these proceedings. Dayban has been charged with committing a number of offences. It has not pleaded guilty to any of the charges and it does not concede that if it pleads guilty or is found guilty it would be fined anything like the sum of $325,000 or be ordered to pay costs in the amount claimed. The sum of $325,000 is, I am told by the prosecutor, the maximum penalty for all the offences assuming daily penalties were imposed.

Mr Simpkins, who appeared on behalf of Dayban, does not dispute the jurisdiction of the Land and Environment Court, in an appropriate case, to grant a Mareva injunction. He concedes that the Court being a superior court of record and having the jurisdiction conferred by s 23 of the Land and Environment Court Act would be entitled, in an appropriate case, to grant a Mareva injunction (see Jackson v Sterling Industries Limited 1987 162 CLR 612). Furthermore, he concedes that the source of the Court's power is not restricted to the provisions of s 23 of the Land and Environment Court Act but arises because of the implied power of a superior court to prevent an abuse of its process.

Mr Simpkins does not dispute that Mr Farrell, being a duly authorised officer of the Authority, has the necessary standing to enforce an obligation or duty conferred or imposed by the Waste Disposal Act and that s 23 of the Land and Environment Court Act which gives the Court the power in relation to matters in which it has jurisdiction to make orders that it thinks appropriate give to it the power in the appropriate case to grant a Mareva injunction at his suit. That is, it is conceded that by reason of Mr Farrell's position with the Authority, he has the relevant standing to seek an appropriate civil remedy and that if breach is established, a remedy is not to be denied him merely because the breaches of the legislation imposing the obligation are penal.

The standing of Mr Farrell, as an officer of the Authority, was the subject of submissions by Mr Buchanan on behalf of the Authority who, with his customary frankness, referred the Court to Sydney City Council v Lewy 58 LGRA 221 as being against him. In Lewy, the Land and Environment Court dismissed an application by the Sydney City Council to restrain an unauthorised use of a shop and non-compliance with a Noise Control Notice served pursuant to the Noise Control Act 1975. Section 40 of the Noise Control Act empowers the local council to serve Noise Control Notices on occupiers of premises. Non-compliance with a Notice is made an offence. After concluding that no breach of the Environmental Planning and Assessment Act had established, the Court held that the Court ought not, in the exercise of its discretion, grant an injunction to enforce the Noise Control Act. The Court held, in terms, (p 225) that the matter was resolved as one of discretion "rather than one of lack of jurisdiction" (p 225). However, imme

diately following it was said:

"Moreover the forgoing reasoning applies on the assumption that the applicant has the necessary standing to bring these proceedings. But such an assumption is clearly contrary to established principle that in the absence of statutory provisions such as s 123 of the Environmental Planning and Assessment Act and s 587 of the Local Government Act the Attorney-General alone can sue on behalf of the public for the purpose of preventing public wrongs".

Reference was made to Gouriet v Union of Post Office Workers [1978] AC 435 and to the observations of Viscount Dilhorne at p 494:

"The conclusion to which I have come to in the light of the many authorities to which we were referred is that it is the law, and long established law, that save and in so far as the Local Government Act 1972, s 222, gives local authorities a limited power so to do, only the Attorney-General can sue on behalf of the public for the purpose of preventing public wrongs and that a private individual cannot do so on behalf of the public though he may be able to do so if he will sustain injury as a result of a public wrong. In my opinion these cases establish that the courts have no jurisdiction to entertain such claims by a private individual who has not suffered and will not suffer damage".

