Minister for Environment v Rothenberger Australia Pty Limited

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1191 of 2013

AND: ROTHENBERGER AUSTRALIA PTY LIMITED (ABN 12 008 411 568)

JUDGE: PERRAM J DATE: 8 OCTOBER 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was filed by the Minister for Sustainability, Environment, Water, Population and Communities, subsequently the Minister for Environment per Order 1 above ('the Minister'), and concerns the alleged failure of Rothenberger Australia Pty Limited ('Rothenberger') to submit mandatory quarterly reports under environmental protection legislation. 2 Prior to the setting down for hearing the parties reached an accommodation and sought that I exercise the jurisdiction granted under s 21 of the Federal Court of Australia Act 1976 (Cth) to make consent orders, notations and declarations reflecting the bargain reached by the parties. The jurisdiction of this Court to make declarations by consent has been subject of much prior authority: see Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [12] ff and the authorities discussed therein. In order for this Court to grant declaratory relief by consent it should be satisfied that the exercise of discretion favours the making of the declaration. 3 In situations where contravention of legislative provisions may result in the breach of an obligation or exposure to penalties, the setting out of the basis of liability and the basis for the grant of relief is desirable: see Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [35]. 4 I turn to the basis for the grant of declaratory relief.

The Legislative Scheme 5 The Ozone Protection and Synthetic Gas Management Act 1989 (Cth) ('the Act') requires that manufacturers, importers and exporters of ozone depleting substance ('ODS'), synthetic greenhouse gas ('SGG') and ODS and/or SGG equipment hold a licence (s 16). Under s 46A, manufacturers, importers and exporters must submit quarterly reports to the Minister and, by s 46A(5) of the Act, commit an offence by failing to do so. These reports must be completed in accordance with the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth) ('the Regulations').

The Relevant Periods 6 In the Minister's Originating Application it was alleged that Rothenberger failed to submit quarterly reports for the periods October to December 2012 and January to March 2013. The Minister sought, by consent, to amend the Originating Application to include the period from April to June 2013. It seems to me to be convenient to allow this course and I will grant leave to do so.

The Failure to Lodge Reports 7 The relevant periods in which Rothenberger failed to lodge a quarterly report, therefore, are: October to December 2012; January to March 2013; and April to June 2013. 8 There are certain conditions that remove the obligation of a person to provide a quarterly report under s 13(6A)(b) of the Act. None of these conditions arise in the situation that presently obtains. 9 The parties supported their claim for the granting of the declaratory relief with the affidavit of a Mr Philip Dadswell and a Statement of Agreed Facts provided pursuant to s 191 of the Evidence Act 1995 (Cth). 10 The parties agree that Rothenberger held a licence granted by the Minister throughout the relevant period, a copy of which was annexed to Mr Dadswell's affidavit. It is further agreed between the parties that Rothenberger failed to lodge a quarterly report before the 15th day after the end of each quarter and that Rothenberger, therefore, contravened s 46A of the Act and reg 901 of the Regulations with respect to each of these periods. It is useful to consider the quarterly reporting periods in turn.

October to December 2012 11 The report for the October to December 2012 quarterly period was due on 15 January 2013 - that is - on the 15th day after the end of the quarter (s 46A). In his affidavit Mr Dadswell annexes an exhibit containing a letter sent by registered post to Rothenberger dated 11 February 2013 warning that compliance and enforcement action might be commenced against them unless the report was provided immediately. A final warning letter was sent by the Minister on 11 April 2013. Registered post records in the evidence showed that this letter was received and this was confirmed via telephone conversations on 17 April 2013 between a representative of the Minister and a Mr Peter Schiffler, a director of Rothenberger.

January to March 2013 12 Automatically generated email correspondence was sent by the Minister on 21 March 2013, 27 March 2013 and 18 April 2013. The correspondence warned that compliance and enforcement action might be commenced against Rothenberger unless the reports were provided immediately. 13 On 29 May 2013 the Minister sought data from the Australian Customs and Border Protection Service ('Customs') on any importation that Rothenberger had engaged in for the period 2 July 2012 to 31 March 2013. This data showed that Rothenberger had imported products likely to contain ODS/SGG during the reporting period. The data displayed, relevantly, the importation of refrigeration equipment, freezer equipment and condensers/evaporators. 14 Based on this evidence it is clear that Rothenberger contravened s 46A of the Act by importing ODS and SGG equipment in both the October to December 2012 quarter and January to March 2013 period and in failing to provide a quarterly report pursuant to that section. This is also agreed between the parties in the Statement of Agreed Facts.

April to June 2013 15 The parties agreed that during this quarterly period Rothenberger acted in contravention of s 46A. I do not need separate evidence of this fact, it having been adduced in the Statement of Agreed facts.

Conclusion 16 I am satisfied based on the evidence provided in the form of Mr Dadswell's affidavit and the Statement of Agreed Facts that Rothenberger contravened s 46A of the Act and reg 901 of the Regulations with respect to the three quarterly reporting periods. Being satisfied of these facts I am content to grant the declaratory relief and make the consent orders sought by the parties. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.