The case of Bond v Chief Executive, Department of Environment and Heritage Protection  QPEC 15 concerned two applications to the Planning and Environment Court. The first application was for the stay of the proceedings initiated by the Applicant. The second was an application to stay the operation of an Environmental Protection Order (EPO) under section 535 of the Environmental Protection Act 1994 (EPA). The Applicant sought the stays pending the final resolution of related criminal proceedings involving the Applicant.
The Applicant was the Chief Executive Officer and Managing Director of Linc Energy Limited (Linc), which was committed to stand trial on five criminal charges.
Linc entered into voluntary administration and went into liquidation on 23 May 2016. Two days later the Respondent issued an EPO against the Applicant, being the administrator for Linc.
The EPO required the following (at paragraph ):
"That by 25 August 2016 the applicant lodge a bank guarantee to the value of $5,500,000 to secure compliance with the EPO;
By 26 September 2016 to submit a report to the respondent detailing works to be undertaken to achieve specified rehabilitation works referred to in the order; and
By 1 November 2019 to carry out specified rehabilitation works to the land specified in the order."
The Applicant initially sought an internal review of the Respondent's decision to issue the EPO, which was affirmed. It then appealed the decision to the Planning and Environment Court, where the Applicant was granted a stay until preliminary matters were resolved. The appeal concerning the preliminary matters was dismissed. The Applicant appealed the dismissal to the Court of Appeal, which also dismissed the appeal. The High Court dismissed the Applicant's application for special leave seeking to bring the matter before the High Court.
The Applicant's liability for the EPO crystallised with the refusal by the High Court to grant special leave because the stay of the proceeding was only granted until the preliminary matters were resolved, that resolution being the High Court’s dismissal. Following the dismissal, the Applicant was in breach of two aspects of the EPO.
Court determined that there was no significant overlap of fact that would result in a real risk of prejudice that would warrant staying the proceeding
The Applicant argued that the proceedings should be stayed for the following reasons:
there is factual overlap between the subject of the criminal charges and the subject of the appeal; and
there is a real risk of prejudice.
The Applicant argued that Linc had complied with the EPO and its general environmental duty. To prove this, the Applicant argued it would be required to produce evidence about the processes used by Linc, which were alleged to have caused the environmental harm the subject of the criminal charges. This assertion formed the basis of its overlap argument.
Relevantly, the criminal charges were as follows:
that Linc was “wilfully and unlawfully causing serious environmental harm” (see paragraph ); and
that the Applicant failed to ensure that Linc complied with the EPA.
The Court held that there was a material difference between the charges, being that the charges against Linc concerned its actions, while those against the Applicant concerned the Applicant’s conduct in relation to Linc’s actions. Furthermore, the Court noted that a guilty verdict against Linc would not necessarily mean the same outcome for the Applicant.
The Court also held that the evidence on the processes used by Linc were largely irrelevant to the Applicant's pleadings and therefore did not pose a significant risk of prejudice.
Additionally, the Court held that there would be prejudice to the Respondent to allow the appeal to be left unresolved for an uncertain and lengthy period of time.
The Court held that the small risk to the Applicant was outweighed by the prejudice to the Respondent and the public interest due to an uncertain but lengthy delay.
Court weighed up the competing interests and concluded that there was no reason to stay the decision to issue an EPO to the Applicant
The Court observed that determining whether to grant a stay involves balancing the competing interests of the Applicant, the Respondent and the public.
In weighing up the competing interests, the Court determined as follows:
In respect of the Applicant's interests, the Court agreed with the Applicant that it will suffer serious financial damage due to the interest relevant to procuring the $5,500,000 required under the EPO. The Court, however, pointed out that if the Applicant had made different tactical decisions, there would not have been a requirement for the proceedings.
In respect of the Respondent's interests, the Court held that the Respondent had not advanced any evidence of prejudice against it.
In respect of the public interest, the Court opined that there was a significant benefit in the timely resolution of the proceedings. The Court noted that the proceedings could take months or years to reach a final conclusion, given the possibility of appeals if the applications were granted.
The Court held that the prejudice that the Applicant may suffer from prosecuting the appeal is outweighed by the prejudice to the public interest, due to further uncertainty and lengthy delay.
The Court refused the Applicant's applications. However, the Court decided that the outcome of the criminal matter could have a material impact on the appeal and therefore deferred the final determination of the proceeding and adjourned it to a date following the verdicts of the jury in the criminal matter of R v Linc Energy Ltd (in liquidation).
The matter of R v Linc Energy Ltd (in liquidation) was recently concluded, which resulted in a $4.5 million fine and convictions recorded against Linc.
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