FEDERAL COURT OF AUSTRALIA

Henderson v Corporation of the City of Adelaide (No 2) [2012] FCA 9

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) there be judgment in the proceeding in favour of the respondent against the applicant.

2.    The parties be heard as to further or other orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for summary judgment by the respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1975 (Cth). In order to succeed, the respondent must establish that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

2    The applicant issued her proceeding against the respondent on 1 June 2011. She claims declaratory and injunctive relief against the respondent under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Act’). She also makes a general claim for other orders under s 475(3) of the Act. The central allegation made by the applicant is that the respondent has engaged and proposes to engage in conduct that constitutes a contravention of the Act.

3    The applicant was not represented at the time she commenced her proceeding or at the time the respondent’s application for summary judgment was argued. She was represented for a time between those events.

4    In her originating application the applicant sought an interlocutory injunction restraining the respondent from carrying out certain works at Victoria Park in the eastern suburbs of Adelaide and at locations she described as ‘Parks 21 West and 22’. I refused the applicant’s application for an interlocutory injunction: Henderson v Corporation of the City of Adelaide [2011] FCA 705.

5    On 22 June 2011 I ordered that the applicant file and serve a Statement of Claim and she did so on 11 October 2011. There is no reference in the Statement of Claim to works at Parks 21 West and 22 and the applicant must be taken to have abandoned a claim in relation to those areas.

6    On 29 September 2011 the respondent filed and served an interlocutory application seeking summary judgment and other orders. At that stage the applicant had not filed and served a statement of claim and the respondent sought an order that the proceeding be dismissed on the basis of her failure to comply with an order of the Court that she file a statement of claim. The applicant subsequently obtained an extension of time within which to file a statement of claim. The respondent then amended its application to seek, in the alternative to the application for summary judgment, an order striking out the Statement of Claim under r 16.21 of the Federal Court Rules 2011 or an order for particulars under r 16.45.

7    On 24 October 2011 the respondent filed and served an interlocutory application seeking an order that the applicant provide security for costs.

8    When the respondent’s interlocutory applications came on for argument on 25 November 2011, I restricted argument to the application for summary judgment and the application for an order striking out the Statement of Claim or for the provision of particulars. I did so for the reason that if summary judgment is given in the respondent’s favour there will be no need to consider, for example, its application for an order that the applicant provide security for costs.

The Applicant’s Claim

9    The applicant’s claim is set out in her Statement of Claim. She claims to be an ‘interested person’ within subsections 475(1) and (6) of the Act. She sets out a description of the area which she refers to as ‘Victoria Park’.

10    Leaving aside matters possibly relevant to the allegation of a contravention of s 15B(5) of the Act, the first important allegation made by the applicant is that on 19 March 2010 the Minister responsible for administering the Act listed the Grey Box (Eucalyptus microcarpa) Grassy Woodlands and Derived Native Grasslands of South-eastern Australia as threatened ecological communities in the endangered category under the Act. I will refer to this community as the Grey Box ecological community.

11    The applicant alleges that the Grey Box ecological community is located in patches of Victoria Park. She provides particulars of this plea as follows:

a.    Since approximately 1840 Victoria Park was used as a horse racing track, providing shelter for the ecological community and other remnant native biological diversity in significant patches of Victoria Park.

b.    The patches are properly characterised as Derived Native Grasslands which are a state of the ecological community.

12    The applicant alleges that the patches consist of derived native grasslands, ‘being a state of the ecological community whereby the canopy and mid layers have been mostly removed to <10 per cent crown cover’.

13    The applicant alleges that on 27 April 2011 the respondent approved the construction of soccer pitches and ovals at Victoria Park and commissioned the work. She alleges that on 19 May 2011 the respondent entered into a contract with ADCIV Pty Ltd to carry out the work on its behalf. The applicant alleges that the work required ‘the destruction or removal of areas of remnant native biological diversity’.

