Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58 (12 February 2010)

Last Updated: 15 February 2010

FEDERAL COURT OF AUSTRALIA

Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58

Citation:		Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58
Parties:		MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS v PGP DEVELOPMENTS PTY LIMITED (ACN 100 627 914)
File number:		ACD 36 of 2009
Judge:		STONE J
Date of judgment:		12 February 2010
Catchwords:		ENVIRONMENT – pecuniary civil penalty sought – declaration of contravention sought – statement of agreed facts provided by parties DECLARATIONS – statement of agreed facts adduced as evidence under s 191 Evidence Act - whether agreed facts are evidence sufficient to support declaration
Legislation:		Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 481 Environment and Heritage Legislation Amendment Act (No 1) 2003 (Cth) subitem 1A(3) of Schedule 3 Evidence Act 1995 (Cth)  191 Federal Court of Australia Act 1976 (Cth) s 21 Crimes Act 1914 (Cth) s 4AA(1)
Cases cited:		ACCC v Allergy Pathway Pty Ltd Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579 Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885; (2001) Aust Contract R (Digest) 90-123; (2001) ATPR 41-8011 Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710 Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd (ACN 052 475 911) [2009] FCA 1580 Australian Securities and Investments Commission v Edwards (2004) 51 ACSR 320 Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429 Australian Securities and Investments Commission v Rich [2004] NSWSC 836; (2004) 50 ACSR 500; BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Minister for Environment and Heritage v Warne [2007] FCA 599 Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich [2003] NSWSC 186; (2003) 44 ACSR 682; Australian Securities and Investments Commission v Elm Financial Services Pty Ltd (2005) 55 ACSR 411 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Date of hearing:	4 February 2010
Place:	Canberra
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	T Begbie
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	PR Whitehead
Solicitor for the Respondent:	Whitehead Gupta Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2009

BETWEEN:

MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Applicant

AND:	PGP DEVELOPMENTS PTY LIMITED (ACN 100 627 914) Respondent

JUDGE:	STONE J
DATE OF ORDER:	4 FEBRUARY 2010
WHERE MADE:	CANBERRA

THE COURT DECLARES THAT:

1. The respondent, by undertaking the development of Stage 2 of ‘Whitsunday Shores’ at Survey Plan 172276 formerly known as Lot 900 on Survey Plan 157801, Parish of Curlewis, Shire of Bowen, Queensland, without having constructed a lagoon to the eastern side of the site with a minimum volume of 2,300m3 took an action which was the subject of a notice under s 77A(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in a way that was inconsistent with a particular manner specified in the notice and thereby contravened s 77A(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

THE COURT ORDERS THAT:

2. Pursuant to s 481 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $40,000 for the contravention of s 77A(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
3. An order that the respondent pay the applicant’s costs of the proceedings fixed at $25,000.

THE COURT NOTES THAT:

4. The parties have consented to these orders being made.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 36 of 2009

BETWEEN:

MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS Applicant

AND:	PGP DEVELOPMENTS PTY LIMITED (ACN 100 627 914) Respondent

JUDGE:	STONE J
DATE:	4 FEBRUARY 2010
PLACE:	CANBERRA

REASONS FOR JUDGMENT

Introduction

1. By application filed on 26 August 2009, the Minister for the Environments, Heritage and the Arts, pursuant to s 481 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) seeks an order that the respondent pay the Commonwealth a pecuniary penalty as well as a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth).
2. On Thursday 4 February 2010 I made the declaration and orders sought and undertook to provide reasons at a later date. These are my reasons.
3. The parties have consented to the Court making the order and the declaration. In doing so they rely, not only on the statement of claim and amended defence filed in this proceeding but also on a Statement of Agreed Facts and their written joint submissions. The Statement of Agreed Facts was signed by the parties’ respective solicitors and tendered in evidence at the hearing. Unless otherwise indicated, the facts referred to in these reasons are taken from that statement. In these reasons I have also drawn heavily on the parties’ joint submissions without necessarily indicating at each point where I have done so. I am grateful to the parties for their very valuable assistance. I should point out, however, that while the respondent has consented to the orders sought by the Minister, for the reasons given below I am independently satisfied that the Court has the power to make those orders and that it is appropriate to do so.

