Falzon v Gladstone Ports Corporation [2014] QPEC 37

Planning and Environment Court of Queensland|2014-07-11

[1] This is an application to strike out a pleading. The pleading is Mr Falzon's Points of Claim (POC) and it claims two declarations. Issues in this application are whether Mr Falzon has pleaded his standing to apply for a declaration (he has not); whether he has pleaded sufficient to obtain his first declaration (he has not); whether he has pleaded sufficient to obtain his second declaration (he has not); whether the declarations sought are too wide to be available (they are too wide on the material facts currently pleaded); whether the proceeding is not validly brought as a representative proceeding.

[2] There is a project for dredging in the Port of Gladstone and for disposal of large quantities of the dredged material. The Gladstone Ports Corporation (GPC) began dredging in about May 2011. Stage 1A of the project involved removal of 21 million cubic metres of dredge soil. The project has caused losses to some commercial fishing operators. "Conditions 20 and 21" were imposed upon GPC by statute. Condition 20 obliges GPC to mitigate financial losses to certain commercial fishing operators on certain bases. Condition 21 obliges GPC to pay certain costs including costs of "administration of any compensation package". In about March 2013 GPC published a compensation program for the project and a guideline and application form. The guideline identified that its object is "... to provide compensation to commercial fishing operators for financial losses caused by the loss of access to fishing areas and marine habitat..."

[3] The guideline identified eligibility criteria for any applicant[1] and limited compensation payable to any eligible applicants to an amount to be calculated by a published formula.[2]

[4] Mr Falzon is the applicant in the proceeding and the respondent to GPC's application to strike out Mr Falzon's POC.

[5] By his POC Mr Falzon alleges GPC's compensation program is contrary to Condition 20 for not mitigating all reasonable financial losses for "existing commercial fishing operations" and contravenes Condition 21 for not meeting costs associated with the administration of the compensation program.

[6] Mr Falzon claims declarations that GPC's compensation program does not substantially comply with Conditions 20 and 21. In this proceeding Mr Falzon does not claim either compensation pursuant to the compensation program or an assessment of his financial loss from the project.

[7] GPC applies[3] to strike out the POC filed by Mr Falzon on 12 March 2014.[4] GPC's application is made pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR),[5] which applies by reason of rule 3 of the Planning and Environment Court Rules 2010 (P&E Court Rules). Mr Falzon accepts that the rule can be applied in the Planning and Environment Court.

[8] This is GPC's second application to strike out Mr Falzon's pleading in this proceeding. GPC's first application dated 28 November 2013[6] sought to strike out the Amended Originating Application filed on 19 November 2013 (Amended OA).[7] GPC filed written submissions in support of that application.[8] GPC's application was listed for hearing on 20 January 2014, with an application by Mr Falzon for a split trial.[9] Mr Falzon has since abandoned his application for a split trial.

[9] On 20 January 2014, the Court ordered by consent that Mr Falzon file and serve a POC which "satisfies the requirements of pleading in the UCPR" and which "limits the relief sought to the applicant and further persons joined as applicants pursuant to paragraph 1"; that GPC file and serve a Points of Defence (POD); and that Mr Falzon file and serve a Points of Reply (POR).[10] In paragraph 1 of that order, the Court granted "leave for any person or entity listed in annexure A of the amended originating application to be joined as an applicant to the proceeding if they agree to be joined."[11] No such person has sought to be joined to the proceeding. However, each of the fifty or so persons listed in annexure A of the amended originating application have notice of this application to strike out the points of claim and not one of those persons wished to be heard.[12]

[10] Mr Falzon subsequently filed and served his POC. GPC filed and served its POD on 16 April 2014.[13] Mr Falzon filed and served his POR on 13 May 2014.[14]

[11] The relief sought by the POC and the allegations and issues in that pleading are materially different from the Amended AO. The Amended OA is now redundant.

