Krajniw v Minister for the Environment

Link copied
Case Copied 36 min read

FEDERAL COURT OF AUSTRALIA

Krajniw v Minister for the Environment [2016] FCA 141

File number: QUD 474 of 2015
Judge: COLLIER J
Date of judgment: 25 February 2016
Catchwords:

PRACTICE AND PROCEDURE – application by the respondents for summary judgment pursuant to s 31A Federal Court of Australia Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 (Cth) – application to strike out pleadings pursuant to r 16.21 Federal Court Rules 2011 (Cth) – where no reasonable prospect of success – where pleadings include extensive scandalous and inflammatory allegations – pleadings contravene requirement to plead briefly – where relief sought falls under legislation outside Federal Court jurisdiction – issues of relitigation

ENVIRONMENTAL LAW – alleged contraventions of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – operation of ss 18, 18A, 20 and 20A Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – where only one respondent has taken or proposes to take “action” – no evidence of a significant impact on species as a whole – where species are not protected – claiming contravention of provisions that are incapable of being contravened
Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth) Pt 3, 5, 7, 9, ss 3, 3A, 18, 18A, 19, 20, 20A, 34, 43A, 43B, 48A(2), 66, 67, 68, 69, 381, 475(1)(b), 475(3), 475(6), 523, 524

Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2)

Federal Court Rules 2011 (Cth) rr 16.02(1)(b), 16.21, 26.01

Nature Conservation Act 1992 (Qld)

Personal Injuries Proceedings Act 2002 (Qld)

Sustainable Planning Act 2009 (Qld)

Vegetation Management Act 2009 (Qld)

Nature Conservation Regulations 1994 (Qld)
Cases cited:

Krajniw v Brisbane City Council [2010] FCA 1366

Krajniw v Brisbane City Council (No 2) [2011] FCA 563

Krajniw v Newman [2014] FCA 1454

Krajniw v Newman (No 2) [2015] FCA 673

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325

Spencer v The Commonwealth (2010) 241 CLR 118

Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2011] FCAFC 145

Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1121
Date of hearing: 21 October 2015
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 48
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Mr B McGlade
Solicitor for the First Respondent: HWL Ebsworth Lawyers
Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents: Ms JS O’Brien
Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents: Crown Law
Counsel for the Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: Mr JG Lyons
Solicitor for the Eleventh, Twelfth, Thirteenth and Fourteenth Respondents: Brisbane City Legal Practice
Counsel for the Fifteenth Respondent: Mr M Steele with Mr S Radich
Solicitor for the Fifteenth Respondent: BMD Properties Pty Ltd

ORDERS

QUD 474 of 2015
BETWEEN:

TONY KRAJNIW

Applicant
AND:

MINISTER FOR THE ENVIRONMENT

First Respondent

ANNASTACIA PALASZCZUK MP, PREMIER QLD

Second Respondent

JACKIE TRAD…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Krajniw v Minister for the Environment and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2016] FCA 141
Decision Date

CaseChat Overview and Summary

This case involved an application by the respondents for summary judgment against Mr Krajniw. The substantive proceedings related to a parcel of land at 1825 Creek Road, Cannon Hill, which was owned by the Brisbane City Council. Mr Krajniw claimed that he had standing under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to pursue claims related to the development of the land. He sought numerous orders, including injunctive relief and public shaming of certain newspapers. The respondents filed an application for summary judgment and sought an order to strike out Mr Krajniw’s pleadings.

The primary legal issues were whether Mr Krajniw had a reasonable prospect of success in prosecuting his claims, and whether his pleadings contravened the requirement to plead briefly. The court considered the provisions of the Federal Court Act and the Federal Court Rules relating to summary judgment, and the principles applicable to such applications. The court also examined the relevant provisions of the EPBC Act and considered whether Mr Krajniw’s claims were well-founded.

The court found that Mr Krajniw’s application was excessively lengthy, contained scandalous and inflammatory allegations, and contravened the requirement to plead briefly. The court also found that Mr Krajniw had no reasonable prospect of success in prosecuting his claims, as there was no evidence of a significant impact on protected species or ecological communities, and the relief sought fell outside the jurisdiction of the Federal Court. The court therefore granted the respondents’ application for summary judgment and ordered that Mr Krajniw pay the respondents’ costs.

In summary, the court dismissed Mr Krajniw’s substantive claims as having no reasonable prospect of success, and found that his pleadings were oppressively lengthy and contained scandalous and inflammatory allegations. The court granted the respondents’ application for summary judgment and ordered that Mr Krajniw pay the respondents’ costs.

