Crowther v State of Queensland [2005] QPEC 68

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2005] QPEC 068 PLANNING AND ENVIRONMENT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2377 of 2002 CLAIRE CROWTHER Applicant and STATE OF QUEENSLAND Respondent BRISBANE ..DATE 20/07/2005 ORDER Catchwords: Applicant who had succeeded in establishing environmental nuisance and obtaining injunctive relief alleged breach of the court's orders - liberty to apply had been availed of by the respondent to obtain extensions of time - applicant now sought changes to the substantive orders - court considered to be functus officio, and lacking jurisdiction to make different orders - if breaches were established (the present evidence was conflicting and untested) individuals knowingly involved might be attachable for contempt in the existing proceeding. -- 1 of 6 -- 20072005 T11/BP17 M/T CMS80/2005 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: Ms Crowther has been self represented throughout these proceedings which have now gone on for some years. All along she has faced the difficult task of persuading the Court that an educational enterprise located opposite her premises at Yeronga ought to be substantially closed down. It seems to me pretty well inevitable that any Judge of the Court, as I did, would place a high value on the continued provision to students of educational opportunities and useful trades. In retrospect, it could be seen that it was an unwise and rather amazing decision of the State authorities to locate industrial processes and, in particular, the stacks collecting emissions across a narrow road from a long established residential area against a background of prevailing winds which would lead the emissions to trouble residents. Ms Crowther established commission of environmental nuisance and, in principle, entitlement to some injunctive relief. See [2002] QPEC 079. On the 27th February 2003, I made orders consequent upon the success which Ms Crowther had in her underlying application. See [2003] QPEC 017. Those orders were in considerable measure ones formulated by the respondent to incorporate the proposals which it devised to achieve the outcomes that the Court intended. There are obvious difficulties in making or enforcing orders against the State of Queensland as a respondent - which were considered at that time. -- 2 of 6 -- 20072005 T11/BP17 M/T CMS80/2005 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 One of my orders was that the respondent "ensure that after January 2005 in respect of any processes of welding, cutting, machining or grinding of metal conducted at Yeronga Institute of TAFE, any outlet for the emissions be located further than 100 metres from Park Road, Yeronga". The respondent has persuaded Judge Skoien that an additional six months ought to be allowed in that regard and perhaps in respect of other times occurring in my order. Ms Crowther's affidavit filed on the 19th July 2005 alleges that on Thursday the 14th July 2005, after about 4.45 p.m. activities occurred at the Yeronga TAFE which resulted in her being exposed to unpleasant odours of the kind she and others at Yeronga complained of all along. She observed students entering an area of the TAFE known as C block. Her conclusion is that the emissions that troubled her came by way of the stacks in Park Road and from activities of the kind referred to in the part of the order which I quoted. There is contest of evidence in the sense that Ms Crisp's affidavit which Mr Hutchings read by leave today asserts that on or before 30th June 2005, decommissioning of plant and equipment on the ground floor of C block and D block had occurred and that activities involving welding, cutting, machining and grinding no longer occurred anywhere in C block or D block. -- 3 of 6 -- 20072005 T11/BP17 M/T CMS80/2005 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 The State's case is that no emissions from those blocks of the forbidden kind via the stacks could have occurred. Plainly there is a factual issue that the Court cannot resolve at the moment. Ms Crowther's present application seeks an order: "That any processes of welding, cutting, machining or grinding of metal at Yeronga TAFE be prohibited within 100 metres of Park Road." As I understand her submissions, she seeks in the alternative an order that the remaining stacks adjacent to Park Road be removed - as some already have been, I hear. If Ms Crowther is contending that the existing order requires the removal of stacks, I am in disagreement with her. All that was required was that if emissions from certain kinds of activities were created, they were to be dealt with by stacks further removed from her premises across the road. To an extent the Court's orders are subject to change, at least of the kind that has already occurred, under the liberty to apply which I gave. I am not persuaded that new kinds of orders of the kind which Ms Crowther now seeks can be made. In that respect, I think the Court is functus officio, or effectively without jurisdiction. One of Ms Crowther's proposals was effectively -- 4 of 6 -- 20072005 T11/BP17 M/T CMS80/2005 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 only a restatement of the existing order. To that extent, Mr Hutchings makes his point. However, he has not persuaded me and he may not even have sought to, that it is not open to the Court in this proceeding to enforce the orders which it has made if breach of them can be established. I note again the difficulties of doing that against a respondent which is the State of Queensland. If individuals can be identified whose activities are calculated to and do result in Court's orders being contravened, I would think that those persons are at risk of being dealt with for contempt, in this proceeding. Ms Crowther's difficulty is that she has to identify the individuals to be taken to task. In my understanding the State of Queensland is in a different position from an ordinary commercial operator, even a corporate one, whose assets may be subject to attachment in some way for breach of the Court's order. The possibility which I am inclined to think would be open in relation to the State of proceedings against individuals involved in actions which effectively amount to contempt would be available alike in respect of a public entity and a private corporate one. I make it clear for Ms Crowther's benefit, if what I have said already has not, that given the conflict of evidence so far as today is concerned, she has not established a breach of paragraph 3 of the order of 27th February 2003. On the -- 5 of 6 -- 20072005 T11/BP17 M/T CMS80/2005 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 assumption that it is possible for her to do so at a hearing when witnesses are available to be cross-examined, as I have said, I think the consequences that would flow would lie in the area of contempt of the Court's order, which will so far as I am concerned continue in the existing form. It follows that no order will be made on the application filed on the 14th July this year. ----- -- 6 of 6 --