14    The applicant alleges that on 20 May 2011 the works for the development commenced and that those works involved the following:

i.    The removal of native vegetation from the patches by Council staff on or about 20 May 2011;

ii.    The destruction, by ground excavation works, of native vegetation in the patches by the Respondent’s Agent on or about 24 May 2011;

iii.    The installation of a watering system that will use recycled water to irrigate the soccer pitches and sporting ovals in Victoria Park;

iv.    The installation of large areas of turf grass where the patches previously existed;

v.    The installation of turf grass adjacent to where the patches currently exist;

vi.    The removal and relocation of native plants within the patches.

15    The applicant alleges that the respondent’s conduct had or was likely to have a significant impact on the patches where the ecological community exists. The particulars of that plea are as follows:

a.    The patches or parts thereof, have been destroyed.

b.    The patches or parts thereof have been reduced in size.

c.    The continued vitality of the ecological community has been threatened;

i.    The patches will be subject to over spray by recycled water used by the yet to be installed watering system;

ii.    The patches will be subject to soil contamination by the recycled water used to irrigate the soccer pitches and sporting ovals in Victoria Park;

iii.    The patches will be subject to turf grass invasion;

iv.    Insitu re-planting of the patches with removed native vegetation will be prevented by the completion of the development;

v.    Relocation of native plants within the patches will fundamentally alter the structure of the ecological community within the patches.

vi.    The patches will be subject to increased pedestrian traffic.

16    The applicant alleges that the respondent’s action was not authorised or permitted in accordance with either s 133 or s 146B or s 306A of the Act.

17    The applicant then alleges that by its action the respondent has contravened either paragraph 18(6)(a) or paragraph 18(6)(b) of the Act.

18    Under the heading ‘Relief Sought’ the following claims are made:

a.    A declaration that the Respondent took an action that has had or will have a significant impact on the heritage values of a National Heritage Place in contravention of section 15B(5) of the Act;

b.    A declaration that the Respondent took an action that has had or will have a significant impact on a listed threatened ecological community included in the endangered category, namely the Grey Box (Eucalyptus microcarpa) Grassy Woodlands and Derived Native Grasslands of South-eastern Australia in contravention of section 18(6)(a) of the Act;

c.    A declaration that the Respondent took an action that is likely to have a significant impact on a listed threatened ecological community included in the endangered category, namely the Grey Box (Eucalyptus microcarpa) Grassy Woodlands and Derived Native Grasslands of South-eastern Australia in contravention of section 18(6)(b) of the Act;

d.    An injunction restraining the Respondent by itself, its servants, agents or otherwise howsoever, from engaging in conduct in contravention of the Act;

e.    Costs;

f.    Such further or other orders pursuant to section 475(3) of the Act that is in the opinion of the Court desirable.

19    Section 18(6) of the Act (referred to in paragraphs b. and c. above) is in the following terms:

A person must not take an action that:

(a)    has or will have a significant impact on a listed threatened ecological community included in the endangered category; or

(b)    is likely to have a significant impact on a listed threatened ecological community included in the endangered category.

Civil penalty:    

(a)    for an individual—5,000 penalty units;

(b)    for a body corporate—50,000 penalty units.

20    Section 15B(5) of the Act (referred to in paragraph a. above) is not mentioned in the body of the Statement of Claim. That subsection is in the following terms:

A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.

Civil Penalty:    

    (a)    for an individual—5,000 penalty units;

    (b)    for a body corporate—50,000 penalty units.

21    There are pleas possibly relevant to the claim for a declaration of a contravention of s 15B(5) and they are a plea raising the Biodiversity Convention and a plea that the Adelaide Park Lands and City Layout were part of the National Heritage List.

The Facts

22    On the applicant’s application for an interlocutory injunction the applicant relied on a lengthy affidavit she had sworn and the respondent relied on an affidavit of Mr Michael Blythe and an affidavit of Dr Adrian Stokes. Mr Blythe and Dr Stokes are employees of the respondent. The affidavits I have referred to were also relied on for the respondent’s application for summary judgment. The respondent also relied on affidavits filed and served since the application for an interlocutory injunction was heard and, in particular, a second affidavit of Dr Stokes. The affidavit material before me establishes the following facts.

