Green v Graincorp Oilseeds Pty Ltd (No 3)
[2025] VSC 173
•4 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS LIST
S ECI 2021 04524
| KEVIN CARLING GREEN | Plaintiff |
| v | |
| GRAINCORP OILSEEDS PTY LTD (ACN 006 772 578) | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2025 |
DATE OF RULING: | 4 April 2025 |
CASE MAY BE CITED AS: | Green v Graincorp Oilseeds Pty Ltd (No 3) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 173 |
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PRACTICE AND PROCEDURE — Application to set aside subpoenas to give evidence at trial served by plaintiff on executive members of parent company of defendant — No legitimate forensic purpose identified — No expectation on reasonable grounds that the evidence that the witnesses can give will be relevant and materially assist on a matter in issue — Application to set aside subpoenas granted — Application to amend pleadings to extend claim of breach of environmental duty under s 26 of the Environment Protection Act 2017 (Vic) to n-hexane emitted from defendant factory — Proposed amended pleading does not articulate claim for contravention of environmental duty in relation to n-hexane emissions — Pleadings amendment would lead to significant disruption to trial timetable, inefficiency and associated costs — Application to amend pleadings to add n-hexane claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Sharpe | DST Legal |
| For the Defendant | R Craig KC with L O’Rorke | Ashurst Australia |
HIS HONOUR:
Introduction
The defendant, Graincorp Oilseeds Pty Ltd (‘Graincorp’) is the owner, operator and manager of a factory located in the township of Numurkah that processes oilseed and manufactured oils (‘Graincorp Factory’). The plaintiff, Kevin Green, claims that the Graincorp Factory has emitted offensive odours and noise since 1 January 2017 (‘emissions’). He brings this proceeding on behalf of all persons who have owned or occupied land in Numurkah within one kilometre of the Graincorp Factory since that time, who have suffered loss or damage as a consequence of the emissions. Green makes claims in nuisance and for breach by the defendant of a duty owed under s 25 of the Environment Protection Act 2017 (Vic) (‘EP Act’), and seeks damages and an injunction to prevent the alleged nuisance continuing.
This ruling concerns the following matters:
(a) an application by Graincorp to set aside subpoenas issued at the request of Green to Robert Spurway, the managing director and chief executive officer of Graincorp Limited (the parent company of Graincorp) and Peter Richards, a director and the chairman of Graincorp Limited, to give evidence at the trial of the proceeding (‘subpoenas’); and
(b) an application by Green to further amend the statement of claim by adding a claim that emissions of the organic compound n-hexane from the Graincorp Factory constitute a breach of s 25 of the EP Act by Graincorp.
For the reasons that follow, I conclude that the subpoenas should be set aside and Green’s application to file his proposed amended pleading insofar as it adds the claim related to n-hexane should be dismissed.
Two further issues were raised at the hearing on 21 February 2025. First, there was an argument about the sufficiency of an outline of evidence filed for Green, and an associated issue about whether documents to be tendered through each lay witness should be identified at this time. During the hearing I conveyed my conclusion that the Green outline was insufficient and should be supplemented, and that it was appropriate for lists of documents to be tendered through each lay witness to be provided closer to trial. Second, there was a dispute about the form of an opt-out notice, the outcome of which largely depended on whether leave to amend the statement of claim was granted. These reasons also deal with those two further issues.
Evidence
Green relied on two affidavits sworn by solicitor Dominica Tannock on 12 and 18 February 2025 respectively.
Graincorp relied on two affidavits, sworn by solicitor Chrystie Siapkas on 4 February 2025 and by solicitor James Clarke on 18 February 2025.
Procedural history
The proceeding was initially commenced by filing a writ and general indorsement of claim on 1 December 2021. The three plaintiffs were Green; his partner and co-owner of the residential premises at 16 Railway Place, Numurkah; and his daughter. The writ was not served on Graincorp until 30 November 2022.
On 13 July 2023, John Dixon J granted Green’s application to amend the writ and pleading to continue the proceeding as a group proceeding, with Green as the sole representative plaintiff on behalf of group members (including the second and third plaintiffs).[1]
[1]Green v Graincorp Oilseeds Pty Ltd [2023] VSC 395.
Green filed a statement of claim on 8 August 2023 in accordance with the orders of Dixon J. He filed an amended statement of claim (‘ASOC’) on 14 March 2024 pursuant to orders I made on the same date.
On 7 June 2024, pursuant to a ruling delivered on 30 May 2024,[2] Goulden AsJ ordered that the parties make general discovery in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) by 30 August 2024.
[2]Green v Graincorp Oilseeds Pty Ltd [2024] VSC 273.
On 9 July 2024, I made orders fixing the proceeding for trial on 6 October 2025 on an estimate of five weeks (‘July 2024 orders’). The orders required Green and Graincorp to file and serve lay witness outlines of evidence by 22 October and 20 December 2024 respectively. The orders also provided that Green was to file and serve his expert reports by 3 February 2025, and Graincorp by 7 April 2025.
The subpoenas were issued at Green’s request on 2 December 2024. He did not immediately file outlines of evidence for Spurway or Richards.
At a case management conference held on 20 December 2024, Graincorp raised its objection to the subpoenas and Green’s failure to file and serve the relevant outlines of evidence. On 22 December 2024, Green filed and served outlines of evidence for Richards and Spurway in an effort to comply with the July 2024 orders. At the same time, Green filed and served an outline of evidence for Klaus Pamminger, a director of Graincorp and the chief operating officer of Graincorp Limited.
