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Supreme Court of Victoria |
Last Updated: 29 November 2023
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF RULING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE – Whether plaintiffs’ claim against
seventh defendant ought be summarily dismissed – Where
defendant is
Environment Protection Authority – Where defendant has elected not to use
discretionary power to order clean-up
of site – Whether defendant is
‘a person’ who can be compelled by the Court to act –
Environment Protection Act 2017 (Vic) ss 25, 309 and 357.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiffs
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McDonald Slater & Lay
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For the First Defendant
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N/A
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N/A
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For the Second Defendant
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N/A
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N/A
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For the Third Defendant
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N/A
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N/A
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For the Fourth, Fifth and Sixth Defendants
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CBW Partners
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For the Seventh Defendant
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Mr T Howard SC and
Mr J Stoller |
Norton Rose Fulbright
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1 The Environment Protection Authority (‘the EPA’ or ‘the Authority’) is the seventh defendant in this proceeding. It has applied by summons for an order that the proceeding against it be dismissed. It contends, and the plaintiffs dispute, that the claims against it must fail as a matter of law.
2 Barr Corporation Pty Ltd, the first plaintiff, is owned by Ms Doreen Barr, the second plaintiff. Barr Corporation Pty Ltd owns a factory in Braeside. Ashiyana Yusuff and her husband, or ex-husband,[1] Afroz Ali, the second and third defendants, owned, through various companies, waste disposal businesses in Clayton South that used land leased from Mr Peter Fountas, a proposed defendant. During the course of 2017, on the allegations made in the plaintiffs’ pleading:
(a) Ms Yusuff and Mr Ali wished to sell all or part of their waste disposal businesses to one of the Bingo group of companies (which I will refer to simply as ‘Bingo’), which were represented in negotiations by Mr Daniel Tartak, the sixth defendant;
(b) Mr Tartak advised them that Bingo was interested in buying their business but the waste on their premises should first be removed, although it could be returned after settlement for a ‘discounted rate’. Bingo agreed to pay double the price for the business if this were done. This was, it is alleged, because the waste had been stockpiled in contravention of the City of Kingston’s planning permit and the relevant environment protection legislation;
(c) Ms Yusuff and Mr Ali arranged for Mr Justin Roff, the first defendant, to form a company and to have that company lease Barr Corporation Pty Ltd’s factory in Braeside. The ‘permitted use’ under the lease was for ‘logistics and storage’. Ms Yusuff and Mr Ali then arranged, with the knowledge of Bingo, but without the knowledge of the plaintiffs, for approximately 7,000 cubic metres of waste to be secretly (and unlawfully) moved, at night, from premises under their control to Barr Corporation Pty Ltd’s factory;
(d) Bingo purchased Ms Yusuff and Mr Ali’s waste disposal business, but then refused to accept back the waste that had been removed to Barr Corporation Pty Ltd’s factory. Barr Corporation Pty Ltd only discovered that the waste had been stored in its factory later when Mr Roff’s company ceased paying the rent.
3 Because the waste contains asbestos and
PFAS[2], it cannot be removed other
than in accordance with a process approved by the
EPA.[3] Ms Yusuff and Mr Ali have
acknowledged their wrongdoing and have consented to orders against them that
they take ‘all necessary
steps to remove the illegally dumped waste ...
under the supervision of the Environment Protection Authority and the City of
Kingston’
and pay damages to be
assessed.[4] They have not removed
the waste and it remains, still, at Barr Corporation Pty Ltd’s factory.
Ms Yusuff has recently become
bankrupt.
4 The EPA
has the power to remove the waste itself and to recover the cost of so doing
from a wrongdoing party.[5] The EPA
has not exercised this power. Ms Yusuff or Mr Ali have prepared a
‘Waste Clean-Up Plan’ for the removal of
the waste, but the EPA has
concerns with that plan and has not approved it.
