FEDERAL COURT OF AUSTRALIA

Krajniw v Minister for the Environment [2016] FCA 141

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the respondents against Mr Tony Krajniw under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2.    Mr Tony Krajniw pay the costs of the respondents of and incidental to these proceedings.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The matter currently before the Court concerns four interlocutory applications by the fifteen respondents in the substantive proceedings. It is useful in these proceedings to continue to refer to Mr Krajniw as “the applicant” and the respondents to the substantive proceedings as “the respondents”.

2    The respondents seek relief in substantially similar terms pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 16.21 and r 26.01 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules). In summary, they seek orders for the summary dismissal and/or strike out of proceedings filed by Mr Krajniw. Specifically, the interlocutory applications have been brought, respectively, by:

1.    The first respondent, the Federal Minister for the Environment.

2.    The second to tenth respondents, being various Ministers of the Crown of Queensland including the Premier and Deputy Premier, the Member of Parliament for the seat of Bulimba, and senior executives of the Department of Environment and Heritage Protection.

3.    The eleventh to fourteenth respondents, being the Lord Mayor of the Brisbane City Council, the Brisbane City Council, the Chief Executive Officer of the Council and a Councillor.

4.    The fifteenth respondent, BMD Properties Pty Ltd.

3    The first respondent seeks orders as follows:

1.    Judgment be entered for the First Respondent against the Applicant under s31A(2) of the Federal Court of Australia Act 1976 (Cth) and rr 26.01(1)(a), (b), (c) and/or (d) of the Federal Court Rules 2011 (Cth).

2.    The Applicant pay the First Respondent’s costs of and incidental to this application and this proceeding.

In the alternative to orders 1 and 2 above, the First Respondent seeks the following orders:

1A.    The statement of claim be struck out pursuant to rr 16.21 (1)(a), (b), (c), (d), (e) and/or (f) of the Federal Court Rules 2011 (Cth)

2A.    The Applicant pay the First Respondent’s costs of and incidental to this application.

4    The second to tenth respondents seek orders as follows:

1.    Summary judgment dismissing the proceeding against the Second to Tenth Respondents be granted pursuant to s. 31A of the Federal Court of Australia Act 1976 (Cth) and r. 26.01 of the Federal Court Rules 2011.

2.    Alternatively to paragraph 1:

a.    The application be amended by removing the names of the Second to Tenth Respondents pursuant to r. 9.08 of the Federal Court Rules 2011 and “State of Queensland” be named in their place; and

b.    The statement of claim as it relates to the Second to Tenth Respondents (State of Queensland) be struck out pursuant to r. 16.21 of the Federal Court Rules 2011.

3.    The Applicant pay the Second to Tenth Respondents (State of Queensland’s) costs of and incidental to the proceeding.

5    The eleventh to fourteenth respondents seek orders as follows:

(a)    Pursuant to Rule 26.01 (a), (b), (c) and (d) of the Federal Court Rules 2011 and s. 31A(2) of the Federal Court Act 1976 the Applicant’s proceeding be struck out and summary judgment be entered against the Applicant;

(b)    In the alternative to paragraph 1 (above), pursuant to Rule 16.21 (a), (b), (c), (d), (e) and (f) of the Federal Court Rules the Applicant’s pleading be struck out;

(c)    In the alternative to paragraph 1 (above), pursuant to Rule 9.08 of the Federal Court Rules 2011 the 11th, 13th and 14th Respondents be removed as parties to the proceeding;

(d)    The Applicant pay the costs of the 11th to 14th Respondents of and incidental to the making of this interlocutory application; and

(e)    Such further or other orders as the Court considers appropriate.

6    The fifteenth respondent seeks orders as follows:

a.    Pursuant to Rule 26.01 (a), (b) and (c) of the Federal Court Rules 2011 and s. 31A (2) of the Federal Court Act 1976 the Applicant’s proceeding be struck out and summary judgment be entered against the Applicant;

b.    In the alternative to paragraph 1 (above), pursuant to Rule 16.21 (a), (b) and (e) of the Federal Court Rules the Applicant’s pleading be struck out;

c.    The Applicant pay the costs of the 15th Respondent of and incidental to the making of this interlocutory application; and

d.    Such further or other costs as the Court considers appropriate.

7    In his written submissions I note that Mr Krajniw made reference to a claim on his part that the Court enter summary judgment in his favour against the respondents. However I also note that no formal written application for summary judgment has been filed by Mr Krajniw, nor any oral application made by Mr Krajniw for such orders at any time before me. It follows that the only interlocutory applications before the Court are those filed by the respondents.