On 20 December 2024 Graincorp filed and served, in accordance with the July 2024 orders, the following witness outlines:
(a) Marcus Eadie, a chemical engineer employed by Graincorp since 2014. Eadie will say that he has held various roles at Graincorp, including being a projects engineer and member of the site leadership team at the Graincorp Factory from November 2018, and the engineering manager at the factory from January 2020.
(b) Clive Deetlefs, a chemical engineer and manufacturing operations leader with experience working in the areas of chemicals, agribusiness and food. Deetlefs will say that he commenced working with Graincorp in January 2021 in the role of operations manager at the Graincorp Factory, and that in August 2023 he was appointed as the head of processing operations for Graincorp’s Nutrition and Energy division.
(c) Christine Jarrett, who will say that she has approximately 30 years’ experience working at the Graincorp Factory, including seven years as the safety, health and environment manager for Graincorp.
(d) Carl Murphy, a chemical engineer, who will say that he commenced working for Graincorp in October 2020 as the process engineering manager at the Graincorp Factory. Murphy will say that he was appointed manufacturing manager at the Graincorp Factory in January 2023, and site operations manager a few months later.
Green first raised the possible relevance of n-hexane in the lead up to and at the hearing on 20 December 2024. The principal purpose of the hearing was to discuss the questions to be addressed by the experts engaged by the parties. Green indicated his intention to obtain a report from an expert in relation to n-hexane. The ASOC does not plead any allegations about n-hexane emissions. Following the hearing, I made an order that any application by Green to amend the ASOC be returnable before me on 21 February 2025.
On 12 February 2025, Green applied to file a further amended statement of claim (‘proposed FASOC’) to add allegations that since July 2016, the defendant has increased emissions of n-hexane from the Graincorp Factory in breach of the duty owed under s 25 of the EP Act.
Pleadings
ASOC
Green alleges that:
(a) In operating the Graincorp Factory, Graincorp is subject to a planning permit issued by the Moira Shire and a licence issued under s 20 of the EP Act, both of which place conditions on the emission of offensive odours and noise from the factory.
(b) The Graincorp Factory operates 24 hours a day, seven days a week.
(c) The oilseed crush throughput of the factory has increased significantly since 1 July 2016.
(d) Since about January 2017, the Graincorp Factory has emitted constant and intrusive noise and offensive odours that caused a substantial interference to the use and enjoyment of his property and those of group members (‘noise and odour emissions’). The noise and odour emissions have caused a nuisance to him and to each group member that has resulted in them suffering loss and damage, being a decline in property values and disturbance of his and group members’ sleep, comfort, health and wellbeing.
(e) The noise and odour emissions give rise to the risk of harm to human health or the environment from pollution, resulting in Graincorp being in breach of a duty owed to group members under s 25 of the EP Act (‘environmental duty’) resulting in them suffering loss and damage.
Green claims damages for nuisance and under s 313 of the EP Act for breach of the environmental duty.
Green also claims injunctive relief, the grounds for which are pleaded as follows:
28.Unless abated by the Court, the Defendant is likely to continue causing a nuisance over the 16 Railway Place Property and the Affected Land by continuing its operations to manufacture oilseed at the Graincorp Factory in such a way that emits the:
(a)Graincorp Factory Noise; and/or
(b)Graincorp Factory Odour.
29.Damages are not an adequate or appropriate remedy for future nuisance.
Proposed FASOC
In the proposed FASOC, Green seeks to amend the ASOC to add allegations which I summarise as follows:
(a) Graincorp was required to report information on its estimated emissions from the Graincorp Factory to the National Pollutant Inventory (‘NPI’) of 93 priority substances that have been identified by the Australian government as important due to their potential impact on human health and the environment;
(b) n-Hexane is a priority substance listed on the NPI which Graincorp was required to report if the Graincorp Factory emissions exceeded a threshold of 10 tonnes per year;
(c) Graincorp has significantly increased its emissions of n-hexane from its manufacturing operations since 1 July 2016;
(d) it is to be inferred from Graincorp’s self-reporting of fugitive emissions of n‑hexane that it knew or ought to have known that its operation of the Graincorp Factory gave rise to a risk of harm to human health or the environment from pollution within the meaning of the EP Act;
(e) Graincorp has allowed harmful emissions of n-hexane beyond the boundaries of the Graincorp Factory; and
(f) Graincorp knew or ought to have known, relevant to the risks of harm from n‑hexane, the ‘hazardous chemical details and standards with respect to n‑Hexane published by SafeWorkAustralia.gov.au’.
Green proposes to add harmful emissions of n-hexane as a particular of the alleged breach by Graincorp of the environmental duty. Green maintains the claim that breach of the environmental duty has caused him and group members to suffer loss and damage, without differentiation between breach resulting from the noise and odour emissions and breach resulting from n-hexane emissions. However, the particulars to that causation pleading refer to paragraphs of the proposed FASOC that do not reference the n-hexane emissions.
Green has not sought to amend the grounds for injunctive relief to include reliance on n‑hexane emissions.
In the proposed FASOC, Green seeks to place reliance on Graincorp’s alleged knowledge of standards with respect to n‑hexane emissions and failure to take adequate steps in relation to the risk of material harm from n-hexane as grounds supporting his claims for aggravated and exemplary damages.
Subpoenas
Evidence
Siapkas
I summarise Siapkas’ evidence as follows.
Graincorp is one of a number of subsidiaries of Graincorp Limited.
