PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: 3070/16 DIVISION: PROCEEDING: ORIGINATING COURT: Bond v Chief Executive, Department of Environment and Heritage Protection [2018] QPEC 15 Peter Bond (applicant/appellant) v Chief Executive, Department of Environment and Heritage Protection (respondent) Planning and Environment Court, Brisbane Hearing of an application DELIVERED ON: 29 March 2018 DELIVERED AT: Planning and Environment Court of Queensland, Brisbane Brisbane HEARING DATE: 2 March 2018 JUDGE: ORDER: CATCHWORDS: RS Jones DCJ 1. This proceeding is adjourned to a date to be fixed following the verdicts of the jury in the matter of R v Linc Energy Ltd (in liquidation). 2. Unless otherwise ordered, the matter is to be listed before me for the making of final orders disposing of this proceeding by no later than one calendar month after the aforesaid verdicts are taken. 3. I will hear from the parties if necessary as to any consequential orders. APPLICATIONS FOR STAYS where it is alleged that applicant was a related person pursuant to s 363 AD of the Environmental Protection Act (1994) where is alleged applicant was a related person of Linc Energy Ltd (in liquidation) where Linc Energy Ltd a high risk company being externally administered where applicant subject to an Environmental Protection Order requiring him to lodge a bank guarantee to a value of $5,500,000 to secure compliance with the said order and where order required reporting and specified rehabilitation works.
2 COUNSEL: APPEAL TO THIS COURT where applicant lodged an appeal in the registry of the Planning and Environment Court of Queensland appealing against the issuing of the said Environmental Protection Order where numerous grounds of appeal raised where stay of the order was granted pending the outcome of the hearing of preliminary points where applicant was unsuccessful in this court in respect of all of the preliminary points where applicant failed on appeal to the Court of Appeal of Queensland where applicant failed to secure special leave to the High Court whether obligations under the order crystalised on refusal of the special ground application. CRIMINAL PROCEEDINGS Where Linc Energy is subject of criminal proceedings under indictment in the District Court of Queensland where Applicant in person subject of five indictable criminal charges where those matters set for committal proceedings in the Magistrates Court of Queensland whether stay would be granted pending finalisation of all criminal proceedings. Environmental Protection Act 1994 Evidence Act 1977 Commissioner of the Australian Federal Police v Zhao [2015] 255 CLR 46 Flegg v Hallett (2014) QSC 220 Jesasu Pty Ltd v Minister of Mineral Resources (1987) 11 NSW LR 110 Network Ten Pty Ltd v Rowe (2006) NSWCA 4 McMahon v Gould [1982] 7ACLR 202 Paringa Mining and Exploration Co. v North Flingers Mines Ltd (1988) 165 CLR 452 R v Kirby (1998) QCA 445 Re AWB Ltd (No 1) (2008) 21 VR 252 State of Queensland v Shaw OA 1246/03 Stubble v Royal Insurance Co (1971) 1 QB 50 White v Australian Securities and Investments Commission & Ors (2013) QCA 357 Yuill v Spedley Securities Ltd (in liquidation) (1992) 8 ACSR 272 Mr D Gore QC with Mr N Loos of counsel for the applicant Mr J Horton QC with Ms E Hoiberg of counsel for the respondent
3 SOLICITORS: Thompson Greer for the applicant Herbert Smith Freehills for the respondent [1] This proceeding is concerned with two applications, one seeking a stay of proceedings initiated by the applicant in this court, and a stay of the operation of an Environmental Protection Order (EPO) issued by the respondent pending the final resolution of related criminal prosecutions involving the appellant. 1 For the reasons set out below the orders of the court are: 1. This proceeding is adjourned to a date to be fixed following the verdicts of the jury in the matter of R v Linc Energy Ltd (in liquidation). 2. Unless otherwise ordered, the matter is to be listed before me for the making of final orders disposing of this proceeding by no later than one calendar month after the aforesaid verdicts are taken. 3. I will hear from the parties if necessary as to any consequential orders. Background [2] It is alleged that the applicant was the chairman, managing director, and the holder of many thousands of shares in Linc Energy Ltd (Linc). On 11 April 2014, the respondent filed criminal charges against Linc in the Chinchilla Magistrates Court. On 1 October 2014, the applicant resigned as the Chief Executive Officer and managing director of Linc and commenced as the executive chairman. Between 4 March 2015 and 1 May 2015, the respondent made a number of decisions including requiring financial assurances from Linc which were the subject of proceedings in the Land Court and the Land Appeal Court. It is unnecessary to deal in any detail with that litigation. In October/November 2015, committal proceedings were heard against Linc in the Magistrates Court at Dalby. On 11 December 2015, the applicant ceased to act as the executive chairman. On 11 March 2016 Linc was committed to stand trial on all of the five charges laid against it. On 15 April 2016, it entered into voluntary administration and on 23 May 2016 went into liquidation. [3] Of particular relevance to this proceeding is that on 25 May 2016, the respondent issued an EPO against the applicant in person requiring: (i) That by 25 August 2016 the applicant lodge a bank guarantee to the value of $5,500,000 to secure compliance with the EPO; 1 Appellant s written outline regarding application for stay, para 1(b).
