Land and Environment Court New South Wales

• Medium Neutral Citation: Environment Protection Authority v Mistring Pty Ltd [2013] NSWLEC 9
• Hearing dates: 05/02/2013
• Decision date: 08 February 2013
• Jurisdiction: Class 4
• Before: Biscoe J

Decision

Decision on Separate Question: The Court has jurisdiction to hear and determine these proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2)

• Catchwords: JURISDICTION - whether Land and Environment Court has jurisdiction to hear and determine proceedings to recover a debt created by s 105(1) of the Protection of the Environment Operations Act 1997 in respect of amounts unpaid and specified in a compliance costs notice under s 104(2) - meaning of "court of competent jurisdiction" in s 105(1) - consideration of the Court's debt recovery jurisdiction.
• Legislation Cited: Contaminated Land Management Act 1997 ss 33A-42; Heritage Act 1977 s 120K; Land Acquisition (Just Terms Compensation) Act 1991 s 48(6); Land and Environment Court Act 1979 ss 16(1A), 20, 71(1); Local Government Act 1993 s 678; National Parks and Wildlife Act 1974 s 915; Native Vegetation Act 2003 s 38; Pesticides Act 1999 ss 28-31; Plantations and Reafforestation Act 1999 s 59; Protection of the Environment Operations Act 1997 ss 88, 104, 105, 110; Rural Fires Act 1997 s 70; Trade Practices Act 1974 (Cth) s 73; Trees (Disputes Between Neighbours) Act 2006 s 17
• Cases Cited: Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114; Burwood Council v Wanless [2011] NSWLEC 248; Council of the City of Sydney v Fuh [2008] NSWLEC 307; Council of the City of Sydney v Le (No 2) [2010] NSWLEC 218; Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44; Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531; Orange City Council v Kjoller (No 2) [2010] NSWLEC 116; Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; (2010) 191 FCR 285
• Texts Cited: Macquarie Dictionary (3rd ed)
• Category: Separate question
• Parties: Environment Protection Authority (Applicant); Mistring Pty Ltd (First respondent); Nabone Pty Ltd (Second respondent)
• Representation: COUNSEL: E Peden (Applicant); T To and G Stapleton (Respondents); SOLICITORS: Office of Environment & Heritage Legal Services Branch (Applicant); Indemnity Legal Pty Ltd (Respondents)
• File Number(s): 40801/12

Judgment

1 The following question is before the Court for separate decision before any other issue or question in the proceedings:

Does the Court have jurisdiction to hear and determine these proceedings, being proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2) of the POEO Act?

2 I propose to answer the question "Yes" for the reasons set out below.

3 The applicant is the Environment Protection Authority (EPA). The respondents are Mistring Pty Ltd and Nabone Pty Ltd. The EPA's statement of claim claims judgment in the sum of $1,155,432.93, interest and costs. Facts relevant to the separate question are as follows:

(a) on 25 March 2011 there was a fire at the respondents' premises;

(b) the EPA says it paid more than $1,155,432.93 for the clean-up;

(c) on 12 July 2011 the EPA issued the respondents with a notice for that sum under s 104(2) of the POEO Act;

(d) on 25 July 2011 the EPA issued a variation of the notice under s 110 of the POEO Act extending the time for payment to 16 August 2011;

(e) the respondents have not paid the said sum.

4 The EPA submits that this Court has jurisdiction under s 20(2)(a) of the Land and Environment Court Act 1979 (LEC Act) because ss 104(2) and 105(1) of the POEO Act create a "right, obligation or duty conferred or imposed by a planning or environmental law". Therefore, it is "a court of competent jurisdiction" referred to in s 105(1).

5 The respondents submit that s 20(2)(a) of the LEC Act is inapplicable because the POEO Act does not relevantly confer or impose any right in the EPA nor any obligation or duty on the respondents of the type contemplated by that provision.

6 Sections 104(2) and 105(1) of the POEO Act provide:

104 Compliance cost notices

...