[12] Mr Falzon now claims by the POC the following relief[15]:

1. A declaration under s 54G(2) of the State Development and Public Works Act 1971 that the Purported Compensation Program for the Project does not substantially comply with Condition 20 in Appendix 1, Schedule 3 of the CG Report.

2. A declaration under s 54G(2) of the State Development and Public Works Act 1971 that the Purported Compensation Program for the Project does not substantially comply with Condition 21 in Appendix 1, Schedule 3 of the CG Report.

[13] The POC concerns the "Coordinator-General's report for an environmental impact statement" dated July 2010 for the "Western Basin Dredging and Disposal Project" (the CG's Report).[16] The CG's Report was prepared pursuant to s 35 of the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act).[17]

[14] The CG's Report describes the project, in part, as follows:[18]

"The Commonwealth and Queensland Governments have identified Gladstone as a port with the potential to service large scale export oriented, resource processing and value adding industries. The close proximity of Gladstone's international port facilities is essential to the economic viability of the Gladstone State Development Area (GSDA). The GSDA aims to attract industries by offering internationally competitive operating costs and has the capacity to accommodate significant future industrial growth.

Gladstone Ports Corporation Ltd (GPC) is responsible for the provision and maintenance of shipping facilities and navigable channels, swing basins and berth pockets in the port. It is the proponent for this project, which is proposed to accommodate the long-term dredging and dredged material disposal that is required to provide safe and efficient access to the existing and proposed Gladstone Western Basin port facilities (in Port Curtis, from Auckland Point to The Narrows). In particular the project would service the emerging liquefied natural gas (LNG) industry in the Gladstone region." (underlining added)

[15] Schedule 3 of the CG's Report includes the imposed conditions that apply to the project pursuant to s 54B of the SDPWO Act.[19] Conditions 20 and 21 of Schedule 3 are at the heart of the present proceeding and provide, under the heading "Commercial fisheries offset":[20]

"Condition 20 GPC must mitigate all reasonable financial losses to existing commercial fishing operators attributable to the maritime development in the Western Basin of the Port of Gladstone. This is to cover temporary and permanent loss of access to fishing areas and marine fish habitat. [Condition 20]

Condition 21 GPC must meet any costs associated with the investigation, negotiation and administration of any compensation package, including all costs incurred by DEEDI in the management of development of any compensation package. [Condition 21]

The Chief Executive of DEEDI is the entity with jurisdiction for these conditions"

[16] Mr Falzon has commenced the proceeding purportedly as a representative proceeding for the persons listed in Annexure A to the POC (the Purported Represented Class) pursuant to rule 75 of the UCPR. None of the persons listed have elected to be joined. Each of the persons listed has notice of this application to strike out the POC.[21] None appeared.

[17] Section 54G of the SDPWO Act provides in part:

(1) A proceeding mentioned in the Sustainable Planning Act, section 456(1) or (2) can not be started in relation to the project. [22]

(2) However, a person mentioned in section 54F(2) may bring a proceeding in the Planning and Environment Court for a declaration about whether there has been substantial compliance with an imposed condition for the undertaking of the project.

(3) The court has jurisdiction to hear and decide the proceeding.

(4) The Sustainable Planning Act, sections 456(7) and 457 apply to the proceeding as if it were a proceeding under section 456 of that Act.

[18] Section 456 of the Sustainable Planning Act (SPA) concerns the Court's declaratory powers.

[19] Section 54F(2) of the SDPWO Act, as referred to in s54G(2), provides in part:

"...only the following persons may bring the proceeding -

(b) the nominated entity for a relevant imposed condition for the undertaking of the project;

(e) someone else whose interests are significantly adversely affected by the subject matter of the proceeding." (underlining added)

Is the threshold requirement for standing to apply for a declaration sufficiently pleaded, namely the material facts to establish that the interests of Mr Falzon are significantly adversely affected by the subject matter of the proceeding?