4 (ii) (iii) By 26 September 2016 to submit a report to the respondent detailing works to be undertaken to achieve specified rehabilitation works referred to in the order; By 1 November 2019 to carry out specified rehabilitation works to the land specified in the order. [4] The applicant unsuccessfully sought to have the EPO set aside under an internal review process and on 4 August 2016, filed his appeal in this court seeking to have the decision to issue the EPO set aside. At or about the same time, he sought a stay of his appeal pending the determination of preliminary matters and, on 12 August 2016, Rackemann DCJ ordered a stay until final determination of the preliminary matters. On 30 August 2016, Everson DCJ dismissed the applicant s case. On 11 October 2016, he appealed that decision to the Court of Appeal. That appeal was unsuccessful and on 13 December 2017, the High Court dismissed his application for special leave. [5] It is convenient to note at this stage that the notice of appeal asserted a number of grounds upon which the applicant said he should succeed. Those grounds, by way of summary, could be described as the denial of natural justice point, the special circumstances point, the not a related person point, the prematurity point and finally, the merits point. The matters decided by Everson DCJ and the Court of Appeal against the applicant were the denial of natural justice and the special circumstances points. [6] On 22 December 2017, the applicant filed the subject applications in this court. The relief sought is: A. An order pursuant to section 535 of the Environmental Protection Act (1994) granting a stay of the decision to issue the Environmental Protection Order the subject of this appeal pending the final resolution of this appeal by the court; B. An order that these proceedings be stayed pending a final resolution of the related criminal prosecution involving the applicant and; C. Such further or other orders as the court considers appropriate.
5 [7] On 29 January 2018, the criminal proceedings against Linc commenced in the District Court before Shanahan DCJ. That trial has a number of unusual features including that the company is not represented. Accordingly, notwithstanding that there is a judge, jury and prosecution, there are no defence lawyers and no defendant in the dock. That occurred as a consequence of proceedings dealt with by Mullins J on 17 October 2016 which, in effect, determined that it would be justified to not cause Linc to defend the charges. In such circumstances, a plea of not guilty was entered on behalf of that company by the trial judge. Those proceedings have been underway for several weeks however, are yet to conclude. It was estimated that the trial could take nine weeks or more. [8] In the meantime, on 13 September 2016, the respondent filed criminal complaints against the applicant in the Dalby Magistrates Court alleging that he failed to ensure that Linc did not wilfully and unlawfully cause serious environmental harm. On 11 November 2016, two further criminal complaints were filed against the applicant alleging similar offences. At this stage it is expected that these matters will be listed for mention in the Magistrates Court at Brisbane on 16 April 2018. Between late May and early June it is expected that the applicants application to cross-examine witnesses at the committal hearing will be determined and, as I understand it, a three week committal hearing is to be listed in the Magistrates Court at Brisbane commencing 18 July 2018. [9] It is impossible of course to predict the outcome of the committal proceedings. However, in the event that the applicant were committed for trial on all or some of the charges, the resultant criminal proceedings could potentially take many months if not years to be finalised. 2 Before the trials proceed by way of indictment in the District Court there could be any number of preliminary issues to be determined and, after the conclusion of the trial, in the event of one or more guilty verdicts, there could be a number of appeals. [10] That I had the power to grant or refuse either or both applications for a stay was not put in issue. While the two applications are, of course, closely inter-related it is appropriate that they be dealt with separately. 2 The trial was described as being complex and highly technical and that the committal brief contained circa 100,000+ documents (circa 158 lever arch files). See Appellant s written outline regarding application for stay, paras 35-37.
6 The proceedings in this court [11] As I have already identified, the denial of natural justice point and the special circumstances points raised in the applicants notice of appeal have been determined in favour of the respondent. That leaves only the related person point, the prematurity point and the merits point to be determined. In the appellant s written submissions it is asserted that the applicant has put forward detailed and cogent grounds in the appeal, and: 3 Before the determination of the appeal, should the decision take effect, Bond would be subject to serious, irreversible, damage in having to provide the bank guarantee and to either start rehabilitation or suffer cost penalties in delaying the start of rehabilitation. Failure to comply with an EPO is an offence under section 361 of the EP Act. Significant penalties can apply upon conviction. Specifically in relation to the stay of the appeal, Bond faces serious criminal charges, which have a significant factual overlap with the subject matter of the EPO. A hearing is listed in the Magistrates Court in July 2018 to determine whether Bond is committed to stand trial in the District Court. There is a real risk of prejudice to Bond in the conduct of his defence in the criminal trial, if this appeal is forced to proceed before that criminal trial. (Emphasis added) [12] Two points need to be made about those submissions at this stage. The first is that technically, the applicant is already in breach of the EPO insofar as it is concerned with the bank guarantee and reporting requirement, that liability having crystalised after the refusal of the High Court to grant special leave. The date concerning the last obligation under the EPO is still well into the future. Second, it was conceded by Mr Gore QC, senior counsel for the applicant, that any such factual overlap and real risk of prejudice do not arise out of the related person and/or prematurity points and, even in respect of the merits point, it is only paragraph 27 of the notice of appeal that 3 Appellant s written outline regarding application for stay, paras 11-14.
