Ardizzone v Valentino Nominees Pty Ltd - [2019] WASC 55

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ARDIZZONE -v- VALENTINO NOMINEES PTY LTD [2019] WASC 55
CORAM:   ARCHER J
HEARD:   12-26 JUNE, 28-29 JUNE 2018 & 22 JANUARY 2019
DELIVERED          :   27 FEBRUARY 2019
FILE NO/S:   CIV 1701 of 2017
BETWEEN:   JOSEPH ANTONINO ARDIZZONE
Plaintiff
AND
VALENTINO NOMINEES PTY LTD
First Defendant
JAMES COLBY
PAULA CHARMAINE COLBY
Second Defendants
CRIPROPERTY PTY LTD
Third Defendant
WALTER LA ROCCA
Fourth Defendant
VALENTINO NOMINEES PTY LTD
First Plaintiff by counterclaim
JAMES COLBY
PAULA CHARMAINE COLBY
Second Plaintiffs by counterclaim
AND
JOSEPH ANTONINO ARDIZZONE
First Defendant by counterclaim
THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF PARKS AND WILDLIFE
Second Defendant by counterclaim
THE MINISTER FOR ENVIRONMENT
Third Defendant by counterclaim

Catchwords:

Breach of contract - Vendor's warranty - General Conditions - Requirement made by governmental authority - Misleading conduct by non-disclosure - Reasonable expectation of disclosure - Causation - Apportionment where one wrongdoer received a substantial benefit - Notice declaring an environmentally sensitive area - Threatened ecological community - 'Determined'

Legislation:

Environmental Protection Act 1986 (WA)
Competition and Consumer Act 2010 (Cth), s 87CB, s 18 and s 30 of sch 2 (Australian Consumer Law)

Result:

Judgment for the plaintiff in the original action
Counterclaim dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	G D Cobby
First Defendant	:	T O Coyle
Second Defendants	:	T O Coyle
Third Defendant	:	G R Hancy
Fourth Defendant	:	G R Hancy

Solicitors:

Plaintiff	:	Roe Legal Services
First Defendant	:	Fletcher Law
Second Defendants	:	Fletcher Law
Third Defendant	:	DLA Piper Australia - Perth
Fourth Defendant	:	DLA Piper Australia - Perth

Counterclaim

Counsel:

First Plaintiff by counterclaim	:	T O Coyle
Second Plaintiffs by counterclaim	:	T O Coyle
First Defendant by counterclaim	:	G D Cobby
Second Defendant by counterclaim	:	J E Shaw & A L Mason
Third Defendant by counterclaim	:	J E Shaw & A L Mason

Solicitors:

First Plaintiff by counterclaim	:	Fletcher Law
Second Plaintiffs by counterclaim	:	Fletcher Law
First Defendant by counterclaim	:	Roe Legal Services
Second Defendant by counterclaim	:	State Solicitor for Western Australia
Third Defendant by counterclaim	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Bakovski v Lenehan [2014] NSWSC 671
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Caffey v Leatt‑Hayter [No 3] [2013] WASC 348
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232; [2005] ATPR 42‑042
Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694
Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366
Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185
Fazio v Fazio [2012] WASCA 72
Gates v City Mutual Life Assurance Society Limited Ltd [1986] HCA 3; (1986) 160 CLR 1
GEJ & MA Geldard Pty Ltd v Mobbs (No 2) [2011] QSC 33; [2012] 1 Qd R 120
George v Webb [2011] NSWSC 1608
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553
Ireland v Johnson [2009] WASCA 162; (2009) 189 IR 135
Italform Pty Ltd v Sangain Pty Ltd [2009] NSWCA 427
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494
McKay v Commissioner of Main Roads [2013] WASCA 135
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Mealey v Mountains Development Group Pty Ltd [2003] NSWSC 830
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Mohammadi v Bethune [2018] WASCA 98
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust t/as Property People [2012] WASC 271
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76; (2011) 248 FLR 193
Perpetual Trustee Co Ltd v Ishak [2012] NSWSC 697
Polon v Dorian [2014] NSWSC 571; (2014) 102 ACSR 1
Potts v Miller [1940] HCA 43; (1940) 64 CLR 282
Pryor v Given (1980) 30 ALR 189
Reinhold v New South Wales Lotteries Corp (No 2) [2008] NSWSC 187; (2008) 82 NSWLR 762
Royal Sydney Golf Club v Federal Commissioner of Taxation [1957] HCA 31; (1957) 97 CLR 379
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Shone v Davies [2012] WASCA 83
Smith v Noss [2006] NSWCA 37
Spencer v The Commonwealth (1907) 5 CLR 418
The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Townsend v Roussety & Co (WA) Pty Ltd [2007] WASCA 40; (2007) 33 WAR 321
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
Wenkart v Pitman (1998) 46 NSWLR 502
Williams v Pisano [2015] NSWCA 177

TABLE OF CONTENTS

Overview

Breach of contract

Misleading or deceptive conduct

Claimed impact

The issues in the original action

The counterclaim

Structure of these reasons

Legislative and regulatory framework

Conservation and Land Management Act 1984

Environmental Protection Act 1986

Clearing Provisions
Ecological communities
Environmentally Sensitive Areas
The ESA notice in issue in this case

Commonwealth list of TECs under EPBC Act

The factual history that led to the sending of the Letter

The database

The listing of TEC SCP 20A

Ministerial approval of list of TECs

Tauss and Weston survey of MKSEA

Sending the Letter

Effect of the Letter

Relevant factual events and findings

The zoning of the Property

The purchase of the Property

Valentino's purchase of the Property
Valentino's engagement of CRI to sell the Property
Events leading up to the signing of the Contract
The Contract is signed

Mr Ardizzone's belief in relation to restrictions on the use of the Property

Valentino parties receive the Letter and communicate with Mr La Rocca

What did Mr Colby tell Mr La Rocca about the Letter?
Did Mr La Rocca get a copy of the Letter?