5 The plaintiffs seek remedies against the EPA.
They allege in their most recent proposed statement of claim dated 21 August
2023[6] that:
(a) the EPA knew or ought to have known that:
(i) prior to any sale to Bingo, Ms Yusuff and Mr Ali (or their companies) were unlawfully storing industrial waste at certain premises;
(ii) Bingo was pursuing an expansion strategy into Victoria that included the purchase of Ms Yusuff and Mr Ali’s (or their companies’) waste disposal business; and
(iii) There was a significant risk, having regard to the unlawfully-stored material, Ms Yusuff’s and Mr Ali’s reputations and the impending sale to Bingo, that Ms Yusuff and Mr Ali (or their companies) and Bingo would illegally dump their unlawfully-stored material somewhere else; and also
(b) The EPA has charged Ms Yusuff and Mr Ali with breaches of the Environment Protection Act 1970 and the Environment Protection Act 2017, but has not commenced any investigation or taken any action against Mr Roff, any of the Bingo companies, Mr Tartak, Mr Peter Fountas, or the persons who drove the trucks by which the waste was removed to Barr Corporation Pty Ltd’s factory or otherwise required them to remove the waste from Barr Corporation Pty Ltd’s factory. Nor has the EPA exercised the power it has to remove the waste itself from Barr Corporation Pty Ltd’s factory and to recover the costs of doing so from a wrongdoer.
6 Based on those allegations, and considered together with the EPA’s statutory powers, the plaintiffs seek relief against the EPA. They contend that it should be ‘compelled by Court order to exercise its powers’. Having regard to the prayer for relief, which sets out, perhaps unusually, a ‘claim for interlocutory relief’, and the submissions made, it is apparent that the plaintiffs contend that they are (or arguably are) able to obtain orders in the proceeding against the EPA including that the EPA investigate Bingo, require Bingo to clean up the premises, clean up the premises itself, or approve the waste clean-up plan proposed by Ms Yusuff or Mr Ali.
7 The parties agreed that the matter comes down to the construction of s 309 of the Environment Protection Act 2017, which provides as follows:
309 Court orders
(1) On an application by the Authority or an eligible person, a Court may make an order restraining a person from engaging in specified conduct or requiring a person to take any specific action, in such terms as the Court considers appropriate, if the Court is satisfied that a person—(a) is not complying or has not complied with a permission issued or granted under this Act; or
(b) is contravening or has contravened any other requirement or duty imposed on the person by or under this Act.
(2) Without limiting subsection (1), an order under that subsection may—
(a) require a person to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise or remedy the contravention or non-compliance; or
(b) require a person to provide a financial assurance as a condition for engaging in specified conduct.
...
(4) The power of a Court to grant an order under subsection (1) may be exercised whether or not the contravention or non-compliance—(a) is likely to result in harm to any person or the environment; or
(b) is likely to result in an infringement of the rights of any person.
8 It is accepted that either plaintiff may be an ‘eligible person’. The plaintiffs contend that s 309 is deliberately expressed in wide terms and is intended to empower members of the community to bring actions, if necessary, against the EPA to ensure that the EPA behaves in accordance with its statutory purposes, functions and duties. While accepting that s 309(1)(a) may not be engaged, the plaintiffs contend that s 309(1)(b) may be engaged because the EPA is ‘a person’ and there are ‘requirements’ or ‘duties’ imposed on it by the Environment Protection Act 2017. Most significantly, it says that the EPA is subject to the ‘General environmental duty’ imposed by s 25(1) and a duty imposed by s 357 of the Environment Protection Act 2017. The ‘General environmental duty’ is in the following terms:
25 General environmental duty
(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
9 Section 357 provides as follows:
357 Objective of the Authority
(1) The objective of the Authority is to protect human health and the environment by reducing the harmful effects of pollution and waste.(2) The Authority must exercise its powers and perform its duties and functions under this Act or any other Act for the purpose of achieving the objective set out in subsection (1) to the extent that it is practicable to do so having regard to the nature of the power being exercised of the duty or function being performed.
10 The functions of the Authority include
responding to harm and risks of harm to human health and the environment,
administering
the provisions of the Act, monitoring and reviewing the
performance by it of its functions and duties, and enforcing compliance with
the
Act.[7] It has the power to do
‘all things that are necessary or convenient to be done for or in
connection with’ the performance
of its functions and duties and to enable
it to achieve its
objective.[8]
11 The
EPA contends that s 309 (set out in para 7
above) is designed to permit members of the community to seek relief against
other members of the community who are acting in breach of
obligations on them
under the legislation in circumstances where the EPA as the statutory regulator
has failed to do so, but is not
intended to permit members of the community to
bring actions against the regulator itself.
12 Section
309 was introduced as an amendment to the Environment Protection Act 2017
by s 7 of the Environment Protection Amendment Act 2018. That
amendment also introduced the ‘general environmental duty’, now
found in s 25 of the Environment Protection Act 2017, set out above.
Both sides referred to the explanatory memorandum and the second reading speech
to support their positions, as well
as a governmental report that predated the
amendments. Although the text of the legislation itself must remain paramount,
I will
consider these extrinsic materials
first.
