FEDERAL COURT OF AUSTRALIA Minister for Sustainability, Environment, Water, Population and Communities v Go Joe's Petroleum Pty Ltd [2011] FCA 880 Citation: Minister for Sustainability, Environment, Water, Population and Communities v Go Joe's Petroleum Pty Ltd [2011] FCA 880 Parties: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES v GO JOE'S PETROLEUM PTY LTD (ACN 131 841 300) File number: NSD 1307 of 2011 Judge: FLICK J Date of judgment: 3 August 2011 Catchwords: ENVIRONMENT LAW – Fuel Quality Standards Act 2000 (Cth) s 65 – supply or sale of diesel fuel – minimum flash point – risk to public safety – interim injunction granted Legislation: Fuel Quality Standards Act 2000 (Cth) s 65(1), 65(5) Fuel Standard (Automotive Diesel) Determination 2001 Date of hearing: 3 August 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr J D Smith Solicitor for the Applicant: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1307 of 2011 BETWEEN: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES Applicant AND: GO JOE'S PETROLEUM PTY LTD (ACN 131 841 300) Respondent JUDGE: FLICK J DATE OF ORDER: 3 AUGUST 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Applicant is granted leave to file in Court the Application and the affidavits of John Stewart Edwards, Somone Bull and Angela Margaret Nanson each made on 3 August 2011. 2. The Application is returnable instanter. 3. Pursuant to s 65 of the Fuel Quality Standards Act 2000 (Cth), the Respondent be restrained until further order from supplying or selling by itself, its servants or agents diesel having a flash point of less than 61.5ºC. 4. Service of these orders be effected by noon on Thursday 4 August 2011 by: a) delivering a sealed copy at the premises known as "Go Joe's Petroleum" to 101 Hector Street, corner of Waldron Road, Sefton, NSW 2162. b) delivering a sealed copy to the registered office of the Respondent at 101 Hector Street, Sefton, NSW 2162. 5. The proceeding is stood over to Friday 5 August 2011 at 9:30am for further directions. 6. The parties have liberty to apply on 24 hours' notice in writing. 7. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1307 of 2011 BETWEEN: MINISTER FOR SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES Applicant AND: GO JOE'S PETROLEUM PTY LTD (ACN 131 841 300) Respondent JUDGE: FLICK J DATE: 3 AUGUST 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court as a duty matter is an Application seeking urgent interlocutory relief pursuant to s 65(5) of the Fuel Quality Standards Act 2000 (Cth). 2 Section 65(1) and (5) of that Act provide as follows: 65 Injunctions Grant of injunction (1) If a person has engaged, is engaging, or is about to engage, in any conduct that is or would be: (a) an offence against this Act; or (b) a contravention of a civil penalty provision; a Court may, on the application of the Minister or any other aggrieved person, grant an injunction restraining the person from engaging in the conduct. … Interim injunction (5) A Court may grant an interim injunction pending a determination of an application under subsection (1). 3 The Application which was filed in court today seeks (inter alia): a declaration that the Respondent, Go Joe's Petroleum Pty Ltd, has supplied diesel fuel in contravention of s 12 of the Fuel Quality Standards Act 2000 (Cth); and an order pursuant to s 65 of the Fuel Quality Standards Act 2000 (Cth) restraining the Respondent from supplying or selling diesel fuel which does not comply with the Fuel Standard (Automotive Diesel) Determination 2001. 4 Go Joe's Petroleum Pty Ltd is apparently the operator of the service station at 101 Hector Street, corner of Waldron Road, Sefton, in the State of New South Wales. 5 Such evidence as is presently before the Court establishes that on 28 July 2011 a sample of diesel fuel was taken from those premises. The evidence also establishes that the sample was taken for analysis and found to have a flash-point of 52°C. The Determination fixes a flash point of 61.5°C (minimum). 6 The interlocutory relief which is sought is an injunction restraining the Respondent "until further order from supplying or selling by itself, its servants or agents diesel fuel having a flash point of less than 61.5°C". 7 An order in those terms, it will be noted, does not preclude the supply or sale of diesel fuel that does comply with the Determination. 8 An available inference is that the sale or supply of diesel fuel which does not comply with the Determination may pose a risk to public safety. Notwithstanding the absence of any express evidence filed on behalf of the Applicant expressing any belief, no matter how qualified, that public safety may be placed in jeopardy if an order is not now made, it is nevertheless considered that that inference should be drawn. 9 Accordingly, interlocutory relief should be granted pursuant to s 65(5) of the Fuel Quality Standards Act 2000 (Cth). ORDERS The Orders of the Court are: 1. The Applicant is granted leave to file in Court the Application and the affidavits of John Stewart Edwards, Somone Bull and Angela Margaret Nanson each made on 3 August 2011. 2. The Application is returnable instanter. 3. Pursuant to s 65 of the Fuel Quality Standards Act 2000 (Cth), the Respondent be restrained until further order from supplying or selling by itself, its servants or agents diesel having a flash point of less than 61.5ºC. 4. Service of these orders be effected by noon on Thursday 4 August 2011 by: a) delivering a sealed copy at the premises known as "Go Joe's Petroleum" to 101 Hector Street, corner of Waldron Road, Sefton, NSW 2162. b) delivering a sealed copy to the registered office of the Respondent at 101 Hector Street, Sefton, NSW 2162. 5. The proceeding is stood over to Friday 5 August 2011 at 9:30am for further directions. 6. The parties have liberty to apply on 24 hours' notice in writing. 7. Costs reserved. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 5 August 2011