The Letter is not disclosed

The Valentino parties fail to disclose
Mr La Rocca fails to disclose

Extensions of time for finance

Settlement

Events following the settlement

Clearing in 2013
City Notice
Mr Ardizzone asked the defendants if they knew about the TEC
Mr La Rocca
Ms Colby
Re‑mapping of TEC in 2014
Mr Ardizzone wrote letters of complaint
Did Mr Ardizzone unlawfully clear on the house‑side of the fence?
Sand deposit in 2015

Subsequent events affecting the areas able to be used

Assessment of the witnesses

Mr La Rocca

Implausible or changing evidence
Dealing with the parties

Mr Ardizzone

Sand deposit
Other criticisms of his evidence
Conclusion

Ms Flight

Mr Colby

Ms Colby

What did Mr Ardizzone know and what should he have known?

Was Mr Ardizzone told by Mr La Rocca that he would need a permit to clear?

Was Mr Ardizzone told by Mr Vucinic about clearing problems?

Jones v Dunkel
Conclusion as to Mr Vucinic

Did Mr Ardizzone know, or should he have known, that there was a TEC on the Property?

Did Mr Ardizzone know, or should he have known, about restrictions on clearing vegetation?

Did Mr Ardizzone know about restrictions on clearing native vegetation?
Should Mr Ardizzone have known?

What would have happened if Mr Ardizzone had been told about the Letter?

The evidence

Conclusion

The ability to clear the land

Expert evidence on the ability to clear

Likelihood of obtaining a clearing permit if it was not a TEC
Likelihood of obtaining a clearing permit if it was a TEC
No challenge to experts

Would Mr Ardizzone have been able to clear the vegetation if it was not a TEC? (Issue 10)

Could Mr Ardizzone get a permit to clear the TEC area (permit component of Issue 11)?

Is the TEC area available for use? (Issue 11)

Valuation of the Property

General principles

Basis of valuation

Overview of evidence

Mr Gorman's evidence

Examples of questionable methodology
Analogy to precincts 2 and 3
Future uses of the TEC area
Passive enjoyment value of the TEC area?
Possible future compensation

Mr Hughes' evidence

Values

Value of the TEC area
Possibility that the TEC area could be cleared
Value of the areas surrounding the TEC area
Value of the unrestricted area of the Property
Value of the improvements
Total value of the Property

If there had been no TEC

Reduction in value caused by the TEC

The original action

Breach of contract claim

Did the Letter communicate a Government Requirement?

What is the proper construction of cl 9.1(a)(1)?

Valentino parties' construction
Mr Ardizzone's submissions
Valentino parties' challenge to Mr Ardizzone's construction
Conclusion
Construction of the promise made
Type of promise

Does the clause apply only to a valid requirement?

Did Valentino breach cl 9.1(a)(1)?

Did the breach cause Mr Ardizzone's loss?

Misleading conduct claim

The issues

What was the alleged misleading conduct?

Were the alleged representations made?

The Marketing Documents
What were the alleged representations?
Did the Marketing Documents make the alleged representations?

Was the defendants' conduct in trade or commerce?

Valentino parties
Agent parties

Was the conduct misleading?

General principles
Silence as misleading conduct
The relevant circumstances
Mr Ardizzone's position
Defendants' position
Did a reasonable expectation arise?
Distinction between the Valentino parties and the Agent parties?
Failure inadvertent?

Did the misleading conduct cause loss?

Principles
Did Mr Ardizzone have to prove reliance?
Analysis

Did Mr Ardizzone cause or contribute to any loss?

The pleaded criticised conduct
Public registers
The websites
Blatant disregard?
Ignorance of the law
The haste of the purchase
Conclusion

Apportionment between defendants

The principles
Can I take into account a defendant's profit?
The facts
Conclusion

Section 30 claims

Assessment of loss

General principles

Was any loss suffered?

Actual loss

Possible future events

Summary of findings in original action

The counterclaim

Principles of construction

Issue 1 - did the Minister 'determine'?

Clause 3 of the ESA Notice

What does 'determined' mean in the ESA Notice?

Overview of the parties' submissions

The briefing notes

The first briefing note
The second briefing note

Minister's approval

The Valentino parties' submissions

Evaluation

What was the Minister asked to do?
What did the Minister do?

Issue 2 - was an area of the Property covered by a TEC?

Assessing areas of vegetation

Gibson and Keighery Report

What was the basis upon which Gibson and Keighery identified the FCTs?
Relevance of structure
Relevance of environmental features
The description of the FCTs
Definitional or descriptive short hand label?
Number of sites identified as FCT 20a

Tauss and Weston's work

The work on the Property

The Griffin statistical analysis

Comparison of quadrats and relevés
Comparison of quadrats and three particular relevés
Nearest neighbour
Griffin's summary
Use of results
Weight to be given to nearest neighbour result

The Tauss and Weston Report

Evaluating the Tauss and Weston Report
Research
Methodology
Steps in analysis
Step 1 - the vegetation structure
Step 3 - the Griffin analysis and critical review
Open to Tauss and Weston to reach valid conclusions
Reasons as a whole
Reasons for finding FCT 20a despite the nearest neighbour
Did Tauss and Weston assume they had to assign each site?

The expert evidence

Absence of Banksia attenuata
Studies undertaken after the Gibson and Keighery Report
Conclusion
Cyathochaeta equitans
Dr Mattiske
Dr Mattiske's own comparison
Dr van der Moezel
Mr Keighery

Valentino parties' criticisms of Tauss and Weston

Misrepresented Griffin's results
'Affinities' versus determination
Questionable mapping assertion
Criticisms of Tauss and Weston's approach
Tauss and Weston assigned Site 22 for conservation reasons
Tauss and Weston failed to use the Gibson and Keighery methodology
Tauss and Weston relied on Site 24's proximity to Site 22

Was it FCT 23a?

