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Environment Protection Authority v Waste Management Pacific (SA) P/L [2004] SAERDC 115 (23 December 2004)

Last Updated: 6 January 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ENVIRONMENT PROTECTION AUTHORITY v WASTE MANAGEMENT PACIFIC (SA) P/L

Judgment of Her Honour Judge Trenorden (ex tempore)

23 December 2004

ENVIRONMENT PROTECTION

Interim order previously made restraining respondent from placing waste in landfill - application by respondent to discharge interim order - basis of order - statutory interim order - tests: serious question to be tried and balance of convenience - no basis for discharge of the interim order - injunction will not be discharged - decline to grant application.

Environment Protection Act 1993 s104, referred to.

Lane & Anor v Channel 7 Adelaide Pty Ltd (2004) 232 LSJS 234; American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, considered.

ENVIRONMENT PROTECTION AUTHORITY v WASTE MANAGEMENT PACIFIC (SA) P/L
[2004] SAERDC 115

THE COURT DELIVERED THE FOLLOWING EX-TEMPORE JUDGMENT:

1 I have been asked to discharge an injunction made by this Court on 17 December 2004 against Waste Management Pacific (SA) Pty Ltd. On 17 December 2004 an application was made under s104 of the Environment Protection Act 1993. This Court determined that there was a case to answer on the application and that an interim order be made notwithstanding that the application had been made orally.
2 Mr Hayes QC said the interim order made was in the nature of a final order, but the transcript records that at the time I spoke of an interim order and made the order pursuant to subsections 13 and 14 of s104 of the Environment Protection Act. The basis of the interim order was that there was evidence from a site inspection that the respondent was about to contravene parts of Condition 37 of EPA Licence 14463 which authorised the operation of a waste depot, by receiving waste into a cell, the leachate drainage layout of which contravened some of the specifications in Condition 37.
3 The evidence revealed urgency in that it was believed that waste was going to be received on the next working day, that is 20 December 2004, and that there was a prospect of environmental damage flowing from the receipt of that waste into the cell as it had been prepared.
4 It has been submitted with respect to the application to discharge the interim order that:
• there was no basis for an order;
• there was a failure to make full disclosure;
• the order was, in effect, a final order not an interim order; and
• there was no power to make an order in the absence of an application under s104, that is for final order.
5 I do not accept that there was no basis for the order. I have set out already what I understood to be the basis of the interim order and I have not changed my mind in that regard.
6 Mr Hayes QC spoke of less than full disclosure. Certainly there is an obligation on counsel to disclose all relevant matters: Lane & Anor v Channel 7 Adelaide Pty Ltd (2004) 232 LSJS 234.
7 I do not accept that there was, in the circumstances of this matter, less than full disclosure. It is true that the As-Constructed Report was not placed before the Court. It is also true that there was no information placed before the Court as to the respondent’s contractual obligation to receive waste from 1 January 2005. My attention was not drawn to the detail of the communications that there had been between the EPA and the respondent.
8 But, in my view, the issue was not whether Condition 5 of the development approval had been complied with, nor whether Conditions 35 or 36 or any other condition of the EPA licence had been complied with, in respect of which that material to which I have referred, might have been relevant. I am talking about the As-Constructed Report and the information about the communications between the parties.
9 The issue was; was there imminent likely breach of the Act? In that respect, it was not necessary to disclose that other information.
10 As to the Court not having received full disclosure regarding the consequences for the respondent, the respondent has now had a chance to respond.
