In brief

The case of Bond v Chief Executive, Department of Environment and Science [2019] QCA 137 concerned an application for leave to appeal to the Court of Appeal against orders made by the Planning and Environment Court in an interlocutory decision in relation to an appeal against the issuance of an Environmental Protection Order (EPO) under the Environmental Protection Act 1994 (EPA) by the Department of Environment and Science (Department). 

The Applicant conceded that as each of the challenged decisions was interlocutory in nature, leave was unlikely to be granted unless the Court of Appeal considered a substantial injustice would otherwise result. Although the Applicant acknowledged that each of the challenged decisions involved an exercise of discretion by the Planning and Environment Court, the Applicant contended that each exercise of discretion was infected by an error of a kind which justified appellate correction and amounts to a legal error which may found an appeal by leave under section 63 of the Planning and Environment Court Act 2016

The Court of Appeal dismissed the Applicant's claims of error in law on all grounds but one. The Court of Appeal found that the Planning and Environment Court had erred in failing to take into account the substantial overlap in evidence between the charges against the Applicant in the criminal proceedings. 

As such, the Court of Appeal granted leave to appeal, allowed the appeal and set aside the orders made by the Planning and Environment Court, insofar as they dismissed the application to stay the proceeding in the Planning and Environment Court pending the final determination of the criminal prosecution involving the Applicant. 

Grounds to the Appeal

The Applicant contended that the Planning and Environment Court had erred in refusing applications for:

  1. A stay of the Applicant's appeal in the Planning and Environment Court against a decision to issue an EPO pending the final resolution of a criminal proceeding against the Applicant.

  2. An order under section 535 of the EPA staying the decision to issue the EPO pending the final resolution of the Applicant's appeal against the EPO in the Planning and Environment Court.

  3. An order that one of the grounds to the Applicant's appeal to the Planning and Environment Court be heard and determined separately from and before the hearing and determination of the other grounds of the appeal. 

Background

On 25 May 2016, an EPO was issued under section 358 of the EPA to the Applicant by a delegate of the Department. The EPO was issued to the Applicant as a related person of Linc Energy Limited (Linc Energy) in respect to the causing of environmental harm from contaminants arising from underground gasification activity. The EPO required the Applicant to take actions which are summarised as follows:

  1. By 25 August 2016, the Applicant is to deliver to the address of the Department, a bank guarantee to the value of $5.5 million to secure compliance with the EPO.

  2. By 26 September 2016, the Applicant is to submit to the Department, a report by a suitably qualified person or persons detailing work to be undertaken to achieve the rehabilitation and infrastructure cleaning work as described in the EPO.

  3. By 1 November 2019, the Applicant is to carry out the described rehabilitation and infrastructure cleaning work.

The EPO was issued to the Applicant as a related person of Linc Energy under section 363AB of the EPA. In making the decision to issue the EPO, the Department considered section 363ABA of the EPA and relevantly alleged that the Applicant had held the most senior operational position within Linc Energy for ten years and that the Department was not satisfied that the Applicant had taken all reasonable steps to ensure Linc Energy had complied with its obligations under the EPA and made adequate provision to fund the rehabilitation and restoration of the land.

On 4 August 2016, subsequent to the Department affirming the decision to issue the EPO following the institution of an internal review of the decision, the Applicant appealed the decision of the Department to the Planning and Environment Court. During the proceeding, it was ordered by consent that the operation of the decision to issue the EPO be stayed pending the final determination of the appeal, with that issue ordered to be determined as a preliminary point (Preliminary Point).

The Preliminary Point was heard and determined adversely to the Applicant, which was appealed to the Court of Appeal and subsequently to the High Court, with the High Court dismissing the application brought by the Applicant for special leave against the Court of Appeal’s decision. As a consequence, the order staying the operation of the decision to issue the EPO ceased to have effect on 13 December 2017.

On 13 September 2016, a criminal complaint was also brought against the Applicant charging three counts of failing to ensure that Linc Energy did not wilfully and unlawfully cause serious environmental harm. A further criminal complaint against the Applicant charging an additional two counts of the same offence was brought on 11 November 2016. 

On 22 December 2017, the Applicant filed another application in the Planning and Environment Court for orders granting a stay of the decision to issue the EPO pending the final determination of the appeal and that the appeal be stayed pending the final resolution of the criminal proceeding against the Applicant. 

