Fordham v Environment Protection Agency

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.