(2) Clean-up by public authority

A public authority that takes clean-up action under section 92 may, by notice in writing, require:

(a) the occupier of the premises at or from which the authority reasonably suspects that the pollution incident occurred, or

(b) the person who is reasonably suspected by the authority of having caused the pollution incident,

or both, to pay all or any reasonable costs and expenses incurred by it in connection with the clean-up action.

105 Recovery of amounts

(1) Recovery of unpaid amounts

A regulatory authority or public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

...

7 This Court's jurisdiction in respect of civil enforcement matters (categorised as Class 4 matters) is provided in s 20 of the LEC Act. Section 20(1)(e) provides that the Court has jurisdiction to hear and dispose of "proceedings referred to in subsection (2)". Subsection (2)(a) provides:

The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract

(emphasis added)

8 The POEO Act is a planning or environmental law: s 20(3)(a) of the LEC Act.

9 In the context of a statutory provision such as s 105(1) of the POEO Act, what is "a court of competent jurisdiction"? In my opinion, it is a court that is otherwise endowed with jurisdiction to hear and determine the matter. In Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 at 541, a section of income tax legislation provided: "An amount payable to the Commissioner under the provisions of this Division shall be a debt due to the Commonwealth and payable to the Commissioner, and may be sued for and recovered in any court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name". A Deputy Commissioner sued for such a debt in the NSW District Court. The High Court held that the District Court was a "court of competent jurisdiction". The High Court did not define the term "court of competent jurisdiction" but reached its conclusion by an analysis of the District Court's jurisdiction. In Solitare Pty Ltd v Quikfund (Australia) Pty Ltd [2010] FCA 1384; (2010)191 FCR 285 the question was whether the Local Court had jurisdiction under s 73 of the Trade Practices Act 1974 (Cth), which provided that a consumer may recover a prescribed amount in "a court of competent jurisdiction". Nicholas J said at [26] - [27]:

26 The phrase "court of competent jurisdiction" which appears in s 73(1) has been interpreted in a variety of other contexts. In R v Ward (1978) 140 CLR 584, the High Court held that the use of this phrase in s 273 of the Bankruptcy Act 1966 (Cth) was not a reference to the courts upon which jurisdiction was specifically conferred under s 27 of that Act, but rather was "apt to signify a court which is otherwise endowed with jurisdiction, as for example by the provisions of the Judiciary Act" (at 588-589). In Johnstone v Commonwealth (1979) 143 CLR 398, Jacobs J held that in the context of s 56 of the Judiciary Act 1903 (Cth), the phrase refers to "competency in respect of amount and subject matter and personality of the plaintiff" (at 404). Similarly, in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 it was held by Gibbs CJ (at 277), in relation to the use of the phrase in Div 2A of Pt V of the Act (as it then was), that the phrase was:

... obviously not intended to be synonymous with "the Court", which as I have said means the Federal Court, and must therefore refer to (or at least include) State courts invested with jurisdiction under s 39(2) of the Judiciary Act.

27 In my view the use of the phrase "court of competent jurisdiction" in s 73(1) is not simply a reference to a court upon which jurisdiction has been conferred under s 86 of the Act. Rather, it is a reference to any court which has jurisdiction to hear claims where the loss or damage suffered by the consumer is caused by misrepresentation, breach of contract, failure of consideration, breach of the warranties implied by s 70, s 71, s 72 or s 74 of the Act or s 12ED of the ASIC Act and subject to such other jurisdictional limits that may exist. If a consumer makes a claim in respect of such a matter in the Local Court then, subject to the matter being otherwise within its jurisdiction, the Local Court will be able to give effect to s 73 as may be appropriate in the circumstances of the case.

10 There is no definition of the terms "right, obligation, or duty" used in s 20(2)(a) of the LEC Act. The Macquarie Dictionary (3rd ed) relevantly defines them to mean:

Right - that which is due to anyone by a just claim; to give one his right or his rights.

