OneSteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc

[2005] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division)

ONESTEEL MANUFACTURING PTY LTD v WHYALLA RED DUST ACTION GROUP INC

Judgment of The Honourable Justice Besanko

8 April 2005

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS

Appeal against an order made by Judge of the Environment, Resources and Development Court – where respondent made an ex parte application for various orders under s 104 of the Environment Protection Act 1993 on the basis that it was a person whose interests are affected by the subject matter of the application or, alternatively, that it should be granted leave to make the application – where Judge found that the respondent was a person whose interests are affected by the subject matter of the application and made an order granting leave to the respondent to serve a summons on the appellant – where the orders made by the Judge were not drawn up and it was not clear whether a declaration of standing had been made – where appellant sought an order revoking the orders of the Judge – where Judge held she did not have the power to revoke the orders and dismissed appellant’s application – whether Judge had the power to revoke the orders – whether Judge erred in making the orders ex parte – whether it is arguable that Judge made a declaration of standing – whether a declaration of standing may be made ex parte – appeal allowed, order dismissing appellant’s application set aside and the appellant's application to be relisted for hearing in the Environment, Resources and Development Court.

Environment, Resources and Development Court Act 1993 s 30; Environmental Protection Act 1993 ss 25, 104; Associations Incorporation Act 1985; Supreme Court Rules 1987 r 98, referred to.

ONESTEEL MANUFACTURING PTY LTD v WHYALLA RED DUST ACTION GROUP INC
[2005] SASC 135

Land and Valuation Division

1. BESANKO J: This is an appeal by OneSteel Manufacturing Pty Ltd (“OneSteel”) against an order made by a Judge of the Environment, Resources and Development Court (“the ERD Court”). The appeal is brought pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (“the ERD Court Act”).  The order which is the subject of the appeal is an interlocutory order and in those circumstances the appeal lies to a single Judge of this Court.  The appeal raises questions of law, and therefore lies as of right (30(2) of the ERD Court Act).

2. The respondent to the appeal is Whyalla Red Dust Action Group Incorporated, (“Whyalla Red Dust”) and it is an association incorporated under the Associations Incorporation Act 1985.  It is said to be a non-profit incorporated association representing the residents of East Whyalla in the State of South Australia.  It is said that it was formed by residents concerned about dust pollution from a pellet plant operated by OneSteel and forming part of the Whyalla Steelworks.

3. Whyalla Red Dust seeks various orders under s 104 of the Environment Protection Act 1993 (“EPA”) against OneSteel in relation to the operation of the pellet plant and fugitive dust emissions. It is unnecessary to set out the details of the various orders sought by Whyalla Red Dust. It appears that the basis of the application is the general environmental duty in s 25 of the EPA. The application is made under s 104 of the EPA and that section prescribes who may make an application for orders under the section. An application may be made under s 104 by three categories of persons, namely, the Environment Protection Authority (“the Authority”) or a person whose interests are affected by the subject matter of the application or by any other person with the leave of the Court (s 104(7)). The Court must be satisfied of certain matters before granting leave to a person to make an application (s 104(8)). Subsections 104(7) and (8) are in the following terms:

   “(7)    An application under this section may be made—

   (a)     by the Authority; 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.

   (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.”

4. Whyalla Red Dust asserts that it is a person whose interests are affected by the subject matter of the application (s 104(7)(b)), or in the alternative, it asserts that it should be granted leave to make the application (ss 104(7)(c) and 104(8)). 

5. An application under s 104 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 s 104 (s 104(11)). Section 104(11) is in the following terms:

   “(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.”

6. Whyalla Red Dust made an application ex parte under s 104(11) and it was heard by the Judge who made orders on 29^th September 2004.  Unfortunately, the orders made by the Judge on 29^th September 2004 were not drawn up.  On the present application, the Judge described what she did on 29^th September 2004 in the following terms:

   “On 29^th September 2004 the court heard the application ex parte and determined as follows:

   1.    The applicant [Whyalla Red Dust] is a person whose interests are affected by the subject matter of the application and therefore falls within a category of persons who can apply to the Court;

   2. That based on the affidavits filed in the Court, but not including those parts of the Muirden affidavit that alleged breaches of the Environment Protection Act prior to 24 September 2001, the respondent [OneSteel) has a case to answer; and

   3     That a summons issue in the form of that which has been filed.”

7. The summons was served on OneSteel.  On 13^th December 2004 it issued an application seeking the following orders:

   “1.An Order revoking the Declaratory Order made on 29^th day of September 2004 that the applicant [Whyalla Red Dust] is a person whose interests are affected by the subject matter of the application within the meaning of s 104(7)(b) of the Environment Protection Act 1993.