Since March 2020, Spurway has been the managing director and chief executive officer of Graincorp Limited. Since July 2020, Spurway has been a director of Graincorp Operations Limited and Graincorp Services Limited, two subsidiaries of Graincorp Limited. Spurway is not a director or employee of Graincorp.
Spurway does not have any personal involvement in the day-to-day operations of the Graincorp Factory. Since March 2020 he has visited the factory approximately three times to meet with Graincorp employees, to gain an understanding of the factory operations and to familiarise himself with the factory site. Spurway has made similar visits to other sites that are owned and operated by entities in the Graincorp Limited group of companies. He estimates that the number of Graincorp Limited sites could be in the hundreds.
Spurway has not had a role or personal involvement in the monitoring of noise or odour in the vicinity of the Graincorp Factory, and has not reviewed the results of such monitoring. Spurway has had no personal involvement in any measures taken to mitigate noise or odour emitted from the factory, or the response to any complaint about emissions. Spurway does not recall attending any meeting where emissions of noise or odour from the Graincorp Factory were discussed.
Spurway’s personal involvement with the Graincorp Factory is limited to the site visits referred to above, and his having the authority to approve capital expenditure or investment for the purposes of the Graincorp Factory that require the approval of the Graincorp Limited board of directors. He does not recall any meeting where capital expenditure or investment at the factory was discussed.
Spurway’s primary place of residence and work is Sydney. It would be disruptive to the performance of his duties if he was required to attend court to give evidence at the trial, including because of scheduled and potential unplanned interstate and overseas travel requirements.
Richards has been a director of Graincorp Limited since September 2015 and was appointed as chairman in March 2020.
It is not in Richards’ role to have, nor has he had, any personal involvement in the following matters:
(a) the monitoring of noise or odour in the vicinity of the Graincorp Factory. Richards has not reviewed the results of any such monitoring;
(b) measures to mitigate noise or odour emitted from the Graincorp Factory. If mitigation measures involved capital improvements, Richards and other Graincorp Limited board members would have approved the necessary financial expenditure after considering whether it was appropriate; or
(c) considering or responding to any complaint about noise or odour in connection with the Graincorp Factory.
Richards was not involved in Graincorp’s response to a remedial notice issued by the Environment Protection Authority (‘EPA’) in May 2021 in connection with the Graincorp Factory, or the engagement of an odour specialist in response to that notice.
Richards’ primary place of residence and work is Sydney. It would be disruptive to the performance of his duties and commitments as a director if he were required to attend court to give evidence at the trial of the proceeding, in particular because of his scheduled board meetings and Graincorp Limited regional site visits throughout October 2025.
Pamminger was appointed as a director of Graincorp in January 2014 and as chief operating officer of Graincorp Limited in April 2019. He is a director of a number of other Graincorp Limited subsidiaries.
Pamminger has visited the Graincorp Factory many times since January 2014. He has not had a role or personal involvement in monitoring noise or odour in the vicinity of the factory, or in reviewing the results of any monitoring. He has not had a role or personal involvement in measures taken to mitigate any noise or odour emissions. While he is aware at a high level of mitigation measures that have been taken, he has had no direct involvement in the decision-making processes relating to such measures.
While Pamminger is responsible at a high level for capital expenditure across Graincorp sites, he has had no personal involvement in projects or operations at a site level.
Graincorp has more than 180 operating sites, and more than 400 sites in total.
While Pamminger is aware at a high level that complaints have been made by Green in connection with the Graincorp Factory, it is not his role to know (nor does he know) details about the complaints.
Pamminger has never been directly responsible for managing Graincorp’s day-to-day operations, the expansion of the Graincorp Factory, or for ensuring compliance with Graincorp’s planning permit and operating licence for the factory. Responsibility for these matters, and for responding to complaints made by Green, is delegated to the Graincorp Factory site manager. The current site manager is Murphy, who reports to Deetlefs as head of processing operations, who reports to the general manager of operations, storage and logistics, who then reports to Pamminger.
Pamminger’s primary place of work is Wagga Wagga, New South Wales. Each month Pamminger spends approximately two weeks in Sydney, approximately one week at a site in the Graincorp network, and approximately one week travelling interstate or overseas. It would be inconvenient and disruptive if Pamminger were required to attend court to give evidence because:
(a) Graincorp will commence harvest on the east coast of Australia in October 2025 and, as a result, more than 175 sites in Graincorp’s network will be in operation at that time. Pamminger will be required to spend time across sites in the network during this time;
(b) October to December is the busiest time of the year for Graincorp with over 3,000 employees working at this time, including additional casual staff hired for the harvest period; and
(c) Pamminger is scheduled to attend various board meetings in October 2025.
Tannock
I summarise the relevant parts of Tannock’s evidence as follows.
Graincorp has not discovered any of the Graincorp Limited board meeting papers or board agenda.
An email discovered by Graincorp dated 7 May 2020, which is from its operations manager to Spurway and is described as ‘Numurkah site virtual tour presentation pack’, referred to a capital program and plans to increase the grain seed crush throughput at the Graincorp Factory. Tannock said:
It is unclear from the defendant’s discovery whether Mr Spurway had any questions or concerns, or how the scoping exercise was resolved to allow the defendant to process volumes of oilseed in excess of 429,000 and 443,000 tonnes for the respective calendar years of 2022 and 2023 and 240,000 tonnes for the period 1 January-30 June 2024.
In March 2020, Spurway was copied to an email relating to the planned response to be made on behalf of Graincorp to a media investigation that apparently concerned emissions from the Graincorp Factory.
