Weston Aluminium Pty Ltd v Environment Protection Authority and Alcoa Australia Rolled Products Pty Ltd

[2005] NSWLEC 302

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Weston Aluminium Pty Ltd v Environment Protection Authority and Alcoa Australia Rolled Products Pty Ltd [2005]  NSWLEC 302

PARTIES:
APPLICANT
Weston Aluminium Pty Ltd

FIRST RESPONDENT
Environment Protection Authority

SECOND RESPONDENT
Alcoa Australia Rolled Products Pty Ltd

CASE NUMBER:      40149 of        2005

CATCH WORDS:     Practice and Procedure

LEGISLATION CITED:
Protection of the Environment Operations Act 1997
Environmental Planning and Assessment Act 1979
Supreme Court Rules 1970

CORAM:        Bignold J

DATES OF HEARING:          8 April 2005

DECISION DATE:     17/06/2005

LEGAL REPRESENTATIVES

APPLICANT:
P. Tomasetti

SOLICITORS
Henry Davis York

FIRST RESPONDENT:
--/--
SECOND RESPONDENT:
R.J. Ellicott QC, R.A. Dick

SOLICITORS
FIRST RESPONDENT:
--/--
SECOND RESPONDENT:
Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

7 June 2005

40149 of 2005     Weston Aluminium v Environment Protection Authority & Alcoa Australia Rolled Products Pty Ltd

JUDGMENT

CORAM:  HIS HONOUR

A. INTRODUCTION

1. By its Notice of Motion filed on 4 April 2005 the second Respondent seeks an order that these class 4 proceedings be summarily dismissed or alternatively stayed pending the Court’s final determination in other pending and part heard class 4 proceedings No. 41622 of 2003 by the same Applicant against the same second Respondent (the earlier proceedings).

2. The Applicant opposes the Motion and seeks an order for the expedition of the hearing of its present class 4 proceedings claiming a declaration that a variation made to an existing environmental protection licence issued to the second Respondent is null and void by virtue of the variation having been made in breach of s50(2) of the Protection of the Environment Operations Act 1997 (the later proceedings).

3. Although it will be necessary to carefully consider the relationship between the two separate class 4 proceedings brought by the Applicant against the second Respondent in respect of an activity conducted at its existing Yennora plant, it may be noted at the outset that there is a twofold basis for the second Respondent’s Motion seeking the summary dismissal of the later proceedings or the stay of the later proceedings pending the Court’s final determination of the earlier proceedings. Firstly it is claimed that the later proceedings are vexatious and oppressive because they essentially raise the same issues and seek the same relief as were raised and sought in the earlier proceedings. Secondly it is claimed that the hearing and determination of the later proceedings will undermine the interlocutory decisions already given in the earlier proceedings.

4. The Applicant’s attempted rebuttal of these bases for the second Respondent’s Motion emphasises the entirely separate legal foundations for its claims in the two proceedings - in the earlier proceedings the claim was founded upon the assertion of a breach by the second Respondent of the Environmental Planning and Assessment Act 1979 (in as much as it was processing imported aluminium dross without any requisite development consent) whereas in the later proceedings the claim is founded upon the assertion of a breach of the Protection of the Environment Operations Act committed by the Environment Protection Authority when it purported to vary the environmental protection licence held by the second Respondent to authorise the processing of imported aluminium dross.

5. It should be noted that the Environment Protection Authority has filed a submitting appearance in the later proceedings.

B. THE RELATIONSHIP BETWEEN THE TWO PROCEEDINGS

1. Comparison of the two proceedings reveals the following similarities and differences between them:

   A. Similarities

1. Each proceeding is directed at a particular aspect of the manufacturing process conducted by the second Respondent at its existing Yennora plant, namely the processing of aluminium dross imported from Victoria.

2. The Applicant in each proceeding is a trade competitor of the second Respondent.

3. The Applicant in each proceeding alleges that the second Respondent is carrying out the particular activity (processing imported dross) without the necessary statutory authorisations – in the earlier proceedings the Applicant has succeeded in establishing that there is lacking the requisite development consent under the Environmental Planning and Assessment Act and in the later proceedings the Applicant asserts that the relevant variation to the second Respondent’s environmental protection licence that was issued by the Environment Protection Authority is a legal nullity because of an asserted breach of s50(2) of the Protection of the Environment Operations Act.

4. The sole basis for the asserted nullity of the licence variation is that it was issued in circumstances when there was not in force any relevant development consent.

5. In each proceeding, according to the pleadings, the second Respondent has raised discretionary defences against the grant of injunctive relief in the event that the Court finds a relevant breach of the planning or environment law.

