Crowther v State of Queensland [2003] QCA 260

1 SUPREME COURT OF QUEENSLAND CITATION: Crowther v State of Qld [2003] QCA 260 PARTIES: CLAIRE CROWTHER (applicant/respondent) v STATE OF QUEENSLAND (respondent/applicant) FILE NO/S: Appeal No 3226 of 2003 P&E No 2377 of 2002 DIVISION: Court of Appeal PROCEEDING: Application for Leave Integrated Planning Act ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED EX TEMPORE ON: 19 June 2003 DELIVERED AT: Brisbane HEARING DATE: 19 June 2003 JUDGES: Davies and Williams JJA and Fryberg J Separate reasons for judgment of each member of the Court, Davies and Williams JJA agreeing as to the orders made, Fryberg J dissenting ORDER: 1. Application for leave to appeal granted subject to the condition that the applicant undertake to pay the respondent's costs in respect of the appeal, including the costs of engaging senior and junior counsel as well as a solicitor from Brisbane 2. Grounds of appeal be limited to: (a) that there was no evidence upon which the learned judge could have considered it appropriate to make the orders which he did; and (b) the learned judge could not but have been satisfied on the evidence that the general environmental duty had been complied with CATCHWORDS: APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY - where applicant permitted noxious odours to escape from its premises - where trial judge found contravention of Environmental Protection Act 1994 (Qld) - whether orders made by trial judge could have been considered to be appropriate in order to remedy or restrain the offence Environmental Protection Act 1994 (Qld) s 319, s 430, s 438, s 440 -- 1 of 9 -- 2 1 10 20 30 40 50 60 COUNSEL: P A Keane QC, with E J Morzone, for the applicant Respondent appeared on her own behalf SOLICITORS: C W Lohe, Crown Solicitor, for the applicant Respondent appeared on her own behalf DAVIES JA: This is an application for leave to appeal against orders made in the Planning and Environment Court on 27 February 2003. I should say at the outset that the Solicitor- General, who appeared with Mr Morzone for the applicant, undertook at the outset that, if leave were granted to the applicant to appeal against this decision, the applicant undertook to pay the respondent's costs in respect of the appeal, including the costs of engaging Senior and Junior Counsel as well as a solicitor. The proviso being that those solicitors and counsel be from Brisbane. The grounds of challenge, as outlined in the applicant's written outline were four. One was that his Honour lacked jurisdiction to make order number 2. The second was that he lacked jurisdiction to make order number 3. The third was that he erred in law in failing to apply the rule against duplicity, and the fourth was a further alternative ground that he erred in law in failing to uphold the general environmental duty defence. The contraventions which his Honour found to exist were contraventions of ss 430, 438 and 440. The first of those may be left off account for present purposes. That involves contraventions of a condition of an environmental authority. That was established with respect to the foundry, and it is unnecessary to say anything further about it. -- 2 of 9 -- 3 1 10 20 30 40 50 60 Section 438 is a contravention established by wilfully and unlawfully causing material environmental harm. Material environmental harm is defined, then, in effect, in ss 14 and 16 of the Act, as - if I may summarise it - non-negligible adverse effect on environmental value. Section 440 is the offence of wilfully and unlawfully causing environmental nuisance. And environmental nuisance is defined effectively by a combination of ss 9 and 15 of the Act as unreasonable interference with a quality of the environment. Although these are different defences and the offence of environmental nuisance excludes the offence of wilfully and unlawfully causing material environmental harm, the same facts may constitute either offence. And, in this case, the offence would be constituted simply by the applicant permitting noxious odours to escape from its premises, which, it seems on the evidence, it undoubtedly did. I mention all this because of the duplicity argument which seems to assume that it is necessary, in order to establish a contravention of either of these provisions to prove an activity on the premises which caused the generation of the odours. But it is plain that the scheme of the Act is such that a particular activity is relevant, if at all, only when it comes to consider what relief should be granted in respect of the contravention. In my opinion, for that reason there is no substance in the duplicity argument which depends upon a misconstruction of the Act as I have just indicated. -- 3 of 9 -- 4 1 10 20 30 40 50 60 In granting relief, the Court - that is, granting relief of either of the sections I have mentioned - the Court may make orders as it considers appropriate to remedy or restrain the offence - that is s 505(5) of the Act. It follows from this that, in order to succeed on some basis, succeed in getting leave or succeed in an appeal, the applicant would have to establish in order to show that these were not orders which his Honour could have considered appropriate in order to remedy or restrain the offence. That there was no evidence on which his Honour could have considered it appropriate to make the orders which he did. That seems to be the submission which, in the end, the learned Solicitor-General relied on primarily in this case. There was a good deal of evidence in this case which, it seems to me, supports the view that there was a noxious odour emanating from the premises after the hours of which the foundry could have been working, and therefore must have come from something other than the foundry. But it does not necessarily follow from that that that evidence must have established that there was - I should have said that there was evidence to establish not just that, but that this was a non- negligible adverse effect on environmental value, or that it was an environmental nuisance, within the meaning of s 438 and s 440 respectively. It therefore seems to me to be open to the applicant to rely upon that basis, that is the no evidence basis, although I -- 4 of 9 -- 5 1 10 20 30 40 50 60 would have to say for myself that the applicant's case does not look to me to be a strong one in this respect. The same is true, it seems to me, of the other basis upon which the applicant sought leave to appeal, that is the general environmental duty defence under s 319 of the Act. And similarly in order to establish that