Spurway and Richards signed the Graincorp Limited directors report to shareholders dated November 2021. The following extract is from page 37 of the report under a heading ‘Environmental Regulation’:
The Group’s operations are subject to a range of environmental regulations under the law of the Commonwealth of Australia and its states and territories. The environmental aspects of our business are managed through our Safety, Health and Environment and Quality Management System. This system ensures a rigorous, companywide process including standard setting, monitoring, reporting, auditing and continuous improvement. Our Sustainability Report outlines our approach to managing environmental impacts and obligations.
In May 2021, GrainCorp’s wholly owned subsidiary, GrainCorp Oilseeds Pty Ltd, was issued with a remedial notice by the Victorian Environment Protection Authority (EPA) in respect of GrainCorp’s oils processing plant in Numurkah, Victoria. The remedial notice requires GrainCorp Oilseeds to supply the EPA with an odour management plan. GrainCorp Oilseeds has engaged an odour emissions specialist to prepare the required odour management plan in accordance with the notice, and is implementing further odour mitigation measures at the site.
Richards serves as a member of the Graincorp Limited Safety Health and Environment board committee.
In March 2020, Pamminger was copied to an email from the defendant’s operations manager that included the following:
Because we are pushing the plant, by default we are creating increased process related odour streams which must be treated through our Biofilter. It is probable based on our own monitoring that we are exceeding the treatable limits and releasing potentially offensive odour to atmosphere and most likely beyond our boundary.
Outlines of evidence
Green has prepared outlines of the evidence he says would be given by Spurway, Richards and Pamminger without having spoken to those persons. The outlines are necessarily limited to information about the role of each person within the Graincorp group, and some reference to correspondence or other documents in respect of which the person played some role. In the circumstances, the outlines do not materially assist in determining whether there are reasonable grounds for an expectation that each person will give relevant evidence that will likely add to the evidence given at trial.
Applicable principles
The Court may set aside a subpoena on the application of any person having a sufficient interest[3] if the subpoena amounts to an abuse of process.[4] It is not in issue that as a party to the proceeding, Graincorp has a sufficient interest to seek to set aside the subpoenas.
[3]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.04.
[4]Bahonko v Moorfields Community [2008] VSCA 6, [18] (Nettle JA) (‘Bahonko’); Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, [60] (Bell P) (‘Blacktown’).
Where objection is taken to a subpoena, the party at whose request the subpoena was issued must identify expressly and precisely the legitimate forensic purpose for which the subpoena was sought.[5]
[5]Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28]; Matthews vSPI Electricity Pty Ltd (No 12) [2014] VSC 131, [9]–[10].
A subpoena may amount to an abuse of process and be set aside if it is directed to a witness who is unable to give relevant evidence.[6] On such an application, the court ‘has to enquire whether its process has been issued against the potential witness with the object and expectation on reasonable grounds of obtaining from him evidence which can be relevant’.[7]
[6]Bahonko (n 4) [18] (Nettle JA).
[7]Ibid.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (‘Blacktown’),[8] the New South Wales Court of Appeal considered the question of whether it was necessary for the issuing party to establish that the documents it sought were ‘likely to assist’ that party’s case. After considering the authorities, Bell P said:
There is a danger in using the language of “tests” for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay at 100 …
…
It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.[9]
[8]Blacktown (n 4).
[9]Ibid [60], [65] (Bell P).
The relevant propositions from Blacktown were conveniently summarised by the Full Court of the Federal Court in Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited[10] as follows:
(a)the language of “tests” should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose: Bell P at [60]-[61], with whom McCallum JA agreed at [98];
(b)it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena: Bell P at [57]-[58], Brereton JA at [86] and [96], McCallum JA at [98] and [100];
(c)it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive: Bell P at [57], McCallum JA at [98] and [100];
(d)put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case: Brereton JA at [89], with whom McCallum JA agreed at [100][.] [11]
[10][2023] FCAFC 185.
[11]Ibid [38], cited in GLP Batesford Holdings Pty Ltd v 68 Bridge Road Land Pty Ltd [2024] VSC 36, [129].
Submissions
Green
The issues in the proceeding include whether the significant increase in oilseed crush at the Graincorp Factory since 2016 has contributed to the emissions, creating a nuisance at the plaintiff’s property; or alternatively, whether it constitutes a breach by Graincorp of the environmental duty to minimise the risks of harm to human health and the environment from pollution so far as reasonably practicable.
Green seeks aggravated and exemplary damages in addition to compensatory damages, on grounds that include Graincorp’s actual or constructive knowledge of the risk to the plaintiff and group members from operation of the Graincorp Factory; Graincorp’s response to pollution abatement notices issued by the EPA; and Graincorp’s response to persistent complaints made by the plaintiff and other group members in relation to the emissions.
The evidence of Graincorp’s witnesses is directed to the above issues and to the commissioning of two major investment projects at the Graincorp Factory, being the completion of a refining plant in 2016 (known as ‘Project Delta’) and the building of a solvent extraction plant (known as ‘Project Force’).
The email to Spurway referred to in paragraph [44] above illustrates that he can give evidence about the increased crush throughput at the Graincorp Factory. Further, Spurway can give evidence about questions or concerns raised in respect of increased crush throughput, the alleged breach of the environmental duty, and aggravated or exemplary damages issues. This is particularly so given Spurway’s qualification as a chemical engineer and his knowledge of the Graincorp Factory, which he has visited on about three occasions.
Spurway can also give evidence from the highest level of the Graincorp corporate group about its knowledge and assessment of risks associated with the two major projects and the increased grain throughput, and its response to complaints about the emissions from the Graincorp Factory. The remedial notice issued by the EPA in May 2021 was reported in the Graincorp Limited annual report for that year, which Spurway personally signed. His awareness of the remedial notice is relevant to the issue of aggravated damages.