23    In 2008 horse racing activities at Victoria Park ceased. At that time the respondent undertook a project to redevelop Victoria Park. The details of the project were embodied in a document called the Victoria Park Master Plan. Stage 1 of the project involved the redevelopment of the northern half of the Park. By early June 2011 that stage was almost complete. Stage 2 of the project involved the redevelopment of the southern half of the Park. That stage involved the upgrading of sporting pitches and the installation of a fitness track. It also involved the landscaping of the area and the installation of a new irrigation system.

24    In 2008 the current Community Land Management Plan was adopted and the Victoria Park Master Plan is appendix 1 to that Plan. In April 2010 the current Adelaide Park Lands Management Strategy was prepared by the Adelaide Park Lands Authority pursuant to s 18 of the Adelaide Park Lands Act 2005 (SA).

25    In 2009 substantial planning work was done by the respondent in relation to the redevelopment of Victoria Park. A native vegetation site survey to identify the extent of native vegetation in the Park was undertaken. Public consultation was undertaken and the applicant and the Adelaide Park Lands Preservation Association were involved in that process.

26    The respondent decided to retain an area of two hectares in size containing the best quality native vegetation in the area. That area was to be retained as a conservation area and, in fact, it was fenced off and signs erected to indicate its conservation value. The playing fields were designed around that area. The proposal was that any scattered plants outside that area would be relocated to other areas in Victoria Park.

27    On 27 April 2011 the respondent decided to proceed with the Stage 2 works, excluding a playing field (Playing Field No 10) immediately to the south east of the conservation area. Contracts were signed with the successful tenderer, ADCIV Pty Ltd, on 19 May 2011 and work commenced on 26 May 2011. As at 7 June 2011 topsoil and vegetation from approximately 75 per cent of the relevant area had been removed and stockpiled. Under the contracts with ADCIV Pty Ltd the works were required to be completed by the end of September 2011 and, according to Mr Blythe, allowing some contingency, the works had to be completed before the end of November 2011.

28    Planning of the proposed playing fields in the southern part of Victoria Park was well underway by the time of the Minister’s listing of the threatened ecological community. It is convenient at this point to refer to the Minister’s listing and matters associated with it.

29    On 19 March 2010 the Minister issued an instrument whereby, pursuant to s 184(1)(a) of the Act, he amended the list referred to in s 181 of the Act, which lists threatened ecological communities. He amended the list by including in it the Grey Box ecological community. It seems that the instrument commenced on 1 April 2010. The Minister described the Grey Box ecological community in a schedule to the instrument. The description is detailed and starts by outlining areas in Australia where the Grey Box ecological community may be found and the climatic and geographical conditions in which it may be found.

30    The Minister then describes the ‘typical structure’ of the ecological community and in that section the following statement appears:

Patches of the ecological community may occur as derived grassland, where the tree canopy and shrub layers have been removed but the native ground layer remains largely intact.

31    The Minister then describes in detail the components of the ecological community being a tree canopy, mid layer and ground layer. His description of the ground layer is as follows:

The ground layer is variable and ranges from largely absent to mostly grassy to forb-rich. The species composition also is variable and includes a range of tussock grasses, other grass-like plants, forbs and chenopods. Common graminoid genera present include Austrodanthonia (Wallaby Grasses), Austrostipa (Spear Grasses), Elymus (Wheat-grass), Enteropogon (Windmill Grasses), Dianella (Flax-lilies) and Lomandra (Mat-rushes). Chenopod genera commonly present include Atriplex, Chenopodium, Einadia, Enchylaena, Maireana, Salsola and Sclerolaena.

32    The Minister then sets out seven ‘key diagnostic characteristics’ for the ecological community. The last two are as follows:

•    The ground layer also is highly variable in development and composition, ranging from almost absent to mostly grassy to forb-rich. Ground layer flora commonly present include one or more of the graminoid genera: Austrodanthonia, Austrostipa, Elymus, Enteropogon, Dianella and Lomandra; and one or more of the chenopod genera: Atriplex, Chenopodium, Einadia, Enchylaena, Maireana, Salsola and Sclerolaena.