Was Tauss and Weston's conclusion justified?

Was it FCT 20a?

The Valentino submission that it is uncertain
Ms English
Evaluation process
Involvement with Tauss and Weston
Review of the Tauss and Weston Report
Ms English's conclusion that it should be listed

Issue 3 - did the Letter notify of the area on the Property covered by the TEC?

Presumption against interference with vested property rights?

What did the Letter do?

Extent of precision required

Evaluation

Summary of findings in counterclaim

Outcome

ARCHER J:

Overview

On 4 December 2012, Mr Ardizzone entered into a contract to purchase 113 Victoria Road in Kenwick (Property) from the first defendant, Valentino Nominees Pty Ltd. Each of the second defendants, Mr and Ms Colby, was a director of, and the holder of one of the two issued shares in, Valentino. I will refer to the second defendants as 'the Colbys' and will refer to the Colbys and Valentino collectively as 'the Valentino parties'.
Valentino engaged Criproperty Pty Ltd (CRI) to offer the Property for sale. Mr La Rocca was employed by CRI as a real estate agent. I will refer to CRI and Mr La Rocca collectively as 'the Agent parties'.
Between the contract date and the settlement date, Valentino received a letter sent from the then Department of the Environment and Conservation (Letter). Among other things, the Letter informed Valentino that:
(1)a threatened ecological community (TEC) was present on the Property;
(2)TECs had a special level of protection under Western Australian law and were the subject of special provisions regarding the clearing of native vegetation; and
(3)Valentino should inform any purchaser of the Property of the existence of the TEC.
Mr Colby said that, when he read the Letter, he thought it was his 'ethical responsibility' to let Mr Ardizzone know that 'there could be a problem'. He believed the Letter needed to be disclosed to Mr Ardizzone. However, he did not want to disclose the Letter to Mr Ardizzone before he had spoken to Mr La Rocca and ascertained what its impact might be. Mr Colby telephoned Mr La Rocca and told him about the Letter. After Mr La Rocca told Mr Colby that the Letter was, in effect, 'nothing to worry about', Mr Colby told Mr La Rocca to give a copy of the Letter to Mr Ardizzone.
Shortly after speaking to Mr La Rocca, Mr Colby emailed a copy of the Letter to Mr La Rocca's email address at CRI. Mr La Rocca said he did not receive this email.
Mr Ardizzone was not given the Letter or told about it by any of the defendants.
Settlement occurred on 22 March 2013.
Mr Ardizzone became aware of the existence of the Letter about a year after the settlement date. After taking possession of the Property, Mr Ardizzone cleared some of the vegetation on it. In early February 2014, an officer from the City of Gosnells (City) advised him there was a TEC on the Property. On 18 February 2014, the City sent him a letter advising him, among other things, that some of the vegetation he had cleared had been within the area said to contain a TEC on the Property (TEC area). The City's letter attached a directions notice requiring him to restore the TEC area. On making further enquires, Mr Ardizzone was provided with a copy of the Letter.
Mr Ardizzone submitted that the defendants should have told him about the Letter before settlement. He said that the presence of the TEC means he is effectively denied the use of a large proportion of the Property.
Under the relevant legislation, there are significant restrictions on the ability to use TEC areas. TEC areas may also be declared to be 'environmentally sensitive areas' (ESAs). If a TEC area is declared to be an ESA, there are increased restrictions on the ability to use the land.
Mr Ardizzone alleges a breach of the contract and misleading or deceptive conduct.

Breach of contract

The breach of contract is alleged only against Valentino. Mr Ardizzone submitted that Valentino breached cl 9.1(a)(1) of the 2011 Joint Form of General Conditions for the Sale of Land (General Conditions). Condition 3 to the contract of sale (Contract) incorporated the General Conditions.
Clause cl 9.1(a)(1) of the General Conditions relevantly provides that the seller represents and warrants to the buyer that, as at the contract date and as at the settlement date, the seller does not know of any demand, requisition, order or requirement relating to the Property which had been made by any governmental, statutory body or other public body or authority and which remained current as at the date of settlement. In these reasons, I will refer to such a demand, requisition, order or requirement as a 'Government Requirement'.
The Valentino parties agree that, if Valentino knew of such a Government Requirement at the date of settlement, Valentino would have breached cl 9.1(a)(1).[1]
[1] ts 229 ‑ 230.
The parties disagree as to whether the Letter informed Valentino of a Government Requirement.
The parties also disagree as to the proper construction of cl 9.1(a)(1) and the remedies available to Mr Ardizzone if it was breached.

Misleading or deceptive conduct

Mr Ardizzone alleges that each of the defendants engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, contrary to s 18 of the Australian Consumer Law[2] (ACL). Further, and in the alternative, Mr Ardizzone alleges that each of the defendants made false or misleading statements concerning the characteristics of the land, or the use to which the land is capable of being put or may lawfully be put, contrary to s 30(1)(e) or (f) of the ACL.
[2] Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Mr Ardizzone alleges[3] that the conduct that breached the ACL was the defendants' failure to disclose the Letter in the context of cl 9.1(a)(1) of the General Conditions, the marketing documents provided to him and implicit representations alleged to have been made in those documents. The alleged implicit representations are:
(1)that there was no restriction on the use of the whole or substantially the whole of the area of the Property; and/or
(2)that steps were being taken that would likely result in the whole or substantially the whole of the area of the Property being zoned for industrial use.

Claimed impact

[3] Re‑Amended Statement of Claim filed 12 June 2018 (Statement of Claim) [19], [24] ‑ [29].

The TEC area on the Property originally comprised approximately 7,000 sqm. The TEC area was subsequently reduced (in part because of the clearing by Mr Ardizzone referred to above). However, due to the presence of the TEC, the City imposed restrictions on the use of some land outside the TEC area.
Mr Ardizzone claims that the practical effect of the TEC is that he is unable to use approximately 6,155 sqm (approximately 30% of the area of the Property), he is limited in his use of a further 2,557 sqm (approximately 13%), and he also incurs costs to maintain the TEC.
Mr Ardizzone seeks:
(1)damages for breach of contract as against Valentino;
(2)damages pursuant to s 236 of the ACL against all four defendants; and
(3)interest and costs.