Discovered documents establish that Richards had authority to approve financial expenditure on capital improvements, which likely included Project Delta and Project Force. Further, Richards was a member of Graincorp’s Safety, Health, Environment and Governance committee from 2016. There is no doubt that any identified risks to health and environment arising from Project Delta and Project Force would have been canvassed by this committee.
Graincorp proposes adducing evidence from Murphy about Project Delta and Project Force. However, he was not employed by Graincorp when those projects were implemented. Richards is in a position to give contemporaneous evidence about the projects.
Like Spurway, Richards can also give evidence about the EPA remedial notice.
Pamminger has visited the Graincorp Factory many times and has responsibility at a high level for capital expenditure across Graincorp sites. It is evident that Pamminger can give evidence about the approval of Project Delta and Project Force, and the environmental and health risks identified by Graincorp’s board about those projects. Further, Pamminger can give evidence about emission concerns arising from the manufacture of oilseed at the Graincorp Factory.
Graincorp
When Graincorp raised with Green his failure to provide outlines of evidence for Spurway and Richards, Green responded that he did ‘not know precisely what evidence the subpoenaed witnesses will give to the Court’. This concession was accurate, and demonstrates that the subpoenas are no more than a fishing exercise with no legitimate forensic purpose. While Green has now filed the outlines in an attempt to establish the existence of a legitimate forensic purpose, the shift in the nature of his justification for the subpoenas tends to undermine if not preclude the existence of such a purpose.
Green’s outline for Spurway is drafted in general and vague terms. Statements about Spurway’s professional experience and background, his role at Graincorp, and assertions about his attendance at meetings do not on their face identify evidence relevant to any issue in dispute in the proceeding. Siapkas’ evidence shows that Spurway does not have a personal nor direct involvement in the operation of the Graincorp Factory. In the circumstances, it is unclear what relevant evidence could be obtained from Spurway in relation to the real issues in dispute. Any forensic purpose falls away when one considers the limited nature of Spurway’s role in relation to the Graincorp Factory and its day-to-day operations.
It is critical, if not determinative, that Green makes no allegation in the proceeding concerning Project Delta, Project Force, Graincorp’s plans for expansion, or the knowledge of Graincorp Limited’s board of the impacts of Graincorp’s operations on him and unidentified group members. The suggestion that a legitimate forensic purpose may arise from these matters fails at the threshold in circumstances where they are not raised on the pleadings.
The matters which Green suggests he wishes to explore with Spurway are already the subject of lay evidence which will be given by Graincorp’s witnesses, who are involved in the day-to-day operations of the Graincorp Factory. Their evidence has been accompanied by the production of many documents. Accordingly, to the extent that Green has an interest in exploring these matters as part of the proceeding, he remains entitled to do so in his cross-examination of the Graincorp witnesses. The evidence before the Court is that there is nothing Spurway can add to the evidence already proposed to be given by Murphy, Eadie, Deetlefs and Jarrett.
Similar issues arise in relation to the Richards subpoena and outline of evidence. The evidence is that Richards has never had personal involvement in the monitoring of noise or odour at or in the vicinity of the Graincorp Factory, and has not reviewed the results of any such monitoring. Further, Richards has not had any personal involvement in any measures to mitigate any noise or odour emitted from the factory, in responses to any complaint about noise or odour in connection with the factory, or Graincorp’s response to the EPA remedial notice or the engagement of an odour specialist in response to the notice.
Deetlefs and Jarrett will be in a position to give evidence about those matters. It is an abuse of process, in the circumstances, for Green to seek to compel Richards to attend to give evidence where his evidence is unlikely to be relevant and is unlikely to add to the evidence to be given by Graincorp’s witnesses.
The same submissions apply in respect of the Pamminger outline of evidence and any subpoena for him to give evidence, if that is what Green proposes.
Analysis
The subpoenas will be set aside for the following reasons.
First, the subpoenas were issued before Graincorp had filed the outlines for the lay witnesses it intends to call at trial. It is apparent that at the time the subpoenas were issued, Green had no real idea what relevant evidence could be given by Spurway or Richards at trial. The outlines of evidence subsequently filed for Spurway, Richards and Pamminger have apparently been prepared based on the contents of a limited number of documents, and contain no real information about whether those witnesses will be able to give relevant evidence about matters in issue in the proceeding. These matters support Graincorp’s contention that the subpoenas are a fishing exercise.
Second, Green has failed to identify expressly and precisely the legitimate forensic purpose for the subpoenas to Spurway and Richards. Green submitted that the purpose of calling evidence from Spurway and Richards related to the significant increase in oilseed crush at the Graincorp Factory since 2016 and the associated implementation of Project Delta and Project Force; Graincorp’s knowledge of an associated risk to neighbours from noise and odour emissions; and Graincorp’s response to pollution abatement notices issued by the EPA. It is not sufficient for Green to simply point to important parts of the case he brings. He must identify the legitimate forensic purpose for the subpoena to a witness in respect of those parts of his case. The very limited connection shown by Green between the subpoenaed witnesses and operation of the Graincorp Factory that allegedly resulted in the noise and odour emissions is insufficient to demonstrate a legitimate forensic purpose in requiring them to attend court to give evidence.