   2.An order revoking the order made on 29^th September 2004 granting leave to the applicant [Whyalla Red Dust] to serve the summons filed herein and dated 24^th September 2004.”

8. The Judge heard OneSteel’s application on 16^th December 2004, and on 22^nd December 2004 she made an order dismissing the application.  The appeal by OneSteel is against the order made on 22^nd December 2004 dismissing its application.

   The Judge’s reasons

9. On OneSteel’s application to revoke the order made on 29^th September 2004 two matters were argued before the Judge. First, OneSteel submitted that by reason of s 104(19) the Court had the power to revoke the order. That subsection is on the following terms:

   “(19)The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.”

10. Secondly, OneSteel submitted that the order made by the Judge on 29^th September 2004 is not an order which can be made ex parte.  There was only passing reference before the Judge to the grounds upon which OneSteel said, on the merits, the order should be revoked.

11. As to the first submission the Judge took the view that s 104(19) does not give the Court the power to revoke final orders save and except to make a correction where there has been an obvious slip. Nor did she think that s 104(19) gives the Court the power to overturn a decision that the Court had jurisdiction. She said at [33]:

    “Having accepted that an applicant and an application is within the jurisdiction of the Court given to it by s 104 of the Environment Protection Act, it is inappropriate for the Court to subsequently overturn its own decision and deny that it has jurisdiction, by revoking the order whereby it accepted that it had jurisdiction. This would amount to an appeal ‘from Caesar to Caesar’.”

12. The appellant challenged this reasoning.

13. The conclusion by the Judge which I have set out was sufficient to dispose of OneSteel’s application.  She has no power to revoke previous order.  However, the Judge went on to consider OneSteel’s second submission that the order the Judge made on 29^th September 2004 is not an order which can be made ex parte.  The Judge rejected that submission.  In her opinion, the Court is authorised, but not obliged, to hear an application for leave to serve ex parte.  The Judge said the Court may determine that an application should not be heard ex parte and may adjourn an application so that it can hear from the intended respondent.  On the other hand, the Judge said that the Court has the power to hear the application ex parte.

14. A question arises as to whether the first determination the Judge made on 29^th September 2004 (see [6]) is an order of the Court. If it is, it can only be a declaratory order of the Court. I note that it is expressed in final rather than provisional terms. Whyalla Red Dust applied for a declaration that it is a person whose interests are affected by the subject matter of the application within s 104(7)(b) of the EPA. OneSteel’s application refers to the first determination as a declaratory order and seeks to have it revoked. Unfortunately it is not entirely clear from the Court record whether the first determination is a formal order or is no more than a statement of a conclusion reached by the Judge as part of her reasoning towards the conclusion that leave to serve should be granted. On the one hand, it is expressed in terms suggesting that it is a final determination that the applicant has established that it is a person whose interests are affected by the subject matter of the application. On the other hand, in dealing with OneSteel’s application to revoke the orders the Judge discussed the nature of the first determination in terms suggesting that it was not a final determination of that issue. The question the Judge said she asked herself on 29^th September 2004 was whether “on the face of the documents supporting the application the applicant is a person whose interests are affected by the subject matter of the application”. The Judge said that she did not agree with the view expressed in another case that the Court must satisfy itself, once and for all, that the applicant had standing at the time the Court decided whether to grant leave to the person seeking to bring proceedings. On balance I do not think it is an order, nor do I think that it is a final determination of the question whether Whyalla Red Dust has brought itself within s 104(7)(b). I think all the Judge did was to decide that on the face of it Whyalla Red Dust brought itself within s 104(7)(b). For reasons I will give, that is an appropriate approach.

15. I should add that in my opinion a Judge would not have the power to make a final determination of the issue on an application under s 104(11) which is heard ex parte.  It is undesirable that there be any uncertainty about the effect of the first determination and I will hear the parties as to whether I should make any order in relation to it.

    Issues on appeal

16. The first question is one of the existence of a power and not the circumstances in which the power may be exercised.  There is no authority on the point and it is to be resolved as a matter of statutory construction  The decision made by the Judge on 29^th September 2004 granting leave to serve the summons was an order of the Court and it was an interlocutory order. It was not an order which finally determined the rights and interests of the parties. In a sense it was a final decision to grant leave to serve but that may be said of many interlocutory orders and it does not mean that the order is a final order. I see no reason to read down s 104(19) to exclude from its scope an order granting leave to serve. In fact, I think the subsection is wide enough to embrace all orders made under s 104 including final orders, although the circumstances in which a final order will be set aside are likely to be quite limited. It is not uncommon for a court to reconsider whether it should have made an interlocutory order on an ex parte hearing, and I do not think the fact that the order grants leave to serve a summons makes any difference. The Judge erred in dismissing OneSteel’s application to revoke the order made by her on 29^th September 2004 on the basis that she did not have the power to revoke the order. I should add that before me Whyalla Red Dust did not submit any argument in support of a submission that s 104(19) did not give the Judge the power to revoke the order she had made on 29^th September 2004.  In effect, it did not seek to uphold the Judge’s reasoning on that point.