7 could give rise to any real risk of prejudice. 4 Paragraph 27 of the notice of appeal states: The grounds identified by the EPO were erroneous because for the period relevant to the EPO, Linc Energy Ltd complied with its general environmental duty and complied with the conditions of the Environmental Authorities referred to in the EPO. [13] The terms of the stay granted on 12 August 2016 were specific. The operation of the decision to issue the EPO was stayed only until the final determination (whether by appeal or otherwise) of the preliminary points. 5 Mr Gore accepted fresh stays were required. 6 [14] Returning to the factual overlap giving rise to a real risk of prejudice to the applicant. Mr Gore, during oral submissions, put it in these terms: 7 Your Honour, the principal overlap is the is paragraph 27, in the notice of appeal, where the appellant asserts that Linc complied with its general environmental duty and complied with the conditions of the environmental authorities. That is going to be central, if your Honour goes back to the chronology to 13 September 2016, to the three charges of failing to ensure that Linc did not wilfully and unlawfully cause serious environmental harm. And 11 th of November 2016, the two further charges in the same terms were the subject of a complaint against the appellant. So there is inevitable overlap between those charges and the appellant s assertion in paragraph 27 that the company complied with its general environmental duty. (Emphasis added) [15] The charges against Linc are five charges of wilfully and unlawfully causing serious environmental harm. The particulars in respect of each of the five charges are essentially to the effect that the company recklessly or grossly negligently conducted itself in the operation of gasifiers in such a way that it created and/or enhanced pathways in the land form, 8 and failed to effectively control underground coal 4 Transcript (T) 1-17 ll 20-46: T 1-25 L 1l 7-46. 5 Exhibit 1, volume 1, tab 5. 6 T1-32 ll 14-40. 7 T1-7 ll 20-30. 8 Charge 1.
8 gasification 9. Charges one and two are concerned with the operation of gasifier two, charge three gasifier three, charge four with gasifier four and charge five with gasifier five. 10 [16] The charges against the applicant are concerned with the operation of the same five gasifiers and allege in respect of each of them that: Between the 1 st day of July 2007 and the 1 st day of 2008 at Chinchilla Peter Adam Bond being an executive officer of the corporation Linc Energy Ltd (in liquidation) did fail to ensure that the corporation complied with the Environmental Protection Act (1994), contrary to section 493 (2) of the Environmental Protection Act (1994), when the said corporation did wilfully and unlawfully cause serious environmental harm, contrary to section 437 (1) of the Environmental Protection Act 1994. [17] The cause of the serious environmental harm alleged against the applicant is to the same effect as the criminal charges concerning Linc, namely, that each of the gasifiers were operated in such a way that they created and/or enhanced pathways in the land form 11 or failed to effectively contain underground coal gasification. 12 [18] While there is clearly a high degree of overlap in the nature of the offences alleged against Linc and the applicant, there is nonetheless a material difference. The proceedings against Linc are concerned with it conducting itself in a reckless or grossly negligent way. Of course, a company can only act through living persons. Notwithstanding, in the Linc trial, the focus is on the actions and/or inaction of the company and the consequences thereof. On the other hand, the focus of the allegations against the applicant is that he failed to ensure that Linc did not, in respect of each of the relevant gasifiers, conduct its operation in a reckless or grossly negligent way. A guilty verdict against the company does not necessarily mean that the applicant is, and would be found, guilty of the charges laid against him. In this context the following exchange took place between myself and Mr Gore: 13 9 Charges 2, 3, 4 and 5. 10 Exhibit 1, vol 2, tab 14, pp 103-114. 11 Charge 1. See exhibit 1, volume 1, tab 13. 12 Charges 2, 3, 4 and 5. See exhibit 1, tab 13, pp 25-36. 13 T1-17 ll 21-47; T1-18 ll 1-4.
