Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc - [2006] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
ONESTEEL MANUFACTURING P/L v WHYALLA RED DUST ACTION GROUP INC
Judgment of The Honourable Justice Debelle
18 April 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Standing – environmental legislation – civil enforcement order – statute confers standing on “any person whose interests are affected by the subject matter of the application” – application by incorporated association – whether interests of association are affected – statute also confers standing on any person who obtains leave – whether association should have leave – effect of legislative change subsequent to initial determination of application – held, association’s interests not affected – not appropriate to grant leave – appeal allowed.
Administrative Appeals Tribunal Act 1975 (Cth) s 27; Broken Hill Proprietary Company's Steel Works Indenture Act 1958 (SA) s 15, Sch 3; Broken Hill Proprietary Company's Steel Works Indenture (Environmental Authorisation) Amendment Act 2005 (SA) Part 2; Development Act 1993 (SA) s 53; Environment Protection Act 1993 (SA) s 25, s 84, s 104; Environment, Resources and Development Court Act 1993 (SA) s 30, referred to.
Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532; Allan v Transurban City Link Ltd (2001) 208 CLR 167; Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Boyce v Paddington Borough Council [1903] 1 Ch 109; Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1; Defence Coalition Against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142; Executive Council of Australian Jewry v Skully (1998) 79 FCR 537; Lockwood Security Products Pty Ltd v Australian Lock Co Pty Ltd (2005) 216 ALR 652; Maxwell v Murphy (1957) 96 CLR 261; North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492; Onus v Alcoa Australia Ltd (1981) 149 CLR 27; R v Judge Stevens; Ex parte Tip Top Dry Cleaners Pty Ltd (1986) 43 SASR 1; Re McHattan & Collector of Customs (NSW) (1977) 18 ALR 154; Right to Life Association (NSW) Inc v Department of Human Services & Health (1995) 56 FCR 50; Shop Distributive & Allied Employees' Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, considered.

ONESTEEL MANUFACTURING P/L v WHYALLA RED DUST ACTION GROUP INC
[2006] SASC 114
Land and Valuation Division

DEBELLE J. This appeal concerns an important question as to the entitlement of persons other than the Environment Protection Authority to bring applications for civil remedies pursuant to the Environment Protection Act 1993.
Section 104 of the Environment Protection Act 1993 (“the Act”) provides that applications may be made to the Environment, Resources and Development Court (“the Environment Court”) for orders to enforce compliance with the Act and for other ancillary relief. Section 104(7) prescribes the persons who have standing to make applications under s 104. It provides:
(7)     An application under this section may be made –
(a)     by the Authority or another administering agency; or
(b)     by any person whose interests are affected by the subject matter of the application; or
(c)     by any other person with the leave of the Court.
The issues in this appeal are whether Whyalla Red Dust Action Group Inc (“the applicant”) is a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b) and whether the applicant has demonstrated that it has an arguable case.
I set out the events leading to the application. As will be seen, this is the second occasion in these proceedings on which an interlocutory appeal has been heard by the Court. As yet, the Environment Court has not dealt with the substance of the application.
An Application under s 104
On 24 September 2004 the applicant applied to the Environment Court for a declaration that it is a person whose interests are affected by the subject matter of an application within the meaning of s 104(7)(b) of the Act. In the alternative, it applied for leave to serve a summons attached to the application. The respondent to the application was OneSteel Manufacturing Pty Ltd (“OneSteel”). By order made ex parte on 29 September 2004 a judge of the Environment Court held that the applicant was a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b). The judge then held that OneSteel had a case to answer and granted leave to serve the summons. The judge also held that it was appropriate to grant the applicant leave pursuant to s 104(7)(c).
By application dated 13 December 2004 OneSteel applied to the Environment Court for an order revoking the orders made on 29 September. The application was heard by a judge, who held that the court did not have the power to revoke the order. The judge therefore dismissed the application. OneSteel appealed to this Court. The appeal was heard by Besanko J, who allowed the appeal on 8 April 2005, holding that a judge of the Environment Court had power to revoke the order. Besanko J remitted the application to the Environment Court.
On 28 July 2005 the application of OneSteel to revoke the order was heard by a judge of the Environment Court. OneSteel submitted
1.that the applicant was not a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b) of the Act; and
2.the applicant had no reasonable prospect of success, having regard to the nature of the application and the orders sought.
On 6 October 2005 the judge held that the applicant was a person whose interests are affected by the subject matter of the application. The judge also held that OneSteel had a case to answer. The judge dismissed OneSteel’s application to set aside the order made on 29 September 2004.
From that decision OneSteel has appealed to this Court. The appeal is brought against an interlocutory order and can be determined by a single judge of this Court: s 30(1)(a) of the Environment, Resources and Development Court Act 1993.
