Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 109 [2010] 2 QPELR 262

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Darwen & another v Pacific Reef Fisheries (Australia) Pty Ltd & others [2009] QPEC 109 PARTIES: Keith Alexander Darwen (First Applicant) And Garry William Stewart (Second Applicant) v Pacific Reef Fisheries (Australia) Pty Ltd (First Respondent) And Burdekin Shire Council (Second Respondent) And Chief Executive, Environmental Protection Agency (Third Respondent) FILE NOS: 3181/08 DIVISION: Planning and Environment Court of Queensland, Brisbane PROCEEDING: Civil ORIGINATING COURT: Brisbane District Court DELIVERED ON: 6 November 2009 DELIVERED AT: Maroochydore HEARING DATE: 26 October 2009 JUDGE: J.M. Robertson DCJ ORDER: 1. The paragraphs in the further amended originating application FAOA filed 10/09/09 (FAOA) referred to in the following paragraphs of the application filed 06/10/09 be struck out or amended: 1(b) (except Schedule B – Table 1), (d), (e), (f), (g), (h), (j) and (k); and 2. The applicants, Keith Alexander Darwen and Garry William Stewart within 14 days of the date hereof provide further and better particulars of paragraphs 40(a) and (b), and 41 of the FAOA. -- 1 of 15 -- 2 CATCHWORDS: PROCEDURE – Originating Application seeking enforcement orders and declaratory relief; where application amended twice, where first respondent claims paragraphs in Further Amended Originating Application are unnecessary and/ or prejudicial; whether further and better particulars of specific paragraphs should be ordered. Legislation: Environmental Protection Act 1994 Integrated Planning Act 1997 Uniform Civil Procedure Rules 1999 COUNSEL: G. Allan and P. Sheridan for Applicants D. Gore QC and N. Andreatidis for Respondents SOLICITORS: Anderssen Lawyers for Applicants Corrs Chambers Westgarth for the First Respondent -- 2 of 15 -- 3 [1] Pacific Reef Fisheries (Australia) Pty Ltd (“Pacific Reef”) operates an aquaculture facility at Trent Road in the Burdekin in North Queensland. The applicants, Keith Darwen and Garry Stewart, are cane farmers whose properties adjoin the aquaculture facility. Pacific Reef purchased the facility from Delta Prawning Pty Ltd in 1998 and has operated it since that time. [2] There is a long history of discontent between the parties over allegations by the applicants that the aquaculture facility has caused, and is still causing unacceptable environmental damage to groundwater under their properties. [3] In 2007, the Environmental Protection Agency, as it was then known, (“the EPA”) released a report which allegedly attributes responsibility for groundwater salinity to a number of sources (one of which is the aquaculture facility), but concludes that, “there are no reasonable grounds to suspect that leakage from the saltwater impoundments at (Pacific Reef’s) facility is likely to cause material environmental harm and as a result there are no grounds upon which the EPA can implement statutory action against (Pacific Reef)”. [4] On 12 November 2008, the applicants commenced these proceedings with the filing of a 40-page originating application seeking enforcement orders and injunctive and declaratory relief pursuant to the Environmental Protection Act 1994 (“the EP Act”) and the Integrated Planning Act 1997 (“the IPA”). [5] Essentially, the applicants allege that Pacific Reef has committed and continues to commit various breaches of the EP Act (which are pleaded in the alternative), and challenge the development permit, (issued by this court), under which Pacific Reef now operates the facility. Mr Allen, (Counsel for the applicants), colourfully characterised his client’s proceedings as being designed to do the job of the -- 3 of 15 -- 4 statutory authority, namely, the EPA. The Chief Executive of the EPA is a party to the proceedings, but not to this application. [6] The application raises complex issues and a trial will be lengthy. The hearing was listed for 10 days in November, but that listing has been vacated. There have been a number of interlocutory skirmishes and the costs for the parties must already be considerable. [7] An amended originating application was served on Pacific Reef on 10 August 2009, and a further amended originating application (FAOA) was served on 9 September 2009. It is fair to say that the amendments, (which in relation to the FAOA are extensive), have resulted from complaints by the solicitors for Pacific Reef that the claims are not properly particularised and pleaded. [8] The application before me seeks further and better particulars of a number of paragraphs of the FAOA and seeks to strike out a number of paragraphs pursuant to rule 171(1) of the Uniform