[20] Section 54F of the SDPWO Act imposes a requirement as to standing in relation to an application for a declaration about whether there has been substantial compliance with a condition. In the present matter, Mr Falzon, and any other person who challenges compliance with Conditions 20 or 21 must allege and establish that they are persons "whose interests are significantly adversely affected by the subject matter of the proceeding" (underlining added).

[21] The GPC submits that this is a threshold jurisdictional issue. There is no dispute about this. Mr Falzon accepts that he "needs to be significantly adversely affected by the subject matter of the proceedings".[23]

[22] The GPC submits[24] there is no allegation in the POC that the interests of Mr Falzon and the Purported Represented Class "are significantly adversely affected by the subject matter of the proceeding." This is to be contrasted with the earlier Amended OA which specifically pleaded at paragraph 24 that the interests of Mr Falzon and the Purported Represented Class (collectively defined as the "Applicant" at paragraph 1(a) at page 1 of the Amended OA) "are significantly adversely affected by the subject matter of the proceeding" for the purposes of s 54F(2)(e) of the SDPWO Act.

[23] The objection was noted in the GPC's points of defence (POD) that there is a failure to allege material facts necessary to entitle Mr Falzon to the relief claimed in that the POC does not allege that Mr Falzon and the Purported Represented Class "are significantly adversely affected". To this objection Mr Falzon's POR replies[25] that "read objectively, the POC establishes that (Mr Falzon) has been significantly and adversely affected by the Project which establishes standing to commence this proceeding and establishes his interest in the subject matter of the proceeding". Mr Falzon's counsel did not submit that the POR should be read with the POC to overcome any deficiency in the POC. Mr Falzon's argument is that there is no deficiency in the POC.

[24] I accept that there is no express allegation in the POC that the interests of either Mr Falzon or the Purported Represented Class "are significantly adversely affected by the subject matter of the proceeding."

[25] That is no basis for striking out the pleading if Mr Falzon identifies in argument facts alleged in the POC which are sufficient to support a tenable legal argument that Mr Falzon's interests "are significantly adversely affected by the subject matter of the proceeding."

[26] If one puts aside Mr Falzon's argument momentarily and reads the POC with the POR to discern Mr Falzon's case one relevantly observes two things. Firstly, though the POR alleges that the POC establishes that Mr Falzon has been "significantly adversely affected" there is no allegation in either pleading identifying which material facts are relied upon from the POC as the basis for Mr Falzon's standing. Secondly, there is no allegation in the POC or the POR that the interests of the Purported Represented Class "are significantly adversely affected".

[27] Does Mr Falzon plead actual financial loss to himself as a material fact for the proof that he is "significantly adversely affected"? Perusal of the pleading shows that he does not. He did not plead that he suffered financial loss. Instead, he pleaded and argued that he suffered impacts and costs. But he did not go further and allege that he suffered financial loss.

9. As a commercial fisherman in Gladstone Harbour (Points of Claim paragraphs 1 and 2) the Applicant (and the commercial fishermen he represents) is plainly someone whose interests are significantly adversely affected by the subject matter of the proceeding.

[29] One's first thought is that this last submission quoted must be correct because one infers that Mr Falzon and the "commercial fishermen he represents" have suffered interferences with their commercial operations and that this has led to loss of profit and that this has been alleged. It is incorrect to infer this. Mr Falzon's submission about standing omits reference to loss of profits or to financial losses. That seems to have been a deliberate omission. In spite of alleging in the POC that the dredging project necessitated his incurring an expense exceeding $480,000[26] and interfered with and otherwise delayed his commercial activities,[27]Mr Falzon does not allege this cost has caused a financial loss to him and does not allege that the delays and interferences have caused a financial loss to him. Having failed to allege a financial loss, even an unquantified financial loss, it follows that he does take the further step of alleging that the compensation project fails to mitigate his financial loss.