In its summons the applicant sought a series of orders on three main grounds which may be summarised in this way:
1.that OneSteel be restrained from causing, permitting or suffering environmental harm through fugitive dust emissions from its Pellet Plant at its Whyalla Steelworks;
2.that OneSteel be ordered to monitor ambient air quality for particulate matter of a specified size at specified locations, using specified methods as well as related and ancillary relief; and
3.that OneSteel pay damages to persons, whether members of the applicant association or not, who have suffered injury or loss or damage to property as a result of dust pollution caused by OneSteel.
I will later refer in more detail to the relief sought in the summons.
On the hearing of the appeal, there were essentially two issues. The first was whether the applicant was a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b) of the Act. The second was whether OneSteel had a case to answer: see s 104(11) of the Act.
A Person Whose Interests Are Affected
Section 104 of the Act establishes a scheme for civil remedies under the Act. It sets out the kinds of application which may be made and the circumstances in which those applications may be made, the powers of the Environment Court when dealing with such applications, and the persons who may make such applications. Section 104(1) lists the applications which may be made to the Environment Court and the orders which might be sought. It provides:
(1)Applications may be made to the Environment, Resources and Development Court for one or more of the following orders:
(a)     if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act - an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take any specified action;
(b)     if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act - an order requiring the person to take that action;
(c)     if a person has caused environmental harm by a contravention of this Act or a repealed environment law - an order requiring the person to take specified action to make good any resulting environmental damage and, if appropriate, to take specified action to prevent or mitigate further environmental harm;
(d)     if the Authority or any other public authority has incurred costs or expenses in taking action to prevent or mitigate environmental harm caused by a contravention of this Act or a repealed environment law, or to make good resulting environmental damage - an order against the person who committed the contravention for payment of the reasonable costs and expenses incurred in taking that action;
(e)     if a person has suffered injury or loss or damage to property as a result of a contravention of this Act, or incurred costs and expenses in taking action to prevent or mitigate such injury, loss or damage - an order against the person who committed the contravention for payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred in taking that action;
(f)    if the Court considers it appropriate to do so, an order against a person who has contravened this Act for payment (for the credit of the Consolidated Account) of an amount in the nature of exemplary damages determined by the Court;
(g)     an order for enforcement of the provisions of an environment performance agreement.
As already stated, an application under s 104 may be made -
(a)by the Authority or other administering agency; or
(b)by any persons whose interests are affected by the subject matter of the application; or
(c)by any other person with the leave of the Court.
The judge in the Environment Court held that it was reasonably arguable that the applicant’s interests are affected by the subject matter of its application. OneSteel contends that the judge erred in that conclusion.
It is clear that s 104(7)(b) does not permit just any person to make an application. The applicant must be able to demonstrate that his, her or its interests are affected by the subject matter of the application. As Black CJ noted in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 9:
Where Parliament, by giving rights of an important character to those whose “interests are affected” rather than to “any person”, has revealed an intention to require an interest greater than that of any member of the general public, it is unlikely that it intended to extend the notion of “interests” to something that any member of the public could assert, so as to deny significant practical effect to the requirement that a person having an interest greater than that of any ordinary member of the public. So too with affectation.
The applicant must be able to demonstrate not only that the applicant’s interests are affected, but that they are also affected by the subject matter of the application.
The most striking factor about s 104(7) is the juxtaposition of paras (b) and (c). It contrasts “any person whose interests are affected by the subject matter of the application” in para (b) with “any other person” in para (c). Provided leave of the Environment Court is obtained, any person may apply for an order under s 104. Before the Court may grant leave under s 104(7)(c), it must be satisfied as to the matters spelled out in s 104(8), which provides:
(8)Before the Court may grant leave for the purposes of subsection (7)(c), the Court must be satisfied that -
(a)     the proceedings on the application would not be an abuse of the process of the Court; and
(b)     there is a real or significant likelihood that the requirements for the making of an order under subsection (1) on the application would be satisfied; and
(c)     it is in the public interest that the proceedings should be brought.
For present purposes, the important aspect of s 104(7) is that it expressly enables any person to make an application if that person is able to obtain leave. The expression “any person” plainly includes persons who might not qualify as a person whose interests are affected by the subject matter of the application. The class of persons to which para (b) refers is plainly a more restricted class than that to which para (c) refers.
The terms of s 104(7)(b) reflect the test as to standing enunciated in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 by Aickin J, whose judgment at first instance was upheld by the Full Court of the High Court. At 511 Aickin J said that it was an essential requirement for locus standi that it must be related to the relief claimed. He continued:
The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff’s interest should be one related to the relief claimed in the statement of claim.
That is the same test as the test in s 104(7)(b). What s 104(7)(b) requires is that the applicant has an interest which is affected by the subject matter of the application. That is but another way of stating that the applicant has an interest which is related to the relief claimed in the application.