13 The ‘Independent Inquiry into the
Environment Protection
Authority’[9] stated that
‘the EPA is widely perceived as being risk averse and reluctant to seek
substantial penalties.’ In the body
of its report it stated that
‘we recommend strengthening the rights of third parties to appeal EPA
decisions and to take legal
action to prevent or remedy environmental harm if
the EPA fails to act.’ Its recommendation 7.5 was to:
Strengthen third party rights to allow persons whose interests are affected or any other person with the permission of the court to seek a court order to restrain or remedy breaches of environmental protection laws (civil remedies).
14 The Minister said in her second reading speech to the Environment Protection Amendment Bill 2018, under the heading ‘Community rights to hold EPA and polluters to account’:
As a first for Victoria, the Bill delivers a significant community access to justice initiative: it provides a new right for community members to seek civil remedies to enforce the law through a court.
These rights will be available to any person a court determines has an interest in the matter, or any other person with leave of the court if the proceeding is in the public interest and EPA has not taken action.
The proposed reform will allow courts to make orders to remedy or restrain a breach of any requirement of the new environment protection law, including its Regulations and conditions of EPA licences and permits
Third party proceedings are likely to only be initiated when Victorians believe EPA has failed to take appropriate action to investigate alleged breaches of the law and require remedial action. They will serve as an important accountability mechanism for EPA in the enforcement of the law as well as providing Victorians the option of direct access to justice.[10]
15 Under the heading ‘Benefits of the general environmental duty’, the Minister said:
The proposed general environmental duty means that Victoria’s environmental watchdog will no longer have to wait for pollution to occur before they can act. It will shift the focus of business to understanding their key pollution and waste risks, and ensure practical controls are in place to prevent disasters from occurring.[11]
16 In the explanatory memorandum to the Environment Protection Amendment Bill 2018, it was said:
New Part 11.4 enables the authority and certain other third parties, referred to in this part as eligible persons, to apply to a court for civil orders to restrain or remedy a contravention of the Principal Act, including a contravention of the general environmental duty and non-compliance with the condition of permission.[12]
17 I do not see anything in these extrinsic materials that reveals an intention to put the EPA under the Court’s control at the suit of an ‘eligible person’. I consider that they instead reveal an intention to empower an ‘eligible person’ to take matters into their own hands by seeking orders against a polluter, or someone who is putting the environment at risk, if they feel the EPA is not doing what it should be doing. Had there been an intention to allow eligible persons to bring proceedings against the regulator to enable the Court to order the regulator to exercise its powers or discretions in any particular way, I would have expected this to have been explicitly stated in the extrinsic materials.
C.2 The text of the section, read in context of the Act generally
18 As noted above, however, it is the
language of the Act, read in its context, that governs the meaning to be given
to it. There
are a number of matters that, to my mind, support the EPA’s
contention that s 309 is intended to enable eligible persons to
bring
proceedings against polluters or someone who is putting the environment at risk,
but that it is not to bring proceedings against
the EPA. The following are not
in any particular order.
19 First, s 308 provides as
follows:
308 Eligible persons
(1) In this Part-
eligible person, in relation to an application under this Part, means a person–(a) whose interests are affected by the contravention or non-compliance in relation to which the application is made; or(b) who has the leave of the Court to make the application.
(2) The Court must not give a person leave to make an application for the purpose of subsection (1)(b) unless the Court is satisfied that–
...(b) the person has requested in writing that the Authority take enforcement action or compliance action in relation to the contravention or non-compliance; and(c) the Authority has not, within a reasonable time after receiving that request, taken enforcement action or compliance action.
20 The requirement in s 308(2)(b) that a
person must first have requested that the Authority take action ‘in
relation to the
contravention or non-compliance’, and the Authority not to
have done so, suggests that the ’contraventions’ or
‘non-compliances’ with which the section is concerned are
contraventions or non-compliances on the part of persons other
than the EPA.
Otherwise, the EPA would be being asked, and failing, to take action against
itself.
21 Section 309(1) then enables the Court
to make orders on the application of an eligible person if it is satisfied that
‘a
person’ is not complying with a permission issued or granted
under the Act or is contravening a requirement or duty imposed
on the person by
or under the Act. The logical and sequential connection between s 308 and s 309
suggests that the non-compliances
or contraventions with which s 309 is
concerned are the non-compliances or contraventions with which s 308 is
concerned. Accordingly,
the ‘non-compliances’ and
‘contraventions’ with which s 309 is concerned are, again,
non-compliances and
contraventions by persons other that the
Authority.
