Case: Millington v Loring (1880) 6 QBD 190
Outcome: considered
is a question as to the content of the term "material facts" in O 11 r 2 of the rules. An English case, Millington v Loring (1880) 6 QBD 190 , is still annotated in the Butterworths Practice for a proposition that: Whether or not a fact is material will depend on the circumstances of each case. Material facts are not limited to the facts constituted in the cause of action, but extend to the relief being sought, and generally, so that there is no chance of the respondent being taken by surprise. I can see how this proposition has pertinence in relation to the giving of particulars in relation to the damages which an applicant seeks in either a common law or statutory cause of action founded claim for damages. It is rather less easy to see how this has any application in relation to a claim for injunctive relief under s 475. Especially, that is so, having regard to the terms of s 479 which excludes from the fatality of impact on a discretion to grant injunctive relief particular considerations, that, under the general law of equity, would be followed. Whether or not the considerations that are set out in relation to these representations become material may depend upon the course taken by Burnett Water in its defence. I do not see that they have any place in the statement of claim. I strike them out. Paragraphs 60-82 are as follows: Compliance audit and internal audit In early June 2007 the department administering the EPBC Act, then the Department of Environment and Water Resources ("DEWR"), informed the respondent that it proposed to conduct a random compliance inspection of the dam to assess compliance with the conditions of approval ("the compliance audit"). Prior to the compliance audit occurring in June 2007 the upstream fishway had not been operated for a period of 8 consecutive months as particularised in paragraph 26 above. At the time of the compliance audit and subsequently a company trading as "SunWater" operated the dam as agent of the respondent. PARTICULARS OF AGENT AND AGENCY (a) On or about 16 December 2005 the respondent became a wholly-owned subsidiary of SunWater Pty Ltd (ACN 059 666 625), trading as "SunWater". (b) on 16 January 2006 SunWater Pty Ltd changed its company name to ACN 059 666 625 Pty Ltd, trading as "SunWater". (c) On 12 May 2008 ACN 059 666 625 Pty Ltd was de-registered and its assets transferred to a newly incorporated company, SunWater Pty Ltd (ACN 131 034 985), trading as "SunWater"). (d) The agency between the respondent (as principal) and SunWater(as agent) commenced in or about November 2005 when the dam commenced operation and continued thereafter. (e) The scope of the agency was at all material times for SunWater to operate the dam on the respondent's behalf, including compliance with the approval and negotiations with the department administering the EPBC Act. Prior to the site visit to the dam by a four person audit team from DEWR for the purposes of performing the compliance audit, an employee of SunWater and agent of the respondent, Andrew Maughan, worked to ensure that the upstream fishway operation would be demonstrated to the auditors. When the DEWR audit team conducted a site inspection of the dam on 26 June 2007, SunWater staff acting as agents for the respondent operated the upstream fishway to represent to the auditors that the upstream fishway was in fact operational. Further, on 10 August 2007 Peter Sampson, General Manager Water Services, SunWater, and an agent of the Respondent, wrote to DEWR and requested that the audit report find, inter alia , that "The upstream fish lift is operational." In so doing Mr Sampson represented to DEWR that the upstream fishway was operational. On 8-10 October 2007 an internal auditor employed by SunWater, Danny Green, acting also as an agent for the respondent, conducted an internal audit of the environmental management system of the dam. Mr Green found in his report, dated 10 October 2007 ("the internal audit report") inter alia : It is noted that SunWater may be breaching the conditions outlined within its Federal licence to operate and maintain Paradise Dam. The wording of the condition may work in the favour of SunWater however SunWater is exposed to negative publicity and undue political scrutiny even if a court does find that the organisation has not breached the conditions. Further, Mr Green found in the internal audit report: There is a possible non-conformance with the operation of the upstream fish lift at Paradise Dam as it has only been operated 13 days in the year up to 30 June 2007. The operation of the upstream fishway at the Paradise Dam for 13 days in the year up to 30 June 2007 represented operation for 3.5% of total daily time. The findings of the internal audit report were not conveyed to DEWR. DEWR and representatives of SunWater, acting as agents for the respondent, arranged