   B. Differences

6. The earlier proceedings were between the Applicant and the second Respondent whereas in the later proceedings the Environment Protection Authority was nominated as another respondent.

7. The earlier proceedings are part heard where Lloyd J in August 2004 determined that the development consents relating to the second Respondent’s Yennora plant do not authorise the processing of imported aluminium dross and in March 2005 adjourned the proceedings pursuant to s124(3) of the Environmental Planning and Assessment Act to give the second Respondent  the opportunity to obtain the outstanding requisite development consent, thereby postponing the Court’s final determination in those proceedings (including on the question of the exercise of the Court’s discretion to grant or to withhold a remedy for the proved breach of that Act).

8. The later proceedings have not been heard and have reached the stage where points of claim and points of defence have been filed, according to which the second Respondent disputes the Applicant’s claim that the licence variation is a nullity but additionally raises discretionary grounds as to why the Court in the exercise of its discretion should withhold a remedy even if it were to conclude that there has been a breach of the Protection of the Environment Operations Act.

1. Another relevant aspect of the relationship between the two proceedings concerns the timing of the proceedings. The later proceedings were commenced on 25 February 2005 at a time when the earlier proceedings were awaiting hearing on the remaining issues in that case following Lloyd J’s determination that the second Respondent’s processing at its Yennora plant of imported aluminium dross was not within the scope of relevant development consents relating to the second Respondent’s Yennora premises. That hearing had been allocated dates on 21-23 March 2005 but these were vacated by Lloyd J on 11 March 2005 when he adjourned the proceedings pursuant to s124(3) of the Environmental Planning and Assessment Act, having earlier noted in his judgment on 23 November 2004 (refusing the Applicant’s Motion for an expedited hearing on the remainder of the proceeding) that he would entertain such an adjournment application if the second Respondent lodged the requisite development application prior to the allocated March 21-23 hearing dates.

2. It is apparent from the contents of the affidavit of the Applicant’s solicitor Nicholas Brunton sworn on 25 February 2005 supporting the later proceeding that the Applicant commenced the proceedings in response to Lloyd J’s decision refusing to expedite the hearing of the remainder of the earlier proceeding.

3. Dr Brunton also appeared before Lloyd J on 11 March 2005 when his Honour vacated the allocated March 21-23 hearing dates and adjourned the proceedings pursuant to s124(3) of the Environmental Planning and Assessment Act. In opposing the adjournment application Dr Brunton had referred the Judge to the fact that the later proceedings had recently been commenced and submitted that in these circumstances if his Honour were to grant the adjournment it would be “condoning not only the breach of the planning rules, the EPA Act, but also a breach of the POEO Act” (transcript p5) which submission was immediately firmly rejected by his Honour.

C. THE RELEVANT POWERS OF THE COURT TO ORDER A SUMMARY STAY OR DISMISSAL

1. The Rules of Court vest the Court with the power to stay proceedings (Part 12 Rule 1) and the power to summarily stay or dismiss proceedings (Supreme Court Rules Part 13 Rule 5 adopted by this Court’s Rules in Part 6 Rule 1(1)).

2. Part 13 Rule 5(1) provides as follows:

   (1)Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

   (a)  no reasonable cause of action is disclosed,

   (b)  the proceedings are frivolous or vexatious, or

   (c)  the proceedings are an abuse of the process of the Court,

   the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

3. The nature and extent of the power to stay or dismiss proceedings on the ground of abuse of process are expounded in the following passage of the joint judgment in the High Court of Australia in Walton v Gardiner (1993) 177 CLR 378 at 392/393:

   The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ((22) See, e.g., Metropolitan Bank v. Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, at pp 128-130.). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them ((23) See, generally, Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538.). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings ((24) See, e.g., Reichel v. Magrath (1889) 14 App Cas 665, at p 668; Connelly v. D.PP. (1964) AC 1254, at pp 1361-1362.). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police ((25) (1982) AC 529, at p 536.) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

D. SHOULD THE LATER PROCEEDINGS BE SUMMARILY DISMISSED OR STAYED?

1. In my judgment it has not been demonstrated that the later proceedings are either vexatious or frivolous or involve an abuse of process.

2. The reason for this conclusion is clear. The later proceedings unlike the earlier proceedings are entirely founded on the assertion of a breach of s50(2) of the POEO Act. Section 50 provides as follows:

   Timing of licensing of development requiring consent under EP&A Act

   (1)Licensing of development controlled under EP&A Act

   This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.

