Insights

In brief

The case of Director, Fisheries Queensland, Department of Agriculture and Fisheries v Archer Operations Pty Ltd [2018] QPEC 39 before the Planning and Environment Court concerned an application by the Respondent requesting that the Applicant's originating application concerning declarations and an enforcement order against the Respondents destruction of marine plants on land in Toogoom be struck out or stayed.

The Respondent submitted the following arguments in support of striking out the originating application:

1. There is no power to grant an enforcement order under section 180 of the Planning Act 2016 (Planning Act) in respect of the alleged development offence as there had been no prosecution for the development offence and the time limit for doing so had expired.

2. The proceedings are an abuse of process as there had been no prosecution for the development offence and the Respondent had already been punished for unlawful marine plant destruction.

3. The originating application is a charge relating to an offence for which the Respondent had already been tried and convicted.

4. The making of the enforcement order would constitute a second punishment for the same act or omission.

The Court held that there was no merit to the Respondent's arguments and that the originating application was not an abuse of process or a charge for which the Respondent had already been tried and convicted. The Respondent's request that the originating application be struck-out or stayed was denied by the Court.

Background

The Respondent added fill to a property in Toogoom between June 2015 and July 2016 which resulted in the damage, destruction or removal of marine plants.

These actions formed the basis of an offence under section 123 of the Fisheries Act 1994 for which the Respondent was convicted and sentenced.

They also formed the foundation of these proceedings in which the Applicant sought a declaration that the Respondent had committed a development offence, namely the carrying out of operational work without a permit, and an enforcement order directing the Respondent to remedy the damage to the marine plants.

There was no dispute between the parties that the Applicant had not brought a charge for the development offence under the Planning Act.

The Respondent sought to have the originating application struck out.

Court held that it had the power to grant an enforcement order and that a delay in commencing the proceedings was not an abuse of process

The Applicant, by its originating application, sought an enforcement order under section 180 of the Planning Act, which is further clarified by section 181 of the Planning Act.

The Respondent argued that the Planning Act imposes time limits which statutorily limit the timeframe for commencing proceedings to one year after the offence is committed and six months after the offence comes to the complainant's knowledge.

The Respondent further argued that before the Court can enliven section 181 of the Planning Act, the Court must be satisfied that the offence can be prosecuted as a development offence. The Court disagreed and stated that it need only be satisfied that the relevant development offence had been committed and that the time limit for prosecuting the development offence was irrelevant. The Court considered that it had the power to grant an enforcement order as the time limit in respect of prosecuting the development offence was irrelevant to the timing for commencing the proceedings for an enforcement order.

The Court determined that any unfairness that resulted from the Applicant's delay in commencing the substantive proceedings would be relevant to the Court's discretion to make an enforcement order, but did not bar the proceedings and was not an abuse of process.

Court determined that there was no abuse of process under the Criminal Code

As the Respondent had been convicted and sentenced for unlawful marine plant destruction on the same facts, the Respondent argued that the originating application was an abuse of process under section 17 of the Criminal Code Act 1899 (Criminal Code). 

Section 17 of the Criminal Code provides a defence to a "charge" of any offence, however the Court after considering the definition of "charge" within the Acts Interpretation Act 1954, determined that the originating application was not commencing a charge but seeking declarations and orders such that they are not "charges" for the purpose of section 17 of the Criminal Code.

Court determined that the Respondent was not twice punished

Section 16 of the Criminal Code provides that a person is not to be twice punished for the same offence.

As the Court had determined that the relief sought in the substantive proceedings were remedial in nature and not punishment, the Respondent's argument that they would be twice punished within the meaning of section 16 of the Criminal Code failed.

The Court noted however, that where the Applicant has already been awarded costs, such as investigation costs under section 61(1) of the Planning Act, the previous awarding of such costs will be relevant to the subsequent exercise of the Court's discretion in determining any future costs.

Conclusion

The Court held that there was no merit to the Respondent's arguments and that the originating application was not an abuse of process, or a charge for which the Respondent had already been tried and convicted.

The Court denied the Respondent's request that the originating application be struck-out or stayed.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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