FEDERAL COURT OF AUSTRALIA

Krajniw v Brisbane City Council [2010] FCA 1366

THE COURT ORDERS THAT:

1.    The proceeding against the second, third and fourth Respondents be struck out, their names be removed from the titles to the action and the State of Queensland be joined as second Respondent in their place;

2.    the application filed on 29 July 2010 be struck out;

3.    the proceedings against the second respondent (the State of Queensland) be dismissed;

4.    the applicant have leave to deliver an amended application in these proceedings, limited to claims for relief pursuant to s 475 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (“the Act”) concerning alleged contraventions of ss 18, 18A and/or 496C of the Act, as against the first and third respondents;

5.    the amended application be filed and served together with a statement of claim, on or before 4:00 pm Monday 25 October 2010;

6.    in the event that the Applicant does not deliver an application and statement of claim as ordered, the proceedings be struck out as against the first and third respondents;

7.    the applicant pay the first respondent’s costs of proceedings today;

8.    the applicant pay the second respondent’s costs of the proceedings.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In these proceedings the applicant seeks various forms of relief against the State of Queensland (henceforth the second respondent), the Brisbane City Council (the first respondent) and Civil Mining and Construction Pty Ltd (the third respondent). I give leave to amend the name of the title of the proceedings accordingly. The proceedings focus upon allegations that certain development work being carried out by the third respondent on behalf of the first respondent in the Bulimba area is contrary to ss 18, 18A and/or 496C of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the “Act”). The applicant is primarily motivated by a desire to protect the environment for the benefit of certain species, particularly gliders and koalas. The proceedings however, focus upon a frog which is described in the application as the wallum froglet. Such motivation does not necessarily mean that proceedings addressing the interests of the wallum froglet are for an improper purpose or an abuse of process. The applicant claims to be entitled to bring the proceedings under s 475 of the Act. His entitlement to do so depends upon his satisfying subs 475(6). That matter has not been ventilated today but may be ventilated at a later stage.

2    Section 475 is engaged by an act or omission which constitutes an offence or other contravention of the Act or the regulations made thereunder. The applicant has misunderstood some aspects of the legislation. It also seems that the reference to the wallum froglet in his application inaccurately describes the species which he seeks to protect. He says that he used that expression as a collective term to describe a number of froglets. However, of the froglets which he wishes to describe by that term, only one is on the list of protected species. Presence on that list is a necessary prerequisite to the relief which the applicant presently seeks. Two other species of froglet or frog which, the applicant asserts, are on the list of protected species, have not been adverted to in these proceedings until today.

3    Although the application is a complex document, I am satisfied that the appropriate course in the interests of justice is to strike out the present application and give leave to the applicant to deliver a fresh application as against the first and third respondents only, and limited to an application for relief pursuant to s 475 of the Act in connection with conduct alleged to be contrary to ss 18, 18A or 496 of the Act. At the time of delivering the amended application, the applicant should deliver a statement of claim. The proceedings should not continue as against the State. The applicant has made it clear that his joinder of the State arose out of his perception that he is entitled to enforce the terms of an agreement between the State and the Commonwealth or otherwise to enforce the general supervisory responsibility of the State over the Brisbane City Council. Fairly clearly he cannot enforce, pursuant to s 475, either matter. Further, to the extent that he seeks to enforce any duty which may be placed upon the State as such, the matter cannot properly be litigated in this Court unless it can be brought within the associated or attached jurisdiction. That seems unlikely in the present case.

4    In those circumstances, I order that:

(1)    the application be struck out;

(2)    the applicant have leave to deliver an amended application in these proceedings, limited to claims for relief pursuant to s 475 of the Act, and concerning alleged contraventions of ss 18, 18A and/or 496C of the Act, as against the first and third respondents;

(3)    the proceedings as against the second respondent be dismissed;

(4)    in the event that the applicant does not deliver an application and statement of claim as ordered, the proceedings be struck out as against the first and third respondents;

(5)    the applicant pay the first respondent’s costs of proceedings today;

(6)    the applicant pay the second respondent’s costs of the proceedings.

Associate:

Dated:    8 December 2010