Background

8    The substantive proceedings in this matter concerns a parcel of land at 1825 Creek Road, Cannon Hill, a suburb of Brisbane (the land). It appears that the land is or was undeveloped land owned by the Brisbane City Council. It further appears that, at some point, the Brisbane City Council gave permission to the fifteenth respondent – a property developer – to build a golf course and associated residential development on the land. I understand that this development permission remains extant.

9    Mr Krajniw claims that he has open standing under s 475(1)(b) and s 475(6) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to pursue his substantive claims. I understand from his oral submissions that Mr Krajniw lives in a caravan on or in the vicinity of this land. It is clear that Mr Krajniw is passionate about the wildlife he describes as living or previously living on the land, in particular squirrel glider possums.

10    In respect of his substantive claims Mr Krajniw has filed detailed and very lengthy pleadings in these proceedings. His originating application filed on 16 June 2015 is a document some 59 pages in length. His originating application lists many provisions of the EPBC Act with which, inter alia, Mr Krajniw alleges there has been non-compliance in respect of the process granting development permission. In all, Mr Krajniw seeks 154 orders by way of interim and final injunctive relief restraining the respondents from undertaking listed activities, additional orders in relation to land clearing and work designed to alter or affect wildlife corridors, 15 individual orders against named respondents (including prosecution or jail), and orders for the public shaming of a number of newspapers, including the Courier Mail and Quest Newspapers South East Advertiser. So, for example, Mr Krajniw seeks orders to:

    restrain the respondents from engaging in activity which will destroy a colony of squirrel glider possums in the area;

    restrain the respondents from engaging in activity which will adversely affect other flora and fauna in the region including woodlands, rainforest, native grasses, koalas, native rats and mice, deer, and identified species of birds;

    restrain the respondents from engaging in activity which contravenes the EPBC Act, and constitutes civil and criminal environmental offences;

    require the respondents to repair and mitigate damage to the land pursuant to s 475(3) of the EPBC Act; and

    restrain conduct and activity of a kind constituting an offence against matters protected, as defined by s 34 of the EPBC Act.

11    Mr Krajniw claims that the assessment process whereby the fifteenth respondent was permitted to develop the land under the EPBC Act was tainted and flawed, and in particular that:

    the relevant assessment and approval processes did not take into account the conduct and activity of the kind sought to be restrained; and

    the taking of controlled action within the relevant area would have a significant adverse impact on the life support systems of nature in the area.

12    I note that Mr Krajniw also alleges dereliction of duty of a number of the respondents (in particular the seventh through to fourteenth respondents) in relation to an adjacent parcel of land at 1833 Creek Road.

13    Further, Mr Krajniw seeks orders by way of:

    a pecuniary penalty payable by all respondents in an amount determined by the Court;

    an additional pecuniary penalty that the first to fourteenth respondents pay the Commonwealth Government of no less than $10 million;

    an additional order that the fifteenth respondent pay the Commonwealth Government the sum of $5 million, in addition to payment of the amount of $10 million into trust for the restoration of the land;

    prosecution and jailing of named respondents for gross dereliction of duty;

    payment of compensation to the applicant for depression and psychological trauma suffered by the applicant resulting from the wilful destruction of the possums and their habitat, in the amount of $4 million per named respondent (in respect of the first to seventh and eleventh to thirteenth respondents), $3 million per named respondent (in respect of the eighth, ninth, tenth and fourteenth respondent) and $5 million by the fifteenth respondent.

14    Mr Krajniw’s statement of claim is 354 pages in length. Mr Krajniw lists the habitats of wildlife in the land, and the status of a large number of species of wildlife. He claims, inter alia, that:

    the respondents are responsible for the destruction of matters protected under the EPBC Act, and for the destruction of the koala and squirrel glider possum trees;

    the respondents have ignored specific sections of the EPBC Act;

    the proposed clearing and destruction in certain areas (Littoral Rainforest and Coastal Vine Thickets of eastern Australia, Lowland Rainforest of Subtropical Australia, Grey Box Grassy Woodlands and Derived Native Grasslands of south-eastern Australia, and Lowland Grassy Woodland in the south-east corner bioregion) will have a significant adverse ecological impact;

    the assessment and approval process has failed to take into account these issues;

    the respondents have contravened s 18A of the EPBC Act and are guilty of criminal offences;

    there is a record of a Queensland lungfish in the area, and there is danger of disturbance associated with work on wetlands in the area of the land by the respondents;

    the respondents do not have an Environmental Impact Statement or assessment documentation as no studies have been carried out to determine the presence, the numbers, the extent, and the distribution of the species of frogs;

    squirrel glider possums are not listed as endangered species under the EPBC Act because of political and fashion considerations.

