FEDERAL COURT OF AUSTRALIA Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237 PRACTICE AND PROCEDURE – pleading – particulars – purpose of pleadings and particulars generally – application for further and better particulars – underlying defects in statement of claim – statement of claim struck out with leave to replead in lieu of order for further and better particulars – claim for mandatory injunctive relief – principles attending formulation of such injunctions ENVIRONMENT LAW – meaning of "action" – meaning of recklessness having regard to Criminal Code Act 1995 (Cth) Criminal Code Act 1995 (Cth) ss 3.1, 4.1, 4.2, 4.3, 5.1, 5.3, 5.4, 5.6, 6.1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 142, 142A, 142B, 475, 479, 498B, 523, 528 Federal Court of Australia Act 1976 (Cth) s 31A Trade Practices Act 1974 (Cth) s 80 Federal Court Rules O 11 r 2(a), O 12 r 5, O 15 r 8, O 20 r 5 Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1 applied Dare v Pulham (1982) 148 CLR 658 applied H 1976 Nominees v Galli (1979) 30 ALR 181 cited Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 considered ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 considered Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 considered McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 cited Morris v Redland Bricks Ltd [1970] AC 653 considered Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 cited Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited Wide Bay Burnett Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900 cited Bullen & Leake and Jacob's, Precedents of Pleadings (12th ed, Sweet & Maxwell, 1975), pp 113-114 WIDE BAY CONSERVATION COUNCIL INC v BURNETT WATER PTY LTD QUD 319 of 2008 LOGAN J 18 march 2009 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 319 of 2008 BETWEEN: WIDE BAY CONSERVATION COUNCIL INC Applicant AND: BURNETT WATER PTY LTD Respondent JUDGE: LOGAN J DATE OF ORDER: 18 march 2009 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The statement of claim is struck out. 2. The Applicant is granted leave to file and serve an amended statement of claim. 3. The Respondent is, consequentially, granted leave to file and serve an amended defence. 4. Save as aforesaid, the Respondent's application for the relief sought in its notice of motion filed on 2 March 2009 is dismissed. 5. The Applicant's application for the relief sought in its notice of motion filed on 4 March 2009 is dismissed. 6. The times within which the amended statement of claim and amended defence are to be filed and served and the costs of the respective notice of motion are reserved for consideration in conjunction with directions for the further conduct of this proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 319 of 2008 BETWEEN: WIDE BAY CONSERVATION COUNCIL INC Applicant AND: BURNETT WATER PTY LTD Respondent JUDGE: LOGAN J DATE: 18 march 2009 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The background to this case is described in an interlocutory judgement which I delivered on 12 December 2008 in respect of an application by Burnett Water for a stay of the proceedings: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900. That application was unsuccessful. The case concerns a dam on the Burnett River known as the Paradise Dam the construction and operation of which, subject to conditions, was approved by a Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). 2 Differences have emerged between the parties with respect to a number of issues of practice and procedure. 3 Burnett Water has sought the following orders: 1. That by 10 April 2009 the Applicant file and serve: (a) the further and better particulars requested in the Respondent's solicitors' letter dated 24 February 2009; (b) a statement of the design of the fish transfer device which, by the grant of the injunction sought in paragraph 2 of the Application, the Respondent would be compelled to install and operate. 2. Alternatively to paragraph 1(b) above, that: (a) the claim for relief in paragraph 2 of the Application be struck out; and (b) the Applicant have leave to file and serve by 10 April 2009 an Amended Application including a claim for a mandatory injunction, such leave being conditional upon the Amended Application including, or incorporating by reference, a statement of the design of the fish transfer device which, by the grant of the injunction, the Respondent would be compelled to install and operate. 3. Such further or other order as the Court deems fit. 4. That the Applicant pay the Respondent's costs of and incidental to this application. 4 For its part and aside from directions concerning expert and other evidence, the Conservation Council has sought the following orders: 1. The Respondent provide discovery of the following classes of documents in its possession, custody or power: (a) water quality data, reports or records relevant to any fish kills or poor water quality potentially affecting attractant flows to the downstream or upstream fishways; (b) reports or records on the collapse or malfunction of the main water inlet/outlet works of the dam affecting water releases from the dam to the extent that these may affect attractant flows to the upstream or downstream fishways; and (c) reports or records of any fish kills in the Paradise Dam reservoir or beneath the dam wall. 2. Discovery of the documents in paragraph 1 be given by serving the Applicant by Tuesday 24 March 2009 with: (a) a list of documents; and (b) electronic copies of the documents on the list. 5 I shall deal in turn with each of the issues raised. Particulars 6 In Dare v Pulham (1982) 148 CLR 658 at 664 Murphy, Wilson, Brennan, Deane and Dawson JJ jointly observed: Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) (1916) 22 CLR 490, at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron (1936) 54 CLR 572, at pp 576-577; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99, at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668). 7 Burnett Water is concerned not to disregard the pleadings and to fight the case on the issues so identified. To that end, in November last year it requested the Conservation Council to furnish particulars of the statement of claim. The Conservation Council answered that request but not in a way which Burnett Water submits was sufficient. 8 That the Court has power to order the furnishing of further and better particulars of a statement of claim is not in doubt. Order 12 r 5 of the Federal Court Rules confers such power. The question is whether in the circumstances that power should be exercised or whether Burnett Water has sought to play what was memorably described in the 12th (1975) Edition of Bullen & Leake and Jacob's Precedents of Pleadings (at 113-114) as "the particulars game"? The observations then made by the learned authors concerning particulars and that "game" remain true today: The tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than heretofore. There is a growing understanding among practitioners that giving the necessary particulars of pleading not only helps in preparing a case and in stating it with certainty and confidence but also manifests the strength of a party's case, while withholding particulars suggests a possible weakness in the case and a desire to spring surprise as to the oral evidence at the trial. On the other hand, practitioners are also aware, from their knowledge and experience, that particulars of pleadings beyond those that are really necessary may fetter the hands of a party too closely, or lay on him an increased burden of proof, or may disclose more than is tactically wise of his case at that stage. Hence there quite often develops a struggle, which goes under the popular title of the "particulars game," under which one party seeks to compel the opposite party to reveal more fully the case which he has pleaded and to tie him down to narrower issues, whereas the opposite party seeks to keep the issues as wide and as general as possible and to withhold as much of his own case as he can. [Footnote references omitted] 9 One riposte which the Conservation Council made to the application for an order for the provision of further and better particulars was the submission that no order should be made because Burnett Water had filed a defence and pleadings had closed. There is no merit in this submission. A party can be ordered to furnish particulars or further and better particulars at any stage of a proceeding. Pleadings indeed have closed, at least for the present. Discovery and inspection have taken place in respect of particular classes of documents. Trial dates have been fixed, but the trial does not commence until 7 September 2009. It is axiomatic that, in preparing further for that trial, including preparing and filing such affidavit evidence as it may be advised, Burnett Water know the case it has to meet. If that presently requires the furnishing of further and better particulars then there is nothing oppressive about an order requiring the Conservation Council to do that. 10 To put the particulars contest in context, it is necessary to set out exactly what was approved in, and condition 3 of, the Ministerial approval under the EPBC Act, as varied, para 2 of the claim for relief in the application and some excerpts from the statement of claim. 