[30] He argues that he need not allege and prove his own financial loss as a material fact to establish his status as a person whose interests are "significantly adversely affected" by this proceeding for a declaration about a compensation program's substantial compliance with conditions. If he is correct that one may ignore financial loss, by what criteria does one measure the effects of the proceeding upon a person to determine if the person is adversely affected and by what criteria does one measure the significance of the adverse effects? How does one measure the significance of the adverse effects upon a person to determine whether the person has status to apply for a declaration? I am satisfied that one must at least allege material facts to establish a tenable case that one has suffered "reasonable financial losses" which the compensation program fails to mitigate and that it is not sufficient to allege costs and impacts.

[31] I was invited to peruse particulars to see for each member of the Purported Represented Class the "impact experienced". The particulars generally refer to impacts from the dredging project which one infers might well have caused financial consequences such as smaller catches and greater expenses. The particulars omit reference to financial loss. That omission is consistent with the submission that it is enough to be a commercial fisherman in Gladstone Harbour for one's interests to be "significantly adversely affected". However, it was not submitted or pleaded that particulars of the impacts allegedly experienced were the material facts which are the basis for an allegation that the Purported Represented Class are also "significantly adversely affected". I will assume, for the purpose of testing Mr Falzon's submission, that was oversight and will proceed as if Mr Falzon relies on the impacts as material facts showing the Purported Represented Class are also "significantly adversely affected".

[32] It was submitted orally for Mr Falzon: [28]

"Mr Falzon needs to be significantly adversely affected by the subject matter of the proceedings.... He is significantly adversely affected if the scheme promulgated does not compensate commercial fishermen for various heads of loss that they may suffer in carrying out their businesses in the port of Gladstone... the measure of the significance is that the package that is offered does not comply with what is required under condition 20."

[33] The submission's reference to "heads of loss" overlooks the difference between impacts and costs on the one hand and financial losses on the other.

[34] Further, the submission that "the measure of the significance" (of the adverse impact of the subject matter of the proceeding on Mr Falzon) "is that the package that is offered does not comply with what is required under condition 20" cannot be right. Mr Falzon cannot establish his status to proceed, namely that he is significantly adversely impacted by the subject matter of the proceeding by showing a purely academic interest in the points of law raised and by showing that the design of the compensation package will leave some other person's reasonable financial loss unmitigated. He must at least plead a tenable case that he has suffered reasonable financial losses which will not be mitigated. By "reasonable" in the phrase "reasonable financial losses" I intend to refer only to the agreed fact that the GPC must mitigate "reasonable financial losses".

[35] Mr Falzon's written submission on this issue[29]asserts that the POC relevantly "establishes", that Mr Falzon "has been significantly and adversely affected (the Compensation Program does not compensate for particular types of loss, and therefore does not comply with Conditions 20 and 21)". That assertion in the submission is rejected. It is the POC's omission to do so which generated so much debate. The POC does not plead in these terms either that Mr Falzon "has been significantly and adversely affected" or that he suffered any type of "loss" for which he will not be compensated.

[36] The written submission for Mr Falzon comes closest to a persuasive argument here: "(g) irrespective of the value of any specific impact in dollar terms, the Points of Claim identify the impacts suffered by the Applicant which are not compensated by the purported compensation program - this involves a comparison between paragraphs 26, 27 and 32. For example compare ... paragraphs 27(c) and (f) with paragraph 32(f)". A comparison of the POC paragraphs 27(c) and (f) with paragraph 32(f) shows essentially that Mr Falzon alleged at pars 27(c) and (f) that the dredging project necessitated his incurring an expense exceeding $480,000[30] and interfered with and otherwise delayed his commercial activities.[31]Critically, Mr Falzon does not allege this expense or those delays and interferences have caused reasonable financial loss to him, let alone a reasonable financial loss which the scheme does not mitigate. That omission means he does not establish a tenable case of status to claim a declaration.