15    At paragraph 70 of his statement of claim Mr Krajniw lists the issues in dispute as:

1.    whether the salient provisions of the EPBC Act 1999 are justiciable in this Court.

2.    whether the Respondents must have regard to the construction and application of the provisions of the EPBC Act.

3.    whether the Respondents are exempt from the relevant salient provisions of the EPBC Act.

4.    the issues concerning adverse impacts on the listed threatened species, the matter protected.

5.    the issues concerning adverse impacts on the listed threatened ecological community, the matter protected.

6.    the issues concerning adverse impacts on a species, a thing that is not a matter protected.

7.    the issues concerning adverse impacts on environmentally sensitive ecological communities, a thing that is not a matter protected.

8.    whether clearing and poisoning of the environmentally sensitive listed ecological communities constitute the taking of an action.

9.    whether poisoning and removal of vegetation within the listed threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, constitute the taking of an action.

10.    whether poisoning and removal of vegetation within the listed threatened ecological community, the Lowland Rainforest of Subtropical Australia, constitute the taking of an action.

11.    whether poisoning and removal of vegetation within the listed threatened ecological community, the Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, constitute the taking of an action.

12.    whether poisoning and removal of vegetation within the listed threatened ecological community, the Lowland Grassy Woodland in the South East Corner Bioregion, constitute the taking of an action.

13.    whether poisoning of listed threatened migratory and non migratory species, the matter protected, constitute the taking of an action.

14.    whether poisoning of migratory and non migratory species, a thing that is not a matter protected, constitute the taking of an action.

15.    whether poisoning and clearing ephemeral wetlands constitute the taking of an action.

16.    whether poisoning and clearing riparian vegetation constitute the taking of an action.

17.    whether poisoning and clearing marine vegetation constitute the taking of an action.

18.    whether poisoning and clearing marine couch constitute the taking of an action.

19.    whether poisoning and clearing ground vegetation constitute the taking of an action.

20.    whether poisoning and clearing of indoor plants (Cycads?) that stored water, and provided an essential micro habitat for a variety of resident frog constitute the taking of an action.

21.    whether poisoning and clearing significant landscape trees constitute the taking of an action.

22.    whether poisoning and clearing Glider traffic trees constitute the taking of an action.

23.    whether clearing Glider den trees, stags with hollows constitute the taking of an action.

24.    whether poisoning and clearing sub-story vegetation constitute the taking of an action.

25.    whether poisoning and clearing palm trees constitute the taking of an action.

26.    whether poisoning and clearing of ground fern constitute the taking of an action.

27.    whether poisoning and clearing of marine fern constitute the taking of an action.

28.    whether saturating the land with insecticides, pesticides, herbicides, and weedkillers constitute the taking of an action.

29.    issues in relation to approval of actions.

30.    the taking of Actions.

31.    taking actions with approved Governmental Authorization.

32.    taking actions without approved Governmental Authorization.

33.    the taking of controlled actions.

34.    the taking of Actions in contravention of environmental authorision.

35.    the taking of Actions in contravention of specific environmental authorision.

36.    the taking of Actions which are lawful continuation of land.

37.    the taking of Actions which are NOT lawful continuation of land.

38.    whether the clearing activity was a lawful continuation of land use.

39.    was the authorization process, if any, carried out in accords with the Acts

40.    whether the State of Queensland and the Commonwealth of Australia are parties to the Recovery Plans, in relation to matters protected, the listed threatened species, and listed threatened ecological community.

41.    whether the land was under environmental authorisation prior commencement of the clearing activity.

42.    whether the land was under specific environmental authorisation prior commencement of the clearing activity.

43.    whether the respondents have prior authorisation to interfere with National, and State Recovery Plans.

44.    whether the respondents have prior authorisation to ignore and obfuscate salient provisions of the National Recovery Plans.

45.    whether the Respondents are exempt from the construction and application of the salient provisions of the Recovery Plans.

46.    whether the Principal Agreement, the Bilateral Agreement between the Commonwealth and the State of Queensland is a Bilateral Agreement within the terms of the EPBC Act 1999 (Cth).