11 Condition 3 provides: [Burnett Water] must install a fish transfer device on the Burnett River Dam suitable for lungfish. The fishway will commence when the dam becomes operational. The Ministerially approved "action" (as to the statutory concept of which, more later) which was subject, materially, to this condition was: to construct and operate the Burnett River Dam with a capacity of 300,000 megalitres, on the lower Burnett River at 132km Average Middle Thread Distance (AMTD), and make controlled discharges of water for agricultural, commercial, domestic and environmental uses. 12 Paragraph 2 of the orders sought by the Conservation Council in its application is in these terms: 2. A mandatory injunction that, within 6 months of the date of this order, [Burnett Water] comply with condition 3 of the approval for the Paradise Dam granted under the EPBC Act by installing and operating continuously until 1 January 2052 a fish transfer device that is likely to allow any normal sized Australian lungfish (Neoceratodus fosteri) to move upstream and downstream of the dam without injury irrespective of the water level in the dam. 13 Paragraphs 6, 7 and 8 of the statement of claim make the following allegations: 6 The respondent has engaged, engages and, unless restrained by the Court, proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of the EPBC Act by failing since the dam became operational to install and operate a fish transfer device suitable for lungfish in contravention of condition 3 of the approval for the dam. Particulars of conduct constituting an offence or other contravention The respondent has installed and operated, is operating, and intends to continue to operate the upstream fishway and downstream fishway in a manner whereby: (a) The entrances to the upstream fishway and the downstream fishway are not likely to be found by lungfish attempting to move or migrate upstream or downstream of the dam wall. (b) The entrances to the upstream fishway and downstream fishway are too small for fully grown lungfish to enter. (c) The caged container in the upstream fishway is too small for fully grown lungfish. (d) The upstream fishway and downstream fishway do not operate continuously. (e) The downstream fishway is not suitable for lungfish to move or migrate downstream of the dam when water levels in the dam are beneath EL 62.0 m (57% of the full storage capacity of the dam) because the inlet to the downstream fishway is constructed above this height. (f) Lungfish are likely to be injured by the speed at which they are transported through the downstream fishway and the small dimensions of the pipes and downstream release pool. (g) Lungfish, particularly juveniles, are susceptible to predation while moving through the upstream fishway and the downstream fishway. (h) Lungfish exiting the upstream fishway or the downstream fishway are susceptible to predation at the release point. (i) Due to the matters raised in paragraphs 6(a)-(h), the upstream fishway and the downstream fishway are not likely (more than 50% probable) to allow any normal sized lungfish to move upstream and downstream of the dam without injury irrespective of the water level in the dam. 7 The respondent's contravention of condition 3 set out in paragraph 6 constitutes an offence or other contravention of sections 142 and 142B of the EPBC Act. 8 The respondent's contravention of condition 3 set out in paragraph 6 constitutes an offence or other contravention of section 142A of the EPBC Act. Particulars of offence against section 142A (a) The respondent has been reckless as to the contravention; and (b) The respondent's conduct results, will result in, or is likely to have a significant impact on a matter protected by a provision of Part 3 of the EPBC Act, namely the lungfish, a listed threatened species by: (i) Stopping, hindering, or reducing upstream and downstream movement or migration of lungfish in the Burnett River for feeding or reproduction. (ii) Causing a greater number of lungfish to move downstream in flood events over the dam spillway and, thereby, increasing mortality in the lungfish population due to death or injury of lungfish on the spillway. (iii) Unless restrained by the Court the impacts in paragraphs 8(b)(i) and (ii) will continue during the operation of the dam for the indefinite future. 14 In its filed defence Burnett Water, materially: (a) admits that the downstream fishway: (i) does not transfer lungfish when water levels in the dam are beneath 62.0 metres (being a level estimated to be achieved approximately 80% of the time) because the designed minimum operating level of the downstream fishway is EL 62.0; (ii) has not transferred lungfish because, due to drought conditions, water levels in the dam have not reached 62.0 metres; (iii) otherwise denies the allegations in paragraph 6 of the statement of claim; (b) denies the allegations made in paragraphs 7 and 8 of the statement of claim; and (c) further or alternatively, alleges that it has acted honestly and reasonably at all times and not at any time acted recklessly. 15 The particulars furnished in November last year by the Conservation Council in respect of para 6 and para 8 of the statement of claim were, to say the least, lengthy. It is though desirable, having regard to the way in which I have decided to dispose of the application, to set out those particulars in full. Paragraph 6 3 Insofar as it is alleged that: "(a) The entrances to the upstream fishway and the downstream fishway are not likely to be found by lungfish attempting to move or migrate upstream or downstream of the dam wall." (a) The facts, matters, and circumstances relied upon in support of the allegation that the entrance to the upstream fishway is not likely to be found by lungfish are: (i) The entrance to the upstream fishway is comprised of a single vertical slot located near the base of the Paradise Dam having a width of approximately 0.2 – 0.4 m and a height of several meters, part of which is submerged in the river channel. (ii) A relatively small volume of water is intermittently released by the respondent through the upstream fishway for the purpose of attracting lungfish to enter it. (iii) A larger volume of water is also intermittently released by the respondent adjacent to the upstream fishway from the Paradise Dam outlet works for the purpose of releasing water downstream from the dam and this water attracts lungfish attempting to move or migrate upstream away from the entrance to the upstream fishway. (iv) The applicant accepts that some lungfish will locate and enter the upstream fishway but having regard to the physical characteristics of its entrance, the presence of a larger attractant flow from the outlet works, its intermittent operation, and the behaviour of the lungfish, it is not likely (i.e. more than 50% probable) that lungfish attempting to move or migrate upstream will locate the entrance. (b) The facts, matters, and circumstances relied upon in support of the allegation that the entrance to the downstream fishway is not likely to be found by lungfish are: (i) The entrance to the downstream fishway is comprised of a single vertical slot located on a vertically orientated concrete chamber attached to the dam's intake tower on the upstream side of the dam wall. (ii) The entrance to the downstream fishway is approximately 0.2 – 0.4 m wide and 5.9 m high. (iii) The entrance to the downstream fishway is very small in comparison to the dam wall and there is little to channel or direct lungfish attempting to move or migrate downstream towards it. The dam wall is comprised of a 285 m widespillway and an additional wall area totalling approximately 400 m. This is extremely large in comparison to the entrance to the downstream fishway of 0.2 – 0.4 m. (iv) The entrance to the downstream fishway is fitted with a sliding gate able to raise the minimum height at which water can enter the chamber of the downstream fishway from 62 m elevation (EL) to 67.9 m EL representing, respectively, water levels equivalent to 57% and slightly above 100% of the capacity of the dam. (v) The downstream fishway is not able to operate beneath water levels less than 62.5 m EL to allow 0.5 m of water to flow into the entrance sufficient for lungfish to enter it. (vi) Since the commencement of the operation of the dam and to the time of filing these further and better particulars, water levels in the dam have not been sufficient to enable the downstream fishway to operate and lungfish would be required to jump out of the water to locate the entrance (a behaviour the species is not known to exhibit). (vii) When water levels exceed 62.5 m EL, the downstream fishway is intended to be operated intermittently by lowering the sliding gate at its entrance to allow water to enter it and thereby attract lungfish into it. (viii) The water flow into the downstream fishway will be, at best, very small in comparison to the area of the dam wall and the larger volume of water entering the main water outlet for the dam. The dam wall is approximately 400 m wide by 37 m high which is much larger than the approximate 0.2 – 0.4 m wide and 0.5 m high flow of water into the downstream fishway. In addition, the inflow into the downstream fishway occurs only at the top of the water column and adjacent to the much larger intermittent flow into the main dam water outlet. (ix) The intermittent release of water from the main water outlet of the dam will attract lungfish attempting to move or migrate downstream away from the entrance to the downstream fishway. (x) The applicant accepts that some lungfish may locate and enter the downstream fishway if water levels in the future are sufficient to allow it to be operated but having regard to the characteristics of the entrance to the downstream fishway stated in previous paragraphs, its extremely intermittent and unreliable operation, and the behaviour of the lungfish, it is not likely (i.e. more than 50% probable) that lungfish attempting to move or migrate downstream will locate the entrance to the downstream fishway. 2. Insofar as it is alleged that: "(b) The entrances to the upstream fishway and downstream fishway are too small for fully grown lungfish to enter." (a) Lungfish may grow to approximately 2 m in length, 0.3 m in width, and weigh up to 48 kg. In the Burnett River the mean length of adult lungfish is approximately 0.9 m and their mean weight is approximately 8 kg. (b) The facts, matters, and circumstances relied upon in support of the allegation that the entrances to the upstream fishway and the downstream fishway are too small for fully grown lungfish to enter are: (i) The sizes of the entrances to the upstream fishway and the downstream fishway particularised above in paragraphs 3(a) and (b). (ii) The size of fully grown lungfish particularised above in 4(a). (iii) The water heights at which the upstream fishway and the downstream fishway are operated or intended to be operated, including the intended provision of 0.5 m of water flow into the downstream fishway. (iv) The behaviour of lungfish attempting to move or migrate upstream or downstream. (c) The respondent's request to "identify the size that is alleged the entrance to the upstream fishway is required to be for fully grown lungfish to enter" misunderstands the case the applicant is required to prove. The applicant alleges that the upstream fishway and the downstream fishway are not "suitable for lungfish" within the meaning of condition 3. The respondent is responsible for installing and operating a fish transfer device that complies with this condition. The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. (d) The respondent's request to "identify the size that is alleged the entrance to the downstream fishway is required to be for fully grown lungfish to enter" misunderstands the case the applicant is required to prove for the reasons set out in the preceding paragraph. The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. 