Civil Procedure Rules: “171(1) This rule applies if a pleading or part of a pleading – (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of the proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of process of the court.” [9] It is axiomatic that a defendant to a claim (or a respondent to an application in which there are pleadings) is entitled to know the precise case it has to meet so as to avoid surprise at trial and time wasting. Since the commencement of the Uniform Civil Procedure Rules in 1999 there has been a stricter approach to the requirement -- 4 of 15 -- 5 that pleadings be precise, and properly pleaded so as to succinctly define the issues in line with the general philosophy set out in rule 5 of the Uniform Civil Procedure Rules. [10] As Mr Gore QC, (Counsel for Pacific Reef with Mr Andreatidis), observed, perhaps with tongue in cheek, the fact that the applicants have amended so extensively since the proceedings were instituted does not suggest that even they have a clear understanding of their own case. [11] Although Pacific Reef’s strike out application purports to cover all limbs of rule 171, it is really directed at rule 171(1)(b) and (c). Mr Allen submits that Pacific Reef’s application is ill conceived and that it should know the case it has to meet. Discussion [A] Further and Better Particulars [12] Pacific Reef seeks further and better particulars of paragraphs 40(a); 40(b) and 41 of the FAOA which are in these terms: “40. As and from approximately 2000, the First Respondent, PRF, has been aware that the defective construction of the discharge channel has allowed and continues to allow the discharge of prawn farm effluent including waste sea water into the groundwater, beneath and adjacent to the Second Applicant’s property, thereby contaminating the groundwater and; (a) causing serious environmental harm to the environment; (b) in the alternative causing material environmental harm to the environment; (c) rendering the groundwater beneath and adjacent to the Second Applicant’s property unfit for use to irrigate sugarcane or other crops; -- 5 of 15 -- 6 (d) rendering the groundwater beneath and adjacent to the Second Applicant’s property unfit for the consumption for horses or other livestock. 41. As a result of PRF failing to rectify the defective construction of the discharge channel and thereafter, failing to maintain and/or install a structure to prevent the inflows of tidal waters from Little Alva Creek into the discharge channel, PRF has caused serious, or, in the alternative material, environmental harm to the environment and to part of the property of the Second Applicant, Garry William Stewart.” [13] The complaint is that the pleading does not identify which limb of the relevant definitions of “serious environmental harm” and/or “material environmental harm” the applicants say is the acteus reus of the “offence” committed by Pacific Reef. These fundamental concepts are defined in the EP Act. “Material environmental harm” is defined in s 16 as follows: “(1) Material environmental harm is environmental harm (other than environmental nuisance) – (a) that is not trivial or negligible in nature, extent or context; or (b) that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount, but less than the maximum amount; or (c) that results in costs of more than the threshold amount but less than the maximum amount being incurred in taking appropriate action to – (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section – Maximum amount means the threshold amount for serious environmental harm. Threshold amount means $5,000 or, if a greater amount is prescribed by regulation, the greater amount.” -- 6 of 15 -- 7 [14] “Serious environmental harm” is defined in s 17 of the EP Act in the following terms: “(1) Serious environmental harm is environmental harm (other than environmental nuisance) – (a) that is irreversible, or a high impact or widespread; or (b) caused to an area of high conservation value or special significance; or (c) that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount; or (d) that results in costs of more than the threshold amount being incurred in taking appropriate action to – (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section – Threshold amount means $50,000 or, if a greater amount is prescribed by regulation, the greater amount.” [15] There can be no doubt that these proceedings are civil in nature and that the civil standard applies. On the other hand, the relief sought is predicated on allegations that Pacific Reef has committed various breaches of s 437 and s 438 of the EP Act which are penal provisions. It would follow that the standard of proof will