Macquarie Generation v Hodgson

Case [2011] NSWCA 424

Court of Appeal

New South Wales
Case Title: Macquarie Generation v Hodgson
Medium Neutral Citation: [2011] NSWCA 424
Hearing Date(s): 13/09/2011
Decision Date: 22 December 2011
Jurisdiction:
Before:

Whealy JA, Meagher JA, Handley AJA
Decision:

(1) Appeal allowed with costs;
(2) Orders 1 and 2 made by Pain J on 4 March 2011 be set aside;
(3) In lieu thereof, order that the applicant's notice of motion of 15 June 2010 be dismissed with costs;
(4) Order that the applicant's amended summons be dismissed with costs, but not so as to disturb any existing orders for costs in favour of the applicant;
(5) The respondent to have a certificate under the Suitors Fund Act.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CRIMINAL LAW - whether offence breach of
statutory duty
ENVIRONMENTAL LAW - pollution -emissions -- statutory licence -- whether implied condition limiting emissions NUISANCE - defence -- statutory authority -- reasonable care
STATUTE - statutory offence - whether breach of statutory duty
Legislation Cited:

Protection of the Environment Operations Act 1997, s 252(1)
Cases Cited:

Allen v Gulf Oil Ltd [1981] AC 1001
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Bartlett v Vinor (1692) Carthew 252
Blue Mountains Conservation Society Inc v Delta Electricity [2011] NSWLEC 145
BMA v The Commonwealth [1949] HCA 44; 79 CLR 201
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337
Cope v Rowlands (1836) 2 M&W 149
EPA v Alkem Drums Pty Ltd [2000] NSWCCA 416; 113 LGERA 130
Gray v Macquarie Generation (No 1) [2009] NSWLEC 34
Gray v Macquarie Generation (No 3) [2011] NSWLEC 3
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171
Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363
Manchester Corporation v Farnworth [1930] AC 171
Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699, 138 LGERA 383
Metropolitan Asylum District v Hill (1881) 6 App Cas 193
Metropolitan Water, Sewerage and Drainage Board v OK Elliott Ltd [1934] HCA 57; 52 CLR 134
Redpath v Allen (1872) LR 4 PC 511
Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509
Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; 139 CLR 410
Texts Cited:
Category: Principal judgment
Parties:

Macquarie Generation (Applicant)
Naomi Crystal Hodgson (Respondent)
Representation
- Counsel:

R P Lancaster SC and L T Livingston - (A)
I Lloyd QC and A Stafford - (R)
- Solicitors:

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Details
AGLC
Macquarie Generation v Hodgson [2011] NSWCA 424
Case
[2011] NSWCA 424
Decision Date

CaseChat Overview and Summary

Macquarie Generation (the applicant) appealed to the Court of Appeal of New South Wales against orders made by Pain J. The dispute concerned alleged breaches of environmental protection legislation and common law nuisance arising from emissions from the applicant's power station. The applicant sought to set aside these orders.

The Court of Appeal was required to determine whether the applicant had breached its statutory duty under the *Protection of the Environment Operations Act 1997* (NSW) by exceeding emission limits, and whether the applicant was liable for nuisance. A key issue was whether the applicant's environmental protection licence contained an implied condition limiting emissions, and whether the defence of statutory authority, requiring reasonable care, was available to the applicant.

The Court of Appeal found that the licence did not contain an implied condition limiting emissions beyond what was expressly stated. Furthermore, the Court held that the applicant had taken all reasonable precautions and exercised all due diligence to prevent the emission, thereby establishing the defence of statutory authority. Consequently, the applicant was not liable for either the statutory offence or the nuisance claim.

The appeal was allowed with costs. The orders made by Pain J were set aside, and the applicant's notice of motion and amended summons were dismissed with costs, with certain exceptions for existing costs orders in favour of the applicant. The respondent was granted a certificate under the *Suitors Fund Act*.

Orders

Orders of the court

(1) Appeal allowed with costs;

(2) Orders 1 and 2 made by Pain J on 4 March 2011 be set aside;

(3) In lieu thereof, order that the applicant's notice of motion of 15 June 2010 be dismissed with costs;

(4) Order that the applicant's amended summons be dismissed with costs, but not so as to disturb any existing orders for costs in favour of the applicant;

(5) The respondent to have a certificate under the Suitors Fund Act.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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