22 Second, s 309(1)(a) applies where
there has been a failure to comply with a permission issued or granted under the
Act. That language
is not apposite to the regulator, who is the issuer or
granter of the permissions rather than a recipient who is obliged to comply
with
them. This, too, indicates that s 309 is concerned with actions by persons
other than the Authority.
23 Third, the plaintiffs
rely on s 309(1)(b) as the section that enlivens the Court’s power to
make orders against the Authority
in this case. Section 309(1)(b) could only
apply to the Authority if there had been a contravention by it of a
‘requirement
or duty’ imposed on it by or under the Act. Although
is apparent that the Act imposes relevant requirements and duties on
persons who
pollute or endanger the environment, it is not apparent that it imposes relevant
requirements or duties on the Authority.
For example, the ‘general
environmental duty’ set out in para 8 above imposes a requirement or duty on
‘a person who is engaging in an activity that may give rise to risks of
harm to human health
or the environment.’ The word ‘activity’
is defined as including ‘the storage or possession of waste or
any other
substance or t[13]ng’.13 Even
though ‘activity’ is defined inclusively, it would be a strain to
treat the Authority’s regulatory actions,
at least in ordinary
circumstances, as being activities that fall within the description of an
activity that may give rise to risks
of harm to human health or the
[14]vironment.14 Otherwise, the
powers that the plaintiffs seek to have the Court order the Authority to do are
expressed in permissive, rather than
mandatory, language. As examples:
(a) When dealing with the removal of waste, under s 121 the Authority ‘may ... issue a person with a waste abatement notice’, and under s 122 ‘the Authority .. may remove or dispose of the waste’, and ‘the Authority may recover any reasonable costs’;
(b) Under s 271, the Authority ‘may issue a person with an improvement notice’;
(c) Under s 274, the Authority ‘may issue a person ... with an environmental action notice’, including to ‘the person who the Authority ... reasonably believes caused or permitted the circumstances which are the subject of the notice’. In the notice, the Authority ‘may specify ... any condition, requirement, restriction, performance standard or level that the Authority ... thinks fit’;
(d) In exercising its ‘cost recovery powers’, under s 297 the Authority ‘may recover ... any reasonable costs incurred by the Authority’; and
(e) Section 294 empowers the Authority to conduct a clean up itself or to cause a clean up to be conducted. Section 294 is headed ‘Circumstances in which Authority may exercise clean up powers’. Further, s 294(1) provides that the Authority ‘may take any action that the Authority considers necessary to eliminate or reduce’ a risk of harm ‘including, but not limited to, conducting a clean up or causing a clean up to be conducted’.
24 Section 357, set out in para 9 above, does impose obligations on the
EPA. It uses the mandatory ‘must’, rather than the permissive
‘may’. Section
357 controls the purpose for which the EPA must
exercise its powers and perform its duties: when exercising its powers or
performing
its duties it must do so for the purpose identified in that section.
But this section is not intended, in my view, to create an
obligation on the EPA
to act in the sense that if the EPA decides not to act it can be said to be
contravening a requirement or duty
imposed on it so that the Court may, at the
suit of an ‘eligible person’ order it to perform an act. For this
reason,
s 357, properly understood, does not impose an obligation on the EPA to
exercise its powers and to perform its duties in the sense
that would engage s
309(1)(b).
25 This is not, in my view, a
surprising conclusion. The legislature has created an expert statutory body and
given it powers and
discretions to exercise for the purposes identified in the
statute. The EPA is subject to the supervision of this Court in the sense
that
this Court can, by the judicial review process, ensure that the EPA acts
lawfully. But this Court is not, ordinarily, by the
judicial review process
able to review the merits of decisions made by statutory bodies. If s 309 of
the Environment Protection Act 2017 were to operate in the manner the
plaintiffs contend, it would have the practical effect of giving this Court the
power to review
the merits of decisions made by the EPA and to direct it as to
how and when it ought to exercise its discretions and powers. That
would be a
surprising result, and, in my view, is not the consequence of the introduction
of s 309.
26 Sections 308 and 309 are instead
intended to give persons who are affected by conduct in breach of the
Environment Protection Act 2017 (including in breach of the general
environmental duty) the power to bring an action themselves against the person
in breach if,
for some reason, the EPA decides not to do so. If the regulator
does not step in, then the eligible person may. That is the balance
that is
struck. Indeed, that is why, it seems, the plaintiffs may be able to proceed
against the Bingo entities directly if they
can establish that the Bingo
entities breached the provisions of the Environment Protection Act 2017,
notwithstanding the fact that the EPA has not taken action against
them.