3. Insofar as it is alleged that: "(c) The caged container in the upstream fishway is too small for fully grown lungfish." (a) The facts, matters, and circumstances relied upon in support of the allegation that the caged container in the upstream fishway is too small for fully grown lungfish include: (i) The caged container used in the upstream fishway is approximately 7,500 litres in volume and measures approximately 4 m in length, 2 m in width, and 2 m in height. (ii) The size of fully grown lungfish particularised above in 4(a). (iii) The behaviour of lungfish attempting to move or migrate upstream, including their behaviour in choosing not to enter the caged container of the size and construction installed by the respondent. (b) The respondent's request to "identify the size that is alleged the caged container in the upstream fishway is required to be to accommodate fully grown lungfish" misunderstands the case the applicant is required to prove. The applicant alleges that the upstream fishway and the downstream fishway are not "suitable for lungfish" within the meaning of condition 3. The respondent is responsible for installing and operating a fish transfer device that complies with this condition. The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. 4. Insofar as it is alleged that: "(d) The upstream fishway and downstream fishway do not operate continuously." (a) The facts, matters, and circumstances relied upon in support of the allegation that the upstream fishway does not operate continuously include: (i) The upstream fishway is frequently and for extended periods not operated by the respondent. (ii) Attractant water flows are not released from or through the upstream fishway continuously. (iii) The caged container installed in the upstream fishway is not operated continuously. (iv) During the periods when the attractant flows are released from the upstream fishway and the caged container is operated, there are extended periods when the caged container is lifted over the dam wall when lungfish cannot move through the fishway and it is, therefore, not "suitable for lungfish" within the meaning of condition 3 of the approval. Condition 3 requires the fish transfer device to be "suitable for lungfish" to pass through it at all times and the operation of the upstream fishway does not satisfy this requirement. (b) The facts, matters, and circumstances relied upon in support of the allegation that the downstream fishway does not operate continuously include: (i) The downstream fishway is constructed such that water levels in the dam must reach the base of the entrance of the fishway at 62 m EL and rise an addition 0.5 m before the downstream fishway can operate. (ii) Water levels have not reached 62.5 m EL and the fishway has not operated since the commencement of the operation of the dam in November 2005 and the filing of these further and better particulars. (iii) Even in future periods when water levels in the dam are above 62.5 m EL, the respondent intends to operate the downstream fishway only intermittently. (iv) During future periods when water levels in the dam are above 62.5 m EL and attractant flows are allowed to enter the downstream fishway and the fishway is operated, there are extended periods when the attractant flows will cease and the slide gates at the entrance to the fishway will be raised to allow the trap chamber in the fishway to be flushed and any fish within it released beneath the dam. During those periods lungfish in the dam reservoir attempting to move or migrate downstream cannot enter the downstream fishway and it is, therefore, not "suitable for lungfish" within the meaning of condition 3 of the approval. Condition 3 requires the fish transfer device to be "suitable for lungfish" to pass through it at all times and the operation of the downstream fishway does not satisfy this requirement. (c) The requirement for the upstream fishway to operate continuously is a matter of the proper construction of condition 3 of the approval for the dam. (d) The requirement for the downstream fishway to operate continuously is a matter of the proper construction of condition 3 of the approval for the dam. 5. Insofar as it is alleged that: "(f) Lungfish are likely to be injured by the speed at which they are transported through the downstream fishway and the small dimensions of the pipes and downstream release pool." (a) The speed at which the lungfish are or will be transported through the downstream fishway will vary and is a matter dependent upon the operation of the fishway by the respondent but is generally intended to operate at water velocities of 0.8 m per second at the entrance slot. (b) The facts, matters, and circumstances relied upon in support of the allegation that lungfish are likely to be injured by the speed at which they are transported through the downstream fishway include: (i) The speed at which the downstream fishway is operated by the respondent as particularised in paragraph 7(a). (ii) The small dimensions of the pipes relative to the size of fully grown lungfish particularised above in paragraph 4(a). (iii) Once lungfish enter the downstream fishway they are in total or near total darkness. (iv) The exit chute from the downstream fishway is position approximately 1 m above the water level in the release pool and lungfish are intended to fall that distance down the exit chute into the water. (c) The respondent's request to "identify the speed at which it is alleged that lungfish may be transported by the downstream fishway to avoid likelihood of injury" misunderstands the case the applicant is required to prove. The applicant alleges that the upstream fishway and the downstream fishway are not "suitable for lungfish" within the meaning of condition 3. The respondent is responsible for installing and operating a fish transfer device that complies with this condition. The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. (d) The facts, matters, and circumstances relied upon in support of the allegation that lungfish are likely to be injured by the dimensions of the pipes through which the lungfish are intended to be transported by the downstream fishway include: (i) The size of fully grown lungfish particularised above in 4(a). (ii) The behaviour of lungfish attempting to move or migrate downstream, including their behaviour in attempting to escape, swim against or avoid the current created when emptying the trapping chamber in the downstream fishway. (iii) The fact that other fish, debris and aquatic plants may be present in the downstream fishway (including the exotic weed Salvinia spp. that has grown prolifically in the dam reservoir forming dense, free-floating mats). (iv) The diameters of the pipes in the downstream fishway are approximately 1.2 m for the standpipe leading from the trapping chamber to near the base of the dam and 0.75 m for the flushing line leading through the dam wall to the release gate. (e) The respondent's request to "identify the dimensions of the pipes it is alleged are required to avoid the likelihood of injury to lungfish" misunderstands the case the applicant is required to prove for the reasons set out above in paragraph 7(c). The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. (f) The facts, matters, and circumstances relied upon in support of the allegation that lungfish are likely to be injured by the dimensions of the downstream release pool are: (i) The speed at which the downstream fishway is operated by the respondent as particularised in paragraph 7(a). (ii) The size of fully grown lungfish particularised above in paragraph 4(a). (iii) The exit chute from the downstream fishway is position approximately 1 m above the water level in the release pool and lungfish are intended to fall that distance down the exit chute into the water. (iv) The downstream release pool is approximately 6 m in width and the exit chute is located within 1 m of its side. (g) The respondent's request to "identify the dimensions of the downstream release pool it is alleged are required to avoid the likelihood of injury to lungfish" misunderstands the case the applicant is required to prove for the reasons set out above in paragraph 7(c). The applicant is not required to prove, and does not allege, that any fish transfer device is "suitable for lungfish" within the meaning of condition 3 of the EPBC Act approval for the dam. (h) The extent of injury that it is alleged lungfish are likely to suffer by transportation through the downstream fishway include abrasions, bruising, cuts, and loss of sight due to collisions with the walls of the downstream fishway. 6. Insofar as it is alleged that: "(g) Lungfish, particularly juveniles, are susceptible to predation while moving through the upstream fishway and the downstream fishway." (a) The facts, matters, and circumstances relied upon in support of the allegation that lungfish, particularly juveniles, are susceptible to predation while moving through the upstream fishway include: (i) Species such as blue catfish and long-finned eel use the structure provided by vertical-slot fishways as shelter to ambush prey and lungfish, particularly hatchlings and juveniles, are susceptible to predation while moving through the fishway. (ii) Having entered the upstream fishway, including while in the caged container, small lungfish have little or no places to hide from predators and are, therefore, susceptible to predation. (b) The facts, matters, and circumstances relied upon in support of the allegation that lungfish, particularly juveniles, are susceptible to predation while moving through the downstream fishway include: (i) Species such as blue catfish and long-finned eel use the structure provided by vertical-slot fishways as shelter to ambush prey and lungfish, particularly hatchlings and juveniles, are susceptible to predation while moving through the fishway. (ii) Having entered the downstream fishway, including while in the trapping chamber, small lungfish have little or no places to hide from predators and are, therefore, susceptible to predation. 7. Insofar as it is alleged that: "(h) Lungfish exiting the upstream fishway or the downstream fishway are susceptible to predation at the release point." (a) The facts, matters, and circumstances relied upon in support of the allegation that lungfish exiting the upstream fishway are susceptible to predation at the release point include: (i) No fish aggregation device is provided at the release point and lungfish released from the caged container into the dam catchment are released at the surface into open water and away from shelter. (b) The facts, matters, and circumstances relied upon in support of the allegation that lungfish exiting the downstream fishway are susceptible to predation at the release point include: (i) No fish aggregation device is provided at the release point and lungfish released from the exit chute beneath the dam are released at the surface into open water and away from shelter and are, therefore, vulnerable to predation. 