11 As to the assertion that there was no full disclosure regarding the consequences for the disposal of metropolitan Adelaide waste from 1 January 2005, it is clear that there is a dispute about that. There was nothing disclosed to me about that on 17 December 2004, but it is clear now, that the asserted fact is in dispute between the parties.
12 None of the forgoing, in my view, constitutes a basis for a discharge of the interim order. The interim order the Court has made pursuant to a statutory power, is an interim order and not an interlocutory injunction, as that term is usually understood outside the statutory basis. It must be, therefore, understood and interpreted in the context of s104 and the Environment Protection Act generally.
13 However, it is, nonetheless, a serious step to stop a person on an interim basis from doing something. There is, almost inevitably, consequences of doing that, and therefore, notwithstanding that interim order has a statutory basis, it is appropriate that the tests from an interlocutory injunction laid down in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 and followed in the High Court and our Supreme Court, be applied. I am speaking of whether there is a serious question to be tried and the balance of convenience.
14 First, is there a serious question to be tried? The answer to that is ‘Yes’. There have been answering affidavits filed and tendered before the Court today. Those answering affidavits, however, do leave a dispute on the facts between the parties. There remains a serious question to be tried, at least on the issue of non-compliance with paragraph 5 of Condition 37 of the licence.
15 It is not to the point that geotechnical engineering reports have been received and have addressed compliance with Condition 37 on an As-Constructed basis. The evidence of the on-ground situation as opposed to what the As-Constructed Report says, remains unchallenged, and that was one of the bases of the interim order.
16 The affidavit evidence of Mr Guimaraes concluded that in his opinion the leachate drainage system is adequate and not deficient. I am unable now to accept his opinion given his qualifications, as set out in the affidavit, over that of Ms Wagner, who gave evidence to the opposite effect.
17 It is clear that there is a dispute. This hearing today is not the place to resolve it. There is a serious question to be tried. At the end of the day it may be that Mr Guimaraes’s evidence prevails. It may be that it is not accepted. It is not for me to resolve that at this stage.
18 Secondly, does the balance of convenience require the interim order to be discharged or continued or varied? On what is before me, I have to weigh up the public interest in not allowing waste to be received into a possibly deficient cell in breach of the licence with potential consequences for the environment and therefore the public in the future, together with the interests of the respondent insofar as it has a commitment and obligations. However, information as to the respondent’s commitment and obligations, was not put to the Court in any detail. There was evidence from Mr Webster, but again there was nothing to support the assertions he made in his affidavit, nothing by way of supporting documentation.
19 In any event, I consider that the balance of convenience lies with the broad public interest. The only public interest of which I have cogent evidence at this time is its interest in not having a polluted environment.
20 Insofar as I should have regard to the strength of the applicant’s case, in considering the balance of convenience, I do not accept necessarily that I need to because this is to do with an interim order under s104(13) where I have to be satisfied, first, that the respondent has a case to answer. I was satisfied on 17 December 2004 that there was a case to answer. That has not changed, even with the evidence put forward by the respondent. Insofar as I need to be, I am satisfied that the balance of convenience lies with the applicant and the public interest.
21 To sum up, there is a serious question to be tried. The balance of convenience lies with the applicant in public interest. The applicant has a case, I have already determined. In the end, nothing now turns on the fact that the respondent was not notified prior to the hearing last week. There has been no egregious failure sufficient to discharge the interim order and the Court was not misled.
22 The injunction will not be discharged. I decline to grant the application.

