D'Anastasi v Environment Protection Authority and Anor

AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors [2009] NSWSC 1029 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 134 ALR 460; (1996) 70 ALJR 306 Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 121 CASES CITED: D'Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260 Frith v Sipple NSWCA, Moffitt P, Hutley and Mahoney JJA, 11 September 1978, unreported New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 Robb & Rees v Law Society of the Australian Capital Territory FCA, Finn J, 21 June 1996, unreported Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Weller v Williams [2010] NSWSC 741

APPLICANT Mr J Dupree SOLICITOR LEGAL REPRESENTATIVES: Russo & Partners FIRST AND SECOND RESPONDENTS Mr A Hill (solicitor) SOLICITOR Department of Environment Climate Change and Water

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40881 of 2010 D'Anastasi v Environment Protection Authority and Anor (No 2)

EX TEMPORE JUDGMENT 1 Her Honour: The Applicant has filed a Notice of Appeal in the Court of Appeal of NSW dated 22 December 2010 against my finding in D'Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260 (D'Anastasi No 1) dismissing a judicial review challenge to a statutory notice requiring information and records issued by the Second Respondent, Mr Abood, an authorised officer under the Protection of the Environment Operations Act 1997 (the PEO Act) appointed by the First Respondent, the Environment Protection Authority (the EPA). I dismissed the summons on 16 December 2010 and ordered that the notice be answered in 10 business days from the date of the judgment inter alia. The Applicant has also filed a Notice of Motion dated 20 December 2010 seeking a stay of my orders made on 16 December 2010 pending the appeal, the subject of this judgment.

2 Section 58 of the Land and Environment Court Act 1979 (the Court Act) provides for the lodging of appeals against decisions of this Court in Class 4 proceedings. The Court can issue a stay (suspension) pursuant to s 59 of the Court Act which provides: (1) Where an appeal is made to the Supreme Court under this Division, either the Court or the Supreme Court may suspend the operation of any relevant order or decision until the Supreme Court makes its decision. (2) Where an appeal is made to the Court under this Division, the Court may suspend the operation of any relevant order or decision until the Court makes its decision. 3 The statutory regime for notices issued under s 193 of the PEO Act and the Pesticides Act 1999 is set out in D'Anastasi No 1. The notice under challenge was issued under s 193 of the PEO Act for the purpose of an investigation under the Pesticides Act.

4 The affidavit of Mr Russo, the solicitor for the Applicant, dated 28 October 2010 relied on at the first hearing attaches the notice issued under s 193 of the PEO Act. In the affidavit dated 20 December 2010 Mr Russo states that the Second Respondent conducted records of interview on 2 and 4 March 2010 with the Applicant and annexes copies to his affidavit. He is instructed that the Second Respondent made inquiries and took statements from the Applicant's brothers about their knowledge of the incident but that they were not issued with written requests. Mr Russo also states that the Second Respondent made extensive enquiries with adjoining neighbours and with the Applicant's farm and chemical supplier. Mr Russo believes that the records of interview, the inquiries and the response given from the Applicant's personal knowledge, a copy of which is annexed to his affidavit dated 28 October 2010, properly discharges any of the Second Respondent's duties under the relevant legislation. Mr Russo says that the Applicant fears that his appeal will be rendered nugatory and that he will be at risk of prosecution if the stay is not granted. Applicant's submissions 5 The relevant principles regarding the stay application are identified in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, since applied in numerous cases, Chen v Marcolongo; Chen v Lym International Pty Ltd [2009] NSWCA 121, AAMAC Warehousing & Transport Pty Limited & Ors v Fairfax Media Publications Pty Limited & Ors [2009] NSWSC 1029, Weller v Williams [2010] NSWSC 741, Trad v Harbour Radio Pty Ltd [2010] NSWCA 41.

6 The Court must consider the prospects of success on appeal and the balance of convenience. If an appeal is rendered nugatory because no stay is granted that is a substantial factor weighing in favour of the grant of a stay or suspension.

7 These proceedings concern the construction of the PEO Act and the Pesticides Act which have not been the subject of judicial consideration previously. The findings in D'Anastasi No 1 are wide ranging in effect in terms of the Applicant's direct interest and the wider context of the effect of the determination in relation to the legislation being considered. A number of findings (15) are challenged in the Notice of Appeal. These matters give rise to arguable matters for trial which have reasonable prospects of success, see Chen at [15]. The decision has far reaching scope beyond these parties as it is concerned with s 193 of the PEO Act. The notice power and the demand it can place on citizens is onerous.

8 The balance of convenience favours the Applicant. The affidavit of Mr Russo dated 20 December 2010 identifies the numerous steps that have been taken in the investigation by the EPA officers. No evidence is forthcoming from the EPA as to why the notice is needed for the purposes of furthering the investigation of a breach of the Pesticides Act. The EPA has had 10 months to investigate the events in issue and decide if a prosecution ought be launched and already has a substantial body of evidence on which to decide to prosecute. If no stay is granted the Applicant will have to comply with the notice and run the risk of prosecution under s 211 of the PEO Act. The importance of compliance with a s 193 notice is made clear from Cessnock City Council v Quintaz Pty Ltd; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52, where a large fine was imposed for failing to comply with a notice in the time specified and despite the notice being fully answered at a later time.