a meeting in Brisbane on 22 November 2007 to discuss a draft compliance audit report provided by DEWR to SunWater concerning the findings of the compliance audit of the dam conducted by DEWR in June 2007. On 14 November 2007 Mike Smith, Director of the DEWR Monitoring and Audit Section sent an email to Briony Pomplum, Environmental Services Manager, SunWater, setting out the issues that DEWR wished to address at the meeting. One of the issues raised by Mr Smith was: Can SunWater provide advice as to whether the fishlift has been operating as intended i.e., with optimal operating times and if not, what are SunWater's plans to address any shortfall in operational performance? The proposed meeting on 22 November 2007 to discuss the draft DEWR compliance audit report was cancelled by DEWR and in lieu of the meeting SunWater prepared a letter to answer the questions raised by Mr Smith. Ms Pomplun prepared a draft response to Mr Smith's questions on 22 November 2007 that responded to his question regarding "whether the fishlift has been operating as intended ..." by stating in reply that the upstream fishway had been "plagued with mechanical failure." On 22 November 2007 Mr Danny Green, acting as an employee of SunWater and agent of the respondent, stated in an email in relation to the draft response prepared by Ms Pomplun, inter alia , that: I suggest that the words responding to whether the fishlift has been operating as intended should be modified. The audit did not come down too hard on this aspect so I don't [sic] think we should include comments like "plagued with mechanical failure". Mr Green's email on 22 November 2007 in relation to Mr Pomplun's draft response was copied, inter alia , to Peter Boettcher, Chief Executive Officer of SunWater and Chief Operating Officer of the respondent. On 23 November 2007, Mr Boettcher wrote, as Chief Operating Officer of the respondent, to DEWR in lieu of the meeting planned for 22 November 2007 and responded to the question from DEWR particularised in paragraph 73 above by stating: The upstream fishway operating range is EL 44.44m to EL66.66m. The fishway became operational when the dam commenced in December 2005. The fishway has not been operated as intended due to: December 2005 to March 2006 represented the commissioning phase of the fishway; Initial mechanical problems were experienced during March 2006 to June 2006; During the period June 2006 December 2006, the fishway operation was interrupted by the construction of the mini-hydro facility at the Dam; Advice was received in August 2006, from the Burnett Dam Alliance (BDA), to cease operating the fishway at the then current level of EL 49.09m, due to concerns by BDA that the fish hopper might hit a submerged rock pimple ( Evidence Doc No. 14 ). The storage continued below this level from August 2006 to October 2007. Investigations during July to September 2007 by [Burnett Water Pty Ltd (BWPL)], found that the fishway could in fact be operated to the full lower operating level of EL44.44m, without damaging the hopper. On 10 October 2007, a correction was received from BDA that the fishway could operate to the EL 44.44m ( Evidence Doc No. 15 ) and operation of the fishway recommenced with on-site supervision. The current operation will be monitored to assess any further operational issues, whilst the operator is on-site. Once reliable operation is confirmed, continuous operation of the fishway will recommence. The statements by Mr Boettcher in his letter to DEWR of 23 November 2007, particularised in paragraph 78, acknowledged that: (a) condition 3 of the approval required continuous operation; and (b) the respondent knew it had failed to operate the upstream fishway for long periods. The conduct engaged in by Mr Boettcher, set out in the preceding paragraphs, was engaged in on behalf of the respondent by Mr Boettcher as an employee of the respondent with in the scope of his actual or apparent authority. In the premises, that state of mind of Mr Boettcher in engaging in the conduct set out in the preceding paragraphs was the state of mind of the respondent pursuant to section 498B(2) of the EPBC Act. In the premises, the respondent, through its employees and agents, knew that the upstream fishway had not operated for long periods during 2006 and 2007 and the respondent knew that this contravened or may contravene condition 3 of the approval. There are a number of criticisms that were made, legitimately, in my opinion, in relation to these paragraphs. As a general proposition the paragraphs plead evidence rather than material facts. That aside, paras 79 - 82 are particular conclusions related to Burnett Waters having acknowledged that condition 3 of the approval required continuance of operation and then Burnett Water knowingly contravening that. The submission is made that these allegations going to the subsequent conduct are irrelevant.