The issues in the original action

The parties provided an agreed list of 43 issues in the original action (first list of issues). During the hearing, it became apparent that many of the issues were no longer pressed. During closing submissions, the parties confirmed that 14 issues had fallen away. Following the trial, the parties provided, with leave, an updated list of agreed issues (final list of issues) which struck out 15 of the issues from the first list.

Of the remaining 28 issues, a number overlapped or duplicated a point, and some were simply ultimate issues as to conclusions that would flow from the determination of other issues. Accordingly, in these reasons, I will not deal with the issues in numerical order. I will deal with some issues in the course of discussing the history of the matter, my factual findings and my assessment of the witnesses. The remaining issues will be dealt with in the analysis of the two distinct causes of action.
Broadly speaking, the issues are as follows.
(1)In relation to the contract claim:
(a)Did the Letter communicate a Government Requirement?
(b)What is the proper construction of cl 9.1(a)(1) of the General Conditions?
(c)Does cl 9.1(a)(1) only apply to a valid Government Requirement?
(d)Did Valentino breach the Contract?
(e)If so, did the breach cause loss?
(2)The issues that arise in the misleading conduct claim are:
(a)What was the alleged misleading conduct?
(b)Were the alleged representations made?
(c)Was the conduct in trade or commerce?
(d)Was the conduct misleading or likely to mislead?
(e)Did the conduct cause Mr Ardizzone to suffer loss or damage?
(f)Did Mr Ardizzone cause or contribute to any loss?
(g)If the answers to questions (c) ‑ (e) are yes, how should the loss be apportioned between the defendants?
(3)In relation to both claims, what is the proper assessment of any loss?

The counterclaim

The Valentino parties brought a counterclaim against Mr Ardizzone, the Chief Executive Officer (CEO) of the Department of Parks and Wildlife and the Minister for the Environment (Minister). I will refer to the CEO and the Minister collectively as 'the Government parties'.
It would be unhelpful to fully explain the issues that arise in the counterclaim at this point. For the moment, it is sufficient to note the following.
The Valentino parties submitted that there was, in fact, no TEC on the Property. They submitted that the 2010 expert report which said otherwise was flawed.
In addition, the Valentino parties disputed that the TEC area said to be on the Property was also an 'environmentally sensitive area' (ESA). Relevantly, for an area to be an ESA, the vegetation must have been determined by the Minister to be a TEC and the owner of the property must have been notified of the area on the Property covered by the TEC.
The Valentino parties submitted, in essence, that the Minister merely approved an informal arrangement and did not make a 'determination'.
The Valentino parties further submitted that the Letter did not notify Valentino of 'the area on the Property covered by the TEC', because it only advised of the approximate area.

Structure of these reasons

Before turning to the issues, I will set out the relevant legislative and regulatory framework and the factual history that led to the sending of the Letter.
In their written submissions, the Government parties helpfully summarised these matters. Subject to the specific issues dealt with later in these reasons, the summary was not disputed. I gratefully acknowledge that almost all of what follows in the next two sections is drawn from the submissions of the Government parties.

Legislative and regulatory framework

Conservation and Land Management Act 1984

Upon the commencement of the Conservation and Land Management Act 1984 (WA) (CALM Act), the Department of Conservation and Land Management was established as the department that would principally assist in the administration of the CALM Act.
This department has undergone a number of name changes over time including the Department of Parks and Wildlife, the Department of Environment and Conservation and its current name, the Department of Biodiversity, Conservation and Attractions. In these reasons, the term 'Department' is used to refer to the department by the name it was known by at the relevant time.
At the relevant time, the functions of the Department and its CEO included:[4]
(1)to be responsible for the conservation and protection of flora and fauna throughout the State;
(2)to carry out, or cause to be carried out, such study or research of, or into, the conservation and protection of flora and fauna as the Minister may approve; and
(3)to provide advice to other departments and public bodies as well as private individuals and bodies in connection with its functions.
[4] CALM Act s 33.

These functions were subject to the direction and control of the Minister.

Environmental Protection Act 1986

Clearing Provisions

In 2003, the Environmental Protection Act 1986 (WA) (EP Act) was amended to introduce new statutory provisions regulating the clearing of native vegetation in Western Australia (Clearing Provisions).[5]
[5] These provisions are contained in div 2 of pt V of the EP Act.
The term 'native vegetation' is defined in s 3(1) and s 51A of the EP Act. Subject to qualifications not relevant here, it is defined to mean indigenous aquatic or terrestrial vegetation, including dead vegetation but excluding vegetation that was intentionally sown, planted or propagated.
Under s 51C of the EP Act, it is an offence for a person to cause or allow 'clearing'[6] of native vegetation without a clearing permit unless an exemption applies. There are two types of exemption.
[6] The term 'clearing' is defined in s 51A of the EP Act, and includes removing native vegetation and acts that cause substantial damage to native vegetation.
The first type of exemption, provided by s 51C(b), applies where the clearing is of a kind set out in sch 6 of the EP Act. This type of exemption is of limited application and is not relevant to these proceedings.[7]
[7] Schedule 6 to the EP Act relates to, among other things, assessed schemes and subdivision approvals.
The second type of exemption, provided by s 51C(c), applies where the clearing is of a kind prescribed in the regulations and is done outside of an ESA. I will refer to exemptions of this type as 'Non‑ESA exemptions'. The Non‑ESA exemptions are set out in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (Clearing Regulations).
Various sections of the EP Act deal with applications for, and the grant or refusal of, clearing permits.
The power to grant or refuse a clearing permit has been vested in various departments over time. It is currently conferred on the CEO of the Department of Water and Environmental Regulation (DWER). DWER is the department that principally assists in the administration of the EP Act. In these reasons, I will use 'DWER' to mean the name of the department which had, or whose CEO had, the power to grant or refuse a clearing permit at the relevant time.
When considering an application for a clearing permit, the CEO of DWER is required to have regard to, among other things, the 'clearing principles' so far as they are relevant to the application.[8]
[8] Section 51O(2) EP Act.
The clearing principles are listed in sch 5 of the EP Act. They state certain circumstances in which native vegetation should not be cleared. They are essentially a set of mandatory relevant considerations the CEO must take into account when determining clearing permit applications.
The CEO may make a decision that is seriously at variance with the clearing principles if, and only if, in the CEO's opinion there is a good reason for doing so.[9]
[9] Section 51O(3) EP Act.
Clearing principle 1(d) provides that 'Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community'. Until recently, the term 'threatened ecological community' was defined to mean 'an ecological community listed, designated or declared under a written law or a law of the Commonwealth as threatened, endangered or vulnerable'.[10] The definition was recently amended to mean an ecological community that is listed as a threatened ecological community under s 27(1) of the Biodiversity Conservation Act 2016 (WA) or that is to be regarded as a threatened ecological community under s 33 of that Act.[11]
[10] Clause 2 of sch 5 of the EP Act.
[11] The amendment to the definition in the EP Act was made by the Biodiversity Conservation Act 2016, which became operative on 1 January 2019.
The granting of a clearing permit does not remove the need for a person to obtain any development or planning approvals that may be required.

