JUDGMENT
Introduction
1 The respondent, Sydney Water Corporation, is the occupier of the Warriewood Sewage Treatment System at Warriewood Road, Warriewood ("the premises"). On 10 September 2004 the applicant, Meriton Apartments Pty Limited, commenced Class 4 proceedings against the respondent claiming the following relief:
1. A declaration that the respondent is in breach of s 129(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act ").
2. An order that the respondent do all things necessary to prevent the emission of offensive odour from the premises being the Warriewood Sewage Treatment Plant, Warriewood Road, Warriewood.
2 Section 129(1) of the POEO Act states:
(1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.
3 The applicant filed points of claim on 14 October 2004 stating that the respondent:
· is, and was at all material times, carrying out scheduled activities at the premises;
· that those activities were carried out under the authority conferred by an environment protection licence; and
· is causing or permitting, and has at all material times caused or permitted, the emission of offensive odour from the premises.
4 The respondent subsequently sought further and better particulars of the applicant's claim, which the applicant duly furnished.
5 By notice of motion dated 17 November 2004, the respondent moves the Court to dismiss the proceedings under Pt 13 r 5 of the Supreme Court Rules 1970, on the basis that:
· no reasonable cause of action is disclosed;
· the proceedings are frivolous or vexatious; or
· the proceedings are an abuse of the process of the Court.
6 Alternatively, the respondent argues that the case as pleaded and particularised by the applicant has a tendency to cause prejudice, embarrassment and delay in the proceedings. Accordingly, the respondent seeks an order that the proceedings be stayed, or the points of claim be struck out, pending the proper particularisation of the applicant's case.
Are the proceedings frivolous, vexatious or an abuse of process?
7 Part 13 r 5 of the Supreme Court Rules states:
(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.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).
8 That rule applies to Class 4 proceedings in this Court by means of Pt 6 r 1 of the Land and Environment Court Rules 1996.
9 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ sets out the various descriptions of the test to be applied in determining whether to strike out or stay proceedings (at 129):
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
10 The respondent bears the onus of showing that the applicant's case falls within that test, as it is variously expressed: Spellson v George (1992) 26 NSWLR 666 at 679. In Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 255-256, Kirby J helpfully outlines the principles to be applied in determining an application for summary dismissal, which can be relevantly summarised as follows:
· It is a serious matter to deprive a person of access to the court and that relief is rarely and sparingly provided.
· The party seeking relief must show that it is clear, on the opponent's documents, that the opponent lacks a reasonable cause of action or that their claim is clearly frivolous or vexatious.
· It is not sufficient, of its own accord, for the court to form the opinion that the case appears weak and is therefore unlikely to succeed.
· If a party has a reasonable cause of action but its pleadings are defective, the court will ordinarily allow that party to reframe its pleading.
· The guiding principle is for the court to do what is just.
11 Keeping these principles in mind, I turn now to consider the respondent's submissions that the proceedings should be stayed or dismissed.
The respondent's submissions
12 Mr S J Rushton SC and Mr M H Baird, appearing for the respondent, submit that the Court's power to make declarations or to grant injunctions in relation to conduct that has involved, or might in the future involve, the commission of criminal offences is limited by recognised principles. In particular, Mr Rushton submits that:
(a) the Court would not grant bare declarations in relation to past or future criminal conduct;
(b) any proceedings which seek declarations in relation to past or future conduct are foredoomed to fail and are an abuse of process;
(c) since the applicant is seeking relief in relation to criminal activity, it failed to meet its obligation to provide particulars of each criminal offence and accordingly the proceedings are an abuse of process and should be stayed or the pleadings struck out.
The nature of the applicant's claim
13 Mr Rushton's submissions rest on the assumption that the applicant seeks relief in relation to the past, or possible future, commission of criminal offences. That assumption is incorrect. The applicant's points of claim seek neither a declaration that the previous conduct of the respondent involved the commission of a criminal offence, nor that the respondent's future conduct will involve the commission of a criminal offence. Rather the applicant seeks to restrain a breach of s 129(1) of the POEO Act. The applicant commenced civil proceedings pursuant to s 252 of the POEO Act, which relevantly states:
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.
(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.
…..
(6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
…..
(8) In this section:
breach includes a threatened or apprehended breach.