The Planning and Environment Court handed down its judgment in March 2018 and found that the balance of justice favoured the refusal of both a further stay of the operation of the EPO and a stay of the Applicant’s appeal pending the final determination of the criminal proceeding, as there was a potential for the criminal proceeding to take months if not years, should the Applicant be committed for trial on all or some of the charges. 

The Planning and Environment Court additionally found that any injustice or prejudice the Applicant might suffer due to the refusal of the applications was outweighed by the prejudice likely to be caused to the Department and the public by further uncertain lengthy delays to the judicial process. However, the Planning and Environment Court did not make orders to reflect the aforementioned conclusions, but instead adjourned the proceeding to a date to be fixed following the verdicts in the criminal proceeding against Linc Energy. 

On 9 April 2018, Linc Energy was convicted of five counts of wilfully and unlawfully causing serious environmental harm through the operation of gasifiers. 

Subsequent to the determination, the Applicant filed an application for orders granting leave to amend the Notice of Appeal, to stay the decision to issue the EPO pending the final resolution of the appeal by the Planning and Environment Court, and to stay the appeal pending the final resolution of the criminal proceedings against the Applicant. 

On 15 June 2018, the Planning and Environment Court ordered that the applications be dismissed on all grounds, but granted leave to file an amended Notice of Appeal. 

The Applicant subsequently appealed the decision to the Court of Appeal. 

Decision to issue EPO stayed pending final resolution of appeal in Planning and Environment Court

The Applicant made numerous submissions contending that the Planning and Environment Court had made specific errors in refusing to stay the operation of the decision to issue the EPO pending the final determination of the appeal in the Planning and Environment Court.

The Court of Appeal dismissed the submissions and held that the Applicant had not established any of the specific errors which were contended for.

Stay of appeal in Planning and Environment Court pending the final determination of the criminal proceeding

The Applicant submitted that the Planning and Environment Court had erred in its application of section 79 of the Evidence Act 1977 in failing to take into account that a conviction of the Applicant of the charges in the criminal proceeding would be directly relevant to the Applicant's defence in the appeal. 

Section 79(2) of the Evidence Act 1977 relevantly provides that "in any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence". 

The Court of Appeal rejected the Applicant's argument on the basis that the Planning and Environment Court had in fact taken into account the matter expressed in the ground of appeal.

The Applicant further argued that the Planning and Environment Court had failed to take into account or to appreciate the substantial overlap between the charges against the Applicant in the criminal proceedings and the defences under the EPA that the Applicant was intending to rely on in the appeal. Additionally, the Applicant submitted that the Planning and Environment Court had failed to take into account the true impact on the due administration of justice of the Applicant's entitlement to claim privilege against self-incrimination if the appeal were to be heard before the determination of the criminal proceeding. 

The Applicant relied on the determination of Commissioner of the Australian Federal Police v Zhao [2015] HCA 5, in which the High Court found at [42] that:

"The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical".

In making its determination, the Court of Appeal emphasised the importance of the fact that the Applicant's evidence and arguments differed markedly between the March 2018 determination by the Planning and Environment Court and the June 2018 determination and orders.

As such, the Court of Appeal found that although the Planning and Environment Court did not err in concluding in March 2018 that although there was a clear and significant overlap of the facts, matters and circumstances in the respect of the criminal proceedings, the issues were not identical or near identical to those likely to arise in the criminal proceeding and there was in reality no significant factual overlap. The Court of Appeal held that due to the Applicant's subsequent amendment of the Notice of Appeal and additional evidence upon which the Applicant relied on at the June hearing, the issues became closely mirrored. 

In these circumstances, the Court of Appeal found that the Applicant should not be forced to make the invidious choice between giving evidence in support of a ground in the appeal to the Planning and Environment Court and risk prejudice by self-incrimination in the prosecution against him or not giving evidence and incurring the risk of prejudice in the appeal. 

The Court of Appeal therefore granted leave to appeal against the orders made by the Planning and Environment Court, insofar as those orders dismissed the application for a stay of the appeal pending the final resolution of the criminal proceeding against the Applicant. 

The Court of Appeal otherwise dismissed the application for leave to appeal. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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