Darwen & Stewart v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2011] QPEC 17

1-1 [2011] QPEC 17 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 3181 of 2008 KEITH ALEXANDER DARWEN First Applicant and GARY WILLIAM STEWART Second Applicant and PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD First Respondent and BURDEKIN SHIRE COUNCIL Second Respondent and CHIEF EXECUTIVE, ENVIRONMENTAL Third Respondent PROTECTION AGENCY BRISBANE ..DATE 18/02/2011 ORDER CATCHWORDS Integrated Planning Act 1997 s 4.1.50(2) Joint application by two cane farmers alleging environmental harm by the respondent's aquaculture activities and seeking enforcement orders - one applicant engages separate solicitors - court refused to permit applicant to proceed while there is separate representation on the applicant side - consideration of appropriate orders for "disclosure" of information about and from bores sunk to test ground waters (which respondent feared it may not have) - whether external "mediation" or arbitration by independent senior counsel should be ordered -- 1 of 8 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court has made an order in terms of the initialled draft providing for the future conduct of this originating application. It is calculated to lead to a hearing in the June pool which may cause some difficulties for the first respondent which has had recently a change of solicitor. The matter now has a single applicant, Mr Darwen, who is a cane farmer with a farm adjoining land where an aquaculture activity is conducted by the first respondent. The complaint which he and the former co-applicant Mr Stewart made was that salty water is being allowed to escape from the first respondent's ponds and that the effect that that phenomenon has on the groundwater is harming the cane farms. It's sought to establish against the first respondent that it's causing environmental harm for the purposes of the Environmental Protection Act 1994. Relief is sought along the broad lines of having the aquaculture activity cease or alternatively enforcement orders are to be made to require more efficient and/or more frequent lining of ponds. The original two applicants came to have separate legal representation when Mr Stewart engaged the services of Shine Lawyers rather than Anderssen and Co who had got the proceeding going. -- 2 of 8 -- 1-3 ORDER 1 10 20 30 40 50 60 On 3 February 2011 that caused a difficulty in the way of the application of Mr Darwen which for the purposes of that day I had interpreted as an application on a review date for further disclosure. Mr Andreatidis for the first respondent asserted, and I was inclined to think soundly, that he ought not to have to face an application by one only of the appellants while the other was separately represented by new solicitors who appeared for the purpose of seeking additional time so that they could obtain proper instructions for the purpose of advising Mr Stewart. I took the view that the Court in those circumstances ought not to tolerate a situation in which on the applicant or plaintiff's side of the record there is more than one set of legal representatives. See Smits v Moreton bay Regional Council [2009] QPEC 63 at [14]_cf and Ogle v Pine Rivers Shire Council [2005] QPELR 291 at [27]. Given that the proceeding is an originating application, I don't think there would have been any difficulties in Mr Stewart being made a respondent, although in this jurisdiction there can often be serious difficulties about finding a role for a litigant who wished to be involved in an appeal. Cf Ogle at [28]. The matter was adjourned to today upon my intimation that Mr Darwen was likely to be granted the relief which I'd -- 3 of 8 -- 1-4 ORDER 1 10 20 30 40 50 60 understood him to be seeking, Mr Andreatidis having indicated that his client had no objection in principle to providing what was sought, and further intimation that Mr Stewart was likely to find himself transferred to the respondent's side of the record where he could have whatever representation he chose and still be in a position to seek relief for the protection of his farm. I am grateful to Mr Allen, counsel for Mr Darwen, for a reference to Holden v The Silkstone and Dodworth Coal and Iron Company Limited (1931) 45 LT (NS) 53 which confirms that, as the party initiating a situation of separate representation, Mr Stewart is the one to go to the respondent’s side of the record. When the matter came on again today, Shine Lawyers appeared for Mr Stewart seeking leave to read and file a notice of withdrawal. There's no difficulty raised by any other party to that, so under rule 15 of The Planning and Environment Court Rules 2010 that withdrawal will presumably become effective in 14 days. For practical purposes, the matter was allowed to proceed as