Maddingley Brown Coal Pty Ltd v Environment Protection Authority [No 2] - [2013] VSC 687

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S CI 2011 2872
S CI 2011 3244
S CI 2011 3343

MADDINGLEY BROWN COAL PTY LTD (ACN 007 397 686)	Plaintiff
v
ENVIRONMENT PROTECTION AUTHORITY	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2013
DATE OF JUDGMENT:	16 December 2013
CASE MAY BE CITED AS:	Maddingley Brown Coal Pty Ltd v Environment Protection Authority [No 2]
MEDIUM NEUTRAL CITATION:	[2013] VSC 687

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TAX — Claim for repayment of landfill levy paid into a designated bank account — Whether claim statute barred — Overpaid amount held not to be attributable to a tax — Claim for overpaid amount not statute barred — Limitation of Actions Act 1958 s 20B.

COSTS — Plaintiff partly successful — Apportionment of costs according to issues — Defendant ordered to pay 50% of plaintiff’s costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Morris QC with Mr A Walker	Merrylees Legal
For the Defendant	Mr S Molesworth QC with Mr T Boston	Solicitor, Environment Protection Authority

HIS HONOUR:

Introduction and summary

This judgment is supplementary to my principal judgment, which was published on 29 October 2013,[1] and adopts some of its defined terms. The principal judgment should be read in conjunction with this supplementary judgment for a proper understanding of the latter.
[1]Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 (29 October 2013) (‘principal judgment’).

At the time that the principal judgment was published, I did not make final orders. I gave the parties the opportunity to make further submissions in respect of two matters. The first matter concerns who is entitled to the Overpayment referred to at [11] to [13] below. The second matter, which related to the use of immobilised and treated Cat C soil in the Firewall, is no longer in contention. The parties were also invited to make submissions on the precise form of the final order, and costs. Written submissions were filed, followed by oral submissions on 10 December 2013.

For the reasons that follow, I have concluded that the plaintiff is entitled to be repaid the Overpayment and that the Environment Protection Authority (‘EPA’) should pay 50% of the plaintiff’s costs of the proceeding.

Summary of issues and findings in the principal judgment

The principal judgment dealt with whether the plaintiff is liable to pay to the EPA a landfill levy on contaminated soil that the plaintiff uses in the construction of the Firewall. The issues considered in the principal judgment and my findings on them are briefly summarised below.

Section 50S of the Environment Protection Act 1970 (‘EP Act’) requires the payment of a landfill levy for ‘prescribed industrial waste’ deposited on land (‘Levy’). However, that liability does not apply in certain circumstances, including where the waste is ‘exempt material’ or has a ‘direct beneficial reuse and has been consigned for [that] use’.

The plaintiff contended that…

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

Case: [2013] VSC 687
Decision Date: 16 December 2013

CaseChat Overview and Summary

Maddingley Brown Coal Pty Ltd sought a refund of a landfill levy paid into a designated bank account, which the Environment Protection Authority denied on the basis that the claim was statute barred. The dispute was heard in the Federal Court of Australia. The central issue for the court was whether the plaintiff's claim for the refund of the overpaid levy was barred by the Limitation of Actions Act 1958. Specifically, the court had to determine if the overpaid levy could be considered a tax under the Act, which would trigger a six-year limitation period, or if it fell under a different category with a shorter limitation period.

The court found that the overpaid levy did not constitute a tax for the purposes of the Limitation of Actions Act 1958. The court reasoned that the levy was not a compulsory exaction of money by a public authority for public purposes, nor was it a charge imposed by law for the support of government. Instead, the levy was a payment made in respect of a specific environmental obligation. Consequently, the court held that the claim for the overpaid levy was not statute barred. The court further ordered that the Environment Protection Authority pay 50% of the plaintiff's costs, reflecting the partial success of the plaintiff's claim.

Orders