BROWN v ENVIRONMENT PROTECTION AUTHORITY (FORMERLY STATE POLLUTION CONTROL COMMISSION) [1993] NSWCA 39

BROWN v ENVIRONMENT PROTECTION AUTHORITY (FORMERLY STATE POLLUTION CONTROL COMMISSION)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 22, 23 March, 1 April 1993

[1993] NSWCA 39

APPLICATION FOR SECURITY FOR COSTS under Pt 51 r 11 of Supreme Court Rules — various factors relevant to exercise of discretion — community interest in proceedings — Lall vy 53-55 Hall Street Pty Limited [1978] 1 NSWLR 310 at 312 and Kennedy v McGeechan (1974) [1978] 1 NSWLR 315 at 315 referred to — application refused.

APPLICATION FOR EXPEDITION — Category B expedition granted.

Priestley JA. The Australian Conservation Foundation ('the ACF') began proceedings in the Land and Environment Court against the Environment Protection Authority ('the EPA') and North Broken Hill Limited trading as Associated Pulp and Paper Mills ('APPM') in May 1992. The ACF began the proceedings when it appeared that the Legal Aid Commission had granted legal aid for the conduct of the proceedings.

The object of the proceedings was to test the lawfulness of the decision by the EPA to grant licences under the Pollution Control Act to APPM on certain conditions. The ACF's claim was that the conditions attached to the licence permitted the discharge into the Shoalhaven River of pollutant material pursuant to a policy adopted by the EPA under the name 'prosecutable reality'; that the conditions imposed under this policy permitted an increase in the amount of pollutants released into the river in comparison to what could be done under licences granted before the adoption of the policy; and that the decision to issue the licence on such conditions was an impermissible use of the EPA's statutory powers.

Soon after the ACF had begun the proceedings the Legal Aid Commission withdrew its grant of aid. The ACF did not wish to run the risk of having a costs order made against it if it lost the proceedings, and announced that it would withdraw.