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1	I have been asked to discharge an injunction made by this Court on 17 December 2004 against Waste Management Pacific (SA) Pty Ltd. On 17 December 2004 an application was made under s104 of the Environment Protection Act 1993. This Court determined that there was a case to answer on the application and that an interim order be made notwithstanding that the application had been made orally.
2	Mr Hayes QC said the interim order made was in the nature of a final order, but the transcript records that at the time I spoke of an interim order and made the order pursuant to subsections 13 and 14 of s104 of the Environment Protection Act. The basis of the interim order was that there was evidence from a site inspection that the respondent was about to contravene parts of Condition 37 of EPA Licence 14463 which authorised the operation of a waste depot, by receiving waste into a cell, the leachate drainage layout of which contravened some of the specifications in Condition 37.
3	The evidence revealed urgency in that it was believed that waste was going to be received on the next working day, that is 20 December 2004, and that there was a prospect of environmental damage flowing from the receipt of that waste into the cell as it had been prepared.
4	It has been submitted with respect to the application to discharge the interim order that:
•	there was no basis for an order;
•	there was a failure to make full disclosure;
•	the order was, in effect, a final order not an interim order; and
•	there was no power to make an order in the absence of an application under s104, that is for final order.
5	I do not accept that there was no basis for the order. I have set out already what I understood to be the basis of the interim order and I have not changed my mind in that regard.
6	Mr Hayes QC spoke of less than full disclosure. Certainly there is an obligation on counsel to disclose all relevant matters: Lane & Anor v Channel 7 Adelaide Pty Ltd (2004) 232 LSJS 234.
7	I do not accept that there was, in the circumstances of this matter, less than full disclosure. It is true that the As-Constructed Report was not placed before the Court. It is also true that there was no information placed before the Court as to the respondent’s contractual obligation to receive waste from 1 January 2005. My attention was not drawn to the detail of the communications that there had been between the EPA and the respondent.
8	But, in my view, the issue was not whether Condition 5 of the development approval had been complied with, nor whether Conditions 35 or 36 or any other condition of the EPA licence had been complied with, in respect of which that material to which I have referred, might have been relevant. I am talking about the As-Constructed Report and the information about the communications between the parties.
9	The issue was; was there imminent likely breach of the Act? In that respect, it was not necessary to disclose that other information.
10	As to the Court not having received full disclosure regarding the consequences for the respondent, the respondent has now had a chance to respond.
11	As to the assertion that there was no full disclosure regarding the consequences for the disposal of metropolitan Adelaide waste from 1 January 2005, it is clear that there is a dispute about that. There was nothing disclosed to me about that on 17 December 2004, but it is clear now, that the asserted fact is in dispute between the parties.
12	None of the forgoing, in my view, constitutes a basis for a discharge of the interim order. The interim order the Court has made pursuant to a statutory power, is an interim order and not an interlocutory injunction, as that term is usually understood outside the statutory basis. It must be, therefore, understood and interpreted in the context of s104 and the Environment Protection Act generally.
13	However, it is, nonetheless, a serious step to stop a person on an interim basis from doing something. There is, almost inevitably, consequences of doing that, and therefore, notwithstanding that interim order has a statutory basis, it is appropriate that the tests from an interlocutory injunction laid down in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 and followed in the High Court and our Supreme Court, be applied. I am speaking of whether there is a serious question to be tried and the balance of convenience.
14	First, is there a serious question to be tried? The answer to that is ‘Yes’. There have been answering affidavits filed and tendered before the Court today. Those answering affidavits, however, do leave a dispute on the facts between the parties. There remains a serious question to be tried, at least on the issue of non-compliance with paragraph 5 of Condition 37 of the licence.
15	It is not to the point that geotechnical engineering reports have been received and have addressed compliance with Condition 37 on an As-Constructed basis. The evidence of the on-ground situation as opposed to what the As-Constructed Report says, remains unchallenged, and that was one of the bases of the interim order.
16	The affidavit evidence of Mr Guimaraes concluded that in his opinion the leachate drainage system is adequate and not deficient. I am unable now to accept his opinion given his qualifications, as set out in the affidavit, over that of Ms Wagner, who gave evidence to the opposite effect.
17	It is clear that there is a dispute. This hearing today is not the place to resolve it. There is a serious question to be tried. At the end of the day it may be that Mr Guimaraes’s evidence prevails. It may be that it is not accepted. It is not for me to resolve that at this stage.
18	Secondly, does the balance of convenience require the interim order to be discharged or continued or varied? On what is before me, I have to weigh up the public interest in not allowing waste to be received into a possibly deficient cell in breach of the licence with potential consequences for the environment and therefore the public in the future, together with the interests of the respondent insofar as it has a commitment and obligations. However, information as to the respondent’s commitment and obligations, was not put to the Court in any detail. There was evidence from Mr Webster, but again there was nothing to support the assertions he made in his affidavit, nothing by way of supporting documentation.
19	In any event, I consider that the balance of convenience lies with the broad public interest. The only public interest of which I have cogent evidence at this time is its interest in not having a polluted environment.
20	Insofar as I should have regard to the strength of the applicant’s case, in considering the balance of convenience, I do not accept necessarily that I need to because this is to do with an interim order under s104(13) where I have to be satisfied, first, that the respondent has a case to answer. I was satisfied on 17 December 2004 that there was a case to answer. That has not changed, even with the evidence put forward by the respondent. Insofar as I need to be, I am satisfied that the balance of convenience lies with the applicant and the public interest.
21	To sum up, there is a serious question to be tried. The balance of convenience lies with the applicant in public interest. The applicant has a case, I have already determined. In the end, nothing now turns on the fact that the respondent was not notified prior to the hearing last week. There has been no egregious failure sufficient to discharge the interim order and the Court was not misled.
22	The injunction will not be discharged. I decline to grant the application.