Third, there are no reasonable grounds for an expectation that Spurway and Richards can give relevant evidence that will be of material assistance on the issues Green identified. The relationship between the subpoenaed witnesses and Graincorp is indirect. Neither of the witnesses is a director, officer or employee of Graincorp. Neither has a direct role in the management or operation of the Graincorp Factory, with each instead having an indirect and distant role as directors of the parent company Graincorp Limited. Spurway has visited the factory only three times. There is no evidence that Richards has ever visited to the Graincorp Factory.
Spurway and Richards may have personal knowledge at a high level of some facts in issue in the proceeding. They are probably aware that there has been a significant increase in the oilseed crush at the Graincorp Factory since 2016, that there have been some complaints about noise or odour emissions from the factory, and that Graincorp was issued with a remedial notice by the EPA. However, the material on this application does not establish reasonable grounds for an expectation that evidence given by Spurway or Richards would materially assist on an identified issue. This is particularly so in circumstances where there has been very extensive discovery made by Graincorp, and an intention evinced by serving outlines for Eadie, Deetlefs, Jarrett and Murphy to lead detailed evidence on the facts in issue in the proceeding.
Green submitted that Graincorp has failed to discover board minutes and other board documents that would likely show a sufficient involvement in and knowledge of the matters in issue in this proceeding by Spurway and Richards, to enable them to give relevant evidence. There has been significant case management of the discovery process in this proceeding. As noted, Graincorp has made extensive discovery. Subject to ongoing obligations, the process of discovery is complete. Green has made no application to challenge the adequacy of Graincorp’s discovery on grounds that it has failed to discover board minutes and documents for Graincorp Limited, or other documents that evidence an involvement in or knowledge of matters in issue by Spurway or Richards. The fact that the issue of discovery was only raised by Green as an afterthought in an attempt to justify why the subpoenas should not be set aside is a further indication that the subpoenas are a fishing expedition, rather than a genuine attempt to pursue a legitimate forensic purpose.
While he is a director of Graincorp and has visited the Graincorp Factory many times, the degree of Pamminger’s connection to matters in issue in the proceeding must be assessed in the context of the breadth of his responsibilities across the Graincorp network. The outline of evidence filed for Pamminger is very brief and has no substance. Had a subpoena been issued to Pamminger I would have concluded, for the reasons set out above, that it should be set aside.
FASOC application
EP Act
Green relies, in relation to the pleaded environmental duty, on s 25(1) of the EP Act which reads:
A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
The penalty for contravention of the environmental duty is set out in s 25(2) and (3) which read:
(2)A person commits an offence if the person contravenes subsection (1) in the course of conducting a business or an undertaking.
Penalty: In the case of a natural person, 2000 penalty units;
In the case of a body corporate, 10 000 penalty units.
(3) An offence under subsection (2) is an indictable offence.
Part 11.4 of the EP Act deals with civil remedies. Relevantly, s 308(1) reads:
In this Part—
“eligible person”, in relation to an application under this Part, means a person—
(a)whose interests are affected by the contravention or non-compliance in relation to which the application is made; or
(b)who has the leave of the Court to make the application.
Green relies on this provision as the basis for him bringing a claim for breach by Graincorp of the environmental duty.
On an application by an eligible person, a court may make an order restraining another person from engaging in specified conduct if satisfied that they ‘[are] contravening or [have] contravened any other requirement or duty imposed on [them] by or under this [EP] Act’.[12] Such an order may include requiring a person to do an act or thing necessary to prevent, minimise or remedy the contravention.[13] Green has not expressly pleaded reliance on s 309 of the EP Act.
[12]Environment Protection Act 2017 (Vic) s 309(1)(b).
[13]Ibid s 309(2)(a).
Green has made a claim for a compensation order in accordance with s 313 of the EP Act, which reads:
(1)In any proceedings for an offence against, or a contravention of, this Act or the regulations (including an application under section 309), a Court may make a compensation order if the Court finds that—
(a)the person against whom the proceedings were taken has contravened a provision of this Act or the regulations or a condition of a permission or notice issued or granted under this Act; and
(b)the Authority or another person (the injured person) has suffered or may suffer injury, loss or damage as a result of the contravention.
(2)Without limiting subsection (1), an order under that subsection may require the person against whom the proceedings are brought to pay compensation to the Authority or the injured person for—
(a)any injury, loss or damage suffered by the Authority or the injured person as a result of the contravention; or
(b)any costs reasonably incurred by the Authority or the injured person in the course of taking action to prevent, minimise or remedy any injury, loss or damage suffered by the Authority or the injured person as a result of the contravention; or
(c)any costs reasonably incurred by the Authority in the course of taking action to prevent, minimise or remedy any harm to human health or the environment caused by the contravention.
‘Activity’ is defined in the EP Act to include ‘the storage or possession of waste or any other substance or thing’.[14] ‘Pollution’ is defined in the EPAct to include:[15]
any emission, discharge, deposit, disturbance or escape of—
(a)a solid, liquid or gas, or a combination of a solid, liquid or gas, including but not limited to smoke, dust, fumes or odour; or
(b) noise;
[14]Ibid s 3(1).
[15]Ibid.
‘Harm’ is defined in s 4 of the EP Act as follows:
(1)In this Act, harm, in relation to human health or the environment, means an adverse effect on human health or the environment (of whatever degree or duration) and includes—
(a)an adverse effect on the amenity of a place or premises that unreasonably interferes with or is likely to unreasonably interfere with enjoyment of the place or premises; or
(b)a change to the condition of the environment so as to make it offensive to the senses of human beings; or
(c)anything prescribed to be harm for the purposes of this Act or the regulations.