Brennan J examined what is meant by “a person whose interests are affected” in Re McHattan & Collector of Customs (NSW) (1977) 18 ALR 154. In that case, the question was whether Mr McHattan, a customs agent who had given advice for a fee that the entry of goods into Australia would be free of duty, had standing to challenge a decision of the Collector of Customs classifying the goods as being subject to duty. Section 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) enabled an application for a review of that decision by the Tribunal in an application “made by or on behalf of any person or persons … whose interests are affected by the decision.” Mr McHattan claimed that his interests were affected because he might be liable for negligent advice and that his general reputation as a customs agent was affected when his advice was shown to be wrong. Brennan J held that his interests were not affected by the decision. At 157 Brennan J said:
The interest of which s 27(1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the demand whatever the outcome of a review might be.
The question whether an applicant’s interests would be affected was not, therefore, determined by the possible outcome of the proceedings. The relevant interest had to be one which was affected by the Customs demand for payment of duty, which was the subject matter of the application.
Later (at 157), Brennan J referred to the difficult question of fact as to whether a person’s interests are affected by the subject matter of the application in these terms:
However, a decision which affects the interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interests, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.
As Brennan J then noted, there are no hard and fast rules. In Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259 Davies J pointed out that Brennan J “did not propose that any ripple of affection would be sufficient to support an interest”. I prefer a different metaphor. The effect of the reasons of Brennan J is that it is necessary for the plaintiff to be in the correct pond if the ripple of affection is to affect his interests.
The rule must be flexible because the question whether an applicant under s 104 has standing will be affected by the particular subject matter of the application. Care must be taken to examine each case on its own merits. Care must also be taken not to apply uncritically the meaning of the expression “person whose interests are affected” in other statutes. The starting point is the construction of the relevant Act with regard to its subject, scope and purpose: Allan v Transurban City Link Ltd (2001) 208 CLR 167 at [16]. It will then be necessary to examine the subject matter of the application in question. To adopt the remarks of the majority of the High Court in Allan v Transurban City Link Ltd at [17], with which Kirby J agreed at [54], what serves to identify a person as one affected by the subject matter of an application will vary according to the nature of the particular application. There can be no hard and fast rule in relation to s 104(7)(b). The resolution of the question whether a person qualifies as a person whose interests are affected by the subject matter of the application will vary according to the nature of the application.
The meaning of the expression “any person whose interests are affected by the subject matter of the application” is informed by consideration of the kinds of orders which may be sought under s 104(1). Viewed as a whole, s 104 authorises the Environment Court to make orders to restrain persons from causing environmental harm or environmental damage. There is the further power to make an order to enforce an environmental performance agreement. An applicant may seek an order restraining a contravention of the Act or an order correcting a refusal or failure to take action required by the Act: s 104(1)(a) and (b). As the Act is concerned to prevent conduct which damages the environment, applications will usually be intended to restrain environmental harm or damage. Paragraphs (c) and (e) directly refer to orders to restrain environmental harm or damage caused by a contravention of the Act. If the applicant has suffered injury or loss or damage to property, the applicant may seek compensation. If the applicant has incurred costs in preventing or mitigating injury or loss or damage, the applicant may recover the reasonable costs and expense of taking that mitigating action. There is a power for the Court to order payment of exemplary damages, but exemplary damages must be paid to the Consolidated Account, not to the applicant.
The ability to apply for compensation for personal injury or for loss or damage to property provided in para (e) plainly suggests that the applicant in such a case is a person who is able to establish personal interests which have been adversely affected by the conduct complained of in the application. The applicant might be a natural person or a group of persons. The applicant might also be an incorporated body which is able to establish loss or damage. One example is a company which trades as a new and used car dealer and stores its cars in the open. It may suffer loss if pollutants or fallout from manufacturing premises cause damage to the paintwork of its stored motor cars.

The fact that the terms of s 104(7)(b) require that the applicant is a person whose interests are affected by the suspect manner of the application indicates that the applicant must be able to point to the manner in which he, she or it is affected by the conduct which gives rise to the application. A person’s interests will be affected by the subject manner of the application if that person will benefit in some way from the orders which are sought in the application.
I do not mean to suggest that the interests to which s 104(7)(b) refer must be limited to a proprietary interest. In Alphapharm (supra) at 272 Gummow J said:
Like the expression “a person aggrieved”, the phrase “a person whose interests are affected by the decision” and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the “interests” concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.
I acknowledge also that in recent years courts in Australia have shown an increasing tendency, though not always consistent, to construe the expression person whose interests are affected liberally: Byron Environment Centre (supra) per Lockhart J at 18 – 19. However, as already noted, the meaning and content of the expression “person whose interests are affected” will be determined by the subject, the scope and the purpose of the relevant legislation. The expression has no universal meaning. Its meaning will be particularly affected by any expression which qualifies the nature of the interest. Decisions concerning the expression “a person whose interests are affected” in other statutes may not, therefore, assist except to the extent that they spell out matters of principle.