Ecological communities

An 'ecological community' is a naturally occurring group of plants, animals and other organisms found in a particular type of habitat. The term 'ecological community' is used as a synonym for 'ecosystem type'.[12]
[12] Exhibit 13.12.1 [9].
There are different types of ecological communities. Some are vegetation‑based and are described based on the groups of plants that are found within them.[13]

Environmentally Sensitive Areas

[13] Exhibit 13.12.1 [10].

The term 'environmentally sensitive area' is defined in s 51A of the EP Act to mean 'an area that is the subject of a declaration that is in force under section 51B'.
Section 51B(1) of the EP Act confers on the Minister the power to declare, by notice, 'an area of the State' or 'an area of the State of a specified class', to be an ESA for the purposes of the Clearing Provisions (an ESA notice).
An ESA notice is subsidiary legislation for the purposes of the Interpretation Act 1984 (WA).[14] Therefore, subject to exceptions, an ESA notice will come into operation when it is published in the Government Gazette.[15]

The ESA notice in issue in this case

[14] Sections 51B(2) and (3) of the EP Act.

[15]Interpretation Act 1984 (WA), s 41(1)(a).

The ESA notice in issue in this case (the ESA Notice) was published in the Government Gazette on 8 April 2005.[16]
[16] Exhibit 2.14.
Clause 3 of the ESA Notice defines the term 'threatened ecological community' to mean
an ecological community that has been determined by the Minister to be a threatened ecological community and is referred to in the list of threatened ecological communities maintained by the chief executive officer of the department of the Public Service principally assisting in the administration of the Conservation and Land Management Act 1984.
By cl 4(1)(e) of the ESA Notice, an area covered by a TEC is declared to be an ESA, subject to other provisions within cl 4. Under cl 4(5) of the ESA Notice, such an area is not an ESA unless:
(a)the determination of the area has been made public; or
(b)the owner, occupier or person responsible for the care and maintenance of the relevant land has been notified of the area.
Clause 4(6) of the ESA Notice provides that, in cl 4, a reference to the determination of an area is a reference to the determination of the area as in force or effect immediately before the day on which the ESA Notice comes into operation (unless the contrary intention appears or the context otherwise requires).
Clause 4(7) of the ESA Notice provides that, in cl 4(5) and cl 4(6), the term 'determination' means 'the declaration, determination, designation, registration, listing, mapping or other description of the flora, ecological community, site or area'.

Commonwealth list of TECs under EPBC Act

Section 181 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides that the Commonwealth Minister must, by legislative instrument, establish a list of TECs divided into the following categories: (a) critically endangered; (b) endangered; (c) vulnerable.
The legislative instrument that contains the list of Commonwealth TECs lists 'Banksia Woodlands of the Swan Coastal Plain ecological community' as an ecological community that is 'endangered'.[17]
[17] Declaration under s 178, s 181, and s 183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes.
It is an offence to take an action that results, or will result, in a significant impact on, or that is likely to have a significant impact on, a listed TEC.[18]
[18] Section 18A of the EPBC Act.

The factual history that led to the sending of the Letter

The database

In August 1994, the Department began a project to identify rare and at risk ecological communities and develop ways to conserve them (TEC Project).
The TEC Project developed criteria for assessing the threat levels and conservation status of ecological communities (Criteria). The TEC Project caused a number of rare and at risk ecological communities to be nominated as TECs.
The Department began to maintain a list of TECs on a specifically developed database.
TECs are not usually location or property specific, although many of them are specific to a general region or area and are described by reference to certain physical features of the land on which they are found. When a TEC was identified as existing at a particular location, this was referred to as an 'occurrence' of the TEC. For each TEC entered into the database, the database included records of occurrences of the TEC known to the Department.

