South Australian Repealed Acts South Australian Repealed ActsThis legislation has been repealed.
201—Orders made by ERD Court
(1) Applications may
be made to the ERD Court for 1 or more of the following orders:
(a) if a
person has engaged, is engaging or is proposing to engage in conduct in
contravention of this Act—an order restraining the person, or an
associate of the person, from engaging in the conduct and, if the Court
considers it appropriate to do so, requiring the person, or an associate of
the person, to take such action as may appear appropriate to the Court in the
circumstances (including an order to rectify the consequences of any
contravention, or to ensure that a further contravention does not occur);
(b) if a
person has refused or failed, is refusing or failing or is proposing to refuse
or fail to take any action required by this Act—an order requiring the
person to take that action;
(c) if a
person has suffered injury, loss (including economic loss or loss of property)
or damage to property as a result of a contravention of this Act, or incurred
costs and expenses in taking action to prevent or mitigate such injury, loss
or damage—an order against the person who committed the contravention
for payment of compensation for the injury, loss or damage, or for payment of
the reasonable costs and expenses incurred in taking that action;
(d) if a
person has engaged in conduct in contravention of this Act—an order that
the person pay into the NRM Fund an amount, determined by the Court to be
appropriate in the circumstances, on account of any financial benefit that the
person, or an associate of the person, has gained, or can reasonably be
expected to gain, as a result of the contravention;
(e) if
the Court considers it appropriate to do so—an order against a person
who has contravened this Act for payment (for the credit of the Consolidated
Account) of an amount in the nature of exemplary damages determined by the
Court.
(2) The power of the
ERD Court to make an order restraining a person from engaging in conduct of a
particular kind may be exercised—
(a) if
the Court is satisfied that the person has engaged in conduct of that
kind—whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; or
(b) if
it appears to the Court that, in the event that an order is not made, it is
likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or
not there is an imminent danger of damage if the person engages in conduct of
that kind.
(3) The power
conferred by subsection (1)
may only be exercised by a Judge of the ERD Court.
(4) In assessing an
amount to be ordered in the nature of exemplary damages, the ERD Court must
have regard to—
(a) any
damage to a water resource or any other part of the environment or detriment
to the public interest resulting from the contravention; and
(b) any
financial saving or other benefit that the respondent, or an associate of the
respondent, stood to gain by committing the contravention; and
(c) any
other matter it considers relevant.
(5) An application
under this section may be made—
(a) by
the Minister or the Chief Officer; or
(b) by
an NRM authority; or
(c) by
any person whose interests are affected by the subject matter of the
application; or
(d) by
any other person with the permission of the ERD Court.
(6) Before the
ERD Court may grant permission for the purposes of subsection (5)(d)
, the Court must be satisfied that—
(a) the
proceedings on the application would not be an abuse of the process of the
Court; and
(b) it
is not unlikely that the requirements for the making of an order under subsection (1)
on the application would be satisfied; and
(c) it
is in the public interest that the proceedings should be brought.
(7) If an application
is made by a person other than the Minister—
(a) the
applicant must serve a copy of the application on the Minister within 3 days
after filing the application with the ERD Court; and
(b) the
ERD Court must, on application by the Minister, join the Minister as a party
to the proceedings.
(8) An application
under this section may be made in a representative capacity (but, if so, the
consent of all persons on whose behalf the application is made must be
obtained).
(9) An application may
be made in the absence of the respondent, (or an associate of the respondent),
and, if the ERD Court is satisfied on the application that the respondent has
a case to answer, it may grant permission to the applicant to serve a summons
requiring the respondent to appear before the Court to show cause why an order
should not be made under this section.
(10) An application
under this section must, in the first instance, be referred to a conference
under section 16 of the Environment,
Resources and Development Court Act 1993 .
(11) If, on an
application under this section or before the determination of the proceedings
commenced by the application, the ERD Court is satisfied that, in order to
preserve the rights or interests of parties to the proceedings or for any
other reason, it is desirable to make an interim order under this section, the
Court may make such an order.
(12) An interim
order—
(a) may
be made in the absence of the respondent or any other party; and
(b) may
be made whether or not the proceedings have been referred to a conference; and
(c) will
be made subject to such conditions as the Court thinks fit; and
(d) will
not operate after the proceedings in which it is made are finally determined.
(13) The ERD Court may
order an applicant in proceedings under this section—
(a) to
provide security for the payment of costs that may be awarded against the
applicant if the application is subsequently dismissed;
(b) to
give an undertaking as to the payment of any amount that may be awarded
against the applicant under subsection (14)
.
(14) If, on an
application under this section alleging a contravention of this Act, the ERD
Court is satisfied—
(a) that
the respondent has not contravened this Act; and
(b) that
the respondent has suffered loss or damage as a result of the actions of the
applicant; and
(c) that
in the circumstances it is appropriate to make an order under this provision,
the Court may, on the application of the respondent (and in addition to any
order as to costs), require the applicant to pay to the respondent an amount,
determined by the Court, to compensate the respondent for the loss or damage
suffered by the respondent.
(15) The ERD Court
may, if it considers it appropriate to do so, either on its own initiative or
on the application of a party, vary or revoke an order previously made under
this section.
(16) Proceedings under
this section based on a contravention of this Act may be commenced at any time
within 3 years after the date of the alleged contravention or, with the
authorisation of the Attorney-General, at any later time.
(17) An apparently
genuine document purporting to be under the hand of the Attorney-General and
to authorise the commencement of proceedings under this section must be
accepted in any legal proceedings, in the absence of proof to the contrary, as
proof of the authorisation.
(18) The ERD Court
may, in any proceedings under this section, make such orders in relation to
the costs of the proceedings as it thinks just and reasonable.
(19) Without limiting
the generality of subsection (18)
, in determining whether to make any order in relation to costs the ERD Court
may have regard to the following matters (so far as they are relevant):
(a)
whether the applicant is pursuing a personal interest only in bringing the
proceedings or is furthering a wider group interest or the public interest;
(b)
whether or not the proceedings raise significant issues relating to the
administration of this Act.
(20) In this
section—
(a) a
reference to a contravention of this Act will be taken to include a reference
to a contravention of a management agreement; and
(b) a
reference to a failure to take action required by this Act will be taken to
include a reference to a failure to comply with a management agreement.