It was submitted by Mr Buchanan that if Lewy is authority for the proposition that a statutory body has no standing to institute and maintain proceedings to restrain breaches of environmental laws which it has the function to administer, it ought not be followed because that is no longer the law in New South Wales. As I have said, Lewy was decided on discretion. But however that may be, the matter is determined, so far as this Court is concerned, by the decision of the Court of Appeal in Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1. In that case, it was held that a statutory corporation had the relevant standing to enforce obligations which, by law, it had the duty to administer. Kirby P was of the opinion that a statutory corporation is to be equated with the Attorney-General so as to have the requisite standing in the Court for the purpose of furthering or defending its statutory function. Glass JA with whom Samuels JA agreed, was of the opinion that the Egg Corporation had an interest over and a

bove that of any member of the public by reason of the statutory scheme charging it with orderly marketing and imposing upon it a duty to ensure the purity of eggs in the interest of public health etc. Glass JA dealt with the argument that although the power of the Equity Court was undoubted to restrain the commission of a criminal offence, its power so long as criminal sanctions remain unexhausted should be exercised only in exceptional circumstances. After referring to the many cases (including Gouriet) touching upon the nature of the Court's discretion in these circumstances, he said at p 8:

"In my opinion these decisions do no more than recognise that circumstances can exist which justify the exercise of adiscretion to grant equitable relief to restrain the commission of future offences notwithstanding that criminal sanctions have not been exhausted. They fail to establish any principle which determine when that discretion may or may not be exercised. Nor in my opinion would it be possible to extract from the myriad of fact permutations a classification which would permit circumstances to be defined a priori as special or not special for the purposes of justifying or not justifying a discretionary grant of equitable relief. The trial judge must have regard to all the circumstances which relevantly militate for and against the granting of relief and then make a discretionary judgment. The ultimate findings for which the Corporation contended were open on the evidence and the discretionary judgment of His Honour that the circumstances were relevantly special is invulnerable to overthrow as no part

icular vitiating factor can be identified and the result is by no means plainly unjust".

Kirby P, when dealing with the same subject matter and the grounds upon which the traditional view of restraint was based, referred to some examples of the exercise of discretion in favour of the grant of the remedy as, for example, that the criminal penalty is not effective to ensure breaches do not continue, that the party sought to be restrained has demonstrated he or she will continue to flout the law and that unless the party in breach of the criminal law is stopped there is significant prospect that widespread breaches of the law will be encouraged by others.

In my opinion, duly authorised officers of statutory corporations or instrumentalities having functions and obligations to enforce environmental laws have the necessary standing to approach the Land and Environment Court to restrain breaches of obligations imposed by the relevant legislation. It follows that standing will be accorded to duly authorised officers of the State Pollution Control Commission and, of course, the Metropolitan Waste Disposal Authority to enforce complicance with environmental laws they are bound to administer. Of course, the Court has discretion whether or not to grant the relief sought. In Gouriet, by way of illustration, the House was concerned with what it described as an industrial dispute and with the circumstance that offences sought to be restrained were by law required to be tried by indictment before a jury. Furthermore, the unsuccessful appellant was not seeking to act by or on behalf of any statutory body having functions and duties to enforce public laws.

There are, in my respectful opinion, good reasons why the Land and Environment Court, a specialist court concerned with the enforcement of "environmental and planning laws" (as defined), ought be able to entertain applications to enforce, by civil means, compliance with obligations imposed by environmental and planning laws. It is clear from recent events in this country and overseas that breaches of environmental laws can have catastrophic consequences. Environmental and planning laws include the Clean Air Act, the Clean Waters Act, Coastal Protection Act, Environmental Planning and Assessment Act, Noise Control Act, Waste Disposal Act, Environmentally Hazardous Chemicals Act, Biological Control Act etc. Generally speaking, offences under these laws are dealt with by summary prosecution and not by trial by indictment before a jury. With few exceptions, liability is strict or absolute subject, of course, to the defence of "honest and reasonable mistake". Most defendants are corporations. Since the passing of

the Environmental Planning and Assessment Act, enforcement of planning laws is effected by the civil mechanism. Planning laws are most frequently enforced by local councils (all of which would have standing even in the absence of s 123 to enforce breaches of the planning laws). Prosecutions under the Environmental Planning and Assessment Act, although not unknown, are rare. It has not been suggested to my knowledge that the civil enforcement procedures are other than the fairest and most effective way of administering and enforcing planning laws.