Facts

4. The respondent, PGP Developments Pty Limited is the developer of ‘Whitsunday Shores’, a golf course and residential development approximately 10 km south of Bowen, Queensland and about 500 metres from the Great Barrier Reef World Heritage Property. The project is being developed in 8 stages. The second stage of the project comprises approximately 160 residential blocks over an 18 hectare area.
5. The Great Barrier Reef is a World Heritage property that has been included in the National Heritage List; see the notice to this effect published in the Commonwealth of Australia Gazette (Special) No S99 21 May 2007. In accordance with subitem 1A(3) of Schedule 3 of the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Cth), the notice declares that each world heritage value attributed to a World Heritage property (as listed in the schedule to the notice) “is taken to cause the relevant World Heritage property to meet a National Heritage criterion corresponding to that world heritage value”. According to the notice published in the Special Gazette No 99, the Great Barrier Reef meets the following National Heritage Criteria:

(a) the place has outstanding heritage value to the nation because of the place's importance in the course, or pattern, of Australia's natural or cultural history;
(b) the place has outstanding heritage value to the nation because of the place's possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;
(c) the place has outstanding heritage value to the nation because of the place's potential to yield information that will contribute to an understanding of Australia's natural or cultural history;
(d) the place has outstanding heritage value to the nation because of the place's importance in demonstrating the principal characteristics of:
(i) a class of Australia's natural or cultural places; or
(ii) a class of Australia's natural or cultural environments;
(e) the place has outstanding heritage value to the nation because of the place's importance in exhibiting particular anaesthetic characteristics valued by a community or cultural group.

6. Pursuant to s 68(2) of the EPBC Act PGP referred the action which it was proposing to take in relation to the Stage 2 Development to the Minister. On 11 November 2004 a delegate of the Minister decided that, pursuant to s 75 of the Act, the Stage 2 Development action was not a “controlled action” under the Act. In reaching the decision the delegate made a “component decision” within the meaning of s 77A(1) of the EPBC Act on the basis that the Stage 2 Development action would be taken in a particular manner. The decision and the component decision were set out in a written notice provided to PGP pursuant to s 77(1) of the EPBC Act (the s 77 Notice). The Notice stated that, provided the Stage 2 Development action were taken in the manner described in the Notice, ss 12 and 15A of the EPBC Act would not be controlling provisions. In summary, PGP would not be exposed to any penalty if it abided by the condition in the Notice. Relevantly, the Notice required that two lagoons be constructed to allow the settlement of sediments prior to any discharge into Edgecumbe Bay. One lagoon was required to be situated to the west of the development site and have a minimum volume of 7,800 cubic metres. The other was to be located to the east of the site and have a minimum volume of 2,300 cubic metres.
7. The Statement of Agreed Facts described PGP’s actions in relation to the Stage 2 Development as follows:

Bulk earthworks for the Stage 2 Development
PGP engaged East Coast Civil Pty Ltd to undertake bulk earthwork in relation to the Stage 2 Development. The owner and director of East Coast Civil was Mark McLachlan who is the brother of Peter McLachlan [a director of PGP].
Initial construction of lagoons
The original construction work for the two lagoons specified in the s 77 Notice was undertaken in late November 2004. Peter McLachlan marked out the size of the lagoons based upon his own estimates of the locations and volumes necessary to satisfy the s 77 Notice. Peter McLachlan then directed East Coast Civil to build the lagoons in accordance with the marked out dimensions.
Survey and modification of lagoons
Following their construction, PGP engaged Pioneer Surveys to conduct a survey of the lagoons. David Ada of Pioneer Surveys conducted this survey on 2 December 2004. Mr Ada concluded that the volume of Lagoon 1 was 3140m3 and the volume of Lagoon 2 was 340m3. Mr Ada advised Peter McLachlan of the results of the survey on 2 December 2004.
At around the same time an employee of East Coast Civil advised Peter McLachlan that the lagoons were substantially smaller than was specified in the s 77 Notice. They agreed upon a method of enlarging the lagoons and further earthworks were undertaken in early December 2004 accordingly. No further survey was undertaken to ensure that Lagoon 2 had the required minimum volume of 2,300m3.