•    Derived grasslands are a state of the ecological community, whereby the canopy and mid layers have been mostly removed to <10% crown cover but the native ground layer remains largely intact, with 50% or more of the total vegetation cover being native.

33    The applicant put before me the Listing Advice (or part of it) of the Scientific Committee which preceded the Minister’s decision to list the Grey Box ecological community. That advice contains what are called ‘condition thresholds’. The function of the condition thresholds is described in the advice as follows:

Condition thresholds are intended to function as a set of criteria that assists in identifying when the EPBC Act is likely to apply to an ecological community. They provide guidance for when a patch of a threatened ecological community retains sufficient conservation values to be considered as a Matter of National Environmental Significance, as defined under the EPBC Act. This means that the protection provisions of the EPBC Act are focussed on the most valuable elements of Australia’s natural environment, while heavily degraded patches, which do not trigger the ‘significance test’ of the EPBC Act will be largely excluded…

Condition thresholds for the Grey Box (E.microcarpa) Grassy Woodlands and Derived Native Grasslands of South-Eastern Australia are outlined in Table 1.

34    Table 1 relevantly provides:

The condition thresholds in Table 1 only apply to patches of native vegetation that meet the description of the national ecological community, including the key diagnostic characteristics, as outlined above.

Table 1. Condition thresholds for the Grey Box (E. microcarpas) Grassy Woodlands and Derived Native Grasslands of South-Eastern Australia ecological community.

7 Vegetative cover excludes mosses and lichens. Patches of bare ground or leaf litter are also not included.

8 A weed is defined here as a plant species that is not native to Australia and the species has established viable self-sustaining populations in a region.

35    On 19 March 2010 the Minister also approved Conservation Advice for the Grey Box ecological community under s 266B of the Act. That Advice contains the following statement:

A more comprehensive description of the ecological community is contained in the Listing Advice which is available on the Internet at: [Internet address provided]

36    The Commonwealth Department of Sustainability, Environment, Water, Population and Communities (‘DSEWPC’) produces guidelines to assist in determining whether or not a particular area comes under the protection of the Act and whether proposed activities may have a significant impact under the Act. The publication known as Farming and Nationally Protected Grey Box Woodlands and Grasslands has been used on recommendation of DSEWPC and it states among other things that ‘only remnants that are half a hectare or more in size and are in good condition are protected’. It may be noted that the area of half a hectare is not referred to in the Listing, but it is referred to in the condition thresholds in the Listing Advice (see [34] above).

37    Dr Stokes has been involved in the proposed redevelopment of Victoria Park since 2009 and he was charged with the responsibility of ensuring that the redevelopment complied with the relevant requirements of State and Commonwealth environmental legislation including the Act. Dr Stokes holds a doctorate in ecology, has extensive experience in the area of biodiversity conservation, including the protection and management of threatened species and ecological communities, and he said, and I accept, that he has a good understanding of the practical application of the Act.

38    On 2 July 2010 Dr Stokes wrote to the South Australian Department of Environment and Natural Resources (‘DENR’) and asked for its opinion with respect to whether the native vegetation in Victoria Park met the criteria identified in the listing in the Act and in certain guidelines published by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities. In particular, he asked the following questions:

1.    Is the vegetation remnant or may it have been imported with foreign soil?

a.    Please consider the bore sampling data showing the depth of imported fill at sampling locations across the Park

2.    If yes, then is the vegetation likely to be remnant Grey Box Grassy Woodland and Derived Native Grassland?

3.    If yes, then is it likely to meet the criteria of area and cover (available via the EPBC Act website) to be protected under the EPBC Act?

39    DENR engaged a Ms Ann Prescott to prepare a report. Dr Stokes said, and I accept, that Ms Prescott is a well-respected botanist and ecologist. Ms Prescott prepared a report which, although marked ‘Confidential Draft’, contains her final opinions.