Mr Simpkins' principal submission is that the remedy of a Mareva injunction is only available to facilitate the enforcement of an existing legal or equitable right and that relevantly there is no existing legal or equitable right or anything analogous thereto in the prosecutor in the present proceedings. He submits that the "police cases" relied on by Mr Buchanan (West Mersey Constabulary v Bagenar 1982 1WLR 127, Chief Constable of Kent v V & Anor 1983 1 QB and Chief Constable of Hampshire v A Limited 1985 1 QB) have not been adopted in Australia and that, in any event, the injunctions sought (but not always granted) were in aid of a common law right said to be vested in a police officer to seize misappropriated or stolen property and to return it to the victim at the conclusion of the proceedings. Mr Buchanan has frankly conceded that he can point to no case where the jurisdiction of the court has been successfully invoked to provide a fund which will be available in the event that a person charged with a cr

iminal offence was convicted so as to secure a fund for the payment of fines. In the present case, Mr Farrell, on behalf of the Authority, is not seeking to restrain any breaches of environmental laws - he is seeking as prosecutor to ensure that a fund will be available to meet the fines and pay the costs if Dayban is convicted. The "police cases" referred to above (and in respect to which there is by no means unaninimity of opinion amongst the English judges) do not, in my opinion, support Mr Buchanan's case. In my opinion, the Land and Environment Court has no jurisdiction to make an order in criminal proceedings freezing general assets so as to provide a fund available for the payment of fines and costs if a defendant is convicted. In the absence of statutory power authorising the Court so to act, such an order cannot be made. Whether the courts should have such a power and if so what, if any, limitations there ought be on the exercise of that power must remain a matter for the legislature. In my opinion,

there is no authority in s 23 of the Land and Environment Court Act to make such an order and such an order is not authorised of the implied power of a superior court to prevent abuse of its process. In my opinion, the summons must be dismissed.

It is unnecessary for me to deal with Mr Simpkins' final submission viz that even if it is established that the Court has the jurisdiction to make an order of the type sought, it should not, in the exercise of its discretion, make such an order because no evidence has been presented to the Court that what is proposed to be done by Dayban (ie disposing of its assets) is an abuse of the process of the Court. Mr Simpkins points to the circumstance that Dayban's licence has been revoked. Its equipment is of use only to waste disposers and is mortgaged. Unless Dayban can sell its assets, including goodwill, the mortgagees are unlikely to be paid out. He submits that if such an order is made, it will have the effect of reducing Dayban's assets to nil for all practical purposes because Dayban's present customers are already making alternative waste disposal arrangements. However, in view of the conclusion I have reached, it is unnecessary for me to determine Mr Simpkins' submission in this regard.

Mr Buchanan has submitted that no order for cost ought be made upon the basis that the proceedings instituted by Mr Farrell were in the course of performing public duty and that he acted bona fide in making the application. In Smyth v Caralis & Ors 18 December 1987, the Court expressed the opinion that the nature of criminal proceedings brought in the Land and Environment Court are such that generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award costs. In Caralis, the Court rejected the submission that it is only in unusual circumstances as, for example, where a prosecutor acts in bad faith or unreasonably that he is obliged to pay costs. It was held in Caralis that the successful defendant was entitled to costs. Conformably with the decision in Caralis, Dayban is entitled to its costs of the application. Moreover, I am of the opinion that even if

the Court adopted the more favourable view of the liability of prosecutors as advocated but rejected in Caralis, the prosecutor should still pay Dayban's costs of these proceedings. The prosecutor sought, unsuccessfully, to graft a civil law remedy on to criminal proceedings. I have held that the Court has no jurisdiction to make the order as asked.

For the abovementioned reasons, the application is dismissed. The applicant to pay the respondent's costs.