47.    whether assessment of adverse environmental impacts, assessment bilateral, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

48.    whether assessment of adverse environmental impacts, the poisoning of the listed threatened species, matter protected, and the species, a thing that is not matter protected, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

49.    whether assessment of adverse environmental impacts, the poisoning and clearing of ephemeral wetlands, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

50.    whether assessment of adverse environmental impacts, the poisoning and clearing riparian vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

51.    whether assessment of adverse environmental impacts, the poisoning and clearing marine vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

52.    whether assessment of adverse environmental impacts, the poisoning and clearing ground vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

53.    whether assessment of adverse environmental impacts, the poisoning and clearing significant landscape trees, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

54.    whether assessment of adverse environmental impacts, the poisoning and clearing Glider traffic trees, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

55.    whether assessment of adverse environmental impacts, the clearing of Glider den trees, stags with hollows, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

56.    whether assessment of adverse environmental impacts, the poisoning and clearing sub-story vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

57.    whether assessment of adverse environmental impacts, the poisoning and clearing palm trees, has been undertaken in accords with the provisions of this Act and the Bilateral.

58.    whether assessment of adverse environmental impacts, the poisoning and clearing ground fern, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

59.    whether assessment of adverse environmental impacts, the poisoning and clearing marine fern, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

60.    whether assessment of adverse environmental impacts, the poisoning and clearing vine thickets, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement in, in that thousands of vines have been poisoned or cleared.

61.    whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

62.    whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Lowland Rainforest of Subtropical Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

63.    whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

64.    whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Lowland Grassy Woodland in the South East Corner Bioregion, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

65.    whether assessment of adverse environmental impacts, the baiting of the threatened listed species, matter protected, and the species, a thing that is not matter protected, the poisoning and clearing ephemeral wetlands for the species of Frog, the platypus, and the Lung Fish has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

66.    whether assessment of adverse environmental impacts, the poisoning and clearing ephemeral wetlands for the species of Frog, the platypus, and the Lung Fish has been undertaken in accords with the provisions of this Act and the, the National Recovery Plan.

67.    whether assessment of adverse environmental impacts, the saturation of land with insecticides, pesticides, herbicides, and weedkillers, and the poisoning and clearing of vegetation, and removal of den trees, for the rare Squirrel Glider Possums, a species, a thing that is not a matter protected, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement.

68.    whether Respondents are exempt from Environmental Assessment under the terms of the Bilateral Agreement by virtue of exemption under section s524(2).

69.    whether assessment and approval has taken into account the Precautionary Principle.

70.    whether Respondents are exempt from Environmental Assessment under the terms of the Governmental Authorization by virtue of exemption under section s524(2).

71.    whether Respondents are exempt from Environmental Assessment under the terms of Specific Environmental Authorization by virtue of exemption under section s524(2).

(Emphasis in original.)

16    Throughout the 3,261 paragraphs of his statement of claim Mr Krajniw expands upon these issues, including listing:

    relevant sections of the EPBC Act;

    flora and fauna he claims are threatened by the respondents’ conduct, and the habitats of those species;

    all flora and fauna which may be in the area;

    migratory species and marine bird species;

    matters not protected under s 48A(2) of the EPBC Act;

    incidents where flora and fauna have been affected.

17    Before turning to the issues before me I note that proceedings similar to these, involving many of the same parties, were recently the subject of judgment in Krajniw v Newman (No 2) [2015] FCA 673. In that case Mr Krajniw had commenced proceedings against seventeen respondents in respect of nearby land at 1833 Creek Road (including a number of the respondents in the proceedings before me), and, as Reeves J there explained, sought:

… permanent injunctive relief to prohibit future conduct allegedly undertaken in breach of the EPBC Act. (at [5])

18    In that matter the State and Brisbane City Council respondents sought orders mandating the removal of certain respondents from the proceeding, and summary judgment and/or strike out of Mr Krajniw’s statement of claim. I note that Reeves J made the orders sought by the respondents in that case.

19    In the interests of completeness I note other judgments of this Court involving Mr Krajniw and various of the respondents currently before me, as well as similar issues relating to land in the same area as the land the subject of these proceedings, namely Krajniw v Newman [2014] FCA 1454, Krajniw v Brisbane City Council [2010] FCA 1366 and Krajniw v Brisbane City Council (No 2) [2011] FCA 563.

Claims of the parties

20    The orders sought by the respondents relate primarily to the provisions of s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules. Both provisions contemplate, inter alia, the Court giving summary judgment in favour of a respondent where the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Indeed, as Reeves J pointed out in Krajniw v Newman (No 2) at [10], to this extent s 31A and r 26.01 contain identical tests (cf Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1121 at [20]). Rule 26.01 also permits a respondent to apply for summary judgment where the proceedings are frivolous or vexatious, or an abuse of process, or where no reasonable cause of action is disclosed. Relevantly these provisions state:

31A    Summary judgment

(1)    …

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    …

21    Principles applicable to a summary judgment application made pursuant to s 31A were examined by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. In that case French CJ and Gummow J observed:

24.    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

…

25.    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

(Footnotes omitted.)