[37] In the assessment of damages generally, a financial cost is theoretically different from loss. It may be that in a particular case a financial cost will be accepted as a component of loss and damages may be assessed to include an amount identical to the financial cost. But when assessing damages the issue is not whether a plaintiff can prove a cost but whether the plaintiff can prove that as a result of the cost there has been a loss. Plaintiffs traditionally claim damages for "loss". They do not claim damages for "cost". It is a significant difference and not a semantic curiosity. By claiming for "loss" the issues are larger than the simple issue of a new or increased cost. Sometimes increased costs for equipment result in increased profit. Sometimes delays and interferences are endured without financial loss. If one claims in tort for interference with business relations, the basic loss tends to be loss of business profits and if one claims in tort for personal injuries the pecuniary loss represents loss of future earning capacity.[32] Increased costs would be part of the evidence from which an inference of loss may be drawn. Proof of cost, without more, is not proof of diminished profit or proof of loss. The obligation upon GPC to pay compensation is not an obligation to satisfy a tort claim for damages. But neither is it an obligation to pay a fishing operation's increased costs. It is agreed[33] between the parties that it is an obligation to mitigate certain "financial losses". An obligation to compensate for financial losses is not equivalent to an obligation to compensate for increased costs. Those increased costs may well be mirrored by financial losses resulting from those costs and in an identical amount. But it does not necessarily follow that a financial cost or an interference with business operations has caused financial loss.

[38] Mr Falzon pleads a tenable case that the dredging caused him to incur a financial cost and resulted in some impacts likely to have caused costs. He has not pleaded a tenable case that he has suffered a financial loss.

[39] The insistence on an allegation of financial loss rather than an allegation of financial cost or an impact is a material requirement in this case to establish status to sue. It is not legal pedantry. Mr Falzon's expense caused by the need for longer nets is only part of the picture examined to determine whether there is loss. The expensive longer nets and their associated costs may have resulted in an increase in catch such that no financial loss occurred. Financial loss is the proper focus of attention rather than new costs of doing business. At least this is so where the issue is whether the compensation program mitigates "reasonable financial losses".

[40] At POC par 32(f) Mr Falzon does not allege that the compensation program does not compensate him. Instead he alleges it does not compensate "existing commercial fishing operators". He alleges it does not compensate them for "(f) reasonable financial losses attributable to the Project where that loss has been the result of an increase in operating costs...to increase net sizes and to install equipment on boats ... required to (use) longer nets". By that allegation in POC 32(f) the pleader does three relevant things: firstly, the pleader fails to relate this assertion to material facts pleaded; secondly, if one infers that the pleader intended to rely on facts pleaded in the POC, the pleader equates financial loss with an increase in some of the costs of an operation and without reference to decreased profit, as if the costs are the same as financial loss; and thirdly the pleader does so without having alleged any specific amount for increased costs or financial losses for any of the commercial fishing operators.

[41] The GPC submits: "This is not a technical point. Standing must be alleged as a jurisdictional requirement. Standing is also a live and important issue in circumstances where GPC submits that Mr Falzon's interests cannot be "significantly adversely affected" beyond the application of GPC's compensation program to him personally. He could not be "significantly adversely affected" by GPC's compliance or non-compliance in so far as any other person is concerned."

[42] I accept that the POC is deficient for failing to identify the material facts relied upon for Mr Falzon's standing, namely for demonstrating that Mr Falzon's interests "are significantly adversely affected by the subject matter of the proceeding". That might be easily cured by identifying the material facts relied upon within the POC if there were sufficient facts pleaded to show his standing. For the reasons above and the further reasons which follow, it would not cure the defect to rely on "impacts" or on an expense without alleging further material facts to create a tenable argument that the costs and impacts caused "reasonable financial losses" which the program fails to mitigate.

[43] The pleading should be struck out because Mr Falzon has not pleaded a tenable basis for his status to apply for the declarations.