9 Q. The matter raised in paragraph 27 of the notice of appeal is that Linc Energy complied with its duty. The matters raised against or alleged against your client in the proceedings currently before the Magistrates Court are that he no doubt as a principal or at the very least a director or CEO I m not sure but in whatever capacity, he failed to ensure that the company did what it ought to have done. A. And, your Honour, there has to be substantial overlap in the case. It s to do with the gasification process that is said to have caused environmental harm, and the way in which that process was operated or carried out. Q. Look, I fully appreciate that. But a finding by this court, by way of example, that Linc Energy had not complied with its general environmental duty would not necessarily mean or it would not necessarily follow that Bond was guilty of the allegations which are the subject of the proceedings currently before the Magistrates Court. They re quite different, aren t they? A. The step, with respect, that your Honour is missing is that if the appellant is required to conduct this appeal prior to the committal proceedings and so to make good his allegation in paragraph 27, he will be required, presumably, to give evidence from his perspective as to how the gasification process was carried out and that will, necessarily, involve overlap with the evidence that s relevant to the criminal proceedings, so it s in that context that he would either claim privilege at the start. And so the trial of this matter grinds to a halt for that reason alone or if he starts to give evidence that involves a plain overlap, the court would be required to caution him, so it
10 your Honour asked the question whether a finding that paragraph 27 was made good would affect the criminal trial, that s not the issue. The issue is whether in seeking to prove paragraph 27 there are going to be difficulties for --- (Emphasis added). [19] Those arguments were advanced in the applicant s written reply: 14 The ROS submits that Bond has not established the prejudice he would suffer in the criminal case, if this appeal were to progress first. As identified in Bond s primary Outline (paragraph 49), the point made by the High Court in Zhao was that it is not necessary to state specific matters of prejudice before a stay could be contemplated. As the Court observed, to require specific points to be identified on the stay application, would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid. Putting that point of principle aside, the risk of prejudice of Bond s criminal defence is plain. It is not correct for the ROS to submit that there is no significant factual overlap between the two cases. The very heart of both cases is whether the site is contaminated; if so, to what extent; whether that contamination was lawful or unlawful; and the extent to which Bond is personally responsible. If Bond was required to progress this appeal he will have to advance evidence relating to the state of the site. He will have to advance evidence about his involvement. He will have to advance arguments about the lawfulness of activities on the site. The first two of those would put him at risk of effectively admitting in this case, an important ingredient of the criminal case. To reveal his arguments 14 Appellant s reply at paras 10-14 where ROS = respondent s outline of submissions.
11 in this appeal about lawfulness would prejudice his defence of the criminal case. The ROS (at 17 and 18) seeks to differentiate between the two cases. But what is said there reinforces the relationship between the two. The question is about environmental harm on the site. Bond simply cannot seek to argue and win this appeal without it potentially prejudicing his criminal defence. (Footnotes omitted/emphasis added). [20] The contamination issue is dealt with below. As to the requirement of having to advance arguments about the lawfulness of activities on site, that will obviously involve matters of fact and law. As I understand the authorities to which I was referred, it is not immediately apparent that they extend the same level of concern about prejudice that might arise out of the application of the deep rooted right to silence in criminal proceedings, as compared to the potential of having to reveal arguments on matters of law. [21] Nevertheless, that a party may be required during the civil proceeding to assist the prosecution by alerting it of potential legal arguments and defences and other tactical elements, would still constitute a potential for prejudice that needs to be brought into account in the relevant balancing exercise. 15 [22] The applicant s oral and written submissions reveal two things in particular. First, the concerning matters underlying the factual overlap are that he would have to give evidence about the state of the site and the gasification process and his involvement in that process. Second, that there is a genuine risk that the applicant would not be able to successfully prosecute his appeal in this court because it may be necessary for him to claim privilege and refuse to answer questions. Or, if he chose to answer those questions, his answers might be used against him in the criminal proceedings. 16 Whether or not he claims privilege is of course a matter for him. 15 Re AWB Ltd (No 1) (2008) 21 VR 252 per Robson J, referred to with apparent approval in White v ASIC & Ors (2013) QCA 357 at [22] but subject to qualification at [23]. 16 It was not contended that the applicant would be prejudiced through, by way of examples, by the burden of having to prepare for both sets of proceedings or by way of adverse publicity or due to proximity of the civil and criminal proceedings.
12 [23] In respect of all charges against Linc, the alleged unlawful conduct is that its conduct was not authorised under an environmental authority or any other instrument referred to in the Environmental Protection Act 1994. It is alleged that that unlawful conduct then caused serious environmental harm. Those allegations are also made against the applicant in the criminal proceedings brought against him. 17 [24] Section 493A of the Environmental Protection Act 1994 (EPA) is concerned with when environmental harm or related acts are harmful. Section 493A(2) provides that a relevant act is unlawful unless it is authorised to be done under, among other things, an environmental authority on prescribed conditions. Pursuant to s 493A(3): (3) However, it is a defence to a charge of unlawfully doing a relevant act to prove (a) the relevant act was done while carrying out an activity that is lawful apart from this Act; and (b) the defendant complied with the general environmental duty. (4) The defendant is taken to have complied with the general environmental duty if the defendant proves (a) an accredited ERMP 18 applied to the doing of the relevant act; and (b) to the extent it is relevant, the defendant complied with the ERMP. (5) The defendant is also taken to have complied with the general environmental duty if the defendant proves (a) a code of practice applied to the doing of the relevant act; and (b) to the extent it is relevant, the defendant complied with the code; and (c) no accredited ERMP applied to the doing of the relevant act. 17 Exhibit 1, volume 1, tab 10, pp 25-35. 18 ERMP: Environmental Risk Management Plan.