be at the higher end of the civil standard. The consequences for Pacific Reef are significant indeed, and I do not think it is enough for Mr Allen to respond to the request for further and better particulars by saying that the relevant subsection or subsections of the sections 16 or 17 definitions that are involved will be revealed when expert reports are completed. As I observed during the hearing, it would be surprising, (given the time that has elapsed and the obvious extensive monitoring and reporting -- 7 of 15 -- 8 that has already been undertaken), if his clients did not know which subsection or subsections of s 17(1), (for example), are contemplated by the pleading in, (for example), paragraph 1 of the FAOA. [16] The applicants should provide further and better particulars of the nature of the alleged “serious environmental harm”, to the environment or, “material environmental harm” to the environment in paragraphs 40(a) and (b) of the FAOA. A similar consequential order will follow in relation to the pleading of the statutory terms in paragraph 41 of the FAOA. [17] Pacific Reef should already know (from the totality of the pleading) the case it has to meet in relation to paragraph 40(c). [B] The Strike out Application [18] As I have noted the strike out application concentrates on what Pacific Reef says are prejudicial aspects of the pleadings (rule 171(1)(b)), and parts of the pleading which are unnecessary (rule 171(1)(c)). I will deal with this latter category first. (i) Unnecessary Pleadings [19] Pacific Reef’s complaint in this regard is covered by paragraphs 1(b), (e), and (k) of its application filed on the 6 October 2009. To dispose of these parts of the application it is necessary for me only to refer to paragraph 1(b) to demonstrate the nature of the complaint. My decision in relation to paragraph 1(b) will dispose of the application in relation to the other sub-paragraph. [20] It refers to paragraph 64 of the FAOA which pleads a number of conditions (but not all) of Environmental Authority NR 280 issued to Pacific Reef on 17.06.1999. This authority was the predecessor to the Integrated Authority NR 0280 pleaded in -- 8 of 15 -- 9 paragraph 1 of the FAOA. Paragraph 66 pleads breaches of a number of the conditions of the 1999 authority. It does not allege a breach of conditions A10, B5, F1-5, F14-15, F17-18 and yet these are set out in paragraph 64. Pacific Reef complains, therefore that it is unnecessary to refer to these conditions. Mr Allan says they are left in to put the alleged breached conditions “in context”. He also notes that Pacific Reef has attached a copy of the 1999 authority to its Points of Reply filed 30.03.09 which it pleads will be relied on at trial in its entirety for “its full meaning and effect”. He did not explain to me why paragraph 64 pleads only some of the unimpugned conditions and not others. I agree with him that Pacific Reef’s argument in this regard is technical but it does seem to me to be technically correct. It follows that 64 should be amended to remove reference to conditions not referred to in 66. I do not understand the challenge to Schedule B – Table 1 in paragraph 1(b) of Pacific Reef’s application, as it is a table which forms part of condition B-7 which is said to be breached (paragraph 66(i)). [21] Pacific Reef raises a similar complaint in relation to paragraph 72 of the FAOA which sets out conditions of the 2002 authority only some of which are alleged to have been breached in paragraphs 73 – 86 of the FAOA. There is a confusing change in the structure of the pleading at this point in that the breaches of the 1999 permit were pleaded in one paragraph with a number (a large number) of sub- paragraphs, whereas the breaches of the 2002 authority (which are central to the Applicant’s case) are pleaded in separate paragraphs. For the same reasons set out above in relation to paragraph 64, paragraph 72 should be amended to delete conditions that are not said to be breached in later paragraphs. [22] Similarly, paragraph 100 sets out a number of conditions of a development approval given by this court on the 25.07.2001, only some of which are said to be breached -- 9 of 15 -- 10 by paragraphs 101 – 106 of the FAOA. Paragraph 100 should be amended to delete the unnecessary conditions. (ii) Prejudicial Pleadings [23] I will deal with each of Pacific Reef’s complaints seriatum. 