Obligation - a binding requirement as to action; duty; the state or fact of being indebted for a benefit, favour or service.

Duty - that which one is bound to do by moral or legal obligation; a payment, service, etc., imposed and enforceable by law or custom.

11 Although s 20(2) anchors jurisdiction to a planning or environment law or a development contract, it is otherwise broad. Section 20(2)(a) confers on the Court jurisdiction to enforce any right, obligation or duty provided only that it is conferred or imposed by a planning or environmental law or a development contract. There is no other qualification. There is no requirement for the right, obligation or duty to have a criminal focus or penalty attached to the failure to comply.

12 Exercise of the power given by s 104(2) of the POEO Act to the EPA to "require" payment by notice suggests the creation of a "right" in the EPA to payment and an "obligation" on the recipient to pay. In my opinion, the creation of such a right and obligation is put beyond doubt by s 105(1) which says that the EPA may recover any unpaid amounts specified in the notice as a "debt" in a court of competent jurisdiction. Clearly, the EPA has the right to payment of a debt owed to it and the debtor has an obligation to pay it.

13 In an analogous situation, Preston CJ decided that this Court has jurisdiction to enforce a debt obligation created under s 88 of the POEO Act: Environment Protection Authority v Leaway Pty Limited [2006] NSWLEC 44 at [49] - [53]. In that case the EPA brought Class 4 proceedings to recover as a debt an unpaid contribution payable by the occupier of a licensed waste facility under s 88. Similarly to s 105, s 88(6) provides that any contribution payable under s 88 "becomes, if it is not paid in accordance with this section and the regulations, a debt due to the EPA that is recoverable in any court of competent jurisdiction". His Honour held that the POEO Act created a "right" in the EPA to be paid the contribution and the respondent had a correlative "duty": at [53].

14 The respondents submit that Leaway is distinguishable because s 88, which is not a notice provision, is drafted differently from s 104. The respondents emphasise s 88(2), which provides that "The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations". The respondents acknowledge that s 88(2) imposes an "obligation" to pay on the recipient of the notice of the type contemplated by s 20(2)(a) of the LEC Act, but point out that no equivalent provision appears in s 104. They submit that s 104 imposes no such obligation but merely triggers consequences of non-compliance with the notice for which ss 105-107 provide, including enforcement by debt recovery proceedings in a court of competent jurisdiction. They acknowledge that a s 105 debt creates a right in the creditor authority to payment and an obligation on the debtor to pay, but submit that they are not the type of right or obligation contemplated by s 20(2)(a) of the LEC Act.

15 I do not accept the respondents' submissions. It is correct that, unlike s 88, there is no express provision in s 104 that the recipient of the notice is "required to pay" the amount specified in the notice. However, s 104(2) expressly provides that the public authority may "require" the recipient of the notice to pay. For the reasons expressed above at [12], I consider that ss 104(2) and 105(1), which is similar to s 88(6), give the EPA a right to payment, and impose on the recipient of the notice an obligation to pay, the amount specified in the statutory notice. I see no reason to strain against a debt recovery jurisdiction under s 20(2)(a) of the LEC Act. It naturally fits the description of enforcement of a right or obligation conferred or imposed by a planning or environment law. On the contrary, given the wide terms of s 20(2)(a), in my view it would be arbitrary and unharmonious to construe its reference to "right" and "obligation" as excluding a right to be paid and correlative obligation attached to a debt for which s 105(1) of the POEO Act provides. Therefore, I think that Leaway is strong analogous authority.

