Searles DCJ - 31 July 2015)
Cuthbert v Moreton Bay Regional Council [2015] QPEC 36

Procedure – pleadings – strike out application – impugned paragraphs in Notice of Appeal pertain to historical matters previous but related proceedings – whether impugned paragraphs are irrelevant to the issues in dispute – whether impugned paragraphs should be struck out.

Procedure – stay of proceedings – where, in the substantive appeal, Appellant seeks orders varying or setting aside Environmental Protection Order issued by Council – EPO pertains to Appellant's boat maintaining and repairing facility – where Council's position is that Appellant has failed to comply with requirements of an Environmental Authority permitting carrying out of facility – whether refusal to grant a stay would impact on the ultimate effectiveness of any orders made in the appeal – whether grant of stay will threaten the integrity of appeal decision – whether any threat of irreparable prejudice to the Appellant if proceeding not stayed.

Facts: This was a judgment about two applications in the substantive appeal.

The first application was made by the Appellant and sought an order that the decision of Council to issue an Environment Protection Order (EPO) on 31 March 2015 be stayed pending the final determination of the appeal.

The second, made by Council on 16 June 2015 and amended on 18 June 2015 sought the strike out of parts of the Appellant's Notice of Appeal on the grounds that they were unnecessary because they were irrelevant to the determination of the issues in dispute in the appeal.

In the appeal, the Appellant was seeking orders that the EPO be set aside or varied.

The EPO related to the conduct of the Appellant of a boat maintenance and repair facility on two lots located at Bishop Parade, Toorbul. The subject business had been conducted on the lots since 1962.

Since the introduction of the Environmental Protection Act 1994 (EPA), the use had been identified as an environmentally relevant activity (ERA).

The Appellant took over operation of the facility in April 2002. An environmental authority was issued by Caboolture Shire Council on 9 April 2002.

The issues in dispute in the appeal were:

  1. Whether the appellant had failed to comply with the general environmental duty in the conduct of the ERA;
  2. Whether the Appellant had failed to comply with the conditions of the environmental authority;
  3. Whether the requirements of the EPO were needed to secure the Appellant's compliance with the general environmental duty in the conduct of the ERA;
  4. Whether the requirements of the EPO were needed to secure the appellant's compliance with conditions of the environmental authority;
  5. Whether the exercise of the discretion under s 358 of the EPA should result in the issue of EPO.

Decision: The Court held:

Strike out application:

  1. The power to strike out pleadings wholly or in part should be sparingly exercised and only in clear cases where the grounds have been made out.
  2. Where it is clear a pleading should be struck out, the Court should strike it out to ensure that the case to be answered by the Applicant is clearly articulated. To do otherwise can lead to unnecessary costs being incurred by a party in answering allegations not germane to the issues in dispute.
  3. Nothing advanced by the Appellant persuaded the Court that any of the paragraphs under attack in the Notice of Appeal were relevant to the issues to be determined in this Appeal. The paragraphs in issue related to the site history and historical use and were not relevant to this Appeal. To allow the paragraphs to stand would involve the parties in unnecessary expense including disclosure on issues of historical interest only.

Stay application:

  1. The principles governing the granting of a stay were summarised as:
    1. It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of the stay.
    2. The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the Court are fully effective.
    3. While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the Court will generally not descend into a detailed assessment of the prospects of the appeal.
    4. Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.
  1. A stay should be granted for the provisions of the EPO that related to 'physical works and/or upgrades to the facility' – this was conceded by Council. These works included an upgrade of the slipway and upgrades to equipment used in the business. It was accepted that these provisions carried with them financial implications such that if a stay was not granted the Appeal decision may be rendered nugatory. Staying these provisions ensured the effectiveness of any decision on Appeal in favour of the Appellant.
  2. A stay of the EPO provisions that related to 'procedural and operational requirements' should not be granted. These provisions related to such things as general operational issues, waste disposal / management and hours of operation.
  3. The historical use of the site was of no relevance to the consideration of granting a stay.
  4. While there was insufficient evidence that environmental harm had occurred, by not granting the stay of these provisions it was likely that environmental harm would occur.
  5. Compliance with the 'procedural and operational' provisions of the EPO would not threaten the integrity of any Appeal decision.
  6. The Appellant had not established any threat of irreparable prejudice if the stay of the 'procedural and operational' provisions is not granted.