Fordham v Environment Protection Agency [2018] NSWCA 167

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fordham v Environment Protection Agency [2018] NSWCA 167 Hearing dates: 28 June 2018 Date of orders: 01 August 2018 Decision date: 01 August 2018 Before: Meagher JA at [1]; Leeming JA at [45]; Sackville AJA at [46] Decision: 1. Appeal allowed in part. 2. Set aside declarations (1) to (3) and orders (1) to (7) made by the Land and Environment Court on 23 March 2018. 3. Direct the appellants to file and serve by 5pm on 8 August 2018 affidavit evidence and written submissions in support of the costs orders sought (those submissions not to exceed 5 pages). The respondent to file and serve any affidavit evidence and submissions in response by 5pm on 15 August 2018. Those questions are then to be determined on the papers. Catchwords: DECLARATORY RELIEF – where EPA issued notices to appellant directors or executives under Protection of the Environment Operations Act 1997 (NSW), Part 7.5 requiring answers to questions regarding possible contraventions by a corporation of provisions which may also give rise to a special executive liability under s 169 – where appellants sought declarations that not required to answer questions if did not have benefit of immunity against self-incrimination conferred by s 212(3) – where primary judge held no legal controversy capable of being subject of declaratory relief – where following filing of appeal EPA conceded question in issue, but not on grounds argued before primary judge – whether primary judge erred in not making declarations sought – before concession made there was a sufficient controversy to justify declaratory relief – after concession declaratory relief in terms sought not justified