8. Insofar as it is alleged that: "(i) Due to the matters raised in paragraphs 6(a)-(h), the upstream fishway and the downstream fishway are not likely (more than 50% probable) to allow any normal sized lungfish to move upstream or downstream of the dam without injury irrespective of the water level in the dam." (a) "Normal size" lungfish range from hatchlings of a few millimetres in length to fully grown adults of up to 2 m and 48 kg in size. (b) The particulars of the facts, matters, and circumstances relied upon in support of the allegation that due to the matters raised in paragraphs 6(a)-(h), the upstream fishway and downstream fishway are not likely (more than 50% probable) to allow any normal sized lungfish to move upstream or downstream of the dam without injury irrespective of the water level in the dam were set out above in these further and better particulars. (c) The 50% probability is a requirement imposed by the proper construction of condition 3 of the approval. The particulars set out above operate individually and cumulatively to reduce the likelihood to beneath 50% probability that lungfish will be able to move through either fishway without injury irrespective of the water level in the dam in comparison with unrestricted fish passage. (d) The matters in paragraphs 6(a)-(h) operate individually and cumulatively to reduce the likelihood to beneath 50% probability that any normal sized lungfish will be able to move through either fishway without injury irrespective of the water level in the dam; however, the matters raised in paragraphs 6(d) and (e) are the applicant's principal complaints against the respondent's conduct. (e) [This question appears to be a repeat of the previous question (10(d)) and the answer to it is the same as the preceding paragraph.] (f) [Again, this question appears to be a repeat of question 10(d) and the answer to it is the same as the answer to question 10(d).] 9. The applicant has difficulty understanding the request made by the respondent in paragraph 11 as it appears to repeat at a general level the specific questions asked in relation to paragraphs 6(a)-(h) in the preceding paragraphs. If this understand is correct, the answers to the request are set out in the specific responses given above. If there are further specific particulars that the respondent requires to understand the case it is required to meet the applicant is willing to provide them if requested to do so. Paragraph 8 10. Insofar as it is alleged that: "The respondent's contravention of condition 3 set out in paragraph 6 constitutes an offence or other contravention of section 142A of the EPBC Act." (a) The respondent is alleged to have contravened subsection 142A(1) of the EPBC Act. (b) The facts, matters, and circumstances relied upon in support of the allegation that the respondent's alleged contravention of condition 3 has been reckless include: (i) The allegation of recklessness relates primarily to paragraphs 6(d) and (e) of the Statement of Claim, the facts that the upstream fishway and the downstream fishway do not operate continuously and that the downstream fishway was designed to only operate above 62 m EL. (ii) Prior to the construction of the dam and since its commencement the respondent has intended to operate the upstream fishway and the downstream fishway intermittently depending on water availability and operational demands in contravention of condition 3. (iii) At no time did the respondent intend to operate the upstream fishway or the downstream fishway continuously as required by condition 3. (iv) Prior to the construction of the dam and since its commencement the respondent has known it would operate the upstream fishway and the downstream fishway intermittently depending on water availability and operational demands in contravention of condition 3. (v) Since the commencement of the dam in November 2005 the respondent has known it was not operating the upstream fishway and the downstream fishway continuously and, therefore was in contravention of condition 3. (vi) In planning the construction and operation of the dam and prior to the commencement of the dam in November 2005 the respondent knew that water levels would vary and would at times be beneath 62 m EL, thereby not allowing the downstream fishway to operate. The respondent designed the main water outlet works of the dam in such a way as to allow release of water while storage levels are low, including allowing environmental flows to be maintained during dry periods that the respondent knew may occur during normal operation but failed to design the downstream fishway to operate in such conditions. (vii) At least since the Compliance Audit conducted by the Australian Government Department of the Environment and Water Resources in mid-2007, the respondent has known that the design and operation of the downstream fishway contravened condition 3 of the approval because water levels had not reached the operating height of 62 m EL and the condition required continuous operation from the commencement of the dam in November 2005. (viii) In relation to design of the downstream fishway such that the entrance required water in the dam to reach 62 m EL (and an additional 0.5 m of water) for the fishway to operate, prior to constructing the dam: (A) the respondent was aware of a substantial risk that water would not reach that level for a considerable period after the commencement of the dam due to the highly variable rainfall in the Burnett River Catchment; and (B) having regard to the circumstances known to the respondent, it was unjustifiable to construct the downstream fishway in such a manner. (ix) The allegation of recklessness relates to the respondent's conduct and no individual person within the respondent is alleged to have been reckless on behalf of the respondent. (c) It is not alleged that the respondent has been reckless as to the fact that the alleged contravention is likely to have a significant impact on the lungfish (i.e. a contravention of subsection 142A(3)). (d) The facts, matters, and circumstances relied upon in support of the allegation that the respondent's conduct: (i) In fact results in each of the impacts in paragraph 8(b)(i) and (ii) are as follows (noting that a "significant impact" is an impact that is important, notable or of consequence having regard to its context or intensity, and the context or intensity of the impacts caused by the respondent's conduct includes the following facts): (A) The lungfish species' known distribution, populations, life history, habitat requirements, migratory behaviour and migratory requirements, including the facts that: (I) Lungfish undertake limited migrations of varying length both during the normal course of activities but more critically for breeding purposes. (II) Lungfish migrate up to 45 km and the longer migrations appear to be associated with movement upstream out of impoundments to suitable spawning habitats. (III) Adult lungfish home ranges (the area of river where most time is spent) are relatively small (usually less than 5 – 10 km) and long migratory passages are therefore not critical for adult individuals to survive but are significant for breeding and maintaining genetic variability and viability in the population in the Burnett River. (B) The known behaviour of the lungfish relevant to design of fish passage through the Paradise Dam, including the fact that lungfish are known to move downstream in high-flow (flood) events. (C) During flood events and at other times when the dam spillway operates lungfish are likely to attempt to move or migrate downstream over the spillway thereby increasing mortality in the lungfish population due to the death or injury of lungfish falling approximately 37 m in highly turbulent and fast flowing water down the large concrete steps constructed in the spillway to dissipate water velocity. (D) The demographic variables that affect the natural movement or migration of lungfish, including age, sex, and size. (E) Variations in the movement or migration of lungfish with seasons, river flow and other naturally variable factors. (F) The evolutionary and ecological significance of the lungfish. (G) Why the lungfish has been listed as vulnerable to extinction under the EPBC Act. (H) The importance of connectivity in the lungfish population in the Burnett River and, in particular, the need for effective fish passage upstream or downstream on the Paradise Dam to provide breeding and feeding opportunities and to maintain the genetic variability and viability of the lungfish population. (I) The impacts that would be expected on lungfish population in the Burnett River from the construction of the Paradise Dam without a fish transfer device, such as changes in habitat and changes in the genetic variability and viability of the lungfish population. (J) Other than the Paradise Dam, the threats and impacts faced by the lungfish population in the Burnett River. (K) Other threats and impacts faced by the lungfish species outside the population in the Burnett River, including the proposed construction of the Traveston Crossing Dam on the Mary River using a fish transfer device modelled on the Paradise Dam. (L) The water flow regime, particularly periods of zero flow, at the site of the upstream fishway and the downstream fishway prior to the construction of the dam. (M) The extent that water levels in the dam in the future will obtain and remain above 62m AHD (57% of the dam capacity), thereby allowing the downstream fishway as currently constructed to operate. (N) The likelihood that the upstream fishway design will allow safe lungfish passage in comparison to unrestricted passage. (O) The likelihood that the upstream fishway will allow safe lungfish passage as actually operated by the respondent in comparison to unrestricted passage. (P) The likelihood that the downstream fishway design will allow safe lungfish passage in comparison to unrestricted passage. (Q) The likelihood that the downstream fishway will allow safe lungfish passage as actually operated by the respondent in comparison to unrestricted passage. (R) Restrictions in movement or migration of lungfish in the Burnett River caused by the design and operation of the upstream fishway and the downstream fishway causing changes in the genetic variability and viability of the lungfish population and the consequences of these impacts for the conservation of the lungfish species. (ii) The facts, matters, and circumstances relied upon in support of the allegation that the respondent's conduct will result in each of the impacts in paragraph 8(b)(i) and (ii), are the matters set out in paragraph 12(d)(i) of these Further and Better Particulars and noting that "will result" refers to future impacts that are more probable than not (i.e. more than a 50% chance). (iii) The facts, matters, and circumstances relied upon in support of the allegation that the respondent's conduct is likely to result in each of the impacts in paragraph 8(b)(i) and (ii), are the matters set out in paragraph 12(d)(i) of these Further and Better Particulars and noting that "is likely to result" refers to future impacts the occurrence of which is a real chance or possibility regardless of whether or not it is more or less than 50% probable. (e) The facts, matters, and circumstances relied upon in support of the allegation that the impacts in paragraph 8(b)(i) and (ii) will continue for the indefinite future unless the respondent is restrained include: (i) The past and present conduct of the respondent, including: (A) the respondent's response to the Compliance Audit conducted by the Australian Government Department of the Environment and Water Resources in mid-2007; and (B) the respondent's response to these proceedings in the Court, indicates that the respondent intends to continue to operate the dam in contravention of condition 3 of the approval and causing the impacts alleged in paragraph 8(b)(i) and (ii) for the indefinite future unless restrained by the Court. (ii) The respondent intends that the nominal engineering design life of the Paradise Dam is 50 years, though the respondent expects that it is likely to be maintained after that period provided that it continues to meet dam safety requirements and remains an integral part of the regional water supply strategy. (iii) The respondent intends that the dam will remain operational after its nominal engineering design life of 50 years but may be decommissioned during or after the initial engineering design life if: (A) it suffers significant damage that cannot be remedied to meet safety standards; or (B) it is no longer needed to provide water within the Burnett Region. 