8. Despite the remedial work undertaken in December 2004, investigations by the Department in 2006-7 established that Lagoon 2 did not have the required minimum volume of 2300m3 during construction. A survey prepared by WBM Pty Ltd on behalf of the Department of Environment and Heritage dated 31 January 2007 was exhibited to the Statement of Agreed Facts. It estimated the holding capacity of Lagoon 2 to be between 400-500m3. The survey adopted a nominal capacity of 450m³. It would appear that the capacity of Lagoon 2 was not sufficient adequately to contain sediment laden run-off during the wet season. This had the potential to affect the Great Barrier Reef “through disruption to tidal and subtidal ecosystems contiguous with the world heritage property”.
9. It was common ground that PGP had voluntarily, and at its own expense, carried out remediation work to increase the capacity of the Lagoon to a minimum volume of 2400 m³ and a minimum length to width ratio of 3:1. It was also agreed that PGP’s failure to ensure that Lagoon 2 had the required minimum capacity was “a result of inadequate attention being given to the design and construction of the Lagoon. It was not a conscious or deliberate failure to meet the conditions of the s 77 Notice and was not motivated by a desire to reduce costs”. It was also acknowledged that there is no record of any other contravention of s 77A(2) of the EPBC Act by PGP and that it had co-operated at all stages of the investigation of the alleged breaches, in particular, through:
   • consenting to and facilitating site inspections;
   • participating in taped records of conversations; and
   • making full and frank admissions as to a range of factual matters.

Factual conclusions

10. I accept that the relevant facts in this matter are those that have been agreed between the parties and have been set out in the Statement of Agreed of Facts. Section 191(2)(a) of the Evidence Act 1995 (Cth) provides that in such circumstances evidence is not required to prove the existence of those facts.

THE PECUNIARY PENALTY

11. The facts agreed by the parties and accepted by the Court establish that by carrying out the Stage 2 Development action in a manner inconsistent with the s 77 Notice, PGP contravened s 77A(2) of the Act. The EPBC Act provides for a pecuniary penalty to be imposed in such circumstances which, for a corporation, is a maximum of 10,000 penalty units; s 77A(2)(b). As a penalty unit is $110, this equates to the amount of $1,100,000; Crimes Act 1914 (Cth) s 4AA(1).
12. The factors that the Court should take into account in determining an appropriate amount of penalty are set out in s 481(3) of the EPBC Act:

(3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

13. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285, the Full Court considered circumstances in which the parties had reached agreement as to the appropriate amount of the penalty. Burchett and Kiefel JJ emphasised that the Trade Practices Act 1974 (Cth) imposed the responsibility to determine the appropriate penalty on the Court. Their Honours accepted, however, that the Court was likely to be assisted by the views of the Australian Competition and Consumer Commission or by economists called on behalf of the parties. Their Honours further commented at 290-1:

Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed but rather whether their proposal can be accepted as fixing an appropriate amount.
There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case.

14. In accepting a figure agreed between the parties the Court is not, and should not be regarded as, acting as a rubber stamp. The point was made by Weinberg J in Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121]- [122]:

The real question is whether the pecuniary penalties which are now sought, and which have been agreed by the respondents, should be approved. In answering that question it must be emphasised that, in the final analysis, it is for the Court, and not the parties, to determine the amount of any pecuniary penalty. The Court is not to be regarded as a “rubber stamp”. ...
Nonetheless, it is a fact that in the vast majority of cases where pecuniary penalties have been agreed the Court has approved those penalties. That is because the Court is concerned only with whether the agreed penalties are within what is described as the “permissible range”.

