Green & Ors v Graincorp Oilseeds Pty Ltd

Green & Ors v Graincorp Oilseeds Pty Ltd [2023] VSC 395
Supreme Court of Victoria
John Dixon J
Class actions – the plaintiffs owned and lived property close to the Graincorp factory, in an area with a residential zoning – the factory used mechanical, thermal and chemical processes to crush, and refine, large volumes of oilseed – the operations of the factory were regulated by a licence under s20 of the Environment Protection Act 1970 (Vic), and an amended planning permit issued by the Moira Shire – three plaintiffs commenced proceedings, contending that, at least since 2017, the factory had continuously emitted excessively loud noise and continuously emitted offensive odour – the plaintiffs sued in nuisance and under s25 of the Environment Protection Act, which the plaintiffs claimed imposed a duty to minimise the risks of harm to the plaintiffs’ health or the environment from pollution so far as reasonably practicable – no defence had been filed – the first plaintiff sought leave to commence a representative proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic), by filing and serving an amended statement of claim – Graincorp opposed this application, on the basis that the proceeding would fail to comply with s33C of the Supreme Court Act in that the claims for the proposed group members would not give rise to a substantial common question of law or fact – held: an argument that a proceeding that had already been “commenced” by being issued could not be “commenced” again under Part IVA, had some appeal – however, this argument must be rejected as nothing in the language of Part 4A constrained the notion of amendment of an originating process to commence a group proceeding, whether that be amendment of the parties to the proceeding or of the claims made in the proceeding – the meaning of the word “commenced” should not be confined to initially filing an originating process at the court registry – the proposed group definition would be based upon three particular characteristics of potential group members: (1) they must own or occupy land in Numurkah, within one kilometre of the Graincorp factory, at any time after 1 January 2017; (2) they must have suffered loss or damage as a consequence of offensive odours or noise emitted by Graincorp from the Graincorp factory; and (3) the loss and damage must be a consequence of offensive odours or noise that was caused by Graincorp’s processing operations – the issue of the ownership or occupation of affected land was neither vague nor uncertain, and presented no practical difficulties for potential group members – the Court was satisfied that a resident of Numurkah would be reasonably able, with the assistance of a legal advisor if necessary, to ascertain whether they are a group member – Graincorp’s submissions were misconceived in that it sought to address the merits of the allegations about group membership and the common questions that were said to arise – the Court did not accept there was a lack of commonality in the questions of fact and law to be determined by the court due to the individual nature of the claims in nuisance and for breach of the general environmental duty under the Environment Protection Act – first plaintiff’s application allowed.
Green & Ors