The listing of TEC SCP 20A

A number of the ecological communities initially entered into the TEC database by the Department were 'floristic community types' of the Swan Coastal Plain (SCP) which had been identified in a report published in 1994. The report was written by five botanists; Gibson, Keighery, Keighery, Burbidge and Lyons (Gibson and Keighery). It was entitled 'A floristic survey of the southern Swan Coastal Plain' (Gibson and Keighery Report).[19]
[19] The Gibson and Keighery Report is exhibit 1.3.
A 'floristic community' is a collection or group of different species of plants occurring together in a particular area. A 'floristic community type' (FCT) is a way of naming a particular collection of plants that occur together in a particular area.[20]
[20] Exhibit 14.4 [31].
The Gibson and Keighery Report identified 43 FCTs of the SCP (30 types and 13 subtypes). One of these was named 'Banksia attenuata woodlands over species rich dense shrublands' and given the numerical identifier '20a'. In the Gibson and Keighery Report, FCT 20a was identified as 'endangered'.
In July 1996, the advisory group for the Department's initial TEC Project assessed FCT 20a as identified in the Gibson and Keighery Report against the Criteria and ranked FCT 20a as 'endangered'.
FCT 20a was subsequently entered in the list of TECs maintained on the Department's database and given the TEC description/identifier 'SCP 20a' to reflect that the TEC was based on FCT 20a of the Swan Coastal Plain.

Ministerial approval of list of TECs

In 2001, the Department sought the Minister's endorsement of the list of TECs that had been developed to date.[21]
[21] Exhibit 13.12.1 [44].
The Department sought endorsement by sending two briefing notes to the Minister which, among other things, recommended that the Minister approve 'the current list of WA TECs approved by [the Department] … detailed in Attachment 3' to the first briefing note. That list contained 'SCP 20a: Banksia attenuata woodlands over species rich dense shrublands'.
On 8 November 2001, the Department received the briefing notes back from the Minister. On the second briefing note, the Minister had written 'Approved' and 'See 1st briefing note' before signing the second briefing note and dating her signature 6 November 2001. The enclosed copy of the first briefing note had been stamped 'Approved' and was endorsed with the Minister's signature dated 6 November 2001. Above the 'Approved' stamp, each of the Department's recommendations had been ticked by the Minister.

Tauss and Weston survey of MKSEA

In early September 2007, the City engaged two botanists, Ms Cate Tauss and Dr Arthur Weston (Tauss and Weston), to carry out a survey of the flora, vegetation and wetlands of the Maddington‑Kenwick Strategic Employment Area (MKSEA). The MKSEA is an area of rural land, 585 ha in area, within the district of the City. It is on the SCP.
The details of Tauss and Weston's work and report will be discussed when considering Issue 2 of the counterclaim. For present purposes, it is sufficient to note that Tauss and Weston reported that there was a TEC on the Property, being FCT 20a, and mapped the area.

Sending the Letter

The Department received a copy of the final Tauss and Weston report from the City sometime around January 2011. The report was titled 'The Flora, Vegetation and Wetlands of the Maddington‑Kenwick Strategic Employment Area'. I will refer to this report as the 'Tauss and Weston Report'.
In mid‑2012, Ms Valerie English of the Department carried out a detailed review of the Tauss and Weston Report.[22] Ms English was, and still is, the principal ecologist in the Species and Communities Branch of the Department.
[22] Exhibit 13.12.1 [116] ‑ [136].
Following Ms English's review, she decided that the Property could be listed as an occurrence of TEC SCP 20a in the Department's TEC database.[23]
[23] Exhibit 13.12.1 [138].
On 3 December 2012, Ms English sent the Letter to Valentino.[24]
[24] Exhibit 13.12.1 [145].
The Letter began by stating:
This letter is to formally advise you that areas of vegetation on the property that you own at Lot 15 Victoria Road, Kenwick, have been classified by this Department as a threatened ecological community (TEC).
The Letter later advised:
TECs have a special level of legal protection under Western Australian law. Under the [EP Act], any clearing of native vegetation requires a permit, unless where an exemption applies. Provisions in the [Clearing Regulations] provide exemptions for certain day‑to‑day routine vegetation clearing activities, except where the clearing is within 'environmentally sensitive areas'. TECs have been defined under these Regulations as environmentally sensitive areas and any clearing proposals affecting TECs must be approved under a specific permit.
The Letter asked that, if Valentino was considering clearing vegetation within the identified TEC area, it contact the Department or visit their website for more information on the permit application process and permit requirements.
The Letter asked Valentino to contact the Department if it did not know what special care needed to be taken, or required further advice or assistance, including help in identifying the TEC area. The Letter provided the name and telephone number of Valentino's 'contact officer'.
The Letter said that, if Valentino sold or transferred the Property, it should advise the new owner or manager of the locations of any TECs.
The Letter contained a summary description of TEC SCP 20a and a map of the approximate boundary of the occurrence of the TEC on the Property.[25] The total area covered by the TEC was approximately 7,000 sqm.
[25] Exhibit 13.12.1 [147].
A copy of the Letter was provided to the City on 10 December 2012.[26]
[26] Exhibit 13.12.1 [148].
Valentino received the Letter sometime on or after 2 January 2013 but before 16 January 2013.[27]

Effect of the Letter[28]

[27] See under the heading 'Valentino parties receive the Letter and communicate with Mr La Rocca'.

[28] This is Issue 2.

Paragraph 8.6 of Valentino's Defence pleaded that the Letter was of 'no force or effect'.[29] Many of the matters pleaded in par 8.6 had been withdrawn by the end of the trial.[30] Others were conceded to be repetitive.[31] By the end of the trial, the Valentino parties relied upon four contentions. These were:
(1)the Minister did not make a 'determination' for the purposes of the ESA Notice that FCT 20a was a TEC;
(2)the Letter was not effective to notify Valentino of the area on the Property covered by the TEC (and therefore the area was not an ESA);
(3)the vegetation on the Property was not, in fact, FCT 20a; and
(4)there was no TEC on the Property.[32]
[29] The Re‑Amended Substituted Defence and Amended Counterclaim filed 10 June 2018 (Valentino's Defence).
[30] During the hearing, Mr Coyle confirmed that pars 8.6(a)(i), 8.6(f), 8.6(g)(ii) and (iii) (and 8.6(g)(i) merely repeated pleading elsewhere) were withdrawn. See ts 227 ‑ 228, 240, 1255, 1262 - 1263, 1270 and the final list of issues which struck out various issues raised in this pleading.
[31] During the hearing, Mr Coyle confirmed that each of pars 8.6(a)(ii), (iii) and (iv) of Valentino's Defence raised the same point (Issue 1 in the counterclaim). See ts 1254 ‑ 1255.
[32] This was also Issue 3.

