Is a cause of action articulated?
68All three grounds in the pleading are novel, assuming that three grounds are articulated. The Respondent argues that no cause of action known to the law is identified in the FAPOC. The Applicants' recast claim is that the standard of care for persons and/or the environment identified in Van Son is an implied limitation on the statutory authority conferred by the Licence and/or under the PEO Act.
69The grounds need to be assessed in light of the provisions of the PEO Act. Section 115 states that if a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment that person is guilty of an offence. At the final hearing the Applicants bear the onus of proof on the civil standard in these civil enforcement proceedings. The Applicants' counsel in oral submissions stated that wilful and negligent in par 48 to par 53 is not a separate allegation but part of the ground in par 54A and par 54B. That submission needs to be considered in light of s 115. Section 115(1) requires that the Applicants establish as a threshold issue that there is wilful and negligent disposal of waste by the Respondent. As I understand the Applicants' case the allegation of wilful and negligent disposal in par 48-53 is informed by the alleged infringement of the Respondent's lawful authority identified in par 54A and 54B. Assuming the Applicants can establish that threshold issue, there is a defence of lawful authority available to the Respondent under s 115(2) that as the holder of an environment protection licence it can rely on the Licence to establish that defence. The additional grounds in par 55 and par 56, alleging a limit on statutory authority as an implied licence condition, and par 57 and par 58, alleging an implied statutory limitation under the PEO Act, challenge the extent of that lawful authority in similar terms to par 54A and 54B.
70Another matter relevant to s 115(1) that has occurred to me in the course of preparing this judgment, it not arising in argument in this part of the proceedings, is the question of waste in s 115(1). The FAPOC par 36 - 39 are unchanged and continue to specify that CO 2 is waste within the definition of the PEO Act. In Gray No 1 I held at [59]-[60] that CO 2 was not a waste for the purposes of s 115(1) of the PEO Act because of the particular provisions of the Licence, accepting the Respondent's arguments on this aspect of the Applicants' case (set out in Gray No 1 at [27]-[30]). In Gray No 1 I was considering whether the Licence lawfully permitted any CO 2 to be emitted and I did not consider the issue of waste in light of par 54A and 54B. Given my present understanding of the case the Applicants seek to mount, to the extent that it is necessary for the Applicants to establish that there is wilful and negligent disposal of part of the CO 2 emitted by the power station as waste under s 115(1), the FAPOC par 36 - 39 and par 48 - 53 should stand.
71The authorities relied on by the Applicants to establish their cause of action are civil actions in nuisance seeking damages where a defence of authorisation by statutory authority of the activity giving rise to the nuisance is raised. An early case relied on by the Applicants is Tate & Lyle, a 1983 decision of the House of Lords in which the plaintiff brought an action against the defendants for damages for negligence and nuisance said to result from the construction of two ferry terminals in the Thames which resulted in adverse impacts on the plaintiff's business. The majority of the Court of Appeal held that the plaintiff was entitled to damages for the particular damage suffered as a result of the interference with the public right of navigation unnecessarily caused by the terminals. An individual who suffers damage resulting from a public nuisance is entitled to maintain an action. The terminal operators argued that if guilty of a public nuisance the terminal was approved by the relevant local authority and was authorised by statute. The House of Lords held that the defence of statutory authority to an action for nuisance is available if the work carried out is conducted with all reasonable regard and care for the interests of other persons as stated by Lord Wilberforce in Allen at 1011.
72In Van Son , considered in Gray No 1 at [63], the same principle was applied by Cohen J to hold that a statutory licence did not authorise work to be done in a manner which was unreasonable in a claim for damages based on interference with riparian rights. He cited Allen and Tate & Lyle in reaching that conclusion . The Applicants seek to extend the principle that a statutory authority does not permit a nuisance to a construction of the PEO Act and environment protection licences issued under it to the effect that the Act and/or the Licence have an implied limit whereby they are not a defence to an activity giving rise to a nuisance under s 115(2). This argument seeks to extend the Van Son approach, in a logical way, to say that therefore at the time a licence is issued or by implication generally under the PEO Act, a statutory authority cannot permit a nuisance through the emission of materials harmful to the environment. There does not appear to be any directly applicable authority for the legal proposition the Applicants make in par 54A - 58 of the FAPOC.
73Accepting that civil enforcement is provided under the PEO Act (in contrast to criminal enforcement), this case requires the Applicants to establish the following if the Respondents seek to rely on the Licence as lawful authority. Firstly, that there is a common law duty not to cause nuisance identified in Van Son for a party holding a statutory authority and that there is a correlative right of any person not to be affected by a nuisance. Secondly, that lawful authority under the PEO Act extends to include common law rights and duties. Thirdly, applying the principle in Van Son , a statutory authority cannot authorise a common law nuisance in the absence of an express statutory provision saying so. This part of the cause of action presumably relies on the well established principle that legislation is presumed not to alter common law doctrines unless expressly stated. There was no express submission by the Applicants' counsel relying on this principle but it must follow from the case pleaded. Cases such as Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 (cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia , 6th ed (2006) LexisNexis Butterworths (Pearce and Geddes) at [5.24]) are authority that there is a presumption against the alteration of common law doctrines by statute unless these are express.