13 [25] As identified, it is pleaded in paragraph 27 of the applicant s notice of appeal that Linc complied with its general environmental duty and complied with the conditions of the Environmental Authorities referred to in the EPO. In the event of not guilty verdicts in the Linc trial, that could have major ramifications for both the civil and criminal proceedings involving the applicant. One might expect equally serious ramifications to arise in the case of one or more guilty verdicts being returned against that company by virtue of section 493 of the EPA. [26] Pursuant to s 493(2) and (3) of the EPA, evidence that a corporation committed the relevant offence is evidence that the executive officers committed the offence of failing to ensure that the corporation complies with this Act. That the company is guilty of committing an offence under the EPA is not, however, decisive. S 493(4) provides that it is a defence for an executive to prove he took all reasonable steps to ensure relevant compliance or was not in a position to influence the conduct of the company in relation to the offence. [27] As the potential extent of the operation of s 493 was not raised, let alone argued before me, I will not express a final view on the matter. However, in my view, it is at least arguable that a certificate of conviction against a corporation at the trial of an executive officer of that corporation would constitute evidence that the corporation had committed the relevant offence for the purposes of s 493(3). [28] During oral submissions, Mr Gore seemed to accept that the state of the site will be largely a question of fact and that the real issue is the applicant s potential responsibility for that state. 19 Even so, it is clear from the EPOs 20 that the evidence going to the state of the site, involving as it must, consideration about whether or not contamination exists, and, if it does, the extent thereof, is likely to require consideration of a number of complex issues. Often, the type of evidence that usually falls within the province of experts. [29] As already identified, paragraph 27 of the notice of appeal is concerned with what Linc did or did not do. On the other hand, the focus of the criminal proceedings is what he did or did not do while that company operated on the subject site. According to Mr Gore, whether that company did what is alleged in paragraph 27 of the notice 19 T 1-12, ll 33-40. 20 Exhibit 1, volume 1, tab 1.
14 of appeal is inextricably linked to the so-called gasification process. 21 While that process was not explained nor was I taken to any evidence that might explain it, it would not be unreasonable to infer that it would also involve consideration of quite complex facts and matters. [30] Again, I was not taken to any material that revealed why it would have to be the appellant who gave evidence about that process. It might be one thing to infer that he would have had knowledge about the operational aspects of the company at the time. However, in the absence of any evidence pointing in that direction, of which there is none, I am not satisfied that it should be inferred that it would necessarily require the applicant to give evidence about the condition of the site or the gasification process. I am left with real concerns that the applicant would not have the expertise and/or experience to give any meaningful evidence about either of those matters. Indeed in this context, in an earlier affidavit of Mr Marshall, sworn 7 February 2018, it was stated: 22 I have discussed with Mr Bond the various other requirements of the EPO Mr Bond has informed me, and I verily believe that: 1. He does not possess the necessary technical skills, qualifications or expertise to prepare the technical reports required by the EPO. 2. He does not possess the necessary technical skills, qualifications or expertise to personally undertake the site remediation work required by the EPO. 3. He would need to engage several consultants/experts to do that report/work. He expects that this will cost hundreds of thousands of dollars [31] At no stage of this proceeding was my attention drawn to the operation of s 493 of the EPA and, in particular, the defences provided pursuant to s 493(4). However, having regard to the matters raised in paragraph 27 of the notice of appeal and Mr 21 T 1-12 ll 33-40. 22 Exhibit 1, volume 1, tab 13, paras 14 and 15.
15 Gore s identification of the areas of concern, it is difficult to discern any appreciable risk of the applicant having to give evidence that might have relevance to the defences provided for, and if there were any risk, the risk would be small. In this context, evidence concerning the relevant position of the executive officer for the purposes of s 493(4) of the EPA could reasonably be expected to be largely, if not entirely, irrelevant to the substance of the pleading in paragraph 27, which is concerned with what the company did and did not do and the consequences thereof. [32] Turning to some of the case law to which I was referred the general rule that neither an accused nor the Crown were entitled as a right to have a civil proceeding stayed because of a pending or possible criminal proceeding 23 has being the subject of considerable analysis and, arguably, a degree of softening in more recent times. In Yuill v Spedley Securities Ltd (in liquidation) Kirby P (as he then was) said: 24 There are, in my view, considerations additional to those which are referred to by Wootten J which it would be relevant to consider in proceeding to determine an application for a stay as before Rolfe J. For example, it is in my opinion relevant to take specifically into account the public s own interest in the normal primacy of the administration of criminal justice, being a part of the public law of the community relevant to its good order and peaceful government. This consideration might help explain why, ordinarily but not universally, such proceedings should be heard and determined first.. A further consideration in cases of this class is the deep rooted inclination in our law to avoid, directly or indirectly, depriving a person of the right to silence in criminal proceedings. Sometimes the prior litigation of the criminal trial may have that effect, either by its interlocutory procedures or by the need of the accused, in the forensic setting of the civil trial, to give evidence or ask questions, thereby disclosing a defence to the outstanding criminal charge. More than lip service must be paid by courts to the preservation of these enduring features of the criminal process, whether in the interpretation of apparently inconsistent statute or in the exercise of a discretion to stay 23 McMahon v Gould [1982] 7ACLR 202, 206-208 per Wootten J. 24 Yuill v Spedley Securities Ltd (in liquidation) (1992) 8 ACSR 272 at 274-275.