46A [24] This paragraph was inserted for the first time in the FAOA. The first complaint is a failure to comply with rule 382 of the Uniform Civil Procedure Rules. This rule relates to the procedure required when pleadings are amended. In my view, if there is a breach of this rule, it cannot prejudice Pacific Reef in any way and can be dealt with in the Registry. [25] There is a further complaint that 46A (which pleads a matter of law relating to a 1988 permit) is irrelevant because no breach of the 1988 permit is alleged. This is a groundless complaint. No complaint is made about paragraphs 42 – 46 which set out the history, under a heading “Chronology of Statutory Approvals” of the 1988 permit granted to Delta. Paragraph 46A merely completes the chronology by pleading a matter of law based on the material facts set out in paragraph 46. There is a typographical error in 46A and “46” should be substituted for “42”. 66B [26] The complaint here, is that it is not pleaded who undertook the monitoring nor does it state each occasion on which the monitoring is alleged to have been undertaken. Mr Allen says this complaint is answered completely by reference to six Bore Books compiled by the applicants from 26 July 2002 to 30 March 2009 which have been disclosed and are exhibited to an affidavit of Mr Ellerman (solicitor for the -- 10 of 15 -- 11 applicants) which is document 62 on the file. I have examined the exhibits on the electronic file and they do appear to answer the criticisms now made about this paragraph. There is no substance in the complaint. 66C [27] Paragraph 66C pleads that the results of the monitoring done by the applicants has been incorporated into the database maintained by the Department of Natural Resources and Mines. The complaint is that this is irrelevant. I disagree. It is clear (from paragraph 66D) that the applicants at trial intend to rely on the DNRM’s database to show the consequences set out in paragraph 66D. Pacific Reef would have been entitled to argue ambush if it discovered for the first time at trial that the Department’s database included substantial input from the applicant’s own monitoring. 66D – 66E [28] This part of the pleading is concerned with alleged breaches of the 1999 authority. The complaint is that the pleading does not establish a causal link between the alleged breaches of conditions of the 1999 authority by Pacific Reef and the alleged increase in groundwater salinity and any serious and/or material environmental harm. In my opinion it is clear from reading the relevant parts of this section of the pleading as a whole, that the applicant’s allege that Pacific Reef, by breaching various conditions of the 1999 permit, have caused salinity levels (as evidenced by the DNRM database) in the groundwater levels under the applicant’s properties to increase which amounts to serious and/or material environmental harm. [29] At this early stage, it appears that the applicant’s case at trial will be largely based on circumstantial evidence which will require proof of facts from which inferences -- 11 of 15 -- 12 can be drawn, (for example), that Pacific Reef, (by breaching conditions of the 1999 and 2002 authorities), has “wilfully and unlawfully” caused serious and/or material environmental harm. Even at this early stage, there seems to be evidence that groundwater salinity has increased as a result of activities by a number of agencies and unnamed persons which include Pacific Reef’s facility, “sugarcane irrigation” and the North Burdekin Water Board: Exhibit NL – 2 to the affidavit of Mr Loos, (solicitor for Pacific Reef), sworn 28 May 2009, (48 and 50 on the file). The applicants themselves refer, (at paragraph 90 of the FAOA), to parts of the same document. [30] At this stage, it is not incumbent upon the applicants to distinguish between different possible contributors (only one of which, Pacific Reef, has ever been monitored allegedly), but the conclusions of the EPA Report do perhaps show the difficulties facing the applicants in proving their case. [31] The pleading in 66E is sufficiently clear to enable Pacific Reef to understand the case it has to meet. 66I – 66II [32] These paragraphs appeared for the first time in the amended originating application and deal with a permit issued by the Great Barrier Reef Marine Park Authority (GBRMPA) to Pacific Reef to operate its facility within the Park. Any alleged breach of the conditions of this permit is not pleaded as causing or contributing to serious and/or material environmental harm. As I understand the applicant’s case, they say that the alleged breaches of this permit by Pacific Reef are relevant in the sense in which they show that Pacific Reef has not conducted credible monitoring, (pursuant to the various Environmental authorities), and therefore any data set out in -- 12 of 15 -- 13 annual returns submitted by it will be false. Mr Allen argues that these paragraphs are designed to disclose the applicant’s intended reliance on