74Some judges have cast doubt on the operation of this doctrine in more recent cases, see McHugh J in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 at 298 (referred to by Pearce and Geddes at 185); also comment by Kirby J at [121]. Spigelman CJ in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at 23 (Pearce and Geddes at 185) and more recently in Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [2] criticises the presumption. Basten JA also considers the application of the principle at [212] - [219] in Harrison . These and other cases are referred to in a paper by J Basten entitled Commentary on "Statutory interpretation and indigenous property rights" reported in (2010) 21 Public Law Review 263. To the extent this principle is relied on by the Applicants these authorities will need to be considered at a final hearing.
75The finding of a general limit on statutory authority, here the Licence, so as to prevent its use as a defence in criminal proceedings in contrast to civil proceedings is submitted by the Respondent as a further basis as to why there is no cause of action, referring to Bailey which was a prosecution under the Native Vegetation Conservation Act 1997. The PEO Act provides for civil enforcement as well as criminal. This is a civil enforcement action and the possibility that criminal enforcement exists does not preclude the Applicants' argument in these civil proceedings.
76The Respondent argued (par 48, 49) that Van Son cannot provide a basis for a cause of action as it represents old law, does not specify the standard of reasonableness to be met and that such cases depend on their facts to establish that a particular activity gives rise to nuisance and no such facts are pleaded here. That last criticism is more properly considered in relation to whether the pleadings are embarrassing in that adequate detail of the grounds is not provided.
77I am determining whether I consider particular grounds can proceed for final determination. The grounds articulated by the Applicants arise as breaches of the PEO Act and give rise to issues of statutory construction of s 115 and s 64 of the PEO Act in the overall context of that Act including the objects in s 3(a) and (d). The Applicants submit the principles in Project Blue Sky requiring a purposive approach to statutory construction underpin this approach. Whether Parliament intended by the statutory scheme to allow unlimited emissions of CO 2 is a matter the Applicants seek to put in issue. Assuming that a limitation based on Van Son is found to be implied in the PEO Act or a licence the question will then arise of whether the Licence should be construed so as to oust that implied limitation under the Licence or the Act. While the Respondent has argued that there is no such cause of action, I consider that it is arguable that the Applicants' case is underpinned by a cause of action. The Respondent criticises the pleading because no separate common law cause of action based on negligence or the tort of nuisance is articulated but in the way I understand the pleading this is not necessary. These issues of the extent of lawful authority should be determined at a final hearing.
78The Applicants' case in par 54A and par 54B is now directed to only part of the CO 2 being emitted from the power station, as identified in par 54B. In Gray No 1 the focus of the Applicants' case was the whole of the CO 2 being emitted. Paragraphs 55 and 56, and par 57 and 58, are not specifically limited to part of the CO 2 emitted from the power station but I infer these are also intended to address part of the CO 2 emitted in the same way as par 54A and 54B.
79The Respondent submitted that there is no legally enforceable upper limit upon the volume of CO 2 which can be emitted from Bayswater Power Station contained in the Licence which authorises the generation of electrical power from coal on a scale of generation greater than 4,000 gigawatt hours. It argues that the upper limit on the discharge of CO 2 from the power station lies not in a legal or regulatory restraint but in the productive capacity of the industrial machinery. That submission is not a complete answer legally to the case the Applicants seek to mount. The Applicants' case relies on an alternative construction of the statutory regime under the PEO Act and raises whether there is an overriding common law limit which is not ousted by that statutory regime. These competing constructions of the PEO Act are in dispute.
80As noted above, no directly applicable authority is cited by the Applicants to support the novel pleading; the cases summarised above of Van Son and Tate & Lyle are sought to be applied by logical extension of the principle articulated in those cases. Further inquiry by the Applicants of statutory schemes which have considered the application of implied common law limitations within Australia and relevant overseas jurisdictions will be necessary on final hearing as the matter raised is a fundamental one in the context of regulatory regimes established by statute. I have already referred above to the likely need to consider the principle of the presumption against the alteration of common law doctrines by statute unless expressly stated.
81The Respondent's submission that there is an absence of legal significance of the facts alleged or the identification of a connection between the material facts pleaded and a cause of action known to the law is not accepted as a complete answer to the Applicants' legal case at this stage of the proceedings. That submission will be considered in relation to whether the particulars are adequate. While the case is novel and lacks supportive authority addressing it directly, it is not so lacking in legal logic that I consider the high threshold necessary to strike out the pleading is met.