The first contention is the same as Issue 1 in the counterclaim. For the reasons given in the section dealing with the counterclaim, I find that the Minister did make a determination for the purposes of the ESA Notice that FCT 20a was a TEC.
The second contention is the same as Issue 3 in the counterclaim. For the reasons given in the section dealing with the counterclaim, I find that the Letter was effective to notify Valentino of the area covered by the TEC.
The third and fourth contentions raise the same questions raised by Issue 2 in the counterclaim. The Valentino parties bore the burden of proof in relation to these questions. For the reasons given in the section dealing with the counterclaim, I find that they failed to discharge that burden.
Accordingly, I conclude that the Letter did have force and effect. It had the effect of notifying Valentino of the area covered by the TEC.
As noted earlier,[33] a TEC area is not an ESA unless or until the owner of the land is notified of the TEC area. When Valentino received the Letter, the TEC area on the Property became an ESA.
[33] Under the heading 'The ESA notice in issue in this case' in the section headed 'Legislative and regulatory framework'.

Relevant factual events and findings

The zoning of the Property

At the time of the Contract, the MKSEA was zoned General Rural. However, it was identified in State Government planning strategies as an area of future industrial development.
The MKSEA was divided into four precincts to assist in dealing with planning issues that were discrete to each precinct. The Property lies within precinct 1 of the MKSEA.
Prior to the contract date, the City submitted to the Western Australian Planning Commission (WAPC) that the Metropolitan Regional Scheme (MRS) be amended to rezone precinct 1 to 'industrial'.[34] The WAPC approved such an amendment. Precinct 1 was classified 'industrial' under the MRS.[35]
[34] Exhibit 3.34.
[35] ts 1129. See also exhibit 6.79 page 2090.
After the contract date, but before the settlement date, the City amended its town planning scheme to change the zoning. The City zoned precinct 1 as 'business development'.[36] It appears that the City uses 'business development' to provide for 'the progressive and planned development of areas for commercial and industrial uses generally in accordance with an Outline Development Plan'.[37]

The purchase of the Property

[36] ts 1129.

[37] See the un‑paginated and un‑labelled attachment titled 'Report Amendment No 126' and 'Town Planning Scheme Amendment No 126 Report' section 6.1 in exhibit 15.3.

Most of the facts relating to the purchase of the Property were not in dispute. The parties helpfully provided a statement of agreed facts at my request.[38] Unless otherwise indicated, this section sets out agreed facts.

Valentino's purchase of the Property

[38] Statement of Agreed Facts filed 1 July 2018.

Valentino purchased the Property in 2007.

Valentino's engagement of CRI to sell the Property

On 7 November 2012, Mr Colby signed an agreement by which Valentino authorised CRI to offer the Property for sale on the terms and conditions in that agreement. The agreement was titled (in lowercase) as a 'selling agency agreement, commercial and industrial: exclusive agency' (Selling Agency Agreement).[39] Mr La Rocca was the real estate agent handling the sale for CRI.[40]

Events leading up to the signing of the Contract

[39] Exhibit 6.65.

[40] This was not in the Statement of Agreed Facts, but was common ground.

In late November 2012, Mr Ardizzone telephoned Mr La Rocca and said he was interested in inspecting the Property.
On 29 November 2012, Mr La Rocca sent Mr Ardizzone an email, attached to which was a sales flyer and a letter from the 'MKSEA Precinct 1 Landowners Association Inc'.[41]
[41] Exhibit 6.79. Full details of the documents are set out later under the heading 'The Marketing Documents'.
The sales flyer began with the phrases 'Industrial Land/Development' and 'Future Prime Industrial Land'. It said the zoning was 'Proposed Industrial'. It said an Outline Development Plan was 'awaiting WAPC Approval'.
The letter said that the MKSEA had been subject to an MRS amendment to rezone the land from rural to industrial, which had been passed by Parliament and approved by the WAPC on 18 September 2012. It said that the City was now required to amend its local planning scheme in line with the MRS and that an Outline Development Plan would need to be prepared. The letter attached a draft Outline Development Plan for comment by its members.
I will refer to these documents collectively as 'the Marketing Documents'.
On at least one occasion[42] before Mr Ardizzone signed the offer, Mr Ardizzone told Mr La Rocca what he intended to use the Property for. Mr Ardizzone's evidence was that he told Mr La Rocca he was planning on putting his rental business on the Property and also planned to live there with his son.[43] Mr La Rocca knew Mr Ardizzone's rental business hired out plant and equipment to the mining and resources industry.[44] Mr La Rocca's evidence was that Mr Ardizzone told him he wanted to use the Property as his primary residence and to store plant, equipment and machinery on the back half of the land.[45]
[42] It was unclear whether the first inspection occurred before or after Mr Ardizzone signed the offer. However, Mr Ardizzone and Mr La Rocca met on 1 December 2012, at which time Mr Ardizzone signed the offer.
[43] Exhibit 13.1.1 [31] and ts 344.
[44] ts 270 and exhibit 13.11.1 [34].
[45] Exhibit 13.11.1 [34]. To the extent that this evidence is against Mr La Rocca's interest, I accept it. I explain my findings on his credibility under the heading 'Assessment of the witnesses'.
Mr Ardizzone's evidence was that, during an inspection, he told Mr La Rocca he was not buying the Property for the house, but for the five acres of potentially industrial land to set up his business.[46] It was put to Mr Ardizzone that he did not say this to Mr La Rocca. Mr Ardizzone said that he did.[47] Mr La Rocca said he did not recall that conversation.[48] I accept Mr Ardizzone's evidence.[49]

The Contract is signed

[46] Exhibit 13.1.1 [59].

[47] ts 347.

[48] ts 707.