22    In the same judgment Hayne, Crennan, Kiefel and Bell JJ observed:

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.

23    These principles have been extensively applied in this Court (see, for example, Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2011] FCAFC 145 and Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325).

24    A number of the respondents in these proceedings also seek orders that the statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules so far as it relates to them. Rule 16.21 relevantly provides:

16.21    Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

25    This rule was discussed in some detail by Reeves J in Krajniw v Newman (No 2) in the following terms:

12.    It is also important to distinguish between an application for summary judgment and one directed to striking out a pleading: see Cassimatis at [45], citing Spencer at [23]. The former is concerned with substance, with the bringing and defending of proceedings and therefore with whether an applicant has a genuine and valid claim or defence. The latter is concerned more with form, with the pleadings, and therefore with whether a party has properly pleaded his or her claim or defence. Finally, it should be noted that the person bringing an application for summary judgment - in this case, the respondents – bears the onus of persuading the Court of their entitlement to have the proceeding determined summarily.

13.    The principles applicable to an application to strike out pleadings under r 16.21 are also well-established, having been discussed in countless decisions in the past. Accordingly, I will gratefully adopt the helpful summary of those principles from a recent decision of Gleeson J in Mulhern v Bank of Queensland [2015] FCA 44:

[53]    The power to strike out a pleading (in this case, the statement of claim) requires a consideration of the terms of that document. A pleading may be struck out if it is unintelligible, ambiguous or so vague that it fails to identify the material factual allegations to the extent that the other party is not given notice of the real substance of the claim: Priest v State of New South Wales [2006] NSWSC 12 at [34].

[54]    It must be apparent on the face of the statement of claim that the facts pleaded, if proved, would establish the cause of action relied upon by the relevant plaintiff or plaintiffs. In Wride v Schulze [2004] FCAFC 216 at [25], a Full Court said:

... the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.

[55]    The power to strike out a pleading because it discloses no reasonable cause of action will be exercised only in a plain and obvious case, where it is clear that no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97; (2012) 203 FCR 325 at [43].

[56]    In contrast, an application for summary judgment requires consideration of matters outside the pleading: Takemoto v Moodys Investors Service Pty Ltd [2014] FCA 1081 at [4] and the cases there cited.

[57]    Both powers are to be exercised with caution.

26    There is significant overlap in the issues raised in submissions by the respondents in support of their respective interlocutory applications. To that extent, it is possible to summarise the submissions of the respondents, as follows:

    the application and statement of claim are oppressively long and confused, such that the respondents are unable to identify the precise nature and extent of Mr Krajniw’s claims.

    On the material before the Court there is nothing to support a finding that any of the first to fourteenth respondents could have contravened any provision of Pt 3 of the EPBC Act, because there is no evidence that any party other than the fifteenth respondent has or intends to take any “action” in relation to the land.

    The vast preponderance of evidence filed by Mr Krajniw constitutes general information acquired from the Department of the Environment which is unrelated to the land or development in question, and does not support any rational claim.

    Mr Krajniw’s case deals primarily with squirrel glider possums, which are not a listed threatened species under the EPBC Act.

    In respect of sections of the EPBC Act which can be contravened, there is no evidence that the respondents have contravened them as alleged by Mr Krajniw.

    In relation to the first respondent the contentions of Mr Krajniw relating to alleged contraventions of Pt 5 Div 2 of the EPBC Act concerning bilateral agreements are misconceived.

    Mr Krajniw seeks relief which is not available under the EPBC Act including public shaming and payment of compensation.

    Mr Krajniw has filed a statement of claim which is defective in the ways identified by Reeves J in Krajniw v Newman (No 2), and appears to be an attempt to relitigate issues already resolved in other cases including Krajniw v Newman (No 2).

    Mr Krajniw’s claims for personal injuries relating to depression and psychological trauma would possibly be actionable under the Personal Injuries Proceedings Act 2002 (Qld). The Federal Court does not have jurisdiction to determine such claims under that legislation.

27    In relation to the respondents’ applications to have the statement of claim struck out, they submit, in summary:

    the statement of claim is 354 pages in length and comprises 3,261 paragraphs. Most of those paragraphs plead non-material facts, including:

    rhetorical questions;

    legislative provisions;

    opinions;

    issues allegedly in dispute;

    irrelevant facts;

    the statement of claim includes extensive scandalous and inflammatory allegations;

    the statement of claim contravenes the requirement for a party to plead briefly (in accordance with r 16.02(1)(b)).