14 This Court has power to hear and dispose of such proceedings under s 20(1)(ci) of the Land and Environment Court Act 1979 ("the Court Act").
15 Proceedings are brought under s 252 of the POEO Act to enforce a public duty imposed under that Act; a duty by which Parliament expresses the public interest in protecting the environment: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. Section 252(1) is an open standing provision that removes the common law limitations on the standing of citizens to commence proceedings to enforce a public right. Any person can commence proceedings regardless of whether or not any right of that person has been or may be infringed by, or as a consequence of, the breach of the public duty: Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250 at 256-257; Building Owners and Managers' Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 at 72-73 upheld on appeal (1985) 55 LGRA 444 at 447; F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 310, 313. A public interest also exists in upholding environmental legislation and ensuring that all persons comply with the duties imposed by the legislation. Proceedings brought under s 252 of the POEO Act, in Class 4 of this Court's jurisdiction, are not criminal proceedings. This is reinforced by s 252(2), which states that such proceedings may be brought whether or not proceedings have been instituted for an offence against the Act. In fact, if the applicant had brought proceedings to prosecute the respondent for a criminal offence, those proceedings would require the leave of this Court under s 219 of the POEO Act. Moreover, in Sydney City Council v Building Owners and Managers' Association of Australia Ltd (1985) 55 LGRA 444 at 447-448, Mahoney JA (Hope and Priestley JJA concurring) stated that the reference to "a breach" in s 123(1) of the Environmental and Planning Assessment Act 1979 ('the EP&A Act"), is not limited to something essentially attracting a criminal sanction. The wording of s 252 of the POEO Act is similar to that provision of the EP&A Act. Accordingly, s 252 of the POEO Act should not be read down to only include breaches with criminal consequences. It is necessary to consider the respondent's submissions in this context.
Does the Court have power to remedy or restrain past or future breaches of the POEO Act?
16 Mr Rushton submits that the Court is unable to remedy or restrain incidents that have already occurred. In particular, Mr Rushton submits that the Court cannot grant declaratory relief to establish that past conduct amounts to a criminal offence, and relies upon Inglis v Moore (1979) 24 ALR 411, in which St John J states (at 415) that the "whole concept of a declaration that a crime has been committed being made in civil proceedings is abhorrent". This argument, however, rests upon the misconceived assumption that the applicant seeks a declaration in relation to past criminal conduct. The applicant does not seek a declaration in those terms, nor in the nature of those terms. Rather, as I stated earlier, the applicant seeks a declaration that the applicant has breached the POEO Act. This is not the same as proving the commission of a criminal offence. Section 252 enables civil proceedings to be brought for a breach of a statutory prohibition. It does not attract a criminal conviction nor a penalty.
17 Mr Rushton relies on the decision of Bignold J in Williams v Barrick Australia Limited (2003) 128 LGERA 80 where his Honour exercised the Court's discretion in refusing to grant declaratory relief in relation to breaches of the National Parks and Wildlife Act 1974. Although no breaches had in fact occurred, Bignold J stated that since mere declaratory relief would not remedy or restrain the breach in any way, it would not be granted in any event. In that case, however, there was no ongoing breach and there was no utility in granting any relief. Conversely, in these proceedings, there are steps that could be taken by the respondent to rectify any ongoing breach of the POEO Act. The applicant seeks to show that past breaches of the Act have occurred and to demonstrate that, unless restrained, the respondent will continue to breach the POEO Act. In such circumstances, the Court could order various forms of relief to remedy or restrain the continuance of the breach.
18 Section 256(6) of the POEO Act states that the Court may make such orders as it thinks fit to remedy or restrain a breach. Under s 20(2) of the Court Act this Court can make a declaration of right in relation to a right, obligation or duty or the exercise of any such function arising from the POEO Act. Therefore, this Court has power to make an order declaring that a breach of the POEO Act has occurred or that a certain act that is proposed to be done will, if done, amount to a breach of that Act in the future. This Court has previously made declarations that the past conduct of a respondent in civil proceedings has involved a breach of an Act: see for example Donnelly v Solomon Islands Mining NL (2002) 121 LGERA 264 at 291; Woolworths Limited v The Warehouse Group (Australia) Pty Limited [No. 2] [2003] NSWLEC 72 upheld in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270; Bankstown City Council v Le (2003) 133 LGERA 155 at 167. In Forestry Commission of NSW v Corkill (1991) 73 LGRA 247, the Court of Appeal recognised that this Court could also make a declaration that certain future conduct would be in breach of the relevant legislation. Therefore, a mere declaration is a remedy that the Court could impose.