16 The prolixity of response reflects the prolixity of the request made of the Conversation Council. Be this as it may, these particulars were not considered adequate by Burnett Water. Further correspondence ensued between the parties' solicitors. It culminated in Burnett Waters' solicitors making the following request on 24 February 2009 in respect of the particularising of para 8 of the statement of claim, having regard to s 142A(1) of the EPBC Act: Having regard to the terms of [s 142A(1)], your client is obliged to: (a) particularise with precision each action and omission relied upon including, without limitation, by: (I) in respect of each action: A. identifying the date on which the action was taken; B. stating the substance of the action taken; C. identifying the individual or individuals by whom the respondent took the action. (II) in respect of each omission: A. identifying the date on which the omitted action ought to have been taken; B. stating the substance of the action which ought to have been taken; C. identifying the individual or individuals by whom the respondent omitted to take the action; (b) in respect of each action and omission relied upon: (I) identify the respects in which the action or omission contravened the condition attached to the approval; (II) state each fact relied upon to allege that the respondent was reckless as to the fact that the action or omission contravened the condition attached to the approval including, without limitation, by identifying: A. the individual or individuals by whom the respondent is alleged to have been reckless; B. The facts alleged to have been known by the respondent (and each individual identified in response to subparagraph (b)(II)A above) at the time the action was or ought to have been taken; C. any facts from which the knowledge referred to in subparagraph (b)(ii)B above is claimed to be an inference; (III) specify each fact relied upon to establish the casual link between the action or omission and the impact identified in the particulars of paragraph 8 of the statement of claim. Your client's particulars of 19 November 2008 fall a long way short of meeting these obligations. Indeed, they exhibit a number of inadequacies which place our client in an impossible position in attempting to answer the serious allegations your client has chosen to make. For example: (a) In subparagraph 12(b) they are expressed in inclusive terms. And in subparagraph 12(b)(I) the allegations of recklessness are said to relate "primarily" to paragraphs 6(d) and (e) of the statement of claim. Thus our client is faced with an avowedly incomplete statement of the case against it. This is manifestly inadequate. Our client is entitled to a complete statement of all of the particulars of the serious charges levelled against it. (b) They are replete with allegations of intention and knowledge, yet they fail to identify who on behalf of the respondent had the alleged intention or knowledge, and they fail to identify any facts from which that intention or knowledge is claimed to be an inference. In the context of an allegation of recklessness, this is again manifestly inadequate. Your client cannot seek refuge in the statement that "no individual person within the respondent is alleged to have been reckless". The respondent is a corporation which can only act through human agents. Our client is entitled to know which individuals are alleged to have been reckless, and the respects in which they are alleged to have been reckless. Without being apprised of these essential particulars, our client will be prejudiced in the preparation of its defence. 17 Apart from stating that the "action" of Burnett Water that was alleged to contravene condition 3 was "the design, installation and operation of the fish transfer device", the Conservation Council's response of 25 February 2009 offered no further particulars. In the course of oral argument, the Conservation Council mollified its position somewhat. Of the particulars furnished under para 8 of the statement of claim in November 2008, it was conceded that the inexactitude introduced by the words "includes" in para 10(b) and "primarily" in para 10(b)(i) was not defensible. It is to be lamented that such self critical insight did not earlier manifest itself. It inevitably follows that, wherever the word "include" and its derivatives have been used in the particulars furnished in November 2008, they are, to that extent, embarrassingly imprecise, for all their length. 18 It was further rightly conceded by the Conservation Council in oral submissions that, irrespective of whatever else it might be ordered to give by way of particulars of Burnett Waters' knowledge, its reference in para 10(b)(viii)(B) to "having regard to the circumstances known to the respondent" was likewise embarrassingly imprecise. Such language does violence to the concept of particulars, leaving the reader in ignorance of what the allegedly known circumstances might be. 19 The Conservation Council resisted being required to furnish further particulars beyond those conceded in argument on the following additional bases: (a) The request made in the letter of 24 February 2009 was tantamount to a second request, rather than a request for clarification of the answer to the request made last year. (b) There was "little utility" in particularising further [the Conservation Council's] allegations of recklessness due to the issues raised in [Burnett waters'] Defence. (c) Many of the requests are for evidence rather than particulars. (d) The request misunderstands the word "action" in the [EPBC Act]. 20 It is true to say that Burnett Water did not have leave to deliver a second request for particulars. Given that, it would have been better if, in their letter of 24 February 2009, its solicitors had exclusively adopted the practice of seeking, on the basis of an explained alleged inadequacy of answer and by reference to particular paragraphs of the request which was made as provided for by interlocutory direction, further and better particulars. It may not be coincidence that, in respect of a subject where its solicitors did choose to adopt this practice in their letter of 24 February 2009, a concession was made by the Conservation Council, albeit belatedly in the course of oral argument. 21 It would seem that the Conservation Council's notion that there is "little utility" in ordering further particulars in respect of the allegation in the statement of claim of recklessness is derived from Burnett Waters' pleading further or alternatively in its defence that it has acted honestly and reasonably at all times and not at any time acted recklessly. The fact that Burnett Water has alleged in its defence that it has at all times acted honestly and reasonably does not mean that, as to the contested element of recklessness, in respect of the proof of which the Conservation Council bears the onus, the Conservation Council is ipso facto excused from being ordered to furnish such particulars of its recklessness allegation as may be just. 22 Further consideration of whether to order the furnishing of further and better particulars, including of the allegation of recklessness, requires the setting out of s 142A of the EPBC Act and of certain provisions of the Criminal Code which bear upon s 142A. 23 Section 142A of the EPBC Act provides: 142A Offence of breaching conditions on approval (1) A person whose taking of an action has been approved under this Part is guilty of an offence if: (a) the person takes an action or omits to take an action; and (b) the action or omission contravenes a condition attached to the approval and the person is reckless as to that fact; and (c) the action or omission results or will result in a significant impact on a matter protected by a provision of Part 3. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Strict liability applies to paragraph (1)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (3) A person whose taking of an action has been approved under this Part is guilty of an offence if: (a) the person takes an action or omits to take an action; and (b) the action or omission contravenes a condition attached to the approval and the person is reckless as to that fact; and (c) the action or omission is likely to have a significant impact on a matter protected by a provision of Part 3 and the person is reckless as to that fact. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4) An offence against subsection (1) or (3) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both. Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection. Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. 24 The following provisions of the Criminal Code are pertinent: 3.1 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements. 4.1 Physical elements (1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. (2) In this Code: conductmeans an act, an omission to perform an act or a state of affairs. engage in conductmeans: (a) do an act; or (b) omit to perform an act. 4.2 Voluntariness (1) Conduct can only be a physical element if it is voluntary. (2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is. … (4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing. (5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control. … 4.3 Omissions An omission to perform an act can only be a physical element if: (a) the law creating the offence makes it so; or (b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform. 5.1 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence. 