28    In response to the respondents’ submissions Mr Krajniw has filed lengthy submissions setting out, in detail, his “broad claims”. Further, he submits:

    the respondents do not understand his submissions, or the EPBC Act, or other relevant legislation;

    the first respondent cannot make declarations to harm nature or the environment. It is irrelevant whether or not the species is a listed threatened or migratory species, or whether or not the ecological communities are listed threatened ecological communities;

    the first respondent must take into account the status of each species that is present in a prescribed area;

    the respondents fail to recognise that the squirrel glider species will be “maintained” by the taking of controlled action by the respondents;

    the respondents have sought to mislead the Court into believing that the applicant is an “incompetent serial Courtroom pest of dubious credentials and bona fides”;

    he has status pursuant to s 475(1)(b) and (6) of the EPBC Act to seek relief, as well as open standing to seek orders to remedy the damage caused by contraventions of the EPBC Act;

    the true status of squirrel glider possums has not been established or determined in this or other proceedings;

    sections 66-69 of the EPBC Act define “controlled action”, and the taking of controlled actions contravenes ss 18-20B of the EPBC Act;

    sections 18, 18A and 19 provide that actions with a significant impact on listed threatened species are prohibited without approval under Pt 9 of the EPBC Act;

    the statement of claim lists four threatened ecological communities, 32 threatened species, 42 migratory or marine species, and 86 species that are not protected;

    to the extent that the application seeks relief based upon actions impacting on these species or its habitat, the EPBC Act provides a basis for a remedy;

    section 20 and s 20A provide that actions with a significant impact on listed migratory species are prohibited, and actions caught by these provisions give rise to offences and civil penalties;

    the controlled action is not a lawful or authorised action and has or will contravene s 43A and s 381 of the EPBC Act.

Consideration

29    In my view the relief sought by the respondents pursuant to s 31A of the Federal Court Act and r 26.01 of the Federal Court Rules should be granted, and the originating application of Mr Krajniw summarily dismissed as having no reasonable prospects of success.

30    Mr Krajniw is a litigant in person. He is clearly passionate about the wildlife on the land, and deeply concerned about the threat he claims to that wildlife by the approved development of the land. For example, at paragraphs 494-509 of the statement of claim he describes practices by unknown persons he alleges are connected with the respondents, with horrific consequences, such as collaring and releasing baby squirrel glider possums without due regard for the future growth of the animals. However as the respondents correctly submit, the application and the statement of claim are both oppressively lengthy, contain extensive tracts of material the relevance of which is not clear on the pleadings, and contain many statements which even conservatively can only be described as scandalous and abusive. Mr Krajniw’s personal and moral objections and beliefs concerning the development of the land do not release him from the obligation, ever present in litigation, to present to the respondents and the Court a case which is coherent and clear. At the very least, he is required to raise proper issues of fact and law for the respondents to meet and the Court to determine.

31    So, for example, his pleadings are littered with such emotive statements as “Destructive actions promoted and propagated by B4C, do not demonstrate that these criminally insane terrorists, Do Goodie – Greenie Freaks, are free of the Developers’ “tentacles” or “other” (originating application paragraph 24), “BCC shootist perverts” (originating application paragraph 27), “EDO may be described as a Bludgers Paradise for incompetent bludging parasites. A gang of retarded morons sponging off the public” (originating application paragraph 44). Some of this material has been struck out as scandalous, however a large number of abusive statements continue to – improperly – pervade the pleadings.

32    Further, Mr Krajniw maintains an approach throughout the material which borders on the incomprehensible, where he identifies legislation without making any reference to its relevance. An illustration of this approach is paragraph 66 of the Application which provides:

The applicant contends that, conduct and activity of a kind which is sought to be restrained, the taking of a controlled action within the listed threatened ecological community by the Respondents, will have a significant adverse impact on the life support systems of nature, and will promote the taking of matters protected, and a species, a thing that is not a matter protected, in that the assessment and approval process, did not have regard to, and failed to take into account, in contravention of, and non compliance with the following provisions of the EPBC Act 1999 (Cth):-

s4    Act to bind Crown.

s5    Application of Act.

s7    Application of the Criminal Code,

s9    Relationship with State law,

s10    Relationship with State law

s11    Simplified outline of this Chapter.

This Chapter provides a basis for the Minister to decide whether an action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed.