9 Mr Abood, the authorised officer, can issue another notice under s 193 to seek documents, for example, which are within the Applicant's possession. The EPA is not prevented from pursuing its investigation if no stay is granted. 10 This is not public interest litigation. The Applicant has a private interest as a citizen in not having to answer questions for which he may be liable for prosecution. This is litigation between two private individuals and concerns their personal status.

11 There is no presumption as per Alexander that the trial judge is to be presumed as correct.

12 The Applicant has discharged the onus he bears and has brought forth evidence to do so. There is no evidence from the EPA that the failure to answer the notice will render the prosecution at nought or that any inconvenience arises in making the decision on whether to prosecute or who to prosecute. The Court should not accept the submissions of inconvenience. What more could this notice have provided that the EPA did not already have? Nor is there evidence that public confidence in the administration of the Pesticides Act is damaged as the EPA submits. Respondents' submissions 13 The EPA submits: (i) the exercise of the stay power is discretionary per Frith v Sipple NSWCA, Moffitt P, Hutley and Mahoney JJA, 11 September 1978, unreported (the Applicant accepts this) (ii) the presumption that the trial judge is correct operates (iii) the onus is on the Applicant to persuade the Court to depart from the general rule that a stay ought not be granted so as to deprive the successful party of the fruits of its win.

14 The exercise of discretion requires that the Court consider whether the balance of convenience favours a stay. The Court should consider the prejudice to the public interest as a relevant consideration. Public interest considerations were considered by the High Court (Kirby J) in Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 134 ALR 460, a special leave application to the High Court. In New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 and Robb & Rees v Law Society of the Australian Capital Territory FCA, Finn J, 21 June 1996, unreported, the courts have held that preservation of the public interest is a defining consideration in a stay application. Here the public interest is strong as the notice concerns the enforcement and proper administration of the Pesticides Act through the exercise of power by an authorised officer investigating a possible breach of that Act, as can be seen from the Background in the Notice 1118170.

15 The Applicant has not established that the appeal is meritorious. Further the application fails on the balance of convenience.

16 The public interest needs to be considered in the statutory framework of the Pesticides Act, the long title to that Act and the objects in s 3, and the range of offences identified in Pt 2. There is a 12 month time limit for the commencement of a prosecution which expires on 25 February 2011. The EPA investigation is at risk. The notice was issued on 1 September 2010, sought a response by 20 September 2010, time to respond was extended to 30 October 2010 and the Class 4 proceedings challenging the notice were commenced on 30 October 2010. 17 There is a community interest served by the proper administration of the PEO Act and the Pesticides Act and there is a risk of loss of confidence in that system if not effectively administered. This is analogous to the public interest considerations in Bryant, Stevens and Robb. These cases suggest that the Court should give overriding weight to the public interest in this application. The authorities relied on by the Applicant are concerned with private interests. The Respondents understand that Bryant is an application for a stay in the High Court which does require special circumstances/interest to be demonstrated before a stay of orders is granted.

18 The prospects for success are slim, the case disclosed in the appeal notice is weak. On the balance of convenience the public interest considerations outweigh the fact that the appeal will be rendered nugatory. The sole inconvenience for the Applicant is that the appeal will be rendered futile. There is no evidence of hardship in complying with the notice. The fact that the appeal alone is nugatory is not sufficient reason to make a stay order.

19 There is a presumption that the judgment at first instance is correct and the EPA relies on [59] of D'Anastasi No 1. Finding 20 In Alexander the Court of Appeal was considering whether a stay ought be granted in the context of private litigation between auditors found to be negligent, and creditors. The court was reviewing the decision of the first instance judge to grant a stay. The principles identified at 693-695 note that originally a successful party was entitled to the fruits of victory and only in exceptional circumstances should a stay be imposed. In more recent times no special circumstance is necessary and the issuing of a stay is not exceptional. The onus is on the Applicant to demonstrate there is a proper basis for a stay that will be fair to all parties. The Court has discretion whether to grant the stay and if so on what terms. Considerations to be weighed include the balance of convenience and the competing rights of the parties. Two further principles identified at 695 are that where there is a risk that the appeal will prove abortive if a stay is not granted a court will usually grant a stay, and a preliminary assessment of whether an appellant has an arguable case can be made.