they would have to show that the learned judge could not but have been satisfied on the evidence that the duty had been complied with. Again it seems to me that the evidence, at least on a cursory glance, was sufficient to satisfy his Honour that the duty had not been complied with, but I am not sufficiently satisfied that there is no basis upon which that question can be argued. It is unfortunate it seems to me that this application has been necessitated only by the fact that his Honour made orders in such specific terms, orders which he was encouraged to make by then counsel for the State of Queensland, because it seems to me that had his Honour made a general order that the applicant take in effect such further action as was reasonably necessary to prevent continuation of environmental nuisance and continuation of material environmental harm resulting from the emanation of noxious odours from the applicant's premises it may be that the application may have been unnecessary. Having said that, however, I would be inclined to grant leave to appeal subject to the condition I mentioned at the outset, limited to the two questions I have mentioned, that is that there was no evidence upon which the learned judge could have -- 5 of 9 -- 6 1 10 20 30 40 50 60 considered it appropriate to make the orders which he did and secondly that the learned judge could not but have been satisfied on the evidence that the duty had been complied with. WILLIAMS JA: In my view leave to appeal should be granted with respect to the two grounds identified in the reasons of Justice Davies. Such leave should be conditional upon the undertaking of the applicant referred to by Justice Davies. FRYBERG J: In relation to the arguments related to the questions of jurisdiction and duplicity I agree with what has been said by the presiding Judge. As regards the argument based on a total absence of evidence it is my view that the applicant has not shown the existence of such a total absence of evidence. It is not sufficient for a person who seeks the grant of leave to appeal to this Court to argue the point that there was no evidence to support a given order, to show that there is a bare possibility that the argument might succeed. In order to obtain leave in my view it is necessary to demonstrate that it is reasonably arguable. That, of course, has all the problems of demonstrating a negative, but it is certainly the case that when evidence which could found the view upon which the order is based is demonstrated by the respondent the ground should not succeed. In this case the respondent has pointed to evidence which was accepted by the trial Judge and which is capable of founding the order made. -- 6 of 9 -- 7 1 10 20 30 40 50 60 The other point, the one related to the general environmental duty, involved a related ground, that is that the Judge must have been satisfied of the existence of a defence. That is not quite the same thing as saying there was no evidence to found a different conclusion, but it is similar. Again, I do not agree that showing the bare possibility of an argument on the point is enough. There was, in my view, evidence which the trial Judge accepted, which supported the view which he took, and I am not satisfied that it has been demonstrated that there exists a reasonable possibility of this ground succeeding. There is also another basis upon which, in my view, the application should fail. The trial Judge delivered his reasons in published form after reserving them in December last year. He had adjourned the matter to enable the parties to consider the form of order which it would be appropriate to make in the light of his reasons. The matter came back before the Judge in late February. The present respondent was then, as she had been at all material times, not legally represented. On this occasion the present applicant engaged senior counsel for the first time and presented the Judge with further evidence dealing with the matters in dispute. In particular the evidence demonstrated that in the period since the Judge had delivered his reserved reasons the present applicant had closed part of the operations at the offending premises, namely the foundry. -- 7 of 9 -- 8 1 10 20 30 40 50 60 The respondent was given that evidence only a day or two before the matter came on again for hearing and did not have her expert witness with her at the resumed hearing. She sought but was refused an adjournment. The ground which the State of Queensland now seeks to advance depends upon the additional evidence that was then led. Basically, the argument is that while his Honour had found that the premises were the source of the noxious odours, once part of the premises which might have, indeed probably did, generate some of the odours had been closed, the remaining evidence did not demonstrate that the remaining parts of the premises were the source of any odours. Therefore it is argued there was no evidence to support the orders that were ultimately made. Those orders were quite specific orders relating to the balance of the premises. They were made in the light of the new evidence. They were made specific orders at the urging of counsel for the present applicant. One would have ordinarily expected a more general form of order to have followed in negative form from his Honour's original reasons for judgment, and that was what his Honour had proposed. The situation which arose, then, arose because his Honour accepted further evidence from the present applicant without granting the adjournment sought by the respondent to meet that evidence and thereby allowed in evidence which effectively may have undermined part of his original reasoning. -- 8 of 9 -- 9 1 10 20 30 40 50 60 Moreover to the extent that the argument for the present applicant depends upon the form of the order being mandatory rather than negative, it was at its own urging that this was done. In my view, it is unfair to allow the applicant to take advantage of a situation brought about by its own conduct and which arose when the evidence was allowed in without allowing an adjournment to the respondent to provide evidence in rebuttal. I would conduct this application as if the only basis upon which the applicant could succeed was without having regard to the further evidence. On that basis also, it seems to me the applicant must fail as indeed I understood the learned Solicitor-General to concede. For those reasons, I would refuse the application. DAVIES JA: The orders are as I have indicated. There is no question of costs because you have undertaken to pay costs. ----- -- 9 of 9 --