I turn to consider the subject matter of the application. It concerns fugitive dust emissions from OneSteel’s Pellet Plant at Whyalla. The applicant seeks to restrain OneSteel from causing environmental harm through fugitive dust emissions from that plant and to require OneSteel to keep records and monitor its emissions until 1 June 2008. The applicant also seeks to recover damages, not on its own behalf, but on behalf of third persons whether or not they are members of the applicant. The applicant is, therefore, concerned with emissions from OneSteel’s works at Whyalla, with recording and monitoring those emissions and with compensation for damage caused by those emissions.
The judge in the Environment Court defined the subject matter of the application as the situation that the applicant desires to have addressed by the remedies sought, namely, the breach or threatened breach of the public duty by the respondent and its consequences as alleged by the applicant. The judge then held that the subject matter of this application was the alleged breach of OneSteel’s duty under the Act and the alleged consequence of that breach, namely, the ongoing pollution of the environment of Whyalla or part of the town of Whyalla by dust emissions from OneSteel’s Pellet Plant. The definition fails to have regard to the remedies sought which are an inherent part of the application. I do not think that the judge’s definition is entirely correct. Instead, the subject matter of the application is constituted by the acts or omissions which the applicant seeks to remedy and by the relief or remedies which the applicant seeks. Both are necessary elements of the subject matter of the application. In addition, a necessary element of the application is a contravention of the Act or a refusal or failure to take action required by the Act.
The applicant is an incorporated association. It has 45 members. It was formed by residents concerned about dust pollution and other environmental issues involving the steel works operated by OneSteel and, in particular, its Pellet Plant. Its membership comprises persons who live, work or own property in areas affected by dust from the Pellet Plant. Most of its members live in those areas. It is not entirely clear whether all of its members live, work, or own properties in areas affected by dust from the Pellet Plant.
The applicant is plainly an organisation with a strong commitment to do all within its power to improve the environment at Whyalla and, in particular, to improve the quality of air in Whyalla by removing or reducing industrial pollution, including red dust pollution. It has evolved from earlier unincorporated associations which had the same objects. It is an active lobby group. It provides information to the Environment Protection Authority, including photographs and written and oral reports of incidents relating to red dust pollution from OneSteel’s works at Whyalla. It has commissioned the preparation of technical reports on public health and amenity issues associated with particulate pollution from OneSteel’s works at Whyalla. It has been recognised by officers of the Environment Protection Authority as being instrumental in making the Authority aware of the magnitude of the red dust problem at Whyalla. It has arranged visits to Whyalla by the Minister for Environment and Heritage, the Chief Executive Officer of the Environment Protection Authority and a management team from the Department of Human Services. It is, however, unable to identify any interest which is affected by the subject matter of the application other than an intellectual or emotional interest in the protection of the environment.
An examination of the objects of the applicant re‑inforces that conclusion. Its objects are:
(a)the protection and enhancement of all aspects of the environment in and around Whyalla;
(b)to campaign against industrial pollution in Whyalla;
(c)to undertake community education to increase awareness within the community about the environmental aspects of pollution and other local environmental issues;
(d)to protect the land in and around Whyalla from inappropriate development;
(e)to empower and encourage the community to protect the environment;
(f)to protect ecologically sustainable development;
(g)to promote public interest in environmental litigation;
(h)to seek appropriate law reform to improve environmental protection; and
(i)to promote links between the association and similar organisations interstate and overseas.
Those are the objects of a public interest group which advocates protection of the environment in Whyalla. Those objects will not in any sense be affected by the subject matter of the application and, if contrary to the conclusion above that the outcome of the application is relevant, those objectives will not be affected by the outcome.
The fact that the applicant seeks to recover damages on behalf of other persons, including exemplary damages, forcibly demonstrates that it is not a person whose interests are affected by the subject matter of the application. It does not point to any respect in which it has suffered any injury, loss or damage in consequence of the emissions. In addition, neither an order restraining OneSteel from causing environmental harm by its emissions, nor an order that OneSteel record and monitor emissions, will in any way affect the interests of the applicant, except perhaps to satisfy its intellectual or emotional concern for the environment. The interests of the applicant after the application is heard will be no different from its interests before the application is heard. Its interests are not, therefore, affected in any sense by the subject matter of the application.
The applicant stands in stark contrast to a corporation which is able to point to loss or damage to property which might be the subject of the application under s 104. There will be occasions when a corporate body will have standing as a person whose interests are affected by the subject matter of the application. One obvious example, already mentioned, is that of a company whose business is selling new and used motor cars which suffers loss through air pollution.
