Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 (No 2) - [2014] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 & Anor (No 2) [2014] QSC 182

PARTIES:

LINC ENERGY LTD
ACN 076 157 045

(Applicant)

v

CHIEF EXECUTIVE ADMINISTERING THE ENVIRONMENTAL PROTECTION ACT 1994

(First Respondent)

and

KELLY FAY GLEESON

(Second Respondent)

FILE NO/S:

BS 11001 of 2013

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 15 April 2014

JUDGE:

Philip McMurdo J

ORDER:

1. The order made for the return of items on 1 August 2014 be set aside.

2. The application otherwise be adjourned to a date to be fixed.

3. Costs reserved.

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – OTHER MATTERS - where the respondents, pursuant to two warrants under the Environmental Protection Act 1994 (Qld), copied and removed electronic material from the applicant’s premises in Brisbane and Chinchilla – where the applicant contends that the electronic material was obtained without the authority of the warrants – whether the material was “seized” or “copied” – if the material was seized, whether the material was lawfully seized under the warrant.

COUNSEL:

RG Bain QC, with N Loos, for the applicant

TJH Morris QC, with M Le Grand, for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the applicant

Crown Law for the respondent

HIS HONOUR: Last Friday I gave judgment declaring that certain items had been unlawfully seized under a search warrant and that they should be returned to the applicant. I stayed that order for their return until today. This morning I was informed that the items which were seized were indeed returned to the applicant early this year. That was done in the circumstance that by an agreement between the parties the department had caused a so‑called forensic copy to be made of the material on those items.

The order I made, therefore, for the return of items is inappropriate, the items having already been returned by agreement between the parties. It remains to be seen if the parties cannot reach a compromise about this: what is the effect of my declaration (which will stand) about the unlawfulness of the seizure, upon the respondent's right to use the copies of this material? That is one of the reasons why the proceedings will be further adjourned to a date to be fixed.

The respondents have given an undertaking that they will not seek or obtain access to any part of the forensic copy, which contains a copy or image of the term "relevant material", for a period of 30 days.

The orders will be that the order made for the return of items on 1 August 2014 be set aside, the application otherwise be adjourned to a date to be fixed and costs reserved.

______________________

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

AGLC: Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 (No 2) [2014] QSC 182
Case: [2014] QSC 182
Decision Date: 5 August 2014

CaseChat Overview and Summary

Linc Energy Ltd sought to challenge the legality of actions taken by the respondents under warrants issued pursuant to the Environmental Protection Act 1994 (Qld). The warrants authorised the copying and removal of electronic material from the applicant's premises in Brisbane and Chinchilla. The central contention was whether the electronic material was obtained without proper authority under the warrants, specifically whether the material was seized or copied, and if seized, whether the seizure was lawful.

The court was tasked with determining the precise legal status of the electronic material in question and whether the actions taken by the respondents complied with the statutory provisions. This involved interpreting the language of the warrants and understanding the legal definitions of "seizure" and "copying" as they apply to electronic data. The court needed to ascertain whether the warrants provided sufficient authority for the actions taken and whether there was compliance with any procedural requirements set forth in the legislation.

The court held that the application for the return of items was premature and that the matter required further investigation. The court found that the distinction between "seizure" and "copying" of electronic data was not clear-cut and needed more detailed examination. Consequently, the court set aside the previous order for the return of items and adjourned the application to allow for further proceedings. The court reserved costs, indicating that they would be determined at a later stage.

Orders

Orders of the court

1. The order made for the return of items on 1 August 2014 be set aside.

2. The application otherwise be adjourned to a date to be fixed.

3. Costs reserved.

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

Full text does not contain this section.

CITATION:	Linc Energy Ltd v Chief Executive Administering the Environmental Protection Act 1994 & Anor (No 2) [2014] QSC 182
PARTIES:	LINC ENERGY LTD ACN 076 157 045 (Applicant) v CHIEF EXECUTIVE ADMINISTERING THE ENVIRONMENTAL PROTECTION ACT 1994 (First Respondent) and KELLY FAY GLEESON (Second Respondent)
FILE NO/S:	BS 11001 of 2013
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	5 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	14 and 15 April 2014
JUDGE:	Philip McMurdo J
ORDER:	1. The order made for the return of items on 1 August 2014 be set aside. 2. The application otherwise be adjourned to a date to be fixed. 3. Costs reserved.
CATCHWORDS:	ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – OTHER MATTERS - where the respondents, pursuant to two warrants under the Environmental Protection Act 1994 (Qld), copied and removed electronic material from the applicant’s premises in Brisbane and Chinchilla – where the applicant contends that the electronic material was obtained without the authority of the warrants – whether the material was “seized” or “copied” – if the material was seized, whether the material was lawfully seized under the warrant.
COUNSEL:	RG Bain QC, with N Loos, for the applicant TJH Morris QC, with M Le Grand, for the respondent
SOLICITORS:	Corrs Chambers Westgarth for the applicant Crown Law for the respondent