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. … 5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness. 6.1 Strict liability (1) If a law that creates an offence provides that the offence is an offence of strict liability: (a) there are no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact under section 9.2 is available. (2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is available in relation to that physical element. (3) The existence of strict liability does not make any other defence unavailable. 25 Paragraph 6 of the statement of claim is incorporated by reference into para 8, which alleges a breach of s 142A. Paragraph 8 is not, with respect, well pleaded in that it does little more than baldly to allege a contravention of the statute. It does not even condescend to specify whether it is s 142A(1) or s 142A(3) of the EPBC Act that Burnett Water is alleged to have contravened. That it is intended to be s 142A(1) may be inferred from the so-called particulars given under that paragraph. Strictly, these so-called particulars under para 8 in the statement of claim are material allegations of fact which ought to have featured in discrete paragraphs of the statement of claim. 26 As Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules: H 1976 Nominees v Galli (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 418, [23]. Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9. 27 Recklessness aside, the remaining complaints made in Burnett Waters' solicitor's letter of 24 February 2009 concerning the adequacy of the existing particulars are premised upon its preferred construction of the word "action" where it appears in s 142A(1) of the EPBC Act. Burnett Water contends that, where the word is used in paras (a), (b) and (c) of the subsection and in contrast to its use in the subsection's opening words, it does not bear the meaning given to the word in s 523 of that Act. 28 Section 528 of the EPBC Act provides that, unless the contrary intention appears, the word "action" has the meaning given by Subdiv A of Div 1 of Pt 23. Section 523, found within Subdiv A of Div 1 of Pt 23, defines "Action" thus: 523 Actions (1) Subject to this Subdivision, actionincludes: (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). 29 Burnett Water submits that it is necessary to distinguish between the "action" which was approved and the "action" or "omission" sought to be characterised as "reckless". Were it otherwise, it submits that an offence against s 142A could only be committed if the whole of the project were carried out recklessly. It observes that the Conservation Council has not framed its case this way as it alleges that particular aspects of the overall project are reckless. 30 I have already described how the Conservation Council further particularised the alleged "action" in its letter of 25 February 2009. Having regard to how it has done that, there is merit in the observation made by Burnett Water as to the way in which the Conservation Council has framed its case. That this is indeed the Conservation Council's position is confirmed from its written submission, "The relevant action … is the design, installation and operation of the fish transfer device on the Paradise Dam". 31 There are vices in the statement of claim and they have translated into the consequential submissions of each of the parties with respect to particulars. The statement of claim ignores what precisely were the "actions" approved by the Minister. This, in turn, has occasioned each party difficulty; on the one hand in adequately particularising the statement of claim and, on the other, in determining whether such particulars as were furnished were adequate. 32 Having regard to the terms of the Ministerial approval, there were, on analysis, three "actions" which were approved: (a) the construction of a dam of a particular capacity at a particular location; (b) the operation of that dam; (c) the making of controlled discharges from that dam for particular purposes. Each of these is an "action" as defined by s 523 of the EPBC Act. The construction of a dam may be regarded as a "project", a "development" or an "undertaking", it matters not which. The operation of a dam is an "activity". The making of controlled discharges is a "series of activities". 33 The "approval" to which s 142A(1)(b) of the EPBC Act refers is the approval of an "action", as described in the opening words of the subsection. Incorporating the effect of the Criminal Code, if that "action" is taken or omitted to be taken and so doing or omitting so to do contravenes a condition of the approval and the person is reckless to that fact, the physical elements of s 142A(1)(a) and the fault element of s 142A(1)(b) will have been met. If, for example, in taking the approved "action" of the construction of the dam, Burnett Water did not install a suitable fish transfer device, it would breach condition 3. Installation of such a device is not an approved "action" in its own right, as opposed to being a condition of an approved "action", the latter being the construction of the dam. It follows from this that I do not accept Burnett Waters' submission that "action" bears different meanings as between the opening words and the paragraphs of s 142A(1) of the EPBC Act. 34 Paragraph 5 of the statement of claim contains the allegation, "in purported compliance with condition 3 of the approval the respondent has constructed a fish transfer device on the dam". This rolls up a number of allegations of material facts which ought separately to be pleaded if they are to form part of the case the Conservation Council seeks to make against Burnett Water, viz: (a) The Minister has approved (a fact pleaded in an elliptical way in paragraph 4 of the statement of claim) the taking of particular "actions" by Burnett Water, giving particulars of the same. (b) The approval of the taking of those "actions" is, materially, subject to condition 3 (again, a fact pleaded in an elliptical way in paragraph 4 of the statement of claim). (c) Burnett Water has taken an "action" namely, the construction of the dam. (d) In constructing the dam, Burnett Water has installed a fish transfer device. (e) The fish transfer device is not suitable for lungfish. (f) In the premises, the construction of the dam contravenes condition 3. 35 If an "omission" or another "action", eg the operation of the dam, is to be relied upon these ought to be the subject of separate allegations of material facts. These is no substitute for a critical analysis of the elements of each alleged contravention and resultant identification of the material facts which must thereby be alleged and proved.. 36 "Design" per se is not an "action" that the Minister has approved, although as a matter of common sense it doubtless preceded the approved activity of "construction". Though the Conservation Council has chosen to include "design" in its further particulars of what are said to constitute Burnett Waters' "actions", that is not an "action" which it has alleged in para 6 of its statement of claim. Ironically, para 4 of the statement of claim does refer to "actions" that were approved – construction and operation of the dam. Paragraph 6 does not, in terms, engage with a ministerially approved action, instead treating aspects of condition 3, the installation and operation of a suitable fish transfer device, as if they were approved "actions" in their own right, as opposed to being conditions of the taking of approved "actions". 37 Based on the allegations in para 6 of the statement of claim, but without any reflection upon precisely what material facts ought to be pleaded having regard to the constituent elements of a contravention of the respective sections, para 7 of the statement of claim makes a bald allegation of the contravention by Burnett Water of ss 142 and 142B of the EPBC Act. 38 In short, even without turning to the subject of recklessness, the more one analyses the adequacy of the particulars and further particulars furnished to date by the Conservation Council having regard to the allegations made in the existing statement of claim, the more is exposed a lack of a comprehensive, accurate engagement by the statement of claim itself with the elements of a cause of action under ss 142, 142A(1) or 142B of the EPBC Act respectively in light of the terms and conditions of the Ministerial approval. The material facts necessary to ground such contraventions having regard to the terms of the Ministerial approval of actions subject to conditions and the alleged position so far as the suitability for lungfish of the installed fish transfer device have not been adequately pleaded. This seems to me to be the root cause of the differences that have emerged in relation to particulars. 39 It may well be possible to apprehend the case that the Conservation Council seeks to make from its existing pleading, particulars and further particulars but so to do involves a degree of benevolent construction, speculation and assumption. Burnett Water has, in my opinion, approached the matter in this manner, hence it has pressed for further particulars. I do not criticise it for so doing. I note that Burnett Water's written submissions record that it has not "at this stage" sought the striking out of the statement of claim. Its oral submissions did though allow that, on the authorities, repleading may be an alternative to the ordering of particulars and its notice of motion sought such further or other orders as the Court deemed fit. If the prolixity of the requests and answers in respect of particulars demonstrate nothing else, they demonstrate that this is a case which should benefit from a more strict application of the pleading rule than has hitherto informed the drawing of the statement of claim. 40 Giving due weight to authority which admits of a reading of allegations of material fact and purported particulars as a whole so as to judge the adequacy of a pleading, it is nonetheless preferable in this instance that the Conservation Council replead the statement of claim, incorporating or separately furnishing such particulars as it may be advised. 41 It is important that alleged contraventions said to warrant the granting of mandatory injunctive relief be identified with precision. The ultimate hearing and determination of the proceeding will be advantaged by the repleading in a more disciplined and focussed way of the statement of claim and the consequential filing of an amended defence. That strikes me as a better alternative than seeking to cure deficiencies in the existing statement of claim by ordering the provision of yet further particulars. The discovery and inspection which has taken place will not, in my opinion, be wasted work if that course is adopted because Burnett Water has to date done its best to apprehend the likely case it has to meet and approached discovery accordingly. To order repleading of the statement of claim is, of course, fraught with the possibility of yet further interlocutory skirmishes. The drawing of an amended statement of claim will though be informed by the experience of the present application. 