The persons whose interests are affected by the application are its members but an incorporated association does not become a person whose interests are affected by the subject matter of the application simply because some of its members are so affected: Right to Life Association (NSW) (Inc) v Department of Human Services & Health (1995) 56 FCR 50 per Lockhart J at 67; Defence Coalition Against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142 at 150. The decisions in North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492 and in Executive Council of Australian Jewry v Skully (1998) 79 FCR 537 are to be distinguished on a number of grounds, including that those decisions concern the expression “person aggrieved” which involves different issues from the question whether a person is affected by the subject matter of an application. As Goldberg J noted in Lockwood Security Products Pty Ltd v Australian Lock Co Pty Ltd (2005) 216 ALR 652 at [28] and [29], as a general rule, the expression “a person interested” is narrower than the expression “a person aggrieved”. That will be especially so when the expression “a person interested” is qualified by a description of the matter in which the person must have that interest.
The applicant relied on the decision in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. However, that decision does not assist as the respondents in that case had an obvious commercial interest which the applicant in this case does not. The respondents in that case had standing because they were operating in substantially the same limited market, so that it was highly probable that, if not restrained, the respondents would suffer severe financial detriment as a result of the appellant’s unlawful activities. The respondents therefore had an interest which was immediate, significant and peculiar to them. The decision in Shop Distributive & Allied Employees’ Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 does not support the application because, in that case, it was conceded that the union had the same interests as its members in preventing Sunday trading in shops. OneSteel does not make any like concession in this case. These decisions must also be distinguished because they concern the special interest required to give standing under the second limb of the proposition formulated by Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109. In neither case did the court have to consider the meaning of “person whose interests are affected by the subject matter of the application”.
The applicant is not able to point to any interest which is affected by the subject matter of the application other than perhaps an intellectual or emotional concern for the environment of Whyalla. It is unable to point to any physical injury or harm. It has no property which is affected by the subject matter of the application. It has no interests of its own which might be affected other than indirectly through those of its members who might be affected. The evidence does not disclose how many of its members are affected. All that is known is that some of its members live, work or own property affected by dust from OneSteel’s plant. One possible corollary is that some of its members may not be affected at all.
In the ACF Case at 530, Gibbs J explained why a special interest in the environment does not provide an entitlement to sue. He said:
I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds, or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.
Mason J at 548 agreed with the concluding sentence of that extract. Stephen J expressed a similar view at 539 when he said:
An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern.
In Onus v Alcoa Australia Ltd (1981) 149 CLR 27 at 36 – 37 Gibbs CJ reaffirmed the views he expressed in the ACF Case, noting that the fact that a person has an intellectual or emotional concern is not in itself a barrier to standing. As Stephen J noted at 41, it will be:
… but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter.
If a special interest in the environment is not sufficient to give a plaintiff standing in public interest litigation, a fortiori it is not an interest which is likely to be sufficient to provide standing as a person whose interests are affected by the subject matter of an application under s 104. I repeat, the applicant’s special interest in the environment of Whyalla will not be affected by the subject matter of its application.
Parliament has provided that, in addition to the Environment Protection Authority, two other classes of persons might make applications under s 104. The fact that the Court is able to grant leave to any person, even if that person does not have interests which are affected by the subject matter of the application, re‑inforces the conclusion that unless the applicant is able to show that it is affected in some way by the subject matter of the application, the applicant is not a person whose interests are affected by the subject matter of the application.
For these reasons, the applicant is not a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b).
This decision does not prevent the members of the Association from combining to bring proceedings against OneSteel. Section 104(10) expressly provides for representative proceedings. It states:
An application under this section may be made in a representative capacity (but, if so, the consent of all persons on whose behalf the application is made must be obtained).
Those members of the applicant who are affected by any environmental harm caused by contravention of the Act or by a refusal or failure to take any action required by the Act may combine in such a representative action.
Leave under s 104(7)(c)
Notwithstanding that the applicant is not a person who falls within the meaning of s 104(7)(b), it is entitled to seek leave pursuant to s 104(7)(c). The question whether it should be granted leave requires, among other things, a consideration of the question whether OneSteel has a case to answer: see s 104(11) which provides
(11)An application may be made ex parte and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.
I will, therefore, first examine whether OneSteel has a case to answer.
A Case to Answer?
The judge in the Environment Court held that OneSteel had a case to answer. However, since Her Honour made that decision, there has been a material change in the relevant facts, in that Parliament has enacted the Broken Hill Proprietary Company’s Steel Works Indenture (Environmental Authorisation) Amendment Act 2005 (“the Indenture Act”). The Indenture Act came into operation on 3 November 2005. The Indenture Act amended the Broken Hill Proprietary Company’s Steel Works Indenture Act 1958. As the name of the Indenture Act suggests, its purpose is to grant environmental authorisation under the Environment Protection Act. The terms of the environmental authorisation have an important bearing on the question whether OneSteel has a case to answer. The environmental authorisation is set out in Sch 3 of the Indenture Act.