Orders

Orders of the court

1. Judgment be entered for the respondents against Mr Tony Krajniw under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2. Mr Tony Krajniw pay the costs of the respondents of and incidental to these proceedings.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In his written submissions I note that Mr Krajniw made reference to a claim on his part that the Court enter summary judgment in his favour against the respondents. However I also note that no formal written application for summary judgment has been filed by Mr Krajniw, nor any oral application made by Mr Krajniw for such orders at any time before me. It follows that the only interlocutory applications before the Court are those filed by the respondents.Background The substantive proceedings in this matter concerns a parcel of land at 1825 Creek Road, Cannon Hill, a suburb of Brisbane (the land). It appears that the land is or was undeveloped land owned by the Brisbane City Council. It further appears that, at some point, the Brisbane City Council gave permission to the fifteenth respondent – a property developer – to build a golf course and associated residential development on the land. I understand that this development permission remains extant. Mr Krajniw claims that he has open standing under s 475(1)(b) and s 475(6) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to pursue his substantive claims. I understand from his oral submissions that Mr Krajniw lives in a caravan on or in the vicinity of this land. It is clear that Mr Krajniw is passionate about the wildlife he describes as living or previously living on the land, in particular squirrel glider possums. In respect of his substantive claims Mr Krajniw has filed detailed and very lengthy pleadings in these proceedings. His originating application filed on 16 June 2015 is a document some 59 pages in length. His originating application lists many provisions of the EPBC Act with which, inter alia, Mr Krajniw alleges there has been non-compliance in respect of the process granting development permission. In all, Mr Krajniw seeks 154 orders by way of interim and final injunctive relief restraining the respondents from undertaking listed activities, additional orders in relation to land clearing and work designed to alter or affect wildlife corridors, 15 individual orders against named respondents (including prosecution or jail), and orders for the public shaming of a number of newspapers, including the Courier Mail and Quest Newspapers South East Advertiser. So, for example, Mr Krajniw seeks orders to:·restrain the respondents from engaging in activity which will destroy a colony of squirrel glider possums in the area;·restrain the respondents from engaging in activity which will adversely affect other flora and fauna in the region including woodlands, rainforest, native grasses, koalas, native rats and mice, deer, and identified species of birds;·restrain the respondents from engaging in activity which contravenes the EPBC Act, and constitutes civil and criminal environmental offences;·require the respondents to repair and mitigate damage to the land pursuant to s 475(3) of the EPBC Act; and·restrain conduct and activity of a kind constituting an offence against matters protected, as defined by s 34 of the EPBC Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The orders sought by the respondents relate primarily to the provisions of s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules. Both provisions contemplate, inter alia, the Court giving summary judgment in favour of a respondent where the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Indeed, as Reeves J pointed out in Krajniw v Newman (No 2) at [10], to this extent s 31A and r 26.01 contain identical tests (cf Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1121 at [20]). Rule 26.01 also permits a respondent to apply for summary judgment where the proceedings are frivolous or vexatious, or an abuse of process, or where no reasonable cause of action is disclosed. Relevantly these provisions state:31A Summary judgment(1) ……(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or(b) the proceeding is frivolous or vexatious; or(c) no reasonable cause of action is disclosed; or(d) the proceeding is an abuse of the process of the Court; or(e) … Principles applicable to a summary judgment application made pursuant to s 31A were examined by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. In that case French CJ and Gummow J observed:24.The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.…25.Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.(Footnotes omitted.)

Ratio Decidendi

Legal Principle Established

In response to the respondents’ submissions Mr Krajniw has filed lengthy submissions setting out, in detail, his “broad claims”. Further, he submits:·the respondents do not understand his submissions, or the EPBC Act, or other relevant legislation;·the first respondent cannot make declarations to harm nature or the environment. It is irrelevant whether or not the species is a listed threatened or migratory species, or whether or not the ecological communities are listed threatened ecological communities;·the first respondent must take into account the status of each species that is present in a prescribed area;·the respondents fail to recognise that the squirrel glider species will be “maintained” by the taking of controlled action by the respondents;·the respondents have sought to mislead the Court into believing that the applicant is an “incompetent serial Courtroom pest of dubious credentials and bona fides”;·he has status pursuant to s 475(1)(b) and (6) of the EPBC Act to seek relief, as well as open standing to seek orders to remedy the damage caused by contraventions of the EPBC Act;·the true status of squirrel glider possums has not been established or determined in this or other proceedings;·sections 66-69 of the EPBC Act define “controlled action”, and the taking of controlled actions contravenes ss 18-20B of the EPBC Act;·sections 18, 18A and 19 provide that actions with a significant impact on listed threatened species are prohibited without approval under Pt 9 of the EPBC Act;·the statement of claim lists four threatened ecological communities, 32 threatened species, 42 migratory or marine species, and 86 species that are not protected;·to the extent that the application seeks relief based upon actions impacting on these species or its habitat, the EPBC Act provides a basis for a remedy;·section 20 and s 20A provide that actions with a significant impact on listed migratory species are prohibited, and actions caught by these provisions give rise to offences and civil penalties;·the controlled action is not a lawful or authorised action and has or will contravene s 43A and s 381 of the EPBC Act.Consideration In my view the relief sought by the respondents pursuant to s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules should be granted, and the originating application of Mr Krajniw summarily dismissed as having no reasonable prospects of success. Mr Krajniw is a litigant in person. He is clearly passionate about the wildlife on the land, and deeply concerned about the threat he claims to that wildlife by the approved development of the land. For example, at paragraphs 494-509 of the statement of claim he describes practices by unknown persons he alleges are connected with the respondents, with horrific consequences, such as collaring and releasing baby squirrel glider possums without due regard for the future growth of the animals. However as the respondents correctly submit, the application and the statement of claim are both oppressively lengthy, contain extensive tracts of material the relevance of which is not clear on the pleadings, and contain many statements which even conservatively can only be described as scandalous and abusive. Mr Krajniw’s personal and moral objections and beliefs concerning the development of the land do not release him from the obligation, ever present in litigation, to present to the respondents and the Court a case which is coherent and clear. At the very least, he is required to raise proper issues of fact and law for the respondents to meet and the Court to determine.