FEDERAL COURT OF AUSTRALIA

Milne v Rally Australia Pty Limited [2009] FCA 1101

MILNE v RALLY AUSTRALIA PTY LIMITED

NSD 914 of 2009

STONE J

29 SEPTEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant pay the respondent’s costs of the interlocutory application as agreed or taxed, such costs to be payable forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 24 August 2009 the applicant, Ms Katie Milne, filed an application under ss 67A and 475(1)(b) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) seeking to restrain the respondent from carrying on a motor car rally in the Tweed and Kyogle Local Government areas.  As the rally was to be held during the period from 3 to 6 September 2009 the application was attended with considerable urgency and came before me as duty judge at 2.15 pm on 27 August 2009.  At the conclusion of the hearing on 27 August I dismissed the application for interlocutory relief and undertook to provide written reasons and to make an order for costs at a later date.  These are my reasons.

2                     At the hearing the applicant sought leave to have Mr Alan Oshlack represent her.  Mr Oshlack is not a legal practitioner and has no right of appearance in this Court.  He may appear with the leave of the Court.  The applicant said she had not sought legal representation as Mr Oshlack has an intimate knowledge of the matter and would be the best person to represent her.  Ms Milne said that Mr Oshlack had represented her in the past and she had more confidence in him than any lawyer. 

3                     From my questioning of her I concluded that Ms Milne appeared to understand the disadvantages that might arise from her not having a legally qualified representative.  It was, however, with considerable reservation as to Mr Oshlack’s ability to assist the Court that I gave him leave to appear on the interlocutory application.  On both sides the matter was urgent.  Given that the commencement of the rally was imminent, if injunctive relief was not to be futile the matter had to proceed immediately.  Furthermore the inevitable preparation for such an event, as to which the respondent submitted detailed evidence, made it vital that the respondent have certainty as soon as possible.  It was therefore not practical to adjourn the hearing to allow Ms Milne to obtain legal representation even had she wished to do so. 

Relevant statutory provisions

4                     Section 475(1) of the Act provides that an “interested person” may apply for an injunction in respect of “conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations.  Section 475(6) provides:

For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:

(a)           the individual’s interests have been, or would be affected by the conduct or proposed conduct; or

(b)           the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before:

(i)            the conduct; or

(ii)                      in the case of proposed conduct - making the application for the injunction.

5                     The applicant contended that the proposed rally is a “controlled action” under s 67 of the Act.  Section 67 provides:

An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28AB be) prohibited by the provision.  The provision is a controlling provision for the action.

6                     The term “action” is defined in s 523 as including a project, development or undertaking and an activity or series of activities.  It also includes an alteration of those elements.  Chapter 2, Pt 3 of the Act prohibits actions which will have or are likely to have a significant impact on matters of national environmental significance including world heritage property, Ramsar wetlands, threatened species, endangered ecological communities, migratory species and the marine environment.  Civil and criminal penalties are provided in respect of prohibited actions.

7                     Section 67A provides that a person must not take a controlled action without an approval under Part 9 for the purposes of the relevant provision of Part 3.  A note to the section states that a person “can be restrained from contravening this section by an injunction under section 475”.

The applicant’s standing

8                     The applicant is a Councillor of the Tweed Shire Council.  She deposes that in that position and as an active community member she has been actively involved in conservation and wildlife research for the two years prior to the filing of the present application.  In particular she deposed that she was elected as a member of the Council’s River Committee and Coastal Committee.  I have no doubt that the applicant has had extensive involvement in environmental issues in her local government area and I am prepared to assume that she has standing under s 475 to bring the application. 

Application for injunction

9                     While the involvement and commitment that Ms Milne has demonstrated are sufficient to give her standing to bring the application she was not able to meet the criteria for the grant of an injunction.  For that purpose it would be necessary for her to show a prima facie case (in the sense explained in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82 per Gummow and Hayne JJ, per Gleeson CJ and Crennan J at 68) that the proposed rally was a controlled action and that no approval had been obtained under Part 9 of the Act.  It would also be necessary for her to show that the balance of convenience lay with the granting of the injunction and that she was in a position to give an undertaking as to damages that is not an empty undertaking;  First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 101 FCR 77 at 85.

The applicant’s evidence 

10                  In the course of the hearing it transpired that my reservations about Mr Oshlack’s capacity to represent Ms Milne were justified.  The affidavits that had been filed on behalf of the applicant were largely inadmissible, a fact that would have been apparent even to an inexperienced lawyer.  Ms Milne’s affidavit filed in support of the application contained expressions of opinion that could be admitted only as evidence of the deponent’s state of mind.  Other parts of the affidavit were totally irrelevant and clearly inadmissible.  In summary her affidavit established that:

·                    the applicant was very concerned to save the Tweed koala population from what she perceived as threats to its continued existence;

·                    she first became aware of the proposed rally in September 2008 and from that time took an active interest in it;

·                    she became increasingly concerned about the impact that the rally might have on the world heritage value of the proposed site and on species such as the Albert lyrebird, the spotted tail quoll and certain endangered frogs;

·                    she understood that there was widespread community opposition to the rally;

·                    she consulted environmental experts who expressed concern about the impact that the rally would have on various vulnerable species including those mentioned above.