42 So disposing of the application renders unnecessary the reaching of a concluded view as to whether some of the further requests made of the Conservation Council really sought evidence rather than the further particularisation of material allegations of fact. Because the subject was fully argued, some comment ought though to be made in relation to the pleading and particularisation of the fault element of recklessness. 43 An allegation that a respondent is reckless as to the fact that an action or omission contravenes a condition of an approval is a necessary allegation of a material fact in the pleading of an alleged contravention of s 142A(1) of the EPBC Act. Paragraph 142A(1)(b) supplies a fault element for the physical element, set out in s 142A(1)(a), of taking an "action" or alternatively omitting to take an "action". Subsection 5.4(4) of the Criminal Code is therefore applicable. Thus, recklessness for the purposes of s 142A(1)(b) of the EPBC Act may be proved in a number of ways. It may be proved either by intention, knowledge or recklessness. Intention is the province of s 5.1 of the Criminal Code and knowledge the province of s 5.2. As to recklessness itself, the words "the action or omission contravenes a condition attached to the approval" in s 142A(1)(b) refer to a result. Therefore, it is s 5.4(2) which specifies the manner in which recklessness itself is to be proved. Such an analysis informed Burnett Waters' request for the furnishing of further and better particulars of the allegation that it had been reckless and its submission that it was entitled to an order for the same. 44 What follows from this is that some care is needed in the pleading of the fault element of an alleged contravention of s 142A(1). For example, if the taking of the action of the construction of the dam is alleged to constitute a contravention of condition 3 because the installed fish transfer device is not suitable for lungfish and recklessness alone is to be relied upon (rather than intention or knowledge), the statement of claim would have to allege as material facts that: (a) Burnett Water was aware of a substantial risk that the result namely, contravention of condition 3 because the installed fish transfer device is not suitable for lungfish, would occur; and (b) having regard to the circumstances known to it, it was unjustifiable to take the risk. 45 Of these allegations, allegation (a) would at least require particulars of the alleged unsuitability of the installed device. Particulars may also be required of the facts, matters and circumstances by reference to which it was alleged that Burnett Water was aware of the risk concerned. Were such particulars not to be furnished, a modern pleading rule such as O 12 r 5(2)(a) of the Federal Court Rules would enable them to be ordered, as Fitzgerald J (as his Honour then was) highlighted by reference to English authority in Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 at 124-126. 46 As to allegation (b), this would at least require particulars of the circumstances said to be known to Burnett Water. 47 Again, given the disposition of the application, it is unnecessary to decide whether the Conservation Council should be ordered to furnish particulars of the individuals by whose conduct Burnett Water is said to have been reckless. However, the foundation for the request does require comment. That foundation was based on what one might describe as "reverse engineering", grounded in ss 498B(1) and 498B(2) of the EPBC Act. These provide: 498B Conduct of directors, employees and agents Bodies corporate—conduct (1) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. Bodies corporate—state of mind (2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and (b) that the person had that state of mind. 48 These subsections facilitate the proof of corporate conduct or a corporate state of mind. They have an evidentiary impact but they are not exhaustive of how either conduct or a state of mind may be proved. Particulars may be ordered of material facts but not of the evidence by which those facts are to be proved. Were, for example, allegations (a) and (b) to be particularised in the manner just described, I should, at least as presently advised, have difficulty in seeing how s 498B provided a charter for an automatic entitlement to an order for particulars of individuals who were alleged to have engaged in the approved action or who had an awareness. That is not to say that in some instances the furnishing of particulars of facts, matters and circumstances relevant to the allegation of corporate awareness might not incorporate as a particular that a named corporate officer was aware of a fact. Further, an inability either by the use of s 498B of the EPBC Act or otherwise to prove the elements that underlie an allegation of recklessness ought to give pause for thought as to whether to make such an allegation. It is not though necessary in the circumstances further to consider this aspect of the matter. The claim for injunctive relief concerning a suitable fish transfer device 49 Section 475 of the EPBC Act makes provision for the granting of injunctions for contraventions of the Act. Materially, that section provides: 475 Injunctions for contravention of the Act Applications for injunctions (1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations: (a) the Minister; or (b) an interested person (other than an unincorporated organisation); or (c) a person acting on behalf of an unincorporated organisation that is an interested person; may apply to the Federal Court for an injunction. Prohibitory injunctions … Mandatory injunctions (4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute an offence or other contravention of this Act or the regulations, the Court may grant an injunction requiring the person to do the act. 50 Burnett Water drew attention to authority, a notable exemplar of which is Morris v Redland Bricks Ltd [1970] AC 653, which counsels the framing of injunctive relief requiring the performance of an act in terms which are sufficiently precise to enable the person to whom the injunction is directed to know what is required of him. Such precision also allows those concerned in his performance readily to ascertain whether the act has been performed as ordered. As Lord Upjohn, with whom the other members of the House agreed, put it in his speech in Morris v Redland Bricks Ltd [1970] AC at 666: If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly what in fact he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions. 51 A generation later, in Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1 at 14, Lord Hoffman, with whom the other members of the House agreed, in the course of a speech which contains much detailed reflection on the subject of considerations relevant to the granting of mandatory injunctions, referred to that passage from Lord Upjohn's speech and stated: Precision is of course a question of degree and the courts have shown themselves willing to cope with a certain degree of imprecision in cases of orders requiring the achievement of a result in which the plaintiff's merits appeared strong; like all the reasons which I have been discussing, it is, taken alone, merely a discretionary matter to be taken into account: see Spry on Equitable Remedies (4th ed.) at p. 112. It is, however, a very important one. 52 It is not at this interlocutory stage possible to determine whether the merits of the Conservation Council's case are strong and the extent to which, as a matter of discretion, that should influence the framing of any injunctive relief. 53 In conferring the jurisdiction under s 475 to grant mandatory injunctive relief Parliament has envisaged an exercise of the judicial power of the Commonwealth by a court that is one of law and equity. Where a contravention is proved, the granting of a mandatory injunction requires the exercise of a judicial discretion. However, the jurisdiction is statutory, not an incident of the general law of equity. 54 There are features of the jurisdiction so conferred which set aside considerations which might, under the general law of equity, dispose a court not to grant injunctive relief at all. Thus, s 479(2) provides: Mandatory injunctions (2) The Federal Court may grant an injunction requiring a person to do a particular act or thing: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and (b) whether or not the person has previously refused or failed to do the act or thing; and (c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing. In light of this provision Parliament must be taken to have considered that there were public interests arising from the objects of the EPBC Act in the case of, materially, a proved contravention of a condition of an approval for the taking of an "action" which, in particular cases, would transcend the considerations referred to in s 479(2) and, notwithstanding those considerations, warrant the granting of a mandatory injunction. As Black CJ and Finkelstein J reminded in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at 431, [18], s 475 of the EPBC Act makes provision for a remedy of a kind that has come to be known as a public interest injunction. 