It does so by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed (Part 9 deals with the giving of approval).

s34    What is matter protected, by a provision of Part 3.

33    This paragraph is largely meaningless because of the absence of any reference to conduct or issues relevant to this case, and is but one example of many paragraphs in the pleadings drafted in a similar fashion and which in my view are fatal to the validity of the pleadings. In this respect I note a similar observation by Reeves J in Krajniw v Newman (No 2) at [32] of his Honour’s judgment, where his Honour discussed the following paragraph appearing in the statement of claim in that case:

In addition that taking of a controlled action, with a significant adverse impact on the matters protected, does not comply with, and contravenes other provisions of the Environment Protection and Biodiversity Act 1999 (Cth), as listed below, but not limited to the following -

Section s3, s3(1), s3(2), s3A, s4, s5, s9, s10, s11, s18, s18(3), s18(4), s18(6), s18A, s19, s20, s20A, s20B, s25, s25A, s25AA, s28AB, s29, s30, s32, s33, s34, s34A, s34D, s34E, s37, s37A, s37B, s37C, s37G, s37H, s37M, s43A, s43A(2), s43B, s43B(2), s43B(3), s44, s45, s46(1), s46(2), s46(2A), s47, s48, s48(1), s48(2), s48A(3), s48A(4), s49, s49A, s50, s53, s54, s56, s66, s67, s56A, s68(1), s68(2), s68(3), s68(4), s68(5), s68(A), s69, s70, s71, s72, s73, s74, s74A, s74AA, s75, s76, s77, s77A, s80, s81, s82, s83, s84, s85, s87, s88, s89, s90, s91, s92, s93, s94, s95, s95A, s95B, s95C, s96, s96A, s96B, s97, s98, s99, s100, s101, s101A, s101B, s102, s103, s104, s105, s130, s136, s139, s140, s146, s146A, s146B, s146C, s146D, s146E, s146F, s146K, s146L, s158, s158A, s159... [and so on, in a similar manner] ...

34    I note with concern that a pleading in identical terms to that criticised by his Honour also appears at paragraphs 11 and 12 of Mr Krajniw’s statement of claim in these proceedings.

35    Second, the applicant seeks relief under legislation outside the jurisdiction of this Court. In addition to the Personal Injuries Proceedings Act 2002 (Qld) which the respondents correctly submit is outside the Court’s jurisdiction, I note the relief sought by Mr Krajniw in paragraphs 284 to 291 of his statement of claim under the Sustainable Planning Act 2009 (Qld), the Vegetation Management Act 2009 (Qld), the Nature Conservation Act 1992 (Qld) and the Nature Conservation Regulations 1994 (Qld). This Court has no power to make orders pursuant to these statutes.

36    I also note other orders sought by Mr Krajniw which the Court has no power to make. So, for example, Mr Krajniw seeks orders in respect of pecuniary penalties, however as Reeves J observed in Krajniw v Newman (No 2) at [40] Mr Krajniw has no standing to make such claims. Further, the Court has no power to make orders for criminal prosecution, jailing or public shaming under the EPBC Act as sought by Mr Krajniw.

37    Third, I agree with the respondents that the pleadings do not disclose any basis upon which any of the respondents other than the fifteenth respondent have taken or propose to take “action” under the EPBC Act. “Action” is defined by s 523 and s 524 of the EPBC Act as follows:

523    Actions

(1)    Subject to this Subdivision, action includes:

(a)    a project; and

(b)    a development; and

(c)    an undertaking; and

(d)    an activity or series of activities; and

(e)    an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).

524    Things that are not actions

(1)    This section applies to a decision by each of the following kinds of person (government body):

(a)    the Commonwealth;

(b)    a Commonwealth agency;

(c)    a State;

(d)    a self-governing Territory;

(e)    an agency of a State or self-governing Territory;

(f)    an authority established by a law applying in a Territory that is not a self-governing Territory.

(2)    A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.

(3)    To avoid doubt, a decision by the Commonwealth or a Commonwealth agency to grant a governmental authorisation under one of the following Acts is not an action:

(a)    the Customs Act 1901;

(b)    the Export Control Act 1982;

(c)    the Export Finance and Insurance Corporation Act 1991;

(d)    the Fisheries Management Act 1991;

(e)    the Foreign Acquisitions and Takeovers Act 1975;

(f)    the Offshore Petroleum and Greenhouse Gas Storage Act 2006;

(g)    the Quarantine Act 1908;

(h)    the Competition and Consumer Act 2010.

This subsection does not limit this section.