Subject to the principle expressed by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 266‑267, in the absence of any provision to the contrary, the issues in any legal proceeding, including an appeal hearing, will be determined in accordance with the law in force at the date of the hearing: see, for example, Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532. An example of a contrary provision is s 53 of the Development Act 1993 which provides that the relevant law is the law in force at the date when an application under that Act is made. There is no such provision in the Environment Protection Act. The question whether OneSteel has a case to answer must, therefore, be determined according to the law now in force. In addition, the licence granted by the Indenture Act is the licence for OneSteel’s operations from 3 November 2005, the date when the Indenture Act commenced operation. The application made by the applicant concerns the operations of OneSteel and so must be subject to the provisions of the Indenture Act.
The application was prepared by reference to the licence issued to OneSteel in 2000. I will consider the application by reference to the licence issued under the Indenture Act. In the course of its submissions, the applicant sought to rely on an amended licence issued to OneSteel in 2005. That licence is irrelevant because it has been replaced by the licence granted by the Indenture Act. In short, when considering whether OneSteel has a case to answer, the only relevant licence is the licence granted by the Indenture Act.
Schedule 3 provides an environmental authorisation under Part 6 of the Indenture Act and in accordance with s 36 of the Environment Protection Act the authorisation takes the form of a licence. The licence authorises OneSteel to undertake activities of environmental significance which are set out in the licence. Those activities cover the present operations of OneSteel’s Whyalla Steel Works. Section 15 of the Indenture Act empowers the Minister to vary the environmental authorisation, but only after consultation with OneSteel: see ss 15(2) and (3). Section 15(4) prevents the Environment Protection Authority from varying the environmental authorisation. Section 15(7) provides that the licence is for a period of ten years from 5 November 2005.
The licence does not fix maximum pollution levels for iron ore dust emissions. Although conditions 1 to 9 of the licence, which relate to air pollution, apply generally to the whole of OneSteel’s works at Whyalla, some conditions expressly relate to the Pellet Plant. They are conditions 3 and 4 which provide:
3.The licensee must take all reasonable and practicable measures to ensure that, at the ore processing area:
3.1 dust build-up is removed regularly from all areas to minimise airborne dust; and
3.2 all frequently trafficked dirt roadways and mobile equipment working areas are regularly treated for dust suppression using water or a dust suppression agent.
4.The Licensee must take all reasonable and practicable steps to ensure that the Pellet Plant Reclaim Shed doors are kept closed when the plant is operating in order to minimise fugitive particulate emissions.
Condition 4 reflects condition 11 of the licence issued to OneSteel in 2000. Condition 11 had read:
11.The Licensee shall ensure that the Pellet Plant Reclaim Shed doors are kept closed when the plant is operating, except for the immediate passage of vehicles, in order to minimise fugitive particulate emissions.
Condition 4 is expressed in terms which impose a less rigorous standard with which to comply than the previous condition 11.

Although there is no provision in the licence which imposes any control on the nature of any emissions from OneSteel’s works at Whyalla, the licence does, however, by conditions 5, 7, 8 and 9 require OneSteel to implement a system of record keeping and monitoring of emissions from its steel works. The records have to be submitted to the Authority. In addition, conditions 9.1 and 9.2 require certain operations to be relocated and for others to be upgraded, so as to reduce generation and disposal of iron ore dust. Condition 9.1 is especially relevant. It provides:
9.1Crushing and Screening activities will be relocated from the Ore Processing area to the South Middleback Ranges mine site in order to reduce iron ore dust generation and subsequent dispersal outside the Premises. Only small scale occasional iron ore and iron ore products mobile crushing and screening activities will occur at the pellet plant area of the Whyalla Steelworks after the relocation which may generate dust from time to time.
Thus, one of the main contributors to red dust is to be relocated to the South Middleback Ranges.
Of particular relevance in this appeal is the declaration at the foot of the licence. It reads:
For the purpose of sections 25(3)(b) and 84(1)(b) of the Environment Protection Act 1993 it is hereby provided that:
(a)compliance with conditions 1, 2, 3, 4, 5, 6, 7, 8 and 9 of this licence will satisfy the Licensee’s general environmental duty under section 25 of the Environment Protection Act 1993 in relation to the form of air pollution in respect of which these conditions are concerned; and
(b)compliance with conditions 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 will satisfy the Licensee’s general environmental duty under section 25 of the Environment Protection Act 1993 in relation to the form of solid, liquid or gaseous waste discharge pollution in respect of which these conditions are concerned.
Thus, compliance with conditions 1 to 9 inclusive of the licence will satisfy OneSteel’s general environmental duty under s 25 of the Act in relation to air pollution.
