D'Anastasi v Environment Protection Authority [2011] NSWCA 1 (13 January 2011)

Last Updated: 2 March 2011

Court of Appeal New South Wales

Case Title:	D'Anastasi v Environment Protection Authority
Medium Neutral Citation:	[2011] NSWCA 1
Hearing Date(s):	13 January 2011
Decision Date:	13 January 2011
Jurisdiction:
Before:	Allsop P
Decision:	Notice of motion dated 21 December 2010 filed 24 December 2010 be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - application to stay execution of judgment pending appeal proceedings - whether stay should be granted - whether appeal has reasonable prospects of success
Legislation Cited:	Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, Miller v Nationwide News Pty Ltd [2008] NSWCA, Varma v Varma [2010] NSWCA 358
Texts Cited:
Category:	Principal judgment
Parties:	Charles D'Anastasi (Applicant) Environment Protection Authority (1st Respondent) Gregory Abood (2nd Respondent)
Representation
- Counsel:	Counsel: Mr J R Dupree (Applicant) Mr D K Jordan (1st & 2nd Respondents)
- Solicitors:	Solicitors: Russo & Partners (Applicant) Department of Environment, Climate Change and Water NSW (1st & 2nd Respondents)
File number(s):	2010/423014
Decision Under Appeal
- Court / Tribunal:
- Before:	Pain J
- Date of Decision:	16 December 2010
- Citation:	D'Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260
- Court File Number(s)	40881 of 2010
Publication Restriction:

Judgment

1	ALLSOP P: This is an application for a stay to the Court of Appeal in support of notice of appeal dated 21 December 2010. The source of the proceedings is the Land and Environment Court. On 16 December, Pain J made certain orders. The first was that she lifted, that is, dissolved the injunction made by Craig J on 26 November 2010 which in turn had been made by agreement in effect, between the parties which restrained the first and second respondents from seeking to enforce a notice and a variation of notice issued under s193 of the Protection of the Environment Operations Act 1997 (NSW) to which I will refer as the PEO Act.
2	Her Honour also dismissed the summons that had been filed by the present applicant on 29 October in which challenge had been made to the legitimacy of the notices under s 193. Her Honour also made an order that the applicant answer the statutory notice within 10 business days of publication of the Court's reasons and reserved the question of costs. Later that month, before Christmas, an application was made to her Honour to stay her Honour's orders which are refused. Thus, the motion before me today is, in effect, to stay her Honour's lifting of the earlier injunction. In effect, that is to hold position such that the notice under s 193 does not have to be answered.
3	The notice of motion in terms asks for an order that, "Execution on and all proceedings under the judgment and order herein of the Honourable Justice N Pain of 16 December 2010 be stayed until further order." The parties have filed written submissions which will remain with the papers. I do not propose to deal with all the issues raised in those submissions. The constraints on the Court and on the parties are various. Mr Abood, the investigating officer authorised by the Environment Protection Authority, the first respondent, has given evidence that there is in all likelihood, a limitation provision operative from late February. He identifies 25 February.
4	If a stay is granted, the parties because of that constraint, jointly will seek in due course expedition which will require litigants who wait in the list in this Court to be removed from the list and take their place later in the year. There is some dispute between the parties as to the proper way to view the present dispute. That is, whether it is an interlocutory injunction or whether it is truly a stay governed by cases such as Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 , Varma v Varma [2010] NSWCA 358 and Miller v Nationwide News Pty Ltd [2008] NSWCA 222, to name but a few. I do not think the jurisprudence of this Court will be advanced by detailed exposition on the precise jurisprudential character of what is occurring given the nature of the orders I have identified. The question formally is whether an appropriate basis has been laid for a consideration that there are reasonable prospects of success in the appeal as to warrant the interference with what is, in effect, a criminal investigation of an environmental character at this stage. The short answer to that question in my view is no.
5	Whilst s 193 has (other than through the reasons of her Honour alone) not been the subject of consideration of a superior court, that is not a ground to stay any order made under it until the Court of Appeal or the High Court has finally opined on its scope. The precise extent and reach of s 193 in its search for information (as opposed to records) is not entirely clear. Certainly, it is a broad provision. Its precise reach, no doubt, will be the subject of careful argument and consideration in the appeal. However, I do not see her Honour's reasons as obviously wrong, although I have an open mind as to the possible scope of s 193 to the extent that it was asked of someone to furnish information which they did not have from their personal knowledge.
6	The notice under s 193 has been outstanding for some time. If there is a deficiency in the notice, that will be dealt with in the fullness of time. To the extent that information has been extracted on one hypothesis from an invalid notice, that will require a court to give attention to that in the context of both the admissibility of evidence in any prosecution as well as whether any prosecution should proceed to the extent that that evidence was critical. Those matters are ones which will not necessarily be easy to deal with, nevertheless I do not think they are such as to mean that the utility of the appeal against her Honour's orders is denied if the stay is not granted.
7	There will be scope upon a successful appeal for application to be made in relation to any information obtained pursuant to an invalid notice which course will or may be of utility to the applicant. To grant the stay would require this Court to reorganise significantly its business in the first week of February, require three judges to deliver reasons before 25 February, thereby not only removing litigants from the list in February, but also removing other litigants not having their judgments dealt with in terms of reasons in favour of the litigants before the Court today. I do not consider that the proper foundation has been shown for the interference with the investigation under the PEO Act and I decline to interfere with the orders made by her Honour. The notice of motion is dismissed.
8	Oral application is made for a further extension of time from 14 January to answer the notices. In my view insufficient evidentiary foundations have been laid to make that further extension. The parties have been on notice of the period for some time. I decline to make any further extension. The orders of the Court are notice of motion dated 21 December 2010 filed on 24 December 2010 be dismissed with costs.

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