Australia: 43/12 Falzon v Gladstone Ports Corporation & Anor [2012] QPEC 50 (Searles DCJ - 30 August 2012)

Planning and Environment case updates – August and September 2012 cases

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Application to strike pleadings – jurisdiction – declaration – meaning of term "existing commercial fishing operators" – costs

Facts: This was a proceeding commenced by the Applicant, Mr Falzon, in relation to the Western Dredging Project for which the First Respondent (GPC) was the proponent.

By Applications in Pending Proceeding, GPC sought to strike out the proceeding and also sought its costs thrown away on various amendments which had been made to the Originating Application since the proceeding commenced.

The Second Respondent (DEEDI) had also filed an Application in Pending Proceeding seeking an order that the proceeding against it be dismissed.

The Western Basin Dredging Project had been declared on 24 April 2009 to be a significant project under s. 26 of the State Development and Public Works Organisation Act 1971 (Act) with the result that an environmental impact statement (EIS) was required.

An EIS was prepared and publicly notified. Upon the expiry of the period for public submissions, the Coordinator-General prepared a report evaluating the EIS. Section 54B of the Act allowed the Coordinator-General to impose conditions and to nominate the entity to have a jurisdiction for those conditions, which it did. The conditions relevant to the application before the Court were Conditions 20 and 21, for which DEEDI was the entity with jurisdiction.

Conditions 20 and 21 were in the following terms:

Condition 20 – "GPC must mitigate all reasonable financial losses to existing commercial fishing operators attributable to the Maritime development in the Western Basin of the Port of Gladstone. That is to cover temporary and permanent loss of access to fishing areas and marine fish habitat".

Condition 21 – "GPC must meet any costs associated with the investigation, negotiation and administration of any compensation package, including all costs incurred by DEEDI in the management of development or (sic) any compensation package".

Mr Falzon commenced the proceeding on behalf of himself and 58 individuals. Mr Falzon argued that the term "commercial fishing operators" in Condition 20 at all material times included:

  1. commercial fishermen, including trawlers and live trout fishes;
  2. commercial crab netters;
  3. seafood wholesalers and processors;
  4. suppliers of bait, tackle, parts, services and marine craft;
  5. retailers and suppliers of marine craft, bait, tackle and parts; and or
  6. charter boat operators

who operated a business that was engaged in, was reliant upon other businesses engaging in, or enabled other businesses to engage in, the catching of fish or other seafood from the Gladstone Harbour.

Mr Falzon's Further Amended Originating Application sought a declaration pursuant to s. 54G(3) of the Act that there had not been substantial compliance by GPC with Condition 20 in that it had failed to mitigate the reasonable financial losses to existing commercial fishing operators attributed to dredging in the western basin by failing to:

  1. take sufficient steps to investigate whether the emergence since April 2001 of signs or symptoms of disease in fish, crabs, prawns and sharks fished in the waterways in the Gladstone Harbour was attributable to the dredging activities of the Project;
  2. negotiate with:
    1. seafood wholesalers and processors;
    2. supplies of bait, tackle, parts, services and marine craft;
    3. retailers or suppliers of marine craft, bait, tackle and parts; and / or
    4. charter boat operators.

Mr Falzon also sought orders which would require GPC to conduct a water monitoring program and communicate the results of that program to Mr Falzon and the identified class members, to pay the legal fees of Mr Falzon and the identified class members and to negotiate a compensation package with Mr Falzon and the other identified class members.

GPC relied upon the following four grounds to support a strike out the Further Amended Originating Application:

  1. it was founded on an erroneous construction of the term "existing commercial fishing operators" in Condition 20;
  2. it failed to properly plead necessary standing, given that unless a party was an existing commercial fishing operator within Condition 20, that party could not be "significantly adversely affected by the subject matter of the proceedings";
  3. it was not a proceeding about whether there had been substantial compliance with an imposed condition; and
  4. it was premature because the time for compliance with Condition 20 had not yet arrived.

Decision: The Court held in ordering that the originating application be struck out, that:

  1. The plain meaning of "commercial fishing operators" referred to fishers who carry out that occupation to derive income as opposed to recreational fishers. The common sense definition of a "commercial fishing operator" was one who engaged in the business of catching fish.
  2. The pleading was one which satisfied subcategories (a), (b) and (d) of UCPR 171(1) in that it did not disclose a cause of action by the Applicants, had a tendency to prejudice or delay a fair trial and was frivolous or vexatious. It should never have been commenced.
  3. The Applicants had agitated an argument as to the meaning of the term "commercial fishing operators" which was unarguable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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