Has a sufficient case been pleaded to establish non-compliance with Condition 20?

[44] At paragraph 2(a) of the POD, GPC pleads that, on its proper construction, Condition 20 requires GPC to "mitigate" all "financial losses" which satisfy each of the following five elements (collectively the Five Necessary Elements to Condition 20) - the financial losses must:

3. be suffered by "existing commercial fishing operators", which means only those operators who:

(i) engaged in the art or practice of catching fish for commercial purposes;

(ii) held active and effective licences and authority to lawfully engage in such commercial fishing;

(iii) were "existing", meaning they had the characteristics described at sub-paragraphs (i) and (ii) above as at July 2010, being the date of the CG's Report which imposed Condition 20;

4. have arisen from lawful commercial fishing operations, including fishing within the terms, conditions and restrictions of any licences or authority, and not from any unlawful or criminal act;

5. be "attributable to the maritime development in the Western Basin of the Port of the Gladstone" the subject of the Project, which:

(a) requires the relevant financial losses to be relevantly caused by the maritime development the subject of the Project, such that the financial loss would not have been suffered but for that maritime development;

(b) includes financial losses from the "temporary and permanent loss of access to fishing areas and marine fish habitat" which are caused by the subject maritime development of the Project.

[45] Mr Falzon admits that allegation as to the proper construction of Condition 20 in his POR at paragraph 1(b).

[46] Accordingly, there is no issue between the parties that the GPC must mitigate "financial losses" and there is no issue as to what type of "financial losses" GPC must mitigate on the proper construction of Condition 20.

[47] GPC submits that in order for Mr Falzon to allege, and ultimately establish at trial, that there has not been substantial compliance with Condition 20, it is necessary for Mr Falzon to plead facts and matters which establish that "financial losses" have been incurred and which satisfy each of the Five Necessary Elements to Condition 20 and which have not been mitigated by GPC.

[48] Mr Falzon seems by the points of claim at par 30 to proceed on the basis that the GPC's obligation is to mitigate all "reasonable financial losses". The parties appear to be agreed about that obligation.

[49] The POC does not plead: (1) that any "reasonable financial losses" have been suffered by Mr Falzon or anyone else; (2) that Mr Falzon or anyone else suffered such loss as "existing commercial fishing operators" within the meaning of Condition 20; (3) that such losses are "attributable to" the Project; (4) that GPC has not mitigated such identified "reasonable financial losses".

[50] Instead, paragraphs 26 and 27 of the POC allege "impacts" in relation to Stage 1A of the Project. However, nowhere does the POC allege any "reasonable financial losses" to have been suffered (and the nature and quantum of any such losses) and which are alleged to have been "attributable" to the alleged impacts or, more precisely, to have been "attributable to the maritime development" the subject of the Project.

[51] Alleging "impacts" from the Project (in paragraphs 26 and 27 of the POC) is not the same as alleging "reasonable financial losses" which have in fact been incurred and which satisfy the Five Necessary Elements to Condition 20. It is possible for the Project to cause impacts (even of the kind alleged in paragraphs 26 and 27 of the POC) which do not sound in or cause any "financial loss" satisfying the Five Necessary Elements to Condition 20.

[52] Paragraph 27(f) is the only part of the POC that alleges actual financial expense (to the effect that the works in Stage 1A of the Project increased the depth of the Harbour, which allegedly necessitated Mr Falzon incurring costs with respect to additional equipment). However, that allegation still fails to allege financial loss or to satisfy the Five Necessary Elements to Condition 20. The allegation is also vague and there is no allegation that GPC has not mitigated that cost through its compensation program (being another necessary element in making an allegation of non-compliance with Condition 20).

[53] Paragraph 32 of the POC alleges the program does not compensate existing commercial fishing operators for reasonable financial losses. But that is more properly classed as a submission than an allegation of material fact. This is because there is no allegation in the POC that any "commercial fishing operator" (let alone Mr Falzon or the Purported Represented Class) has in fact suffered any "reasonable financial losses".