40    Dr Stokes’ summary of the key conclusions in Ms Prescott’s report is as follows:

19.    Ms Prescott advised that the pre European vegetation was likely to have been a complicated patchwork of Grey Box (microcarpa) and Red Gum (camaldulensis) vegetation communities. In so far as it consisted of Grey Box she advised that as there are no longer any extant trees, that such remnant vegetation that existed could be described as derived grassland from Eucalyptus microcarpa woodland.

20.    She further advised that on her assessment no area would meet the minimum conditions specified to constitute the listed ecological community because of the low percentage of native vegetative cover and the lack of species.

21.    She did advise that it was possible that with careful future management some areas sufficient to constitute a listed ecological community may be re-established.

41    The key passages in Ms Prescott’s report are as follows:

It is my opinion that, comparing the condition thresholds under the EPBC Act listing, with the vegetation on site on July 06/2010, it would be difficult to reach the minimum condition threshold requirements of:

•    At least 50% of the vegetative cover in the ground layer is made up of perennial native species at any time of the year;

•    12 or more native species are present in the ground layer at any time of the year (in a 20m x 20m survey area) centred on the area with the most apparent richness of native species in the understorey

…

A full assessment of 20m by 20m was not undertaken. I used quadrats of 1m x 1m (used for accuracy of estimating cover) thrown randomly in the subject area for 12 squares. Figures for perennial native species were all less than 50% native cover and had 4 or fewer easily identified species. This July timing of sampling is one of the most difficult times of the year in which to demonstrate grassland criteria, but the threshold requires ‘at any time of the year’.

The total known species count for the subject land at this time is 9 grasses and 6 forbs (15 species) over 2+ha. From observations, it is unlikely that 12 or more native species will occur in any particular 20m x 20m survey area in any part of the subject land. Note however, that the species list is unlikely to be complete. For example, the Austrodanthonia are not identified to species level.

42    Based on Ms Prescott’s opinion Dr Stokes concluded that the vegetation at Victoria Park did not meet the criteria for protection under the Act. He was also aware of his own knowledge that the only area containing significant areas of native vegetation was the conservation area.

43    As to the conservation area, the respondent entered into a management agreement with the relevant Minister under the Natural Resources and Management Act 2004 (SA), and in his second affidavit Dr Stokes outlined the protective measures to be taken with respect to that area.

44    In May 2011, and prior to the commencement of any works, the Assistant Director of the Act’s Compliance Section within DSEWPC contacted Dr Stokes about the possibility that the proposed works at Victoria Park required approval under the Act. Dr Stokes provided both his opinion and that of Ms Prescott to DSEWPC. He also provided details of the conservation area. He did not hear any further from DSEWPC.

45    Dr Stokes expresses the opinion that the condition thresholds in the Listing Advice are ‘generally accepted and applied by ecologists in determining whether a particular area of remnant vegetation constitutes the defined ecological community’. I accept that evidence. It is not contradicted and is consistent with the approach taken by Ms Prescott and with the Conservation Advice and the publication referred to in [36] above. Dr Stokes also expresses the opinion that the remnant vegetation both within and outside the conservation area does not meet the requirements for protection under the Act. In any event, the vegetation within the conservation area will in fact be protected. His opinion is that the proposed redevelopment will not have a significant impact on any listed ecological community. Those opinions are not contradicted by other evidence before me and I accept them.

The Respondent’s Application for Summary Judgment

46    The respondent brings its application for summary judgment under s 31A(2) of the Federal Court of Australia Act 1975 (Cth). Under that subsection the Court may give judgment against an applicant if satisfied that he or she has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Subsection (3) provides that it is not necessary for a respondent to establish that the proceeding or part of the proceeding is hopeless or bound to fail for it to have no reasonable prospect of success.

47    The High Court considered the nature and scope of s 31A in Spencer v Commonwealth (2010) 241 CLR 118. Hayne, Crennan, Kiefel and Bell JJ referred to the difference between a determination that the proceeding has no reasonable prospect of success, and the formation of a certain and concluded determination that a proceeding would necessarily fail. The latter was the test under earlier forms of provision permitting the entry of summary judgment. Their Honours said that the different test under s 31A dictated a different inquiry from that required under earlier procedural regimes. Their Honours made the following observations as to the meaning of the phrase ‘no reasonable prospect of successfully prosecuting the proceeding’ (at 141 [59]-[60]):

59 In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like ‘clearly’, ‘manifestly’ or ‘obviously’) as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word ‘reasonable’, in the phrase ‘no reasonable prospect’, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ claim.