alleged breaches of this permit and that it is fair to Pacific Reef so that it will not be ambushed at trial. It is difficult to see the connection between paragraph 77A (alleged breach of condition 2A7 of the 2002 Authority), 84(2H10), and 86(2H15), and alleged breaches of the GPRMPA permit conditions. It may be that at trial the applicants will be able to lead evidence about monitoring at release point WW1 undertaken by the GPRMPA during its various audits of the facility, and Mr Gore frankly conceded that such evidence might be relevant to some issue in the proceedings. At this stage however, any pleading which seeks to make a connection between alleged breaches of the GBRMPA permit, and breaches of the various Environmental authorities in the sense in which these are relevant to the issue of causation, is at best, unnecessary and at worst, prejudicial to Pacific Reef. It follows that paragraphs 66I to 66II should be struck out and paragraphs 77A, 84, and 86 should be amended accordingly. Pacific Reef is on notice of the applicant’s intention to refer to the conditions of this permit at the hearing to the extent which that may be relevant to any issue in the proceedings. 86 [33] Condition 2H15 of the 2002 authority is in these terms: “The holder of this Environmental authority must ensure that the results of all monitoring performed in accordance with this Environmental authority for the period covered by the return is submitted with the annual return.” [34] For the reasons stated above, I have ruled that paragraph 86 be amended by the deletion of the words, “66N, 66U, 66W, 66Y, 66AA, 66CC, 66EE, 66GG and 66II.” -- 13 of 15 -- 14 [35] As amended by my order 86 alleges that in breach of Condition 2H15, Pacific Reef, “has not performed monitoring … and therefore any results submitted with any Annual Return are false.” The remaining allegation pleaded in support is 66(b) which sets out particulars of breaches of Condition A2 of the 1999 permit which required Pacific Reef to (in effect) install all works needed to comply with the authority. I agree with Mr Gore and Mr Andreatidis that it is difficult to see how (a) an allegation of falsity in annual returns and (b) a breach of a condition of an earlier permit relating to the construction of monitoring works etc, are relevant to, (for example), whether or not Pacific Reef has wilfully and unlawfully caused serious environmental harm. It may be part of the applicant’s case that any annual returns submitted by Pacific Reef are false, but such an allegation is, in my opinion, irrelevant to any of the relief sought in the FAOA. Paragraph 86 should be struck out. 86A [36] The complaint here is directed at reliance on paragraph 66D which Pacific Reef argues is, “fundamentally defective”. For the reasons set out above, (under 66D – 66E), I reject that submission. 86A in its present form will not prejudice Pacific Reef in the conduct of its defence. 86B [37] This is a pleading, (further and in addition to … 86A as from 10 September 2002), and repeats and relies upon allegations in 66F about things done by the applicants in July 2001, and 66G, an allegation that Mr Stewart ceased growing cane on 30 ha of his land. It was also inserted for the first time in the FAOA. Pacific Reef’s argument is that anything done which is alleged to constitute a breach of the 1999 -- 14 of 15 -- 15 permit is not relevant to anything done during the currency of the 2002 permit. It is difficult for me now to determine the relevance of prior (alleged) breaches to proof of alleged breaches of the current permit said to constitute the wilful and unlawful causing of serious and/or material environmental harm. It may well be that ongoing conduct, (amounting to breaches of environmental authorities in the past), is relevant to an issue in the proceedings, so the paragraph should not be struck out for that reason. However, the paragraph appears to me to be confusing and certainly unnecessary given the pleading in 86A and in earlier paragraphs. It should be struck out on that basis. [38] It follows that Pacific Reef’s application should be determined by the making of the following orders: 1. The paragraphs in the further amended originating application FAOA filed 10/09/09 (FAOA) referred to in the following paragraphs of the application filed 06/10/09 be struck out or amended: 1(b) (except Schedule B – Table 1), (d), (e), (f), (g), (h), (j) and (k); and 2. The applicants, Keith Alexander Darwen and Garry William Stewart provide further and better particulars of paragraphs 40(a) and (b), and 41 of the FAOA. Both parties seek costs and I will hear them in relation to that issue upon delivery of these reasons. -- 15 of 15 --