Plaintiff v First Defendant

"The Minister for Planning, being satisfied that works proposed in relation to the deepening of Port Phillip Bay shipping channels, could reasonably be considered to have or capable of having a significant effect on the environment, has declared the works as public works to which the [EEA Act] applies."

3 As a consequence of the Order, the proponent of the works (the first defendant) was obliged to cause an Environment Effects Statement to be prepared and submitted to the Minister for the Minister's assessment of the environmental effects of the works.[2]

4 The first defendant submitted a detailed Statement to the Minister who in turn referred it to a Panel which was to consider the Statement and any submissions made to the Panel. The Panel received numerous submissions and conducted lengthy public hearings and in February 2005 submitted a substantial Report to the Minister. It is fair to say that the Panel found many deficiencies in the Statement for various reasons including the lack of definition of the Channel Deepening works, the lack of consideration of a number of important matters and the absence of a wide variety of important relevant data. The Panel made a considerable number of recommendations, including some that stated the need for further assessments and investigations. In due course the Minister required the first defendant to produce a supplementary Statement containing additional information.[3]

5 The supplementary Statement has not yet been provided to the Minister and his assessment is therefore not as yet forthcoming and until then cannot be referred to the relevant Ministers. It was not disputed that in those circumstances the Channel Deepening works cannot lawfully be commenced having regard to the prohibition contained in s.6(2) of the EEA Act which provides:

"In any case where a statement has been submitted to the Minister no works referred to therein shall be commenced or proceeded with until the assessment of the Minister with regard to the environmental effects has been considered by the relevant Minister."

6 The first defendant proposes to proceed with the Trial Dredging works which it says are works not covered by the statutory prohibition. These works are, it is said by the first defendant, designed to carry out tests and obtain relevant data for the purpose of assessing the environmental effect of the proposed Channel Deepening works. A specialist dredging vessel has been procured under contract, has arrived in Victoria from overseas, is ready to commence the Trial Dredging works and such works were intended to be commenced on 6 August 2005 (the hearing of this application being on 5 August 2005).

7 The Channel Deepening works have been described as an enormous and monumental project. In comparison the Trial Dredging works are quite limited and are said to comprise about 4% of the total of the works which would be carried out if the Channel Deepening works were ultimately to proceed. However the Trial Dredging works are only small in comparative terms - they still involve the dredging of a substantial quantity of material from selected areas of the shipping channels and the depositing of the material in "grounds" one of which will be newly established.

8 The plaintiff submitted that the carrying out of the Trial Dredging works would be a clear breach of s.6(2) of the EEA Act because the works constituted part of the works referred to in the first defendant's Environment Effects Statement. On the other hand the first defendant submitted that the Trial Dredging works were distinct works for a different purpose that did not constitute or form part of the works referred to in its Environment Effects Statement. They were separate works proposed and devised after the Panel report and to some extent suggested by that report. Furthermore the Minister had concluded that the Trial Dredging works could not reasonably be considered to have or to be capable of having a significant effect on the environment[4] and the Minister therefore considered that he was prevented by s.3(2) of the EEA Act from making an order in respect of the Trial Dredging works under s.3(1) of the EEA Act.[5]

9 The plaintiff contended that there was a strong case, indeed a clear case, that the Trial Dredging works would be unlawful and contrary to s.6(2) of the EEA Act whereas the first defendant contended that it was perfectly clear that the Trial Dredging works were not prohibited by that section.

10 The plaintiff did not offer to give the usual undertaking as to damages, conceding that such an undertaking would be meaningless coming from the plaintiff. However the plaintiff submitted that the breach of the Act was so clear that the public interest demanded that an interlocutory injunction be granted in any event and notwithstanding the uncontradicted evidence concerning the substantial financial loss which would be incurred by the first defendant should the Trial Dredging works be delayed. The plaintiff accepted that there was no evidence that any irremediable harm would be caused by the Trial Dredging works. In relation to the risk of harm the plaintiff pointed to the concerns of the Panel expressed in its report about the harm which might be caused by the Channel Deepening works. As I understood it, the plaintiff sought by reference to that material to suggest that an inference should be drawn that the Trial Dredging works might, at least to some extent, cause harm of a similar or related kind.

11 In my opinion a fundamental consideration on this application for an interlocutory injunction is that no viable undertaking as to damages is or can be offered by the plaintiff. Such an undertaking is required save in exceptional circumstances. It is convenient to refer to, and I adopt, what was most recently said in that regard in the High Court by Heydon J in Combet v Commonwealth of Australia.[6] I can conceive that in some circumstances an interlocutory injunction might be granted without requiring the usual undertaking as to damages if there was a manifest breach of the law threatened. It might then be in the public interest to grant such an injunction without requiring the usual undertaking as to damages. Likewise if there was a proven danger of irremediable harm or serious damage an interlocutory injunction might perhaps be granted in some circumstances without the undertaking being required.

12 However in the present case I do not consider that exceptional circumstances have been established. I consider that there is a serious or reasonably arguable question to be tried concerning the alleged threatened breach of s.6(2) of the EEA Act but it is not an open and shut case by any means. There is at least one reasonably arguable answer to the plaintiff's contention. That answer is that, because the Trial Dredging works are the subject of a distinct proposal with a specific and limited purpose, and because they may never be subsumed in the Channel Deepening works (as those works may never proceed), there can be no breach of s.6(2) of the EEA Act when properly construed. There are questions of fact and law, or mixed fact and law, involved, it seems to me, that can only be determined at trial. The plaintiff's case is not so strong or so clear as might support the granting of an interlocutory injunction without the usual undertaking as to damages.

13 In any event, the balance of convenience does not in my view favour the plaintiff. There is clear evidence of immediate and continuing financial loss to the first defendant and some evidence of likely loss and possibly significant harm, not capable of precise measurement, to the interests of the State if the works were to be stopped pending trial. As against that there is no satisfactory evidence before the Court that environmental or economic damage may be caused by the Trial Dredging works themselves. In that setting, the absence of the usual undertaking as to damages can only fortify the conclusion that the balance of convenience does not favour the granting of an interlocutory injunction.

14 For those reasons the application was dismissed. Arguments were also advanced concerning the standing of the plaintiff and the significance of the plaintiff's alleged delay in making this application but it is unnecessary to determine those arguments.

[1] These works are more particularly described in a referral form submitted by the first defendant under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Exhibit JW-7 to the affidavit of Jennifer Ronda Warfe affirmed 3 August 2005).

[2] Section 4(1) of the EEA Act.

[3] Pursuant to s.5 of the EEA Act.

[4] See s.3(2) of the EEA Act.

[5] There was evidence that other relevant approvals for the Trial Dredging works had been obtained and the plaintiff did not suggest that there was any bar other than that which it said arose under s.6(2) of the EEA Act.

[6] See [2005] HCATrans 459 (29 July 2005) at [1530] to [1645].