15. These principles apply equally to pecuniary penalties under the EPBC Act, although I accept that, as Sackville J observed in Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [58], the penalty which is appropriate in a particular case will depend upon the circumstances of that case.
16. In addition to the matters specified in subs (a)-(d) of s 481(3), matters relevant to determining the pecuniary penalty include:
    • the need to deter contravention of the EPBC Act by the party concerned and by the public in general: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152 and Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 at [47];
    • the extent to which the contravener has co-operated during investigations and subsequent proceedings; Minister for Environment and Heritage v Warne [2007] FCA 599: see however Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [73] where Sackville J expressed reservation on this point;
    • whether the contravener has taken remedial action to minimise environmental damage: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [58];
    • whether the contravener has any history of other contravening behaviour; Minister for Environment and Heritage v Warne [2007] FCA 599 at [15]- [16]; Minister for Environment Heritage and the Arts v Lamattina [2009] FCA 753 at [27]- [29] and [74].
17. I am satisfied that PGP failed to comply with the s 77 Notice because it gave inadequate attention to the design and construction of Lagoon 2. There is nothing to suggest that the contravention was conscious or deliberate. It was not motivated by commercial interests and PGP did not make any profit or, ultimately, any significant saving, as a result. As the joint submissions state, “there was no additional conduct on PGP’s part which could be seen as an aggravating feature of the contravention” and PGP has no history of other contravening behaviour.
18. Undoubtedly the risk of damage to the Great Barrier Reef was significant however no damage has been identified as having arisen in this case. The parties submit that the nature and extent of the damage caused by the contravention is at the low end of possible contraventions of s 77A(2) of the EPBC Act.
19. PGP has voluntarily and at its own expense undertaken remedial action and has co-operated fully with the investigation into the contravention and in this proceeding. The remedial action not only enlarged the capacity of Lagoon 2 but, as the parties submit, “also involved additional works to ensure adequate sediment and erosion control”. PGP’s co-operation with the investigation has extended to “consenting to and facilitating site inspections, participating in interviews, and making full admissions to the contravening conduct”. This co-operation was offered from the earliest point in the investigation. Given this degree of co-operation the parties submit that PGP will not contravene again and therefore specific deterrence should not be a significant factor in the present case. On the other hand, the need for general deterrence is still a significant factor. The penalty imposed must not invite potential contraveners to discount the consequences of contravention.
20. Although in earlier proceedings this Court has imposed pecuniary penalties for contravention of other provisions of the EPBC Act this is the first seeking the imposition of a civil penalty in relation to a contravention of s77A(2). The amount of the penalty imposed in respect of other contraventions provides little guidance as to the permissible range here because, as the parties submit, they involve different provisions with different maximum penalties and very different circumstances. This is so even for contraventions of different provisions of the Trade Practices Act, a fact recognised by Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission at 295 where their Honours said:

A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties. ... There should not be such an inequality as would suggest that the treatment meted out has not been even-handed ... . However, things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.

Importantly, their Honours added:

Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case.

21. The Minister and PGP submitted that, in all the circumstances of this case, a penalty of $40,000 is within the permissible range and appropriate. As the maximum penalty is $1,100,000, the amount suggested involves a considerable discount. Nevertheless, taking all of the above factors into consideration I accept the submission that $40,000 is an appropriate penalty in the present case.

Declaration of contravention

22. In addition to the pecuniary penalty, I am asked to make a declaration to the effect that PGP had acted inconsistently with the notice issued under s 77A(1) and had thus contravened s 77A(2) of the EPBC Act. It is clear that the Court has a broad discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). That discretion should be exercised within the confines identified by the High Court in Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-438 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-2. Declaratory relief is not given to determine hypothetical questions. It should be directed to determining legal controversies that have been appropriately ventilated and contested. The applicant for declaratory relief must have a real interest in obtaining such relief and there must be a proper contradictor.
23. In this case the applicant for declaratory relief is the Minister charged with enforcing compliance with the EPBC Act. As such the Minister has a real interest in the declaration being granted: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885; (2001) Aust Contract R (Digest) 90-123; (2001) ATPR 41-8011. The question answered by the declaration sought is not hypothetical. The proposed declaration refers to conduct that I am satisfied contravenes the EPBC Act and supports the imposition of the penalty that I have accepted.
24. The only issue that might give pause is whether there is a proper contradictor in a case such as this where the parties have agreed as to the relevant facts, the conclusion that there has been a contravention of the EPBC Act and the appropriate penalty. In additional submissions made on behalf of the Minister, my attention was drawn to the judgment of Finkelstein J in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960. That case concerned statements made by the respondent that the ACCC alleged were misleading. The statement concerned the respondent’s capacity to diagnose and treat allergies. The ACCC tendered a report by Professor Douglass, an expert in allergy and respiratory medicine. Professor Douglass’ report was a highly technical report that dealt with the nature of allergic diseases and allergic reactions, hypersensitivity, desensitisation and other treatment. In the light of Professor Douglass’ report the respondent no longer disputed that it had contravened the Trade Practices Act.
25. Initially the respondent objected to Professor Douglass’ report being read and the ACCC was prepared to accept the objection. The consequence would have been, as Finkelstein J observed at [7], that

there was no evidence to support the declaratory relief sought in the orders, the parties asking that the court proceed on their agreement that the declarations were justified.