16 civil proceedings until related proceedings are completed. (citations omitted). [33] A number of cases in this context were conveniently set out in the decision of Flanagan J in Flegg v Hallett. 25 In that case, His Honour was concerned with an application to stay a defamation action until the determination of criminal proceedings against the applicant. The criminal charges were that of making a demand with menaces upon agencies of the government. The head note to that case identifies that the stay was refused first, because the applicant had not demonstrated how, in defending the defamation proceedings at trial, his criminal proceedings would be prejudiced or his right to silence affected. Second, that he would be able to defend the defamation proceedings without any danger of injustice in the criminal proceedings, and finally, that the plaintiff would be materially prejudiced if the stay were granted. [34] In White v Australian Securities and Investments Commission & Ors 26 Muir JA with whom Gotterson JA and Applegarth J agreed, held that an applicant had no absolute right to a stay of a proceeding. Further, that in considering whether a stay should be granted the rights of other parties including a consideration of the public interest must also be taken into account. The issue of public interest is a relevant consideration in this proceeding and is discussed further below. [35] In Commissioner of the Australian Federal Police v Zhao 27 the High Court observed: Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial. [T]he courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order. 25 [2014] QSC 220. 26 (2013) QCA 237. Cited with approval by Flanagan J in Flegg v Hallett [2014] QSC 220 at [33]. 27 (2015) 255 CLR 46 at [35]-[36].
17 [36] In Zhao notwithstanding the above observations, a stay was granted. The court relevantly observed: 28 The prospect that civil proceedings may prejudice a criminal trial and that such prejudice may require a stay of the civil proceedings is hardly novel. In some jurisdictions, procedures are provided for making an application for a stay in such circumstances. The risk of prejudice in a case such as this is real. The second respondent can point to a risk of prejudice; the Commissioner cannot. (Emphasis added) [37] The factual situation in Zhao is materially different to that before me. In Zhao the applicant was subject to civil proceedings which in effect sought the forfeiture of property on the basis that it was the proceeds of unlawful activity. At the same time he was also facing criminal proceedings that he aided and abetted another to deal with money or property. The court observed: 29 The offence specified as the basis for the forfeiture proceedings is therefore the same as that to be prosecuted in the criminal proceedings, save that in the latter the offence is stated with respect to a particular period in 2013. This difference does not mean that the matters which will be gone into in the two proceedings will not be the same, or substantially the same. The issue in the two proceedings is identical. It concerns a second respondent s dealing with Kim. Those dealings include, but are not limited to, the financing of the second respondent s purchase of the residential unit in 2011, which is the focus of the forfeiture proceedings. (Emphasis added). [38] While there is a clear and significant overlap of facts, matters and circumstances in the respective criminal proceedings, it could not be reasonably said that the issues to be agitated in this court pursuant to the applicant s notice of appeal are identical or near identical to those likely to arise in the criminal charges he faces. I agree with the submissions made by Mr Horton in this regard. When one looks at the real issues involved in the applicant s proceeding in this court and the upcoming criminal proceeding, there is, in reality, no significant factual overlap. 28 Ibid at [47]. 29 Ibid at [5].
18 [39] It was also submitted on behalf of the respondent that there were a number of features which worked against the granting of a stay in respect of the proceedings before this court. First, that the proceedings were instituted by the applicant. I am unable to accept that proposition. It is inconsistent with a number of authorities to which I was referred and, with respect, at least to me, has no apparent logical basis. In this context I am also unable to accept that delay, to the extent that there is delay, is a matter that works against the applicant. Second, it was submitted that as a consequence of Mr Bond (through Linc) commencing earlier civil proceedings and, [t]herefore, much of what Mr Bond could say in any defence of the criminal charges (insofar as they may overlap with the present appeal) has already been revealed in civil proceedings which Linc itself instituted. 30 In circumstances where I was not taken through in any detailed way what the evidence was in those proceedings, I am also unable to accept that submission. [40] The last two propositions advanced by the respondent overlap. They, in effect, identify that the finalisation of the criminal proceedings might not occur for some considerable time and that there is a public interest in having appeals against administrative decisions finally determined, rather than being left languish for potentially years. 31 Those submissions have considerable force. It could not be said that the stay would not cause any prejudice to the respondent. It is, as is any other litigant, entitled to have proceedings brought against it litigated in a timely way, save for such circumstances that might warrant delay. [41] On balance, I have reached the conclusions that there is a small risk that the applicant will suffer some prejudice in requiring him to prosecute his appeal before his criminal matters are dealt with. But, to the extent that there may be that element of risk, it is outweighed by the prejudice to the respondent and the public interest in having this appeal left unresolved for an uncertain but lengthy period of time. This appeal has been on foot now since August 2016. To allow it to languish for a further indefinite period of time would be likely to tend to erode public confidence in the administration of justice. 32 This may not be a case involving the prosecution of proceedings involving civil penalties and disqualification, but it is one involving strong public 30 Respondent s written outline of submissions at para 22. 31 Ibid paras 23 and 24. 32 White v ASIC & Ors (2013) QCA 357 at [33].