[54] These findings lead to a conclusion that POC paragraphs 26, 27, 32, 33 and 34 ought to be struck out along with the relief sought at paragraph 33(a).

[55] GPC added another submission[34]that there were in the POC insufficient allegations as to "existing commercial fishing operators". The requirement to be an "existing commercial fishing operator" on the proper construction of Condition 20 is one of the agreed Five Necessary Elements to Condition 20 to be satisfied.

[56] Importantly, paragraph 3(a) of the POC, with respect to the Purported Represented Class, alleges commercial fishing activities were carried out without the necessary licences under the Fisheries Regulation 2008 (Qld). The POC does not plead which of the Purported Represented Class held the necessary licences under the Fisheries Regulation 2008 (Qld) to engage in commercial fishing and which did not.

[57] There were other arguments raised on this point by the GPC. Some were to do with inferences to be drawn from the way the POR responded to the POD. It seems unnecessary to consider them.

[58] It is not directly alleged, as it must be, that Mr Falzon and each of the Purported Represented Class were "existing commercial fishing operators" within the meaning of Condition 20 along with the factual bases for those allegations.

[59] In the result, Mr Falzon has not sufficiently pleaded a case to establish that he and each of the Purported Represented Class were "existing commercial fishing operators" (which is a necessary element to Condition 20), making the entire POC liable to be struck out.

Has a sufficient case been pleaded to establish non-compliance with Condition 21?

[60] The POC pleads, at paragraph 33(b), that by reason of the facts pleaded at paragraphs 32(h) and (i) of the POC, GPC's compensation program contravenes Condition 21 because GPC "will not meet the costs associated with the "administration"" of the compensation program.

[61] In turn, paragraphs 32(h) and (i) of the POC plead that the compensation program does not compensate "existing commercial fishing operators" for "reasonable financial losses attributable to the Project" with respect to certain legal and accountancy fees.

[62] The problem with the pleading concerning Condition 21 is that the POC does not allege that Mr Falzon or any of the Purported Represented Class has suffered reasonable financial losses attributable to the Project by reason of legal and accountancy fees associated with the preparation, submission and prosecution of a claim, let alone plead or particularise what such losses are.

[63] Accordingly, the allegations at paragraphs 32(h) and (i) are hypothetical and speculative, and cannot provide a proper basis to seek the declaration sought concerning Condition 21.

[64] For these reasons, paragraphs 32(h), 32(i), and 33(b) should be struck out, and paragraph 34 and the relief claimed should be struck out to the extent reference is made to Condition 21.

Are the declarations sought too wide to be available

[65] GPC submitted the declarations sought are too wide. It raised several arguments. The first is that "21. By force of the Court's orders dated 20 January 2014, the relief sought in the POC must be limited to Mr Falzon personally. He is only entitled to seek a declaration that GPC's compensation program does not substantially comply with Conditions 20 and 21 in so far as it affects him personally."

[66] The words of the order do not, even with the benefit of reference to the transcript of submissions, suggest that the court considered the issue of the width of the declaration Mr Falzon could apply for or intended to direct Mr Falzon as to the width of the declaration he could apply for. I reject the first argument and proceed to the second.

[67] Mr Falzon accepts that his liberty to apply for a declaration depends upon his showing that he is significantly adversely affected by the subject matter of the proceeding.

[68] It seems to me that a corollary is that he may apply for a declaration only to the extent that he is significantly adversely affected by the issue the subject of the declaration. I have rejected above the argument made for Mr Falzon that an impact upon his fishing operations, without financial loss, is sufficient to mean he is significantly adversely affected by the subject matter of the proceeding.

[69] I accept the GPC's argument that the declarations sought are not available to him on the basis that he has not alleged the material facts to show that he is significantly adversely affected by the issue the subject of the declarations.