(2)For the purposes of subsection (1), harm may arise as a result of the cumulative effect of harm arising from an activity combined with harm arising from other activities or factors.
The concept of minimising risks of harm to human health and the environment is explained in s 6 of the EP Act, which reads:
(1)A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person—
(a)to eliminate risks of harm to human health and the environment so far as reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.
(2)To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters—
(a)the likelihood of those risks eventuating;
(b)the degree of harm that would result if those risks eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
(d)the availability and suitability of ways to eliminate or reduce those risks;
(e)the cost of eliminating or reducing those risks.
Evidence
History of complaints in relation to n-hexane
In an affidavit made in opposition to Green’s FASOC application, Clarke sets out detail of the following history of complaints made by Green in relation to n-hexane:
(a) Green was the co-author of a letter dated 29 June 2015 setting out concerns regarding a planning application by Graincorp relating to the Graincorp Factory. The letter includes concerns about ‘Current SAFETY MEASURES in place to detect Hexane residue, either airborne, or in finished product’. Concerns were also raised about storage of n-hexane.
(b) The notes of a conference with EPA officers on 23 July 2015, in which Green made complaints about the Graincorp Factory, that record him saying:
When it’s foggy and still, my kids complain of runny eyes and I’m starting to think it’s got something to do with the hexane they use in their production process.
(c) A printout of a website entitled ‘Hexane is dangerous’ dated 6 September 2015 which was discovered by Green. The printout records numerous symptoms that are attributed to n-hexane exposure, including muscle wasting and peripheral neuropathy.
(d) A document entitled ‘Pollutant Inventory GrainCorp Numurkah’ which was exhibited to an affidavit made by Tannock on 17 March 2023 in support of Green’s application to continue the proceeding as a class action, and which lists n-hexane as a pollutant.
Dr Bruce Day
Green relied on a report obtained from clinical neurologist and neurophysiologist Dr Bruce Day. Day prepared the report in the context of having consulted with and assessed a person who I understand to be a group member in this proceeding.
The following is a brief summary of the evidence in Day’s report:
(a) he has longstanding expertise in peripheral neuropathy;
(b) he first became aware of the extensive literature on organic solvent neurotoxicity in 1986. By that time it was well established that n-hexane was a peripheral nerve toxin;
(c) there are many industrial or environmental neurotoxins including heavy metals and pesticides;
(d) the main causes for chronic n-hexane neurotoxicity in an industrial setting are long working hours, poor ventilation of workshops, unsatisfactory personal protective equipment (PPE) and inadequate occupational health and safety management;
(e) cases of solvent abuse neuropathy have also been described in subjects who have inhaled glue containing n-hexane for its euphoric effects;
(f) there is ongoing debate with regard to the level of n-hexane pollution and the risk to the surrounding environs; and
(g) while a level of 72mg/m3 for n-hexane (the maximum average concentration of an airborne contaminant set by Safe Work Australia) would appear reasonable, little is known about chronic low level exposure via inhalation or the effects of age, coexisting illness or the level of activity undertaken during exposure.
Day said that he was not in a position to give opinion evidence about the relative risk posed by fugitive emissions of n-hexane to long-term inhabitants within a kilometre radius of the Graincorp Factory. He noted that his patient appeared to have been working long hours in considerably closer proximity to the factory in an environment that may have concentrated the emissions.
Day said he was not in a position to conclude that his patient’s neuropathy was due to n-hexane neurotoxicity without further assessment. He said that this issue may be clarified by nerve biopsy pathology.
Submissions
Green
The starting point on an application to amend pleadings is ‘to allow amendments that are necessary to enable the real questions in dispute to be decided, and to avoid a multiplicity of proceedings’.[16]
[16]Daimleigh Capital Pty Ltd v CVS Lane Capital Partners Pty Ltd [2024] VSC 410, [135]; Supreme Court (General Civil Procedure) Rules 2015 r 36.01(1).
The substantive amendments in the proposed FASOC build on the existing allegations that Graincorp has acted in contravention of the environmental duty by the emission of n-hexane, in addition to noise and odour, beyond the Graincorp Factory.
The environmental duty is risk based, not outcome based.[17] For the environmental duty to apply to Graincorp, it is not necessary that its activities give rise to actual harm to human health or the environment. Rather, ‘the [environmental duty] applies where an activity may give rise to risks of harm to human health or the environment of whatever degree or duration from pollution or waste’.[18]
[17]Anderson v PWM (Lyndhurst) Pty Ltd & Anor [2024] VSC 417, [297].
[18]Ibid.
It is not in issue that Graincorp uses n-hexane as part of the operating process at the Graincorp Factory. Graincorp’s self-reported fugitive air emissions reveal that the Graincorp Factory does emit n-hexane into the air, and that there has been an upward trend of emissions since 1 July 2016.
Day’s expert report describes n-hexane as a well-established peripheral nerve toxin. Day is currently assessing whether peripheral neuropathy experienced by his patient is due to n-hexane neurotoxicity.
Graincorp’s self-reported evidence of increasing n-hexane emissions from the Graincorp Factory, and Day’s identification of the risk of harm to human health associated with n-hexane exposure, raises a serious question to be tried as to whether Graincorp has failed to do all things reasonably practicable to minimise the risk in contravention of its environmental duty.
Green first came to appreciate the risk of harm from emissions of n-hexane when his solicitor took a witness statement from Day’s patient. Green has not been tardy in bringing this application.
While further discovery of documents and evidence at trial may be required, it is unlikely that any substantial delay will be caused by the amendment. Further, granting leave to file the proposed FASOC will be more efficient, timely, and cost effective than bringing separate proceedings.