19 interest. Namely, the determination in a timely fashion of what, on the face of it, is a matter involving significant environmental issues. The stay of the Environmental Protection Order [42] S 535(1) of the EPA provides that the Court may grant a stay of a decision to secure the effectiveness of the appeal. As was the case concerning the application to stay the appeal, the application to stay the operation of the EPO involves balancing the competing interests of the applicant, the respondent and the public interest. [43] In the applicants written submissions for reliance was also placed on Jesasu Pty Ltd v Minister of Mineral Resources 33 and Paringa Mining & Exploration Co PIC v North Flinders Mines Ltd 34 where Mason CJ (delivering the judgment of the court) identified relevant factors as being whether there is a serious issues to be tried, where the balance of convenience lies and what should be done to preserve the status quo. In respect of Jesasu it is helpful to set out the relevant passages in full: Each application must be determined on its own merits and on the facts proved. An injunction is not relief to be given by a Court lightly and simply for the asking for it. Where sought to protect the utility of an appeal, a proper case must be established. But once established, the injunction will issue on the usual or special terms. The position may be different where the appeal is futile or plainly meritless. The position may also be different where what is involved is not a first level appeal (as of right) but a further appeal, particularly one which needs the leave or special leave of an appellate court However, where, as here, there is an appeal as of right to this Court which the appellant has exercised, where no more relief is sought than to preserve the status quo pending the outcome of the appeal, where the appeal appears to raise an arguable point, where no special prejudice is alleged, where the Court could deal with the questions promptly and where the failure to give relief may involve serious (and arguably irreversible) damage to the appellant and loss of valuable rights, the balance of convenience favours the issue of an injunction 33 (1987) 11 NSW LR 110. 34 (1988) 165 CLR 452.
20 upon appropriate conditions. This is not an exercise of judicial caprice It is the resolute defence by a court of its own process. [44] The principles in Jesasu were discussed in Network Ten Pty Ltd v Rowe where Santow JA said: 35 10. The principles governing the grant of interlocutory injunctions to preserve the status quo pending an appeal are uncontroversial. Those principles apply to an appeal even from dismissal of a suit seeking a final injunction. Those principles were enunciated by the Court of Appeal in Jesasu Pty Ltd v Minister for Mineral Resources There are conveniently distilled in Meagher Gummow and Lehane s Equity Doctrines and Remedies : where: (i) (ii) (iii) (iv) (v) (vi) There is a right of appeal which has been exercised; On appeal no greater right is asserted than is necessary to preserve the status quo pending the outcome of the appeal; The appeal seems to raise an arguable point; No special prejudice to the respondent is alleged; The court can dispose of the appeal promptly; and Failure to grant relief may involve serious damage to the applicant, an interlocutory injunction should be granted to preserve the utility of the appeal 11. However, in so summarising the leading judgment of Kirby P the last element (vi) understates the hurdle to be passed before interlocutory relief based on balance of convenience should be granted. What is required is that the failure to give relief may involve serious and arguably irreversible damage to the appellant and loss of valuable rights. Serious damage without more may be adequately compensable by damages, depending on the circumstances including, in particular, the plaintiff s capacity to establish causation for all the 35 [2006] NSWCA 4.
21 adverse consequences of a wrongful act (References omitted). [45] The EPO required three things to happen on different dates. First, that the applicant pay a bank guarantee of $5,000,000, initially by 25 August 2016 but, by virtue of the stay granted by Rackemann DCJ, until the determination of the preliminary points. The second is that the applicant submit a report to the department that details the works to be undertaken to achieve specified rehabilitation works. That was to have occurred by 26 September 2016, but again pursuant to the stay granted by Rackemann DCJ, until the determination of the preliminary points. Third, the applicant is to carry out specified rehabilitation works to land at Chinchilla by 1 November 2019. That is the only date that has not been overtaken. [46] Under the heading The accusations of disobedience in the applicant s written reply, a number of submissions were made concerning the first two requirements of the EPO. 36 I must confess that I found both the written submissions and oral submissions on this aspect of the proceeding to be confusing. That said, it appears to me that in terms of the stay, the obligation to satisfy those requirements crystallised when the High Court refused leave to appeal. However, given the sum involved in respect of the first requirement it would not be unreasonable to expect that the obligation would not have to be met until a reasonable time frame thereafter. It was not explained why the respondent has not taken any steps to secure performance under the EPO. It is my view, however, that it would not be too speculative to suppose that events were simply overtaken by the filing of these applications. In any event, I cannot accept that there is any requirement for the respondent to amend the existing EPO or issue a fresh one. [47] Even accepting that the appeal is not futile or plainly meritless, it could not be sensibly said that the course of action contended for by the applicant would lead to the questions in the appeal left to be decided being dealt with promptly. As already discussed, it could take months if not years with the potential for appeals in the criminal process and then, following the hearing of the applicant s appeal to this court, the potential for further appeals. Further, the status quo could not be said to be sensibly able to be maintained. The date for compliance with two of the dates 36 Appellant s reply, paras 3-7.