21 In Chen Beazley JA referred to the above passages in Alexander at [12]. At [15] her Honour states that the court need not determine if there is an arguable case on appeal, but that may be a matter relevant to determining if a stay ought be granted. The primary consideration is whether the applicant for a stay has demonstrated that there is a proper basis for doing so. In Trad Tobias JA referred to Alexander and Chen at [46]-[47]. He held at [48] that the relevance of whether there was an arguable case depends on whether the application for a stay pending the outcome of an appeal simply deprives a party of the fruits of victory. In AAMAC Slattery J emphasised the principle in Alexander that a plaintiff should be protected from having his or her rights of appeal rendered nugatory.

22 Each of these cases apart from Alexander are single judge decisions where the exercise of the discretion to grant a stay is dependent on the particular facts of the case, hence the different emphasis in each case.

23 Those cases all deal with essentially private interests. I consider the interests in this matter are properly characterised as raising public interest considerations given that the Second Respondent is a party because he has exercised his powers as an authorised officer of the EPA under the PEO Act as part of his duties in administering the Pesticides Act. The First Respondent is a government agency. There is no necessity for the EPA to bring forward evidence of that circumstance and that submission accords with the approach I took in D'Anastasi No 1 in relation to statutory construction of the relevant provisions of the PEO Act and the Pesticides Act and the importance of those provisions to the administration of environmental laws.

24 Bryant concerned an application for the stay of proceedings pending special leave to appeal to the High Court in the context of bankruptcy proceedings. Kirby J observed that cases involving the stay of the operation of criminal laws designed to protect the public, such as deregistration of professionals, are in a different class from cases involving the suspension of orders made as between two private litigants. I note that the principles otherwise applied in leave applications to the High Court require the finding of special circumstances justifying a stay, unlike this Court where not such requirement applies.

25 In Stevens the Court of Appeal considered whether a stay in the cancellation of a practising certificate ought be granted pending an appeal. At [83] the court (Spigelman CJ, Meagher and Sheller JJA concurring) held that the overriding principle is what is in the interests of justice. His Honour referred to Alexander at [87]-[89]. At [91] his Honour observed that the protection of the public is a matter entitled to significant weight on any application for a stay once it appears that a professional person has acted improperly. At [114] his Honour referred to the balance of convenience where injury to the public interest arises and stated that the matters before him were not measurable on the same scale. Applying the balance of convenience where there are public interest considerations runs the risk of these being lost. Similar observations were made in Robb that the reason to grant a stay must be considered in the context that there is a need to protect both the public and the reputation of the profession (reflecting the circumstances before that court).

26 The authorities which consider matters of public interest are most relevant to the circumstances before me given my finding above that public interest considerations apply in relation to the effective administration of the environmental laws underpinning the notice powers the subject of the decision under appeal.

27 I must weigh up two essentially competing factors in the exercise of my discretion whether to grant the stay sought. Firstly, that in the absence of a stay the appeal will be rendered nugatory. Secondly, the appeal concerns an investigatory notice issued by an authorised officer on 1 September 2010 which is part of an investigation into whether a breach of the Pesticides Act has occurred. I held in D'Anastasi No 1 a notice under s 193 is an important part of the framework for investigating potential breaches of the Pesticides Act. At [59] I held that obtaining an answer to the notice was urgent given the limited time of 12 months in which prosecutions must be commenced under s 72 of that Act. The time limit for the commencement of a prosecution is 25 February 2011 which is two days after the first return date of 23 February 2011 in the Court of Appeal of the Applicant's Notice of Appeal. 28 Even if expedition of the appeal is sought it is highly unlikely given the time of year this is being considered that there can be a final resolution of the appeal before the time bar in s 72 comes into operation. No case referred to by the parties considers these factors in the same way they come before the Court in this stay application. As noted by Spigelman CJ in Stevens, consideration of the balance of convenience in these circumstances runs the risk of the public interest not being properly considered. The exercise of discretion suggests that a stay ought not be granted.

29 It is not appropriate as part of this stay application that I consider and form an opinion as to whether the First Respondent does require the answers to the notice as part of its investigation of possible breaches of the Pesticides Act. The opinion of Mr Russo that the First Respondent has sufficient information is not relevant to my consideration. There was no onus on the First Respondent to bring forward evidence to contest that opinion of Mr Russo.

30 In deciding not to grant a stay I accept that the Notice of Appeal raises issues which can be described as serious. Given that the issues raised in D'Anastasi No 1 and on appeal are unexplored in the context of a notice issued under s 193 of the PEO Act I am not able to come to any preliminary view on the likely prospects of the appeal.

31 A major concern underlying the stay application (and the appeal) is that answering the notice will expose the Applicant to prosecution under s 211 of the PEO Act. That is not an inevitable outcome of his being required to answer the questions in the s 193 notice and I refer to my observations in D'Anastasi No 1 at [63] and [66] about answering the notice. 32 I do not consider the Applicant has discharged his onus of demonstrating to the Court that it is in the interests of justice that the stay be granted in the circumstances I have outlined. Orders 33 The Court makes the following orders: 1. The Applicant's Notice of Motion filed 20 December 2010 is dismissed. 2. The Applicant is to pay the First and Second Respondents' costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.