17. Counsel for the appellant went further and submitted that the Judge should not only have found that she had the power to revoke the order but she should have exercised the power to revoke the order granting leave to serve on the ground that she did not have the power to make that order in the absence of OneSteel, that is, ex parte. As I understand it, OneSteel submitted that only an application for leave to serve a summons by the Authority could be heard ex parte under s 104(11). Insofar as Whyalla Red Dust sought to establish that it was a person with standing to make the application on the basis that its interests are affected by the subject matter of the application, I reject that submission. Section 104(11) provides that an application may be made ex parte and it seems to me that it is within the discretion of the Judge to determine whether the application is heard ex parte or whether it is adjourned and notice is given to the proposed respondent. A Judge hearing an application for leave to serve a summons has a discretion to determine whether the application is heard ex parte and whilst it may be prudent for the Judge to conduct an inter partes where an applicant claims to be within the terms of s 104(7)(b), the Judge is not bound to do so. I can see no error in the exercise of the discretion in this case.

18. It may well be that the position is different where an applicant seeks leave to make the application bearing the requirements in s 104(8). It is hard to imagine a case where it would be appropriate for a court to consider the matters in s 104(8) in the absence of the proposed respondent. In this case the Judge made no order under s 104(7)(c) although Whyalla Red Dust did apply for such an order if its claim that it fell within s 104(7)(b) failed.

19. It is convenient to state my conclusions to this point.  First, the Judge had the power to revoke the order granting leave to serve.  Secondly, the Judge had the power to hear the application by Whyalla Red Dust ex parte.  I would not set aside the order granting leave to serve on the ground that she had no power to make the order ex parte.  Counsel for Whyalla Red Dust submitted that I should nevertheless dismiss the appeal because on the merits OneSteel’s application is bound to fail and the Judge’s decision dismissing OneSteel’s application should stand.  I do not agree.  The merits of the application to set aside the order granting leave to serve were not argued before the Judge or considered by her.  The order dismissing OneSteel’s application must be set aside and it must be relisted for hearing.  I would not set aside the order made under s 104(11) granting leave to serve, but bearing in mind the fact that the order was made ex parte I make the point that there is no onus on OneSteel to prove the order should be set aside.  At the same time the Judge would no doubt wish to be satisfied that there are grounds for exercising the power to revoke the order.

20. As the matter will go back to the ERD Court, it is appropriate for me to make the following observations. It seems to me that where a party relies on s 104(7)(b) (as distinct from s 104(7)(c) where different criteria must be satisfied) the appropriate question on an application for leave to serve in the ordinary case is whether it is reasonably arguable on the material put before the Judge that the applicant’s interests are affected by the subject matter of the application. In effect, the approach is similar to the other relevant question on an application under s 104(11) which is whether the respondent has a case to answer. The questions dealt with on an application for leave to serve under s 104(11) are in the ordinary case dealt with in a similar way to an application for leave to serve judicial review proceedings (r 98 of the Supreme Court Rules 1987).  Ordinarily, disputed questions of fact are not determined at the leave to serve stage.

21. On an application to revoke an order granting leave to serve a summons a respondent is entitled to submit that it is not reasonably arguable as a matter of law or on the evidence that the applicant falls within the terms of s 104(7)(b) and/or that there is no case to answer. Of course, I do not rule out the possibility that in an appropriate case, and on an inter partes application, the Judge might consider it appropriate in the particular circumstances to determine finally whether the appellant has standing within the terms of s 104(7)(b).

    Conclusion

22. For these reasons, the appeal must be allowed and the order made by the Judge dismissing OneSteel’s application dated 13^th December 2004 must be set aside. I decline to set aside the order giving leave to serve the summons. OneSteel’s application to revoke the order made ex parte granting leave to serve a summons must be considered by the ERD Court on the basis that it has the power to revoke the order by reason of s 104(19) of the Environment Protection Act 1993.

23. I will hear the parties on whether any order should be made with respect to the first determination of the Judge made on 29^th September 2004 and any other orders.