Dismissal of an application to challenge the lawfulness of a compensation package issued in accordance with conditions of a declared significant project

In brief

The case of Falzon v Gladstone Ports Corporation [2014] QPEC 37 involved an application to the Planning and Environment Court commenced by Mr Trevor Falzon challenging the lawfulness of Gladstone Ports Corporation's compensation package published in accordance with conditions of its long-term dredging and dredged material disposal program in the Port of Gladstone as part of the "Western Basin Dredging and Disposal Project".  After the close of pleadings, Gladstone Ports Corporation applied to the Planning and Environment Court to strike out Mr Falzon's Points of Claim.  The mains issues in dispute were whether Mr Falzon had established standing necessary to apply for the declarations and whether a sufficient case had been pleaded to obtain the declarations that he sought.

The court found that Mr Falzon did not have standing, and that he had not sufficiently pleaded his case and his pleading was too vague to obtain the declarations that he had applied for.

Standing to seek declarations limited to persons "significantly adversely affected"

The Western Basin Dredging and Disposal Project was declared a significant project for which an environmental impact statement was required, under the State Development and Public Works Organisation Act 1971.  As such, the Coordinator-General published a Report for the environmental impact statement, which included certain conditions.  The relevant conditions in the case were:

Mr Falzon argued that the compensation package published by Gladstone Ports Corporation contravened the conditions in the following way:

• in respect of condition 20, it did not mitigate all reasonable financial losses to "existing commercial fishing operations";
• in respect of condition 21, it did not meet the costs associated with the administration of the package.  

The court observed that it was not enough for Mr Falzon to show a "purely academic interest" in whether the conditions had been contravened.  The declaration-making powers of the court, in section 54G of the State Development and Public Works Organisation Act 1971, were limited to proceedings brought by a person whose interests were "significantly adversely affected" by the subject matter of the proceeding.  Therefore, to establish standing, the court found that Mr Falzon would need to plead a tenable case that he had suffered reasonable financial losses which would not be mitigated by the compensation package.

Mr Falzon had not pleaded reasonable financial loss, as distinct from financial cost, and therefore did not have the requisite standing

The court emphasised that the proper focus of attention, for determining whether Mr Falzon had the requisite standing to apply for the declarations was whether there was a tenable argument that reasonable financial loss had been suffered as opposed to the new cost of doing business and those impacts from the project.

The court observed that, although it may seem semantic, damages would traditionally be claimed for a loss which was quite different from a financial cost.  Proof of cost, would not necessarily equate to proof of loss and it was necessary  to examine the nature and extent of the additional costs and impacts suffered and how they caused reasonable financial loss.

In Mr Falzon's case, it was not enough for him to point to the cost of more expensive longer nets as proof of loss. The longer nets could have, resulted in an increase in catch such that no financial loss was suffered. 
The court found that because Mr Falzon had failed to identify material facts to create a tenable argument that he had suffered reasonable financial losses, his interests were not "significantly adversely affected" and therefore he did not have  standing to apply for the declarations sought.  

Pleadings also too vague to establish non-compliance with conditions 20 and 21

Even if Mr Falzon could establish the threshold requirement for standing, the court found that the pleadings did not establish non-compliance with conditions 20 and 21.
In respect of condition 20, the court found that the pleadings were insufficient because:

• they failed to allege reasonable financial losses had been suffered by Mr Falzon or anyone else;
• they failed to established that Mr Falzon and other fishermen that he purported to represent had the requisite licenses to qualify as "existing commercial fishing operators".

In respect of condition 21, the court found that the pleading did not allege Mr Falzon or any of the fishermen he purported to represent has suffered reasonable financial losses attributable to the project as a result of legal and accountancy fees associated with the preparation, submission and prosecution of a claim.