Minister for Environment, Water, Heritage and the Arts v Fullport Pty Ltd

[2010] FCA 185

FEDERAL COURT OF AUSTRALIA

Minister for Environment, Water, Heritage and the Arts v Fullport Pty Ltd [2010] FCA 185

Citation:		Minister for Environment, Water, Heritage and the Arts v Fullport Pty Ltd [2010] FCA 185
Parties:		MINISTER FOR ENVIRONMENT, WATER, HERITAGE AND THE ARTS v FULLPORT PTY LTD
File number(s):		NSD 1427 of 2009
Judge:		EMMETT J
Date of judgment:		5 February 2010
Catchwords:		STATUTES – failure to comply with the Fuel Standard Automotive Diesel Determination 2001
Legislation:		Fuel Quality Standards Act 2000 (Cth) ss 12, 21, 65
Date of hearing:	5 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	J Smith
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	There was no appearance by the respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1427 of 2009

BETWEEN:	MINISTER FOR ENVIRONMENT, WATER, HERITAGE AND THE ARTS Applicant
AND:	FULLPORT PTY LTD Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	5 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 65 of the Fuel Quality Standards Act 2000 (Cth), the Respondent is restrained for a period of 2 years from supplying or selling by itself, its servants or agents diesel that has any or all of the following qualities:

(a)   sulphur content greater than 10 mg/kg as determined by ASTM D5453;

(b)   distillation temperature at which 95% of diesel has been recovered not above 360º C as determined by ASTM D86.

2.The parties have liberty to apply on 24 hours' notice.

3.The Respondent pay the Applicant's costs of these proceedings as agreed or taxed.

THE COURT NOTES THAT:

4.The failure to comply with these orders may render the Respondent liable to imprisonment or to sequestration of property.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1427 of 2009

BETWEEN:	MINISTER FOR ENVIRONMENT, WATER, HERITAGE AND THE ARTS Applicant
AND:	FULLPORT PTY LTD Respondent

JUDGE:	EMMETT J
DATE:	5 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, the Minister for Environment, Water, Heritage and the Arts (the Minister), seeks orders against Fullport Pty Ltd (Fullport) restraining it from failing to comply with provisions of the Fuel Quality Standards Act 2000 (Cth) (the Act). Section 12 of the Act provides that a person is guilty of an offence if, relevantly, the person supplies fuel in Australia that is the subject of a fuel standard, the person is a constitutional corporation and the fuel does not comply with the standard.

2. Under the Act, fuel standard means a standard under s 21. Section 21(1) provides that the Minister may, in writing, determine that specified matters constitute a fuel standard in respect of a specified kind of fuel. Section 65(1) of the Act provides that, if a person has engaged, is engaging, or is about to engage in any conduct that is or would be an offence against the Act, the Federal Court of Australia may, on the application of the Minister or any other aggrieved person, grant an injunction restraining the person from engaging in the conduct.

3. Pursuant to s 21(1), by determination described as the Fuel Standard Automotive Diesel Determination 2001 (the Determination), the Minister determined that certain specified matters constitute a fuel standard in respect of diesel fuel.  Paragraph 3 of the determination provides that the standard for diesel includes the following:

   (1)on and after 1 January 2009, diesel must not contain more than 10 milligrams per kilogram of sulphur; and

   (2)on and after 1 January 2006, the distillation temperature at which 95% of diesel has been recovered must not be above 360 degrees Celsius.

4. On 1 October 2009 Fullport was the occupier of a service station carrying on business under the name “The Big Prawn” at 492 Pacific Highway, Crangan Bay, New South Wales. Crangan Bay is also known as Frazer Park. On that day Mr Robert Robertson, an inspector under the Act, together with Mr Rodney Carnall, attended at the premises of Fullport and, with the consent of Mr Ken Silverside, who at one stage has been a director of Fullport and who was apparently in control of the premises on that day, obtained a sample of fuel from a pump described as delivering diesel fuel. Steps were taken to ensure security in relation to the samples that were taken.

5. Three samples were taken.  One was delivered to Mr Silverside and one was retained by the officers of the Department.  The third sample was taken to Intertek Laboratory at Clyde Refinery, Rosehill, New South Wales where it was handed to a laboratory technician on 1 October 2009.  The evidence bag in which the sample was contained and the seal were both intact when handed to the technician.  On 14 October 2009 Intertek provided an analytical report in respect of the sample that was delivered to it on 1 October 2009.  That analytical report demonstrates that the sample did not comply with the fuel standard in the Determination, in relation to the content of sulphur and the distillation temperature at which 95% of diesel was recovered.  In both cases the sample was significantly in excess of the requirements of the standard in the Determination. 

6. In the circumstances, it is clear, on the basis of the material before me, that Fullport has engaged in conduct that would be an offence against the Act. When the matter was called on for hearing today there was no appearance for Fullport. I am satisfied from the evidence of Mr Brendan Moore, given by affidavit of 22 December 2009 and of Ms Angela Nanson by affidavit of 1 February 2010 that Fullport has been adequately served with the application and substantive affidavit of Mr Robertson.

7. The Minister seeks a limited injunction restraining conduct for a period of two years and limited to non-compliance in the two respects to which I have referred.  In the circumstances, I see no reason why the Court should not accede to the application of the Minister for an order restraining Fullport from supplying diesel fuel that does not comply with the standard contained in the Determination. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        5 February 2010