60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to ‘no reasonable prospect’ can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase ‘just and equitable’ when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

French CJ and Gummow J referred to the history of the amendment containing s 31A and an analogous development in the law in the United Kingdom. Their Honours referred to the caution which should be exercised before applying s 31A in cases involving complex questions of fact. They referred with approval to the following observations of Lord Hope of Craighead in Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at 260 [94]-[95]:

The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.

Heydon J did not find it necessary to consider the scope of s 31A (see 142 [62]).

48    This Court considered a motion under s 31A to dismiss an application under the EPBC Act in Krajniw v Brisbane City Council (No 2) [2011] FCA 563. Dowsett J referred to the section in the Act which addressed the issue of when an event or circumstance is an impact of an action taken by a person (s 527E). He also referred to the fact that the Act contains no definition of the word ‘significant’. His Honour then said (at [10]):

The term ‘significant’ is not defined in the Act. The authorities suggest that it should be interpreted as meaning “important, notable, or of consequence having regard to its context or intensity”: Booth v Bosworth (2001) 114 FCR 39 at [99]; Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 at [191]-[192]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [109]. In my view the word is used to limit the operation of the Act. That purpose would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A.

49    Justice Dowsett also made the following observations on an applicant (as in the case before him) defending an application for summary judgment by reference to his own commentary and explanations (at [18]):

The applicant challenges this expert evidence by submitting a series of photographs and maps depicting the nature of the site. These documents are unaccompanied by any expert commentary or explanation which might justify my drawing inferences which are contrary to Dr Ingram’s evidence. The applicant offers commentary and explanations. However he is not a suitably qualified expert for that purpose. In light of Dr Ingram’s evidence I infer that it is highly unlikely that the relevant species are to be found on the site or have, in the past, been found there. In those circumstances, the applicant’s case must fail.

50    As I have said, Dr Stokes’ evidence is not contradicted and I accept it. The applicant has had ample opportunity to put forward evidence contrary to that of Dr Stokes. Not only did she not do that, but she did not in any way foreshadow evidence which might contradict his evidence. I am satisfied that the Grey Box ecological community does not exist in the area that is the subject of the works. Even if that is wrong and it does exist, then nevertheless, I am satisfied that the works have not, or will not, or are not likely to have a significant impact on the Grey Box ecological community. If it exists it most likely does so in the conservation area and the measures in relation to that area are such that any impact of the works could not be considered significant.

51    The applicant has no reasonable prospect of successfully prosecuting the proceeding in so far as it relies on alleged contraventions of s 18(6) of the Act. Nor does she have any reasonable prospect of successfully prosecuting the proceeding in so far as it relies on an alleged contravention of s 15B(5) of the Act. The pleading is grossly inadequate and it seems to me the ‘area’ referred to in the subsection is the area referred to in Article 8(a) of the Convention on Biological Diversity. I do not understand the applicant to allege that Victoria Park is such an area.

52    The respondent is entitled to an order for summary judgment.

The Respondent’s Application for an order striking out the Statement of Claim or for Particulars

53    The respondent is entitled to an order for summary judgment in respect of the proceeding. In those circumstances, it is not strictly necessary for me to consider the respondent’s alternative application that the Statement of Claim be struck out or that the applicant be ordered to provide particulars. However, as the matter was argued it is appropriate that I express my views.

54    Rule 16.02(1) of the Federal Court Rules 2011 provides, among other things, that a pleading must state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial (but not the evidence by which the material facts are to be proved) and the specific relief sought or claimed. Rule 16.02(2) provides, among other things, that a pleading must not contain any scandalous, frivolous or vexatious material or be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay in the proceeding. Furthermore, a pleading must not fail to disclose a reasonable cause of action or defence, or other case appropriate to the nature of the pleading. If a pleading fails to comply with those rules then the other party may apply for an order under r 16.21 that all or part of the pleading be struck out. Rule 16.41 provides that a party must state in pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party. Rule 16.45 provides that if a pleading does not give a party fair notice of a case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading served on the other party provide particulars of the claim stated in the pleading.