38    Sections 18, 18A, 20 and 20A prohibit actions which have significant impact on listed threatened species or endangered ecological communities without approval, and create offences in respect of such actions.

39    It is a complete defence to any action based on an alleged contravention of ss 18, 18A, 20 and 20A if the person taking the action has:

    obtained a decision from the Minister under Div 2 of Pt 7 of the EPBC Act that the action was not a “controlled action”; or

    obtained approval to take such action under Pt 9 of the EPBC Act.

40    “Controlled action” is defined by s 67 of the EPBC Act as follow:

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 s 25AA or 28AB, be) prohibited by the provision. The provision is a controlling provision for the action.

41    Taking these provisions into account:

    the only respondent who, on the pleadings, has taken or proposes to take “action” (as defined by the EPBC Act) in respect of the land is the fifteenth respondent. To this extent, allegations of Mr Krajniw against the other respondents for alleged “action” are fatally deficient.

    the liability of the first to fourteenth respondents is not pleaded other than by way of general assertions unsupported by relevant facts.

    while Mr Krajniw pleads the existence of threatened or migratory species on the land, contravention of ss 18, 18A, 20 and 20A requires action to have a “significant impact” on a species as a whole and this has not been pleaded.

    Mr Krajniw pleads “adverse action” in respect of species which are not threatened or migratory such as the squirrel glider possum.

    Mr Krajniw otherwise sets out long lists of species by way of assertions as to their existence rather than pleadings supported by relevant facts.

    It is not in dispute that a delegate of the Minister made a decision that action of the fifteenth respondent was not a “controlled action”, giving rise to a complete defence on the part of that respondent under the EPBC Act.

42    Fourth, Mr Krajniw claims contravention by the respondents of provisions of the EPBC Act which are not, as a matter of law, capable of being contravened (for example ss 3, 3A, 4, 5, 9, 10, 11, 43B, 68, 69 and 494). In this context I note that Mr Krajniw also pleads approximately 295 provisions of the EPBC Act without clarifying the relevance of those sections.

43    Fifth, Mr Krajniw at paragraphs 163 et seq of the statement of claim pleads (inter alia) contravention of a bilateral agreement to which the Commonwealth and the State of Queensland are parties. However as Dowsett J explained in Krajniw v Brisbane City Council (No 2):

22.    Broadly speaking, Pt 5 Div 2 of the Act (which includes s 48A) provides for bilateral agreements between the Commonwealth and a State or self-governing Territory. Such agreements are to be for the purposes set out in s 45(2). A bilateral agreement may provide that actions or courses of action approved by a relevant State or Territory will not require approval pursuant to Pt 9 of the Act. Section 48A(2) provides that such an agreement must contain certain provisions. The applicant seems to suggest that s 48(2) places some limitation upon developments other than those imposed by ss 18 and 18A. However the relationship between those sections and Pt 9 does not lead to that outcome. Section 46 permits bilateral agreements to exempt some actions from approval under Pt 9 for the purposes of Div 3 (which contains ss 18 and 18A). This is presumably because the bilateral agreement will prescribe an alternative method of assessment to that prescribed in Pt 9. Section 48A(2) is part of the mechanism for achieving that result. It has no relevance for present purposes.

44    His Honour’s comments are equally apposite in this case. It follows that it is not clear from Mr Krajniw’s pleadings how the bilateral agreement to which he refers is relevant to his claims against the respondents in any valid or meaningful way.

45    Sixth, it is concerning to me that serious flaws in Mr Krajniw’s pleadings in the proceedings before Reeves J appear to be almost exactly replicated in the pleadings before me. I have already noted one example. Another example concerns paragraph 527 of the statement of claim before his Honour, and to which his Honour refers at [34] of the judgment in Krajniw v Newman (No 2). This paragraph appears to be exactly replicated at paragraph 527 of the statement of claim before me. I respectfully adopt the comments of his Honour at [34]. I also observe that such parallels raise the inevitable question whether Mr Krajniw is simply relitigating issues already determined – adversely to him – in other proceedings.

Conclusion

46    Time and again the Courts have warned that applications for summary judgment should be regarded with great caution. In this case however I am satisfied that an order for summary judgment in favour of the respondents is warranted. Mr Krajniw has no reasonable prospect of successfully prosecuting his claims.

47    It follows that it is unnecessary for me to consider the orders sought by the respondents in respect of strike out of the pleadings and/or of various respondents.

48    Finally, I consider it proper that costs ought follow the event.

Associate:

Dated:    23 February 2016

SCHEDULE OF PARTIES