26. His Honour made it quite clear that he would not have been prepared to make the declarations in the absence of evidence. His Honour was not prepared to accept that declarations of misleading and deceptive conduct involving statements about the testing, treatment and cure of allergies were appropriate in the absence of Professor Douglass’ expert evidence merely on the basis of the parties’ agreement. Eventually, however, the respondent withdrew its objection to the tender of the report and his Honour made the declarations sought.
27. At [10]-[18] of his reasons his Honour explained his position with reference to the decision of the Full Federal Court in BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 where Keely and Beaumont JJ said at 412-413:

It is well established that a declaration is a judicial act and ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.

28. Finkelstein J referred to a number of decisions of the Supreme Court of New South Wales, and one decision in this Court, which had proceeded on the basis that the evidence or material upon which a Court reaches the requisite state of satisfaction may include statement of agreed facts. The cases are Australian Securities and Investments Commission v Rich [2004] NSWSC 836; (2004) 50 ACSR 500; Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich [2003] NSWSC 186; (2003) 44 ACSR 682; Australian Securities and Investments Commission v Elm Financial Services Pty Ltd (2005) 55 ACSR 411; Australian Securities and Investments Commission v Edwards (2004) 51 ACSR 320 and Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429. At [17]- [19] Finkelstein J observed:

None of the New South Wales cases have explained why there should be a departure from the established rule. In Rich (50 ACSR 500) White J said (at [15]) that the new approach was consistent with the decision in Dean-Willcocks Pty Ltd v Commissioner of Taxation (No 2) (2004) 49 ACSR 325. There Austin J was dealing with a statutory requirement that the court must be “satisfied” of the existence of a certain state of affairs before it could make a particular order. Usually, the word “satisfied” is taken to mean “established by proof”. Austin J said, however, that in the context of the particular provision under consideration, it was permissible for the court to rely on the parties’ admissions. He justified this approach (at [28]) on the basis that it would promote the “just, quick and cheap resolution of ... dispute[s]”.
The declaration cases, however, require proof by way of evidence. An assurance by parties (whether by admission or agreed statement) that asserted facts are true will not suffice. ...
For the time being, at least until a Full Court holds otherwise, it is, in my view, incumbent upon a single judge of the Federal Court to follow BMI and therefore not grant a declaration involving a public right in the absence of evidence that supports the declaration.

29. The approach adopted in New South Wales was followed by Barker J in Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd [2009] FCA 1579 where his Honour said at [51]:

I note that in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd, Finkelstein J of this Court, at [16], noted a number of New South Wales Supreme Court decisions that have followed the course that I now propose to adopt, but different from what his Honour there proposed. In those other decisions the Court had acknowledged the general rule that a declaration on a matter relating to a public or analogous right should not be made by consent. However, those cases considered that a declaration could be made if the Court was satisfied by evidence that it ought to be made, the “evidence” to which regard may be had, including “facts” admitted to be true about which there is no direct evidence – facts, for example, contained in a statement of agreed facts. I am persuaded that the approach adopted in such cases as Australian Securities and Investments Commission v Rich [2004] NSWSC 836; (2004) 50 ACSR 500, referred to by Finkelstein J at [16], provide useful guidance in this regard.

His Honour took the same approach in Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd (ACN 052 475 911) [2009] FCA 1580.