19 The Court can also make any other order that it thinks fit. The Court has jurisdiction under s 20(2)(a) to hear and dispose of proceedings to enforce any right, obligation or duty imposed by an environmental law. For example, if the Court found that there had been significant breaches of the POEO Act by the respondent in the past, it could order that the respondent be restrained from continuing such breaches in the future: Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 250, 261; Woolworths Limited v The Warehouse Group (2003) 123 LGERA 341 at first instance per Lloyd J at 347-348 and on appeal per Foster AJA (with Mason P and Santow JA concurring) at [48]. Mr Rushton submits that the Court would be limited to making a bare declaration and would not grant injunctive relief. He argues that where the respondent is a statutory authority and a bare declaration is made, the Court would assume that the statutory authority would act in accordance with the law (Forestry Commission v Corkill at 256). That may be the case, but it would depend on the circumstances of the case and a bare declaration may not be appropriate if the statutory authority had shown previous disregard for the law or a reluctance to rectify its conduct: see for example Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 at [44]-[48]. Accordingly, the particular relief to be granted is a matter for the Court to determine after it has heard the complete evidence.
20 Even if the Court ultimately decides that no order is appropriate to meet the case, a decision to that effect would be a proper discharge of the Court's jurisdiction as stated by Street CJ in F Hannan v Electricity Commission at 311. Although the Court could choose not to remedy or restrain the breach by a particular order, this would not preclude the applicant from bringing the proceedings. In fact, to hold otherwise would result in a circular application whereby the applicant must prove it is entitled to a remedy, and thus prove the breach, in order to establish standing under s 252. Clearly this is not how Parliament intended the legislation to be applied. Section 22 of the Court Act reinforces the view that the form of relief will depend upon the evidence before the Court and will be determined at that time. The applicant, therefore, has standing to bring proceedings under s 252 of the POEO Act seeking to remedy or restrain a purported continuing breach of s 129(1) of the POEO Act. I am not satisfied that the proceedings, in which declaratory and other relief is sought, is either foredoomed to fail or an abuse of the Court's process. It is neither frivolous nor vexatious. Further, the respondent has failed to show that the applicant has no reasonable course of action.
Does the case as pleaded have a tendency to cause prejudice, embarrassment or delay in the proceedings?
21 Mr Rushton submits that the applicant's points of claim, which plead that the respondent is "in breach" of s 129(1) of the POEO Act, actually allege that the respondent committed numerous criminal offences between April 1997 and August 2004. Accordingly, Mr Rushton submits that all the incidents prior to March 2004 are now statute barred by s 216(1) of the POEO Act and are irrelevant to this matter. However, Mr Rushton's submission misconceives the nature of the applicant's claim. The applicant alleges that the respondent has breached, and is thus likely to continue breaching, the Act absent the taking of any remedial measures. The proceedings are civil enforcement proceedings to which the limitation period in s 216 of the POEO Act does not apply. Moreover, the Court can exercise its discretion in determining the form of any declaration or consequential relief. For example, the Court may make a declaration that the respondent has breached the Act or is in breach of the Act. Further, the applicant's evidence of the respondent's past conduct may be relevant to the proceedings as an indication of how the respondent will conduct itself in the future and what relief is appropriate in the circumstances of the case.
22 The applicant's points of claim plead that the respondent is causing or permitting, or at all material times caused or permitted, the emission of odour from its premises. Mr Rushton submits that these are criminal offences and cannot be pleaded in the alternative but must be brought separately. These are civil proceedings, however, and the applicant is entitled to plead its case in the alternative.
23 Mr Rushton also submits that the reference to "a breach" in the applicant's points of claim is oppressive, embarrassing and likely to cause delay. He submits that the applicant is in fact alleging a series of past breaches. Section 252(8) states that a breach includes a threatened or apprehended breach. The reference to "a breach" in the applicant's points of claim is reference to an alleged continuing breach, incorporating both the past and apprehended future conduct of the respondent.
