Fordham v Environment Protection Agency - [2018] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Fordham v Environment Protection Agency [2018] NSWCA 167
Hearing dates: 28 June 2018
Date of orders: 01 August 2018
Decision date: 01 August 2018
Before: Meagher JA at [1];
Leeming JA at [45];
Sackville AJA at [46]
Decision:
1. Appeal allowed in part.
2. Set aside declarations (1) to (3) and orders (1) to (7) made by the Land and Environment Court on 23 March 2018.
3. Direct the appellants to file and serve by 5pm on 8 August 2018 affidavit evidence and written submissions in support of the costs orders sought (those submissions not to exceed 5 pages). The respondent to file and serve any affidavit evidence and submissions in response by 5pm on 15 August 2018. Those questions are then to be determined on the papers.

Catchwords:
DECLARATORY RELIEF – where EPA issued notices to appellant directors or executives under Protection of the Environment Operations Act 1997 (NSW), Part 7.5 requiring answers to questions regarding possible contraventions by a corporation of provisions which may also give rise to a special executive liability under s 169 – where appellants sought declarations that not required to answer questions if did not have benefit of immunity against self-incrimination conferred by s 212(3) – where primary judge held no legal controversy capable of being subject of declaratory relief – where following filing of appeal EPA conceded question in issue, but not on grounds argued before primary judge – whether primary judge erred in not making declarations sought – before concession made there was a sufficient controversy to justify declaratory relief – after concession declaratory relief in terms sought not justified
DECLARATORY RELIEF – where remedial orders sought under Protection of the Environment Operations Act, s 252 and declarations made as to breach of offence provision – where terms of declaration misidentify provision found to have been breached – where foundation for making remedial orders removed by making of concession after appeal proceedings commenced – declarations and remedial orders set aside
Legislation Cited: Land and Environment Court Act 1979 (NSW), s 58
Protection of the Environment Operations Act 1997 (NSW), ss 115, 119, 169, 203, 212, 252
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34
Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; 176 LGERA 424
R v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407;

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: [2018] NSWCA 167
Decision Date: 01 August 2018

CaseChat Overview and Summary

The appeal concerned declarations sought by the appellants, directors or executives of a corporation, against the Environment Protection Agency (EPA). The EPA had issued notices under Part 7.5 of the *Protection of the Environment Operations Act 1997* (NSW) requiring the appellants to answer questions concerning potential contraventions by the corporation, which could also attract special executive liability under s 169 of the Act. The appellants sought declarations that they were not obliged to answer these questions unless they were afforded immunity against self-incrimination under s 212(3) of the Act. The primary judge had dismissed the application, finding no legal controversy suitable for declaratory relief.

The central legal issues before the Court of Appeal were whether the primary judge erred in refusing to make the declarations sought, and whether a sufficient controversy existed to justify declaratory relief prior to a concession made by the EPA after the appeal was filed. Further issues arose concerning remedial orders sought under s 252 of the Act and declarations made by the primary judge as to breaches of an offence provision, including whether the terms of a declaration misidentified the provision breached and whether the foundation for remedial orders was removed by the EPA's concession.

The Court of Appeal found that, prior to the EPA's concession, there was a sufficient controversy to justify declaratory relief. However, after the concession was made, declaratory relief in the terms sought by the appellants was no longer justified. The Court also determined that the terms of a declaration made by the primary judge misidentified the provision found to have been breached, and that the EPA's concession after the appeal commenced removed the foundation for making remedial orders. Consequently, the declarations and remedial orders made by the Land and Environment Court were set aside. The appeal was allowed in part, with directions given for the determination of costs orders on the papers.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside declarations (1) to (3) and orders (1) to (7) made by the Land and Environment Court on 23 March 2018.

3. Direct the appellants to file and serve by 5pm on 8 August 2018 affidavit evidence and written submissions in support of the costs orders sought (those submissions not to exceed 5 pages). The respondent to file and serve any affidavit evidence and submissions in response by 5pm on 15 August 2018. Those questions are then to be determined on the papers.

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

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Medium Neutral Citation:	Fordham v Environment Protection Agency [2018] NSWCA 167
Hearing dates:	28 June 2018
Date of orders:	01 August 2018
Decision date:	01 August 2018
Before:	Meagher JA at [1]; Leeming JA at [45]; Sackville AJA at [46]
Decision:	1. Appeal allowed in part. 2. Set aside declarations (1) to (3) and orders (1) to (7) made by the Land and Environment Court on 23 March 2018. 3. Direct the appellants to file and serve by 5pm on 8 August 2018 affidavit evidence and written submissions in support of the costs orders sought (those submissions not to exceed 5 pages). The respondent to file and serve any affidavit evidence and submissions in response by 5pm on 15 August 2018. Those questions are then to be determined on the papers.
Catchwords:	DECLARATORY RELIEF – where EPA issued notices to appellant directors or executives under Protection of the Environment Operations Act 1997 (NSW), Part 7.5 requiring answers to questions regarding possible contraventions by a corporation of provisions which may also give rise to a special executive liability under s 169 – where appellants sought declarations that not required to answer questions if did not have benefit of immunity against self-incrimination conferred by s 212(3) – where primary judge held no legal controversy capable of being subject of declaratory relief – where following filing of appeal EPA conceded question in issue, but not on grounds argued before primary judge – whether primary judge erred in not making declarations sought – before concession made there was a sufficient controversy to justify declaratory relief – after concession declaratory relief in terms sought not justified DECLARATORY RELIEF – where remedial orders sought under Protection of the Environment Operations Act, s 252 and declarations made as to breach of offence provision – where terms of declaration misidentify provision found to have been breached – where foundation for making remedial orders removed by making of concession after appeal proceedings commenced – declarations and remedial orders set aside
Legislation Cited:	Land and Environment Court Act 1979 (NSW), s 58 Protection of the Environment Operations Act 1997 (NSW), ss 115, 119, 169, 203, 212, 252 Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; 176 LGERA 424 R v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407;