55    I turn now to the particular allegations in the Statement of Claim.

56    Paragraph 4 of the Statement of Claim provides that in August 1974 Australia ratified the International Convention for the Protection of the World Cultural and Natural Heritage. Paragraph 7 and 8 also make allegations relevant to the World Heritage Convention. There is no link between the Convention and either any wrongful conduct alleged against the respondent or the relief claimed against it and, in those circumstances, the allegations are embarrassing and would have been liable to be struck out.

57    Paragraph 9 contains an allegation alleging a failure by the respondent to establish natural and cultural heritage conservation management plans. Again this plea is not linked to any wrongful conduct alleged against the respondent or the relief claimed against it and in those circumstances, the allegation is embarrassing and would have been liable to be struck out.

58    Paragraphs 10, 11 and 12 contain allegations about places registered on ‘Australia’s Register of the National Estate’. Again, there is no link between these allegations and any alleged wrongful conduct on the part of the respondent or the relief claimed against it and in those circumstances, the allegations are embarrassing and would have been liable to be struck out.

59    Paragraph 13 contains an allegation that the Minister included the Adelaide Parklands and City Layout in the National Heritage List pursuant to s 324JJ of the Act. This appears to be linked to the claim for relief made in paragraph 24a. There are deficiencies with the pleas associated with the claim for relief in paragraph 24a. First, there is no allegation that any action by the respondent took place in an area in respect of which Australia has obligations under Art 8 of the Biodiversity Convention, nor are there any particulars of those obligations. Secondly, there are no material facts underlying the implied allegation that the respondent took action that has had or will have a significant impact on the heritage values of a National Heritage Place in contravention of s 15B(5) of the Act. In other words, there is no allegation of that fact, nor are there any facts pleaded which identify the action allegedly taken by the respondent. The claim for relief in paragraph 24a would have been liable to be struck out on the ground that there are no material facts pleaded in support of the claim for relief and paragraphs 5, 6 and 13 would have been liable to be struck out on the ground that they are embarrassing because they do not give rise to a claim for relief.

60    I have already set out paragraph 16 of the Statement of Claim in paragraph 11 above. The respondent makes two complaints about the particulars provided by the applicant. First, it contends that the applicant has not provided material facts in support of its allegation that the patches are derived native grasslands. In other words, it has not identified the various grasses to be found in the patches. In the alternative, the respondent claims that the plea is not properly particularised. I do not think the applicant has failed to provide material facts. However, the contention that particulars should be provided is well-founded. Secondly, the respondent contends that the pleading is deficient because the location of the patches is not identified. Again, I do not think that this complaint is a matter of a failure to provide material facts. However, the contention that particulars should be provided is well-founded.

61    The respondent contends that the claims for relief in paragraph 24a, b, c and d are bound to fail because the Court would never make declarations or grant injunctions in such wide and general terms. That submission seems to me to be correct (Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at 91 [89]-[90] per Gummow, Hayne and Heydon JJ).

62    Had I been required to rule on the respondent’s application for an order striking out the Statement of Claim, I would have ordered that the whole Statement of Claim be struck out, rather than simply parts of it, because the deficiencies are so widespread. I would then have needed to consider whether the applicant ought to be given leave to file a fresh statement of claim.

Conclusions

63    The respondent is entitled to summary judgment. I will hear the parties with respect to the respondent’s application that the applicant pay its costs of and incidental to the application for an interlocutory injunction. In view of the orders I propose to make, it will not be necessary for me to consider whether, should I think it appropriate to make such an order, those costs be taxed immediately pursuant to r 40.13. Nor will it be necessary for me to consider the respondent’s application that the applicant give security for costs.

Associate:

Dated:    13 January 2012