[70] The GPC's third argument for its submission that the declarations sought are too wide is that the POC does not plead sufficient material facts or circumstances concerning persons other than Mr Falzon. It submits:

25. Whether or not GPC has substantially complied with Conditions 20 and 21 necessarily depends on the particular facts and circumstances applicable to any given "existing commercial fishing operator", including with respect to "reasonable financial losses" suffered which were "attributable to the maritime development" the subject of the Project. Mr Falzon admits this allegation in his POR.[35]

26. However, the POC does not plead any particular facts or circumstances which purport to concern "existing commercial fishing operators" other than possibly Mr Falzon. Accordingly, it is not open on the pleaded facts to challenge the entirety of GPC's compensation program as not substantially complying with Conditions 20 or 21.

[71] I accept that submission. Until the pleading alleges sufficient material facts to create a tenable argument that another relevant person sustained a reasonable financial loss which the compensation program fails to mitigate Mr Falzon cannot rely on the project's consequences to any other. If the pleading were to adequately allege a failure to mitigate all reasonable financial losses of another relevant person there may then be an issue as to whether Mr Falzon is significantly adversely affected by the failure in respect of that other.

[72] I need not deal with that hypothesis. The declarations sought are too wide having regard to the material facts currently pleaded.

Is the proceeding validly brought as a representative proceeding?

[73] Mr Falzon has not yet alleged sufficient to establish a tenable status to apply for a declaration. The pleading does not yet allege sufficient to establish noncompliance with conditions 20 and 21. It is too hypothetical to consider the issue of whether it is appropriate to permit Mr Falzon to bring a representative proceeding because it requires one to foreshadow what the case will become.

[74] Mr Falzon has not sought liberty to replead. By his counsel he indicated that he would first consider these reasons.

[75] The parties asked that the argument as to costs of this application and as to the discrete costs issues raised in GPC's outline at pars 80 to 85 be adjourned. I have not considered costs.

[1] As including, inter alia, having had particular connections with any commercial fishing operation which generated income using a licence with a catch history recorded in 2009/10 financial year in catch sites 12, 13, 17 and 18 of grid 30

[2] Which assumes that catch sites 12, 13, 17 and 18 suffered impact attributable to the project of 68%, 14%, 100% and 21% respectively.

[3] GPC's application in pending proceeding filed 4 June 2014.

[5] Rule 171 of the UCPR allows the Court to strike out all or part of a pleading if it (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of the proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of process of the Court.

[8] Court document 10, filed 5 December 2013.

[9] Mr Falzon's application for a split trial was filed on 28 November 2013 (court document 9).

[15] Pursuant to Mr Falzon's points of claim filed 12 March 2014.

[16] A copy of the CG's Report commences at page 42 of the affidavit of Selina Kate Nutley sworn 8 November 2013 (filed for the applicant) (court document 4).

[19] CG's Report, starting at page 144.

[21] This was advised by Senior Counsel for Mr Falzon on instructions from Mr Falzon's solicitor.

[22] SPA s 456(1) provides: 456 Court may make declarations and orders

(1) Any person may bring a proceeding in the court for a

(a) a matter done, to be done or that should have been done

for this Act other than a matter for chapter 6, part 11;

(b) the construction of this Act, planning instruments under

this Act and guidelines made under section 117, 627 or

(d) the construction of the Brisbane port LUP under the

[32] McGregor on Damages 18th ed at 2-044 and 2-045.

[35] See the POD at paragraphs 2(c)(ii) and 2(c)(iii), which are admitted by Mr Falzon in his POR at paragraphs 1(e) and 1(f).

Civil Procedure Rules 1999

Environment Court Rules 2010

(Restructuring and Disposal) Act 2008

State Development and Public Works Act 1971

Development and Public Works Organisation Act 1971

At a glance

Court

Decision date

Source

Judgment (125 paragraphs)

Parties

Legislation Cited (5)