55 In this regard, the EPBC Act is not unique. It is an analogue of s 80 of the Trade Practices Act 1974. Observations made by the members of the Full Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 are pertinent. Materially, in that case, the following observations, presently pertinent by analogy, were made in relation to the framing of injunctive relief: Mr Justice Lockhart, French J agreeing, stated, at 259-260: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed: see Trade Practices Commission v Walplan Pty Limited (1985) 7 FCR 495; Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 412-414; and Commodore Business Machines Pty Limited v Trade Practices Commission (1990) 92 ALR 563. Decisions under the Act have applied these principles and the judgments refer to the dangers of orders being cast in broad terms which "train the heavy guns of the law upon the respondent" (Glo Juice at 418) without giving him adequate guidance. As Toohey J. observed in Maclean v Shell Chemical (Australia) Pty Limited (1984) 2 FCR 593 (at 599): "Any injunction granted should be in such terms that is reasonably capable of being obeyed. ... (The order sought) would create uncertainty and place the respondent in a position where it would not know with any precision what was required of it. It follows that, faced with an application to enforce such an injunction, the court would be in an equally difficult position." See also Trade Practices Commission v Walplan Pty Limited. In Commodore a Full Court of this Court said at 574: "The injunction sought in the application was in the following terms: 'An injunction restraining (Commodore) from engaging in the practice of resale price maintenance in respect of the supply of Amiga computers (as defined in the statement of claim) supplied by (Commodore).' An injunction in that form might be suggested by the relief granted by the Commonwealth Industrial Court in Festival Stores v Mikasa (NSW) Pty Ltd (1971) 18 FLR 260. On appeal, reported (1972) 127 CLR 617 at 631-2, Barwick C.J. rejected an attack on the propriety of an order which enjoined a wholesaler 'from engaging in the practice of resale price maintenance in respect of tableware marketed ... under the trade name 'Mikasa'.' Nevertheless, such an injunction as that sought by the Commission in this case would have been open to the objection that it was of an undesirable width because, in respect of the supply of Amiga computers, it did no more than reproduce, but this time with the risk of sanctions for contempt, that which the Act in terms forbade by s 48. Any practice of awarding injunctions in such a form is to be discouraged. Such injunctions conflict with the general precept, applicable to the exercise of power under s 80 of the Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact. Further, where the injunction is in the form of an interlocutory order, it is undesirable to frame the injunction in such a way as to leave the issues in the case open for determination on a contempt proceeding, rather than at a final hearing: see generally Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 65-6; 54 ALR 730 (Full Court); Trade Practices Commission v Glo Juice Co Pty Ltd (1987) 73 ALR 407 at 412-16 (Burchett J) and Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 75 ALR 331 at 347 (Pincus J)." The drafting of injunctions is ultimately a practical question. In some cases it presents no difficulties to the draftsman, but in others the exercise is far from easy. Mr Justice Gummow made the following observations (at 266-267): In Mr Heydon's work "Trade Practices Law" para. 18.740, the view is expressed that whilst in concept the statutory remedy provided for in s. 80 of the Act is different from the equitable remedy of injunction as administered in the inherent jurisdiction of courts of equity, nevertheless "in many practical respects it is not, however, fundamentally distinct from the equitable remedy." I agree with that observation. … Sub-section 80(1) confers upon the Court the power to grant an injunction where it is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute conduct of the description in paras. (a)-(f). The power of the Court to grant an injunction is controlled by the words "in such terms as the Court determines to be appropriate." Thus, the terms of the injunction will not be "appropriate" if, on its face, it operates upon a range of conduct some of which does, but some of which does not, have the relationship required by s. 80 with contravention of the Act. The injunction should not prohibit conduct falling outside the boundaries drawn by s. 80: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161. The same limitation applies to mandatory injunctive relief. It is, in my view, no support for the grant of an injunction which, from the outset, has an operation outside the boundaries of s. 80, to say that it is open for the party enjoined to apply under sub-s. 80(3) to vary the injunction so as to bring its operation wholly within proper limits. The party in question should not be placed under any such obligation in the first place. In the course of his expressing agreement with the judgement of Lockhart J, French J observed (at 268) of the power to grant injunctive relief conferred by s 80 of the Trade Practices Act, "The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act." 56 Attention needs to be given to the language of s 475 when considering both the nature of the power conferred and the remedy which may appropriately be granted pursuant to that power. In context, if a failure to do an act namely, the construction of a dam incorporating an installed fish transfer device suitable for lungfish constitutes an offence or other contravention of the EPBC Act because the dam as constructed does not have installed such a fish transfer device, thereby breaching a condition of the approval for the taking of that act, the Court may grant an injunction requiring the person to do the act, ie to incorporate in the dam a fish transfer device suitable for lungfish. There is no evidence that Burnett Water challenged condition 3 of the Minister's approval on the basis that it was manifestly unreasonable because it required the performance of a task that was impossible or was cast in terms that were so uncertain as to be devoid of sensible meaning. Indeed, had the installation of such a device been impossible, that may, given the objects of the EPBC Act and the protection afforded to the lungfish, have called into question whether the Minister should have approved the construction of the dam at all. 57 The relief sought by the Conservation Council in para 2 of the application is cast in more precise terms than the terms of condition 3 of the Ministerial approval. It is enough at present that the relief sought bears a reasonably arguable relationship with that which the statute permits the Court to grant and the circumstances of the case. In my opinion, it does. The claim for this relief is neither frivolous nor vexatious nor an abuse of process either for the purposes of O 20 r 5 of the Federal Court Rules or for the purposes of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). The proposed relief certainly does more than just recite the terms of the statute. It is more precise than that which in the circumstances of ICI Australia Operations Pty Ltd v Trade Practices Commission was regarded as appropriate.Whether it is appropriate to grant relief in terms of para 2 of the application, other terms (and that further or other relief was sought was foreshadowed in oral submissions by the Conservation Council) or at all depends on the proof of a contravention, on the construction of condition 3 and on the evidence led at trial. Given that para 2 does not warrant being summarily struck out, it is not appropriate to consider the issues mentioned in the preceding sentence either in the abstract or as a separate question divorced from the evidence at the trial. Morris v Redland Bricks Ltd and ICI Australia Operations Pty Ltd v Trade Practices Commission are not cases which compel the summary striking out of para 2 of the application. 58 The statutory preconditions for the granting of a mandatory injunction are set out in s 475. It is up to the Conservation Council to prove that these are met. It is no part of so doing that it must prove that any particular fish transfer device is suitable, as opposed to proving, inter alia, that the device which has been installed does not meet condition 3, properly construed. To require proof of the former would be to invert the statutory preconditions. In this regard, I accept the submission made on behalf of the Conservation Council. 59 If the Conservation Council proves those preconditions, a judicial discretion is enlivened. Considerations such as those set out in Morris v Redland Bricks Ltd are, in a non-exhaustive way, relevant to the formulation of injunctive relief in the exercise of that discretion. ICI Australia Operations Pty Ltd v Trade Practices Commission establishes that injunctive relief granted under a power akin to s 475 of the EPBC Act must bear a relationship with the case alleged and proved and must be cast in terms which admit of an understanding of what is expected of the party enjoined. It does not follow from this that the Conservation Council is obliged to give particulars of what is a suitable fish transfer device for lungfish. It may, if it chooses, lead evidence touching on that subject as part of its case as to why the existing, installed device is unsuitable. If so, that evidence, together with other evidence led at the trial, may well inform how any injunctive relief ought to be cast. 60 The Conservation Council has also, in framing para 2 of the relief sought, specified a six month time limit. One reason why such a time limit might be reasonable may be that, on the evidence led at trial, it is possible, within that time, to install a particular device or to modify the existing one such that it is "suitable". If the Conservation Council leads no evidence on that subject, then, depending on the other evidence, if any, it may be unreasonable to specify such a time limit. Again, whether or not a, or any, particular time limit ought to be specified is not a question to be answered in the abstract. 61 I decline to order that paragraph 2 be struck out or to order the Conservation Council to give particulars of what is alleged to be a suitable fish transfer device. Discovery – water quality 62 The question of how to dispose of the Conservation Council's application for further discovery admits of a ready answer. It has not made it apparent from the pleadings, such as they are, the particulars, prolix though they are, the existing evidence or otherwise from the nature and circumstances of the case that documents touching on the subject specified in the application are directly relevant to an issue in the proceedings. In instituting these proceedings the Conservation Council engaged judicial, not administrative, power. Further, the proceedings are not inquisitorial in character. Order 15 r 8 of the Federal Court Rules confers a power to make an order for particular discovery. However, the occasion for the making of such an order pursuant to that power has not been demonstrated. The Conservation Council's application for further discovery must be dismissed. Disposition and further directions 63 Having regard to my preference for the striking out of the existing statement of claim with a grant of leave to file an amended statement of claim, rather than to make an order for the furnishing of further and better particulars, some modification of the consequential directions proposed by each party on the hearing of the notices of motion will be necessary. I shall therefore hear submissions on that subject and costs upon the publication of these reasons for judgement. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 18 March 2009 Counsel for the Applicant: C McGrath Solicitor for the Applicant: Environmental Defenders Office (Qld) Inc Counsel for the Respondents: D Gore QC and AM Pomerenke Solicitor for the Respondents: Allens Arthur Robinson Date of Hearing: 10 March 2009 Date of Judgment: 18 March 2009