Graincorp
The proposed FASOC does not plead essential elements of the environmental duty cause of action in relation to n-hexane, or contain material allegations of fact that would be sufficient to make such a claim. On that basis, the application for leave to amend should be refused.
Day expressly declined to provide an opinion about whether there is a risk to health to long-term inhabitants within the one kilometre radius of the Graincorp Factory from chronic low-level exposure to n-hexane via inhalation. Further, Day opined that it cannot be concluded that his patient’s neuropathy is due to n-hexane neurotoxicity. At the level of generality at which it is expressed, Day’s evidence will not assist the Court in relation to the proposed claim as articulated by Green.
Analysis
For the following reasons, the proposed FASOC does not articulate a claim for contravention of the environmental duty in relation to emissions of n-hexane from the Graincorp Factory.
It is an element of a claim of contravention of s 25 of the EP Act that the activity in which the defendant is engaged ‘may give rise to risks of harm to human health or the environment from pollution or waste’. The proposed FASOC does not identify the risk of harm that may arise from emissions of n-hexane, or plead any material facts linking that risk to emissions of n-hexane from the Graincorp Factory.
The proposed FASOC does not set out the reasonably practicable precautions that were available to Graincorp to minimise the risk of harm arising from n-hexane emissions. No material facts are pleaded to identify any such precautions.
The proposed FASOC does not allege that Graincorp failed to take particular precautions to minimise the risk of harm so far as is reasonably practicable.
There is no pleading to establish that Green and group members have standing to bring a claim for contravention of the environmental duty in relation to n-hexane emissions. Green does not allege that his interests or those of group members are affected by emissions of n-hexane from the Graincorp Factory, let alone how those interests may be affected.
I accept Graincorp’s submission that in circumstances where the proposed FASOC does not articulate a cause of action for contravention of the environmental duty resulting from emissions of n-hexane from the Graincorp Factory, the application to amend should be refused.
The evidence Green points to as supporting his proposed n-hexane claim suggests that the pleading deficiency cannot be easily or quickly remedied. In his report, Day briefly summarises the history of knowledge about n-hexane toxicity. This knowledge relates to two circumstances of exposure: first, exposure in the industrial setting, with important factors including long working hours and poorly ventilated enclosed environments; and second, exposure through solvent abuse by inhaling glue containing n-hexane. Day notes that ‘the severity of the neuropathy is related to the intensity and duration of toxic exposure’ and that there is ongoing scientific debate about the level of n‑hexane pollution that may result in risk.
Day’s evidence may suggest the possibility of a risk of harm to persons such as his patient, who spent long hours in close proximity to the Graincorp Factory in a poorly ventilated environment where emissions are concentrated. Day said that an occupational health and safety expert would be required to advise on whether there is a possible risk of harm to persons from emissions of n-hexane from the Graincorp Factory. Without more, Day’s evidence is not a sufficient basis for a pleading about the risk of harm posed to group members by n-hexane emissions from the Graincorp Factory.
Further, the evidence relied on by Green says nothing about precautions available to minimise n-hexane emissions from the Graincorp Factory.
The foundation of the claims made in the ASOC is the alleged emission of noise and odours from the Graincorp Factory. I reject Green’s submission that the proposed amendment simply ‘builds on’ the currently pleaded claim by adding emissions of n‑hexane as a particular of the pleaded environmental duty breach. Any allegation that there is a risk of harm relating to emissions of n-hexane from the Graincorp Factory is distinct from the currently pleaded risks of harm relating to noise and odours. The proposed n-hexane claim is, in effect, new.
This proceeding is well advanced. Discovery is complete. Outlines of lay evidence have been filed and served and the process of obtaining expert evidence is well advanced. The trial date is only months away. Allowing Green to amend his pleading to include a claim for contravention of the environmental duty on the basis of n-hexane emissions would cause very significant disruption to the current timetable. If leave was given, Green would need additional time to properly formulate his cause of action in the amended pleading. Finalising the pleading may then take further time depending on Graincorp’s response. Additional discovery, lay evidence and expert evidence would also be required. There is no prospect that the current trial date could be maintained. While it is difficult to predict, it seems likely the delay to a new trial date may be in the order of 12 months or more. The resulting inefficiency and associated costs weigh against the potential efficiencies associated with having all claims alleged by Green and group members against Graincorp in relation to emissions from the Graincorp Factory dealt with in the one proceeding.
Finally, I note that Green made complaints about emissions of n-hexane from the Graincorp Factory as early as 2015. I do not accept that his explanation for the delay in giving notice of the n-hexane claim and serving his proposed pleading.
For these reasons, I conclude that Green’s application to file and serve an amended pleading adding the n-hexane claim should be dismissed.
Other proposed pleading changes in the proposed FASOC
The proposed FASOC also contains non-substantive amendments which appeared to be uncontroversial between the parties. I will order that Green has leave to file and serve an amended pleading including any unopposed amendments.
Deficiencies in Green’s outline of evidence
Graincorp submitted that the outline of evidence filed for Green is broad, imprecise and vague, and that there are ‘significant gaps’ in the evidence to be given by Green. In the hearing on 21 October, Green agreed to provide a further outline of evidence. Graincorp indicated that it would reagitate the issue of Green providing the list of documents upon which he intended to refer during his evidence closer to the trial date.
Form of opt-out notice
A proposed form of opt-out notice has been provided to the parties for their comment.
Conclusion
I will hear from the parties as to the settled form of the opt out notice, and the form of orders following this ruling.
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