Section 191 of the Evidence Act 1995 (Cth)

30. In none of the cases to which Finkelstein J referred, or indeed in Barker J’s reasons in either ACCC v Cosic or ACCC v Wilson Parking, is there any mention of s 191 of the Evidence Act. The section, which is also not mentioned by Finkelstein J, provides:

(1) In this section:
agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding to be disputed.
(2) In a proceeding:
(a) evidence is not required to prove the existence of an agreed fact; and
(b) evidence may not be adduced to contradict or qualify an agreed fact;
unless the court gives leave.
(3) Subsection (2) does not apply unless the agreed fact:
(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or
(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties

31. Section 191 came into effect with the Evidence Act 1995 (Cth) on 23 February 1995. The question arises as to whether agreed facts within the meaning of the section, and which are stated in an agreement in writing and adduced in evidence, as required by s 191(3)(a), are capable of supporting a declaration which might otherwise need to be supported by evidence proved in the usual way.
32. There is little assistance in the case law as to the construction of s 191 and none, as far as I can determine, that addresses the precise issue raised here. There is also no material assistance to be gained from the explanatory memorandum to the Evidence Bill 1994. Although the cases referred to by Finkelstein J considered agreed facts, it is not clear whether the agreements as to facts were in the form required by s 191(3). This is also the case with the decisions of Barker J referred to in [29] above.
33. Section 191 was relied on by Besanko J when his Honour made declarations in Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd [2009] FCA 710. His Honour had before him a statement of agreed facts that was in the form required by s 191 and admitted into evidence pursuant to that section. His Honour was requested to make declarations on the basis of facts in the statement of agreed facts. His Honour said at [13]:

As far as the five declarations are concerned, the Court’s power to make binding declarations of right is contained in s 21 of the Federal Court of Australia Act 1976 (Cth). In the ordinary case, a Court will not make a declaration by consent unless it is satisfied by evidence that it should do so. In this case, I have the statement of agreed facts under s 191 of the Evidence Act 1995 (Cth) and, by reason of that section, evidence is not required to prove the existence of the agreed facts.

34. Besanko J accepted the evidence of the agreed facts as providing a sufficient evidentiary foundation for the declarations made, however, there nothing to suggest that his Honour regarded a statement of facts made in accordance with the requirements of s 191 as necessarily determinative of the truth of those facts.
35. Section 191 provides that, unless the court gives leave, that the facts stated are not required to be proved by evidence and that evidence may not be adduced to contradict or qualify an agreed fact. The effect of s 191 is to admit the agreed facts as evidence. It still remains for the Court to determine whether the facts are to be accepted as true and to determine what weight to attribute to that evidence. Whether the Court accepts the agreed facts, in whole or in part, may depend, among other things, on the coherence of the narrative created by the facts or their inherent credibility. If, for example, a statement contained mutually inconsistent facts the Court would be obliged to take account of the inconsistency. In attempting to resolve the problem it would not be entitled to require evidence although, as provided in s 191(2), it might give leave to the parties to adduce evidence to resolve the inconsistency. In the absence of further evidence, and taking the context provided by other evidence including other agreed facts, it might possibly accept one or other of those facts. Clearly, however, it could not accept both of the facts in question as true.
36. In this case no such problems arise. The agreed facts form a coherent narrative that is not based on opinion and, as it happens, is supported by independent evidence such as the tender of the survey and the s 77 notice. I am satisfied that, assisted by s 191, the evidence is such as to warrant the declarations sought by the applicant.
37. I am conscious of the view expressed by Finkelstein J in ACCC v Allergy Pathway Pty Ltd however, with the greatest respect, his Honour’s statement is entirely obiter. Despite the initial objections of the respondent, the evidence of Professor Douglass was admitted and his Honour was able to make the declarations sought. Moreover the circumstances before his Honour were entirely different from those here. The parties’ consent to the declarations in ACCC v Allergy Pathway Pty Ltd, even if it had been in the form required by s 191(3), did not provide an evidentiary basis for the declarations. Their agreement that the declarations were appropriate was a joint opinion not an agreement as to fact. Professor Douglass’ report contained expert opinion which was admissible as an exception to the opinion evidence rule under s 79 of the Evidence Act. For that reason his Honour was entitled to admit the opinion evidence and base his declarations on that opinion not on the agreement of the parties
38. For the above reasons I am satisfied that it is appropriate in a case such as the present to make the declarations sought by the parties.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 12 February 2010