   (2)Licence to be concurrent

   A licence that relates to controlled development must not be granted by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.

   (3)Existing use

   Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use.

   (4)Definitions

   In this section:

   development has the same meaning as in the Environmental Planning and Assessment Act 1979.

   development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979.

   existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.

3. The question of the validity of the relevant variation of the environment protection licence issued to the second Respondent in respect of its Yennora premises was not in issue in the question determined in the earlier proceedings concerning the lack of requisite development consent for the processing of imported aluminium dross. However it was raised by the Applicant in unsuccessfully opposing the second Respondent’s application for the adjournment of the remaining part of the proceedings, although Lloyd J did not determine any question of the validity of the licence variation.

4. In the later proceedings the second Respondent in its Points of Defence denies the Applicant’s allegation that the grant by the Environment Protection Authority of the licence variation involved a breach of s50(2) of the POEO Act with the consequence that that variation is a legal nullity.

5. Although it would be possible, if the two proceedings were consolidated, for the issue of the validity of the licence variation to be raised and determined in the adjourned earlier proceedings as part of the Court’s final adjudication particularly on the outstanding question of how it should exercise its discretion to grant or to withhold relief in respect of any relevant breach of the Environmental Planning and Assessment Act, whilever the parties are in dispute on the question of whether there has been any relevant breach of the POEO Act by virtue of the licence variation being granted by the Environment Protection Authority that question should more conveniently be determined in advance of any final determination in the earlier proceedings.

6. What contingently remains undetermined in the earlier proceedings is the question of the nature and extent of any remedy that may be granted to remedy any breach of the EPA Act that remains (ie assuming that the outstanding development consent is not granted).

7. It is the uncertain future outcome of the earlier proceedings that demonstrates that the later proceedings are the more appropriate vehicle for the making of that determination. If the determination in the later proceedings is to the effect that no relevant breach of the POEO Act has occurred that will be the end of the later proceedings. If however the determination be that there has been a relevant breach then the question of whether that breach should be remedied (see s252 of the POEO Act) and if so, by what type of remedy, will necessarily encounter the second Respondent’s discretionary defences. It is these matters that appear to have commonality with the discretionary matters that have been raised in the earlier proceedings and accordingly if these matters require adjudication by the Court it is apparent that there is good reason for these common matters to be determined concurrently.

8. Such a future procedural course to adopt in respect of the later proceedings recognises that the disputed question of breach of the POEO Act raised in the later proceedings is not a common issue to both proceedings whereas any question on the Court’s discretion to grant or to withhold a remedy for any proven breach of the law (see s124 of the EPA Act and s252 of the POEO Act) is a common issue of fact to both proceedings.

9. To secure an adjudication upon the disputed question of breach in the later proceedings will place those proceedings in the same position that has been reached in the earlier proceedings if the adjudication results in a finding of breach, so that the question of the exercise of the Court’s discretion in granting or withholding a remedy will be common to both proceedings and will be determined upon the basis of common facts and circumstances in those cases.

10. If however the Court’s adjudication is that there is no relevant breach of the POEO Act then the later proceedings will not need to proceed to a determination of the exercise of the Court’s discretion to grant or withhold a remedy.

11. I am mindful that the second Respondent expressed a lack of enthusiasm for having to engage in litigation to achieve a determination of the validity of the licence variation. However once the conclusion is reached (as I have concluded) that the later proceedings do not involve vexatious or frivolous claims and do not involve an abuse of process there is no valid reason to stay the later proceedings pending the final determination in the earlier proceedings.

12. However because of the potentiality for common issues and facts to emerge in both proceedings (depending upon the determination of whether there is a breach of the POEO Act) it is preferable to leave open the possibility that such common issues be determined by the Court concurrently in both proceedings.
    

E. CONCLUSIONS AND ORDERS

1. For all of the foregoing reasons the second Respondent has not made out its case for the summary dismissal or stay of the later proceedings.

2. For the reasons that I have given I am of the opinion, based upon the close relationship between the proceedings that I have identified, that the appropriate course to adopt in the proceedings is to determine separately the question whether there has been any breach of the POEO Act as alleged by the Applicant, such determination to be made in advance of the Court’s final determination in the proceedings.

3. Accordingly, I make the following orders:

1. The second Respondent’s Motion filed on 4 April 2005 seeking a stay or dismissal of the proceedings is dismissed.

2. The proceedings are to be heard by first determining, as a separate question, whether there has been any breach of the Protection of the Environment Operations Act as alleged by the Applicant.

3. The parties have liberty to obtain a hearing date and directions for that separate determination.