24 Mr Rushton submits that the applicant has failed to provide the following particulars of its pleadings:
· the manner in which the alleged breach has occurred;
· the time and period during which it contends offensive odour is alleged to have been emitted by the respondent;
· the "cause" of the alleged offensive odour on each of the pleaded occasions apart from claiming that it is caused by the carrying out of the sewage treatment system at the premises;
· the persons who have suffered any harm by reason of the offensive odour;
· the particulars of the persons who made the complaints of odour emissions; and
· the steps which the respondent ought to take to remedy the alleged breaches.
25 However, the applicant's solicitors sent a letter, dated 5 November 2004, to the respondent's solicitors responding to its request for further and better particulars. That letter adequately identifies the manner in which the respondent has allegedly released odours and the dates upon which each odour is alleged to be emitted. It also describes the harm that has been suffered by certain persons. The letter also refers to the Warriewood STP Odour Mitigation Project Concept Design Report ("the Report"), which records complaints received by the respondent, describes the causes of odours from the plant, and details the odour mitigation steps available to the respondent. The applicant has also filed an affidavit of Mr Roy Mustaca who is the Managing Director and Secretary of Planet Warriewood Pty Limited and Opera Investments Pty Limited. The former company is the owner of land situated near the premises, while the latter company operates a cinema complex located on the site. Mr Mustaca's affidavit describes the harm both he and his staff have suffered as a result of the odour emissions and also records the complaints received from patrons of the cinema.
26 Mr Rushton also submits that the applicant relies only on secondary evidence of the offensive nature of the odours and the cause of those odours. That is incorrect. The applicant relies upon the affidavit of Mr Mustaca as direct evidence of the odour, and the Report as evidence of the source of the odour. I am thus satisfied that the particulars provided by the applicant do not have a tendency to cause delay, prejudice or embarrassment in the proceedings. Rather, the particulars given by the applicant are sufficient to inform the respondent of the case it must meet and the matters to be investigated at the hearing so that the respondent will not be taken by surprise: Sims v Wran [1984] 1 NSWLR 317 at 321.
27 However, as noted by Handley and Cripps JJA in Wickstead v Browne (1992) 30 NSWLR 1 at 11, the court may refuse an application to stay or dismiss proceedings where the issues turn on evidence likely to be in possession of the defendant (or respondent) and to be produced upon discovery. In this case, the respondent is aware of the activities it is carrying on at its premises, and of its plant and equipment on the premises. The applicant anticipates that the documents that the respondent will be required to produce on discovery will provide further evidence and particulars relating to the alleged breaches. As such, I am satisfied that the current pleadings and particulars demonstrate a reasonable cause of action. I conclude that the respondent has failed to show that the pleadings or particulars have a tendency to cause delay, prejudice or embarrassment. Accordingly, the proceedings should not be stayed or dismissed, nor should any of the paragraphs of the points of claim be stuck out.
Costs
28 The costs of the notice of motion should be the applicant's costs in the proceedings. Where a party to an application in respect of interlocutory proceedings is successful, but fails in the ultimate trial of the action, it is not appropriate that it should be entitled to recover its costs in respect of the interlocutory proceedings. Equally, the successful party in the principal proceedings having failed in the interlocutory proceedings should not be entitled to recover costs in respect of the interlocutory proceedings: Coote v Howlett (1887) 3 WN (NSW) 135; Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443; Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348, 59 ALR 359.
29 In Carriage v Stockland (Constructors) Pty Ltd (2003) 125 LGERA 414, Pain J ordered that the costs of a contested interlocutory application should be reserved until the final outcome of the proceedings. In so ordering, her Honour made no reference to the authorities and, it may be inferred, was not referred to them by counsel. Considerations of judicial comity would normally require that I adopt and follow a ruling by another judge of the same Court. But where such a decision had been made without reference to settled authority, and indeed made contrary to settled authority, then I am permitted to depart from it.
30 I make the following orders. The Court orders that:
(1) The respondent's notice of motion, dated 23 November 2004, is dismissed.
(2) The exhibits may be returned.
(3) The costs of the notice of motion shall be the applicant's costs in the proceedings.
I hereby certify that the preceding 30 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.