an application by Mr Darwen alone. The Court has had to consider some interesting issues including the terms in which a Court direction to the first respondent requiring it to provide certain information ought to be couched. Mr Andreatidis was concerned that his client not be placed in the position where it was the subject of an order with which it might not be able to comply. I would be surprised if the Court would be so unreasonable as to visit adverse consequences on a party in that situation. -- 4 of 8 -- 1-5 ORDER 1 10 20 30 40 50 60 The information which is sought relates to the location of bores which have been sunk to test the groundwater on the first respondent's property in particular but also it seems outside it. The Court hears that the applicant's expert hydrogeologist Mr Lait is unable to prepare his expert report without knowing accurately the locations of bores, readings or results from which he has. The application is premised on the first respondent having information in that regard, which extends also to other details such as the depth of bores and the like, based on a CSIRO report, “Groundwater Level and Salinity in the Trent Road Area North Burdekin Water Bore” of July 2005. That document, a copy of which was handed to the Court by Mr Allan, indicates, for example, in the table at page 47 that in its research the CSIRO used information from bores that had been sunk by the first respondent, likewise by the applicants. The assumption is made that for the bores with the prefix PRF the first respondent had the information which is replicated in the CSIRO report. That is not necessarily a basis for a reliable conclusion that the first respondent has that information available now or indeed ever had it. Matters have been resolved by the Court's order requiring the first respondent to make available the best information which it has and provision has been made for Mr Lait to enter the -- 5 of 8 -- 1-6 ORDER 1 10 20 30 40 50 60 site if the details aren't forthcoming so that he can form his own conclusions about locations of bores, et cetera. What was called "disclosure" but is not disclosure in its traditional sense was also sought of information from bores after May 2009, after which date there is no information available to the applicants as yet. The parties understand the continuing obligation to make disclosure. It would seem a reaonsable assumption that such information gets recorded in “documents”.It's a matter of judgment at what points in time further disclosure ought to be made, but there's provision in the order for such disclosure as is possible to bring matters up-to-date to be made. There were arguments about timetabling of future steps. As indicated, the Court's been able to indulge the first applicant's wish to have an early hearing. The parties were able to get to a stage where the respondent's material would be in just before Easter. Inadvertently the order requires something to be done by Good Friday but I've chosen to leave it in that state. A certain amount of time was taken in debating whether or not there ought to be a reference to an external ”mediation”, three eminent Senior Counsel, one a former Judge, being Indicated for the role, and a maximum cost of $10,000, which may well prove inadequate given the large amount of material -- 6 of 8 -- 1-7 ORDER 1 10 20 30 40 50 60 that might have to be considered. It is not clear that any of the gentlemen named would be available. Mr Andreatidis did not present as wholly against the notion of going to Senior Counsel, who might be seen as more of a commercial arbitrator in the circumstances, given Mr Allen’s reference to the mediator “making findings”, but suggested that it might be appropriate to attempt mediation before the Registrar of the Court as a short-term measure. I thought that was sensible, notwithstanding that the issues here are very different from those that would normally be taken before a Registrar for mediation. The application of the first applicant for outside mediation has been adjourned to the next mention date of April the 6th. Nothing is lost by doing that because the referring order Mr Allen prepared contemplated that the mediator would be provided with all of the lay and expert evidence which, as I said, is not going to be available, even if things work according to the timetable, until Easter. The outside mediation was seen as occurring in May. On a future Date, the judge can determine whether there's a good case for it. If the exercise produced an outcome, it would save a lot of time and trouble for all concerned, including the Court, since a 10 day hearing is what's contemplated. -- 7 of 8 -- 1-8 ORDER 1 10 20 30 40 50 60 What I've said might be of assistance for me or another judge who has to look at this matter in the future. ------ -- 8 of 8 --