11                  In addition to her affidavit the applicant also relied on the following two affidavits: (1) the affidavit of Mark Stewart Graham affirmed on 24 August 2009 to which were annexed two reports dated 31 July 2009 and 15 August 2009; and (2) the affidavit of Stephen John Ambrose affirmed on 24 August 2009 to which was annexed a letter of advice addressed to Mr Oshlack and a “supplementary statement of evidence” dated 23 August 2009.

12                  The first difficulty facing the applicant in relation to her expert evidence was whether any part of it was admissible as expert opinion in accordance with s 79 of the Evidence Act 1995 (Cth).  Section 79 provides an exception to the opinion evidence rule in the case of evidence of an opinion that is “wholly or substantially” based on a person’s specialist knowledge that, in turn, is “based on the person’s training, study and experience”.  All elements of s 79 must be satisfied.  Accordingly it must be shown that the opinion is relevant; that the person expressing the opinion has specialised knowledge in the relevant field; that the person’s specialised knowledge is based on the person’s training, study or experience; and that the particular opinion is based (wholly or substantially) on the specialised knowledge; see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) (2003) 130 FCR 424 at [17] per Lindgren J.

13                  As the respondent submitted it is not sufficient for an opinion merely to fall within the field in which the expert has specialised knowledge if the opinion is not based on that specialised knowledge.  The reports of Mr Graham and Dr Ambrose do not meet these criteria.  I accept the following points made in the written submissions of the respondent:

[T]he opinions in the Graham and Ambrose reports are largely expressed as unsourced assertions and generalisations which rarely indicate the reasoning process which underlies them or the source of statements and information upon which they have relied.  Further, they repeatedly fail to differentiate between matter of fact and opinion.  With respect to the latter, rarely are phrases such as “in my opinion” or “in my view” used so as to signal the expression of an opinion.

…

The authors’ opinions are expressed at the highest level of generality.  For example, no attempt is made to locate geographically with any precision any of the species dealt with, nor to juxtapose those locations with the area in which the rally will be held.  The Court is being asked to accept their “opinion” that certain consequences must flow because an undefined rally course passes in some unstated way through or near an undefined area of unstated size and unquantified habitation.

Supposed risks to species are introduced but no attempt is made to quantify them.  No attempt is made to distinguish between posited scenarios as being certain, likely, possible, rare or fanciful.  No attempt has been made to look at other, similar rally events either in Australia or overseas to determine what might actually occur during the proposed rally. …

Even more fundamentally, the authors’ conclusions are invariably not supported by a course of reasoning.  One must either accept ontological conclusions or read into the reports unstated facts and premises to support the conclusion stated.

14                  The criticisms continued at some length, however the above is sufficient to convey the gist of the respondent’s submissions.  Because of both parties’ urgent need for a decision I decided to admit the reports on a limited basis, namely for the purposes only of the interlocutory application and on the basis that they were not to be used for a hearsay purpose.  Ultimately the question was what weight could be given to the assertions made in the reports when the assertions were not admitted as evidence of their truth but only as to the fact that the deponents had made them.  In the circumstances little if any assistance could be gleaned from the expert reports. 

15                  The respondent relied on affidavit evidence of Garry Connelly, a director of the respondent and of Peter K Briggs, the solicitor for the respondent.  Mr Briggs deposed to the difficulties that the respondent encountered in responding to the applicant’s claims.  The originating application was served shortly after 5 pm on 24 August 2009.  That gave the respondent little more than two days in which to retain and commission an expert to respond to the reports of Dr Ambrose and Mr Graham.  Mr Briggs outlined the attempts that were made - all of which were unsuccessful.  The experts he contacted were simply unable to prepare a response in the time available. 

16                  Both Mr Briggs and Mr Connelly deposed to the prejudice that the respondent would suffer if an injunction were to be granted on such short notice and so close to the commencement of the rally.  The prejudice would not be confined to the respondent but would extend to many others who are involved in the rally including international teams, ticket holders, including those who have purchased flights and accommodation to attend the rally, and those who have been granted commercial rights. 

17                  I accept this evidence.  The applicant, on her own admission, has known about the proposed rally since September 2008.  No satisfactory excuse or explanation was given for the delay in bringing the present application.  It would be most unjust at this late stage to interfere with plans and arrangements that have been in train for such a long time without very clear evidence of illegality.  No such evidence is before me.  If it had been necessary to consider balance of convenience I should have been inclined to say that it lay with the respondent for the reasons I have given. 

18                  In the event, it was not necessary to consider balance of convenience.  In my view the applicant’s case was ill-considered and misconceived.  As my comments on the applicant’s evidence show the applicant came nowhere near establishing a prima facie case.  Ultimately there was no admissible evidence to support the applicant’s claim.  Indeed at the hearing it was not necessary for me to call on counsel for the respondent to make oral submissions.  There was simply no case to answer.

19                  At the hearing I allowed the parties additional time to make written submissions as to costs.  The applicant submitted that costs should be costs in the cause.  She also submitted that the proceeding could be characterised as public interest litigation presumably in support of a claim that there should be no order as to costs.  It is not clear to me what remains of the substantive application now that the rally has been held.  In any event while I accept that it may often be appropriate to order that the costs of interim applications be costs in the cause or be reserved, this is not such a case. 

20                  In my view the respondent should not have been put in the position of having to respond to a case with so little merit and at such a late stage.  Whatever the outcome of the proceeding from this point the respondent should have its costs of defending the interlocutory application.  Those costs should be as agreed or taxed and should be payable forthwith.

Associate:

Dated:         29 September 2009