16 The respondents submit that:

(a) if it were to be held that the Court has jurisdiction in the present case, it would have wider significance for the Court's jurisdiction because similar costs recovery regimes exist in other s 20(2) planning and environmental legislation; for example, ss 33A-42 of the Contaminated Land Management Act 1997, s 120K of the Heritage Act 1977, s 678 of the Local Government Act 1993, s 91S of the National Parks and Wildlife Act 1974, s 38 of the Native Vegetation Act 2003, ss 28-31 of the Pesticides Act 1999, s 59 of the Plantations and Reafforestation Act 1999, s 70 of the Rural Fires Act 1997, and s 17 of the Trees (Disputes Between Neighbours) Act 2006;

(b) if the legislature had intended the Court's Class 4 jurisdiction to be so wide, one would expect it to be stated explicitly in each piece of enabling legislation or the LEC Act.

17 It is unnecessary to embark on a study of all these pieces of legislation (nor did the submissions do so) to see whether the wider significance submission is correct or whether they are distinguishable. However, it may be noted, as the EPA points out, that there are four decisions of this Court which proceeded on the basis, albeit without argument as to jurisdiction and in three of them ex parte, that the Court has debt recovery jurisdiction under s 678 of the Local Government Act: Council of the City of Sydney v Fuh [2008] NSWLEC 307, Orange City Council v Kjoller (No 2) [2010] NSWLEC 116, Council of the City of Sydney v Le (No 2) [2010] NSWLEC 218 and Burwood Council v Wanless [2011] NSWLEC 248. In reply, the respondents submit that these cases are distinguishable on the basis that the jurisdiction they attracted was the ancillary jurisdiction of the Court for which s 16(1A) of the LEC Act provides. They cite as illustrative of the approach to ancillary jurisdiction in a debt recovery context Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114 at [88] - [99] where Sheahan J held that the Court had ancillary jurisdiction in Class 3 proceedings to hear and determine a claim to recover as a debt overpaid compensation under the Land Acquisition (Just Terms Compensation) Act 1991. His Honour's decision was made in the context of s 48(6) of that Act, which provides that any such overpayment "may be recovered as a debt in any court of competent jurisdiction". It is unnecessary to rule on the respondents' reply submission, but if it is correct then it diminishes the respondents' wider significance submission noted at [16(a)] above.

18 If it be assumed that a decision that the Court has jurisdiction in the present case has wider significance because of similar costs recovery regimes in other legislation, I do not think that this, as such, is a significant consideration when construing s 20(2)(a) of the LEC Act. I do not attach significance to the fact that a debt recovery jurisdiction is not conferred by legislation in specific terms. It is a matter of legislative policy or drafting preference, or both, whether to define jurisdiction specifically or generally. This is illustrated by s 20 of the LEC Act. Section 20(1) provides that a long list of proceedings under specific legislative provisions are within the Court's Class 4 jurisdiction, but ends with a reference to proceedings referred to in subsection (2), which is couched in general terms. If a matter comes within those general terms, so be it.

19 For these reasons, I conclude that this Court has jurisdiction to hear and dispose of this matter under s 20(2)(a) of the LEC Act read with s 20(1)(e). Consequently, the Supreme Court has no jurisdiction because s 71(1) of the LEC Act provides that "proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court". However, if the amount of the debt were smaller than in the present case such as to be otherwise within the jurisdiction of the District Court or the Local Court, then under s 105(1) of the POEO Act the District Court or the Local Court may also be a court of competent jurisdiction. In such a case, the EPA would then have a choice of whether to bring debt recovery proceedings in this Court or such other court because s 105(1) confers jurisdiction on "any court of competent jurisdiction" and s 71(1) of the LEC Act would be inapplicable.

CONCLUSION

20 For these reasons I decide the separate question as follows:

Does the Court have jurisdiction to hear and determine these proceedings, being proceedings to recover a debt created pursuant to s 105(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in respect of amounts unpaid and specified in a compliance costs notice dated 12 July 2011 given by the prosecutor to the respondent under s 104(2) of the POEO Act?

Answer: Yes

Amendments

07 March 2013 - typographical error
Amended paragraphs: 4

16 September 2013 - typographical error - hearing date omitted
Amended paragraphs: cover page

Decision last updated: 16 September 2013