Section 25(3)(b) of the Act provides a defence in any proceedings, be they criminal or civil proceedings, where it is alleged that a person has failed to comply with a duty under s 25. Section 84(1)(b) provides a defence in any proceedings (be they criminal or civil) in which it is alleged that a person has contravened Part 9 of the Act. Part 9 lists a number of offences where persons have caused environmental harm or environmental nuisance. Section 25(3) provides:
(3)In any proceedings (civil or criminal), where it is alleged that a person failed to comply with the duty under this section by polluting the environment, it will be a defence -
(a) if -
(i)maximum pollution levels were fixed for the particular pollutant and form of pollution concerned by mandatory provisions of an environment protection policy or conditions of an environmental authorisation held by the person, or both; and
(ii)it is proved that the person did not by so polluting the environment contravene the mandatory provisions or conditions; or
(b) if -
(i)an environment protection policy or conditions of an environmental authorisation provided that compliance with specified provisions of the policy or with specified conditions of the authorisation would satisfy the duty under this section in relation to the form of pollution concerned; and
(ii)it is proved that the person complied with the provisions or with such conditions of an environmental authorisation held by the person.
Section 84(1)(b) is to all and intents and purposes in the same terms as s 25(3), save that it applies to the contravention of Part 9 as distinct from a failure to comply with a duty under s 25. For present purposes, s 25(3)(b) is relevant, given the fact that the licence does not fix maximum pollution levels and, more importantly, given the fact that declaration provides that compliance with specified conditions which will satisfy OneSteel’s duty under s 25 of the Act. The effect of the declaration, therefore, is to provide a complete defence to any application for a civil remedy under s 104 of the Act, so long as OneSteel complies with the conditions of its licence. As I will shortly note, there is no allegation by the applicant in its application under s 104 that OneSteel is not complying with the conditions of the licence.
It is necessary to examine the terms in which the applicant has expressed its application. The applicant attached a summons to its application. The summons sets out the relief which the applicant seeks. I set it out in full, save for some tables. I will summarise the effect of those tables.
1.That the Respondent be restrained from causing, permitting or suffering environmental harm through fugitive dust emissions from the Respondent’s “Pellet Plant” at the Whyalla Steelworks.
2.That the Respondent be ordered to monitor ambient air quality for particulate matter of size 10 microns or less (PM10) and 2.5 microns or less (PM2.5) [at nominated locations in a table which follows para 2, using the methods and at the frequencies nominated in that table].
3.That the Respondent be ordered to provide the results of the monitoring referred to above to the applicant on a weekly basis until 1^st June 2008.
4.That the Respondent be ordered to reduce its total dust emissions from the Pellet Plant over time so that the ambient air quality (measured as PM10) at each of the monitoring sites listed in tables (a) and (b) below does not exceed the amount specified in the “threshold level” column on more than the number of occasions set out in the “allowable exceedances” column in any consecutive 12 month period after the date set out in the “compliance date” column. Where monitoring is not continuous (through design, malfunction or any other reasons), the number of measured exceedances shall be extrapolated to any days on which monitoring was not effectively undertaken. [Tables (a) and (b) then follow in the summons.]
5.That the Respondent be ordered to issue Public Health Alerts whenever the results of monitoring at any of the monitoring stations listed in the table below shows levels of PM10 in ambient air quality greater than the amounts listed as “alert thresholds” for the averaging periods listed in the table. [The table then follows.]
6.Public Health Alerts are to be issued (in a manner to be determined by the Court) as soon as reasonably practicable but in any case within 2 hours of the respondent becoming aware of the alert threshold having been exceeded.
7.The wording of a Public Health Alert should be in the following terms (or such other terms as the Court may order): “Monitoring of ambient air quality in Whyalla shows that dust levels are currently high. Dust at this level may have an adverse effect on health. It is recommended that precautions be taken to reduce exposure to dust especially by those with respiratory and heart conditions and those undertaking physical exercise. Further information can be found at [insert URL of appropriate websites and appropriate telephone numbers].”
8. The Respondent shall invite (in a manner determined by the Court), members of the Whyalla community (including individuals and corporate bodies) to register with the Respondent their desire to receive Public Health Alerts. Any such individuals or bodies who register shall be notified of Public Health Alerts by the Respondent by phone, fax, email or such other method as the Court may determine.
9.Payment by the Respondent to persons (whether members of the Applicant association or not) who have suffered injury or loss or damage to property, including property maintenance or cleaning costs and health costs incurred as a result of dust pollution caused by the Respondent. The identity of those to be compensated and the amount and method of compensation to be ascertained in a manner to be determined by the Court.
10.Exemplary damages.
11.Costs.
12.Such other orders as the Court sees fit.
Section 104(1) requires an application by a person other than the Authority to identify either
1.conduct in contravention of the Act in which the respondent has engaged, is engaging or is proposing to engage: s 104(1)(a); or
2.a failure to take any action required by the Act which the respondent has refused or failed to take, is refusing or failing to take or is proposing to refuse or fail to take: s 104(1)(b); or
3.a contravention of the Act by the respondent which has caused environmental harm: s 104(1)(c).
Thus, s 104 requires that the applicant establish either a contravention of the Act or a refusal or failure to take action required by the Act. (When I refer to a contravention or a refusal or failure to take action required by the Act, I mean a contravention or a refusal or failure in all the senses expressed in s 104(1).) In this Act “contravention” includes a failure to comply with the Act: see s 3 of the Act.