27 For the above reasons, in my view the
legislation does not permit the action that the plaintiffs seek to bring against
the EPA,
with the result that the claim against the EPA ought not to be
permitted to proceed. In my view, the matter is sufficiently clear,
based on
the pleadings (and assuming that the facts alleged may be made out) and the
legislation to justify disposing of the plaintiffs’
claims on a summary
basis.
28 In forming this view, I am conscious
that, on the material provided to date, the plaintiffs are entirely innocent of
any wrongdoing
and have been very much affected by serious misconduct on the
part of at least the first three defendants, and may have been very
much
affected by serious misconduct on the part of others. The cost to the
plaintiffs has been high, and they are limited in what
they can do about it
because of the nature of the problem that they now face of having thousands of
tons of dangerous waste on their
property that cannot be moved other than with
the approval of the EPA and at considerable expense. It is a natural response
to feel
disappointment, indeed surprise, that the EPA has not availed itself of
its power to effect the clean-up itself and to seek to recover
the costs of so
doing from those responsible. It seems just the sort of situation where that
power might be exercised. Perhaps,
the EPA may still decide to do so. But, as
its counsel submitted, the EPA has many claims on its resources and has to make
decisions
about the allocation of those resources, which decisions are not
subject to this Court’s control.
D. Disposition and other observations
29 The plaintiffs’ claims against
the EPA are bad in law and should not be permitted to
proceed.
30 I will hear the parties on whether, in
light of these reasons and the orders that are sought against the other
defendants, the
EPA should remain a party to the proceeding. The plaintiffs
contend that the EPA would remain a ‘necessary party’ even
if no
relief were able to be obtained against it because the relief sought against the
other defendants directed at the disposal
of the waste would require the
EPA’s participation or cooperation. This issue was raised but was not the
subject of full argument.
31 I will otherwise hear
the parties on the precise form of order and on the question of costs. I will
also hear the parties on the
effect, if any, of these reasons on how and when
the plaintiffs’ remaining related applications ought to be dealt with.
S ECI 2020 04117
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BARR CORPORATION PTY. LTD. (ACN 065 353 139)
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First Plaintiff
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DOREEN BARR
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Second Plaintiff
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JUSTIN STEVEN ROFF
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First Defendant
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ASHIYANA YUSUFF
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Second Defendant
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AFROZ ALI
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Third Defendant
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BINGO INDUSTRIES PTY LTD (ACN 617 748 231)
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Fourth Defendant
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BINGO ACQUISITIONS PTY LTD (ACN 602 662 984)
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Fifth Defendant
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DANIEL TARTAK
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Sixth Defendant
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ENVIRONMENT PROTECTION AUTHORITY
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Seventh Defendant
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[1] Although it is not strictly relevant, it seems that Ms Yusuff and Mr Ali have separated since the events referred to in this application.
[2] Being per- and polyfluorinated substances.
[3] Environment Protection Act 2017 (Vic) ss 142-143; see also Environment Protection Regulations 2021 (Vic) rr 71-72, ‘Schedule 5 – Waste classification’ items 79, 93-94.
[4] These orders were made on 10 June 2021 and 22 September 2021.
[5] Environment Protection Act 2017 (Vic) chpt 10 pt 10.9, see particularly ss 294, 297.
[6] The plaintiffs had proposed, and the remaining parties present agreed, to refer to the plaintiffs’ proposed third further amended statement of claim for the purposes of this application.
[7] Environment Protection Act 2017 (Vic) s 358.
[9] This was undertaken by a Ministerial Advisory Committee chaired by Penny Armytage in 2015 and 2016. The other authors were Jane Brockington and Janice van Reyk. On 31 March 2016 the Committee delivered the resulting report to the Minister for Climate Change, Environment and Water.
[10] Victoria, Parliamentary Debates, Legislative Assembly, 20 June 2018, 2086 (Lily D’Ambrosio, Minister for Energy, Environment and Climate Change).
[11] Ibid 2084.
[12] Explanatory Memorandum, Environment Protection Amendment Bill 2018 (Vic) 123.
[13] Environment Protection Act 2017 (Vic) s 3(1). It also includes anything prescribed to be an activity.
[14] It may be, indeed probably would be, that if the Authority exercised its power to clean up a site, and in so doing handled or stored or transported waste, then it would, while performing those activities, be subject to the general environmental duty. But that is not the situation here.
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