22 prescribed in the EPO have already passed. In effect, what is being asked for, at least in part, is an excusal of lack of performance from the date of the determination of the preliminary matters. Or, to adopt the terminology of the respondent, to grant in effect immunity from sanction for his non-compliance. 37 [48] In respect of the bank guarantee it, unsurprisingly was required to secure compliance with those parts of the EPO concerned with the rehabilitation of the subject land. It was submitted on behalf of the applicant: 38 Without a stay of the EPO, the obligation to lodge a bank guarantee as described above would cause Bond a significant financial imposition, before Bond has a chance to test in this court, the points raised in his appeal. As detailed in paragraph 13 of the Fourth Marshall affidavit, Bond s only available avenue of satisfying the first requirement would be to secure the amount of the bank guarantee against cash or real property. For either option, Bond would incur very substantial interest charges. [49] In the aforesaid Marshall affidavit it was stated: 39 Westpac would provide a bank guarantee of $5,500,000 only if it was secured against cash or real property. If Mr Bond were to provide cash as a security for the guarantee he would be charged (by Westpac) approximately 2.5% interest plus $50,000 service fee per annum which equates to a total cost to Mr Bond of $187,500 per year ($15,625 per month); If Mr Bond were to use real property as a security for the guarantee he would be charged (by Westpac) up to 8.43% interest per annum which equates to a total cost to Mr Bond of $463,650 per year ($38,637.50 per month); and 37 Respondent s outline of submissions, para 35. 38 Appellant s written outline regarding application for stay paras 7 and 8. 39 Exhibit 1, volume 1, tab 13, p 4.
23 If Mr Bond were to seek to provide the bank guarantee by way of an unsecured arrangement with a second tier lender he would be charged interest in the order of 13.15% per annum which equates to a total cost to Mr Bond of $723,250 per year ($60,270.83 per month). [50] After referring to a decision of the Court of Appeal of NSW in Jesau Pty Ltd v Minister for Mineral Resources 40 it was submitted further on behalf of the applicant that the EPO should be stayed because: 41 (a) Bond has exercised his right to appeal (b) On the appeal, Bond asserts no greater right than is necessary to preserve the status quo pending the outcome of that appeal (c) The appeal raises arguable points. The Notice of Appeal speaks for itself. (d) No special prejudice to the Respondent is alleged. The Respondent has advanced no evidence about prejudice to it. (e) Failure to grant relief would involve serious and irreversible damage to Bond. [51] The first can be accepted. The issue of preserving the status quo has been dealt with. As to the third point, while the prospects of success on the appeal are a relevant consideration, unless it could be said that the appeal was frivolous or not otherwise arguable, courts will generally not descend into a detailed assessment of the prospects of the appeal. I would not go so at this stage as to describe the appeal, or what is left of it, as being frivolous or otherwise doomed to fail but, in the event that Linc were to be found guilty of the charges currently being dealt with, it strikes me that the applicants prospects of prosecuting a successful appeal might be further weakened, at least insofar as paragraph 27 is concerned. While not expressing a final view on the matter, in the event of guilty verdicts against the company, the operation of s 79 of the Evidence Act 1977 might well be a matter of consequence. [52] In this context it is also quite clear that the preliminary points which have been decided against the applicant were probably the strongest or most potentially determinative matters. According to Mr Gore: [T]hose preliminary points were more than just preliminary points. They had the capacity, if decided in the appellant s 40 (1987) 11 NSW LR 110. 41 Appellant s written outline regarding application for stay, para 50.
24 favour, of disposing of the entire appeal in the appellants favour. So it was understandable that the order made by Justice (sic) Rackemann would be framed in those terms, because it was on the cards on any view of things, that a favourable determination of those points would finally dispose of the appeal. 42 [53] As to the fourth point, it is true that the respondent did not point to any direct prejudice that would be visited upon it in the event that a stay were granted. Of particular relevance is that there is no suggestion of any ongoing environmental harm being caused. 43 However, as Mr Horton QC, senior counsel for the respondent, pointed out, there is of course a significant public interest element to this matter which could be prejudiced by delay. That is, it is in the public interest to have the land rehabilitated by the applicant as quickly as is practicable or, have sufficient funds available to rehabilitate the land in the event that the applicant did not cause it to be done. [54] As to the last matter, I can readily accept that having to provide a bank guarantee of $5,500,000 might have serious and irreversible financial consequences to the applicant. However, that that obligation currently lies with the applicant has to be seen in context. The initial applications for stays were sought pending the final resolution of this appeal. 44 A chronology was included in the respondents written submission that identified that the stay granted by Rackemann DCJ was by consent. That was not challenged, and the fact that no reasons were given, and that the final draft of the orders bares the applicant s solicitors name tend to support that the orders were, in fact, made by consent. 45 That was a tactical decision that the applicant now seeks to resile from in circumstances where he has already had the benefit of the stays for in excess of 18 months. [55] As already identified, that the applicant elected not to seek a stay pending the outcome of his appeal to this court, but instead until the finalisation of the preliminary matters means that the present proceeding is for fresh or new stays based on materially different grounds which, if granted, will inevitably lead to further delay in the finalisation of the proceedings and, in the event that the appeal was unsuccessful, the satisfaction of the requirements of the EPO. That said, the serious financial 42 T1-32 ll 28-33. 43 T1-33 ll 36-45; T1-34 ll 8-20. 44 Exhibit 1, tab 4. 45 Exhibit 1, tab 4.