Nowhere in its summons does the applicant allege any contravention of the Act or any refusal or failure by OneSteel to take any action required by the Act. There is no allegation of any failure to comply with the conditions of the licence granted to it in 2000. The summons does no more than seek an order restraining OneSteel from causing environmental harm through fugitive dust emissions. It then seeks a series of orders requiring
·the recording of ambient air quality at certain stations and at certain frequencies;
·the provision of those results to the applicant on a weekly basis until 1 June 2008;
·OneSteel to reduce its dust emissions to a nominated level;
·OneSteel to issue Public Health Alerts in the terms specified in para 7 of the order;
·requiring OneSteel to invite persons in Whyalla to register their desire to receive Public Health Alerts; and
·OneSteel to pay compensation to those who have suffered injury or loss or damage to property as a result of dust pollution.
Not only does the summons fail to state any allegation of a contravention of the Act by OneSteel, or of a refusal or failure by OneSteel to take action required by the Act, but there is also a complete absence of any such allegation in the two affidavits of Mr Kittel and in the affidavit of Ms Muirden, all of which were sworn in support of the application. Indeed, as already noted, at para 16 Ms Muirden expressly states that she does not know whether OneSteel is complying with condition 11 of the licence granted in 2000 which is now reflected in condition 4 of the licence granted under the Indenture Act. The fact that a licence in different terms was granted to OneSteel by the Indenture Act renders most of Ms Muirden’s affidavit irrelevant.
The judge in the Environment Court applied the test adopted by the Full Court in R v Judge Stevens; Ex parte Tip Top Dry Cleaners Pty Ltd (1986) 43 SASR 1 at 11, namely that the determination whether there is a case to answer involves an assessment as to whether there is some reasonable basis of evidence which, if it was accepted by the court, would be capable of establishing on the balance of probabilities the matters required to be proved. Although I have doubts whether that test is entirely appropriate to this Act, I am prepared to adopt it, particularly as OneSteel did not seek to argue that it was inappropriate. The applicant has not discharged this onus in any respect. The application and the affidavits filed in support of the application are entirely devoid of any evidence of such facts. They do not allege any contravention of the Act or a refusal or failure to take action required by the Act.
The licence granted by the Indenture Act does not require OneSteel to limit its dust emissions to a prescribed level. In addition, the declaration at the foot of the licence provides that compliance with conditions 1 to 9 of the licence will satisfy OneSteel’s general environmental duty under s 25 of the Act in relation to air pollution. In the absence of any allegation or evidence of a failure to comply with conditions 1 to 9, the applicant fails to establish a case of the kind identified in R v Judge Stevens, a conclusion which is re‑inforced by s 25(3)(b) of the Act. Another difficulty for the applicant is that the orders sought as to recording and monitoring dust emissions seek to impose a régime over and above the obligation in OneSteel’s licence in that respect. Neither the summons nor the affidavits in its support disclose any ground upon which an order can be made requiring OneSteel to engaged in a régime which is more rigorous than that contained in its licence.
If OneSteel has complied with the provisions of the licence granted by the Indenture Act, it has a defence to the application. The absence of any allegation that OneSteel has failed to comply with the provisions of the licence raises a real barrier for the applicant. The applicant has the burden of proving a failure by OneSteel to comply with the provisions of the licence. In the absence of any allegation or evidence to show that OneSteel has failed to comply with the provisions of its licence, the applicant cannot establish that it has a reasonably arguable case.
The applicant has not demonstrated that OneSteel has a case to answer. There is simply no evidence which demonstrated any failure by OneSteel to comply with the terms of its licence. The application by the applicant for leave to serve the summons should, therefore, be refused. It follows that the applicant should not have leave pursuant to s 104(7)(c) to make an application.
As the applicant is not a person who comes within s 104(7)(b) and seeks leave under s 104(7)(c), it must also satisfy s 104(8). It is convenient to repeat its terms:
(8)Before the Court may grant leave for the purposes of subsection (7)(c), the Court must be satisfied that -
(a)     the proceedings on the application would not be an abuse of the process of the Court; and
(b)     there is a real or significant likelihood that the requirements for the making of an order under subsection (1) on the application would be satisfied; and
(c)     it is in the public interest that the proceedings should be brought.
Paragraph (b) of sub‑s (8) is expressed in terms which appear to establish a more rigorous test than that expressed in R v Judge Stevens. It is unnecessary to express a final conclusion whether it does. It is sufficient to note that, even on the test in R v Judge Stevens, the applicant fails to establish a case to answer and that it sufficient ground to refuse leave.
Conclusion
For all of these reasons, the appeal must be allowed. There will be an order setting aside the decision of the Environment, Resources and Development Court, and in lieu thereof, there will be an order that the applicant’s application pursuant to s 104 of the Environment Protection Act 1993 is dismissed.