[49] See under the heading 'Assessment of the witnesses'.

By 4 December 2012, the Colbys, on behalf of Valentino, had accepted an offer by Mr Ardizzone to purchase the Property for $1,800,000.
The Contract was on a standard REIWA form, and incorporated the General Conditions. The Contract was subject to finance, within 45 days of acceptance, of 80% of the purchase price. The latest date for Mr Ardizzone to obtain finance approval under the Contract was 18 January 2013,[50] although this date was later extended.

Mr Ardizzone's belief in relation to restrictions on the use of the Property

[50] Exhibit 6.85.

Mr Ardizzone believed he would be free to clear vegetation on the Property. This belief, and its source, became a point of contention in the trial. As will be seen, the defendants argued that Mr Ardizzone was not misled by them, but rather by his own erroneous assumptions.
I intend no disrespect in describing Mr Ardizzone as an unsophisticated, plain‑speaking witness. His ability to fully articulate his reasoning processes was limited. This was illustrated, in my view, by his attempts to explain why he believed he would be free to clear vegetation on the Property.
Mr Ardizzone said that he believed that there would be no restriction on his use of the whole of the Property. He said that he believed, from his conversations with Mr La Rocca and the Marketing Documents he had been given, that the Property would be rezoned industrial.[51]
[51] Exhibit 13.1.1 [106].
He agreed that he believed that, upon rezoning, there would be no restriction on clearing vegetation.[52] However, he denied that he had simply assumed that. He said:[53]
It wasn't an assumption. At the end of it I was presented with a document - with a fact sheet that the - that the property was to be rezoned - that it was imminent to be rezoned industrial so the thing is that if you have an - if land is to be rezoned industrial, it needs to be - it needs to be basically set up as an - as an industrial piece of land.
[52] ts 365.
[53] ts 366.
He agreed that the fact sheet did not say anything about clearing and did not say that industrial zoning meant that land could be cleared.[54]
[54] ts 366.
He repeated that the fact sheet along with the MKSEA report and rezoning documents that he received from Mr La Rocca led him to believe the block was available to be rezoned industrial.[55]
[55] ts 366.
He was asked why he had believed that a consequence of rezoning is 'you can clear as much as you like for your industrial activity'. He replied:[56]
Well, if you - if you need to build workshops or anything to do with an industrial piece of land, obviously, it's going to involve clearing.
[56] ts 366.
The exchange continued:[57]
You now know, don't you, Mr Ardizzone, that when large tracts of land are zoned industrial, it is not the case that that means that people can clear whatever they like - they can clear native vegetation to the extent that they want for their business because it's zoned industrial; that's not the case, is it?‑‑‑I don't know.
Well, is it your present belief that if land is zoned industrial, that means that by virtue of that zoning there will be no restriction on clearing land that might be an ESA or a TEC?‑‑‑Can you repeat that please.
Is it your present understanding that land that is rezoned industrial can be cleared and that whatever restrictions there might have been in relation to clearing native vegetation no longer apply because it's zoned industrial; is that your case?‑‑‑No.
Sorry, is that your present understanding?‑‑‑Not - I - not - not entirely.
Well, what's the difference? When you say not entirely, what do you mean?‑‑‑Well, if it's - I understand that if there is an - if there is an ESA or a TEC on the - on the area it can't be cleared. It doesn't matter whether it's industrial or not.
Nevertheless, previously it was your assumption, was it not, that zoning to industrial did carry that consequence; that you could clear whatever vegetation that was there native or otherwise?‑‑‑I didn't assume anything in that respect.
[57] ts 366 ‑ 367.
It was put to Mr Ardizzone that it was his case 'that as those documents intimated, there might be rezoning industrial and, as and when that happened, a consequence would be that you could clear whatever you needed for your industrial activity'. He agreed.[58]
[58] ts 367.
In my view, despite the limitations of Mr Ardizzone's explanations, it is likely that Mr Ardizzone's belief that there would be no relevant restrictions on his ability to use all of the land for industrial purposes, once rezoning had occurred, was contributed to by the Marketing Documents as a whole. I use the word 'relevant' because no party suggested that Mr Ardizzone believed he would be free to use all of the land irrespective of any restrictions such as, for example, restrictions imposed by the criminal law.[59]
[59] Later, under the heading 'What were the alleged representations', I explain why the pleaded allegation that the Marketing Documents represented that there was 'no restriction' on use was not to be read literally.
Mr Ardizzone needed at least five acres for his business.[60] The Marketing Documents described the Property as 'Industrial/Land Development' and 'Future Prime Industrial Land', with an area of approximately 20,200 sqm (approximately five acres). He drew from the Marketing Documents that the Property would be suitable for his business.

Valentino parties receive the Letter and communicate with Mr La Rocca

[60] See the discussion under the heading 'Defendants' position'.

The following facts are not in dispute.
Around 2 January 2013, Mr Colby received and read the Letter.[61] Mr Colby said that, shortly after he read the Letter, he telephoned Mr La Rocca to discuss it with him. Mr Colby said a recorded message told him that CRI was closed for the festive season.
[61] Initially, the parties had identified as Issue 13 when the Valentino parties knew about the Letter and/or the existence of a TEC on the Property. Issue 13 was struck out in the final list of issues.
On 16 January 2013, Mr Colby again rang Mr La Rocca and this time was able to speak with him (16 January conversation). Mr Colby discussed the Letter he had received with Mr La Rocca.[62] Ultimately, Mr Colby instructed Mr La Rocca to give the Letter to Mr Ardizzone. Mr La Rocca asked Mr Colby to send a copy of the Letter to him.
[62] Issue 14 was when the Agent parties knew about the Letter or the existence of a TEC on the Property.
The 16 January conversation lasted for approximately 11 minutes, finishing at 1.09 pm.
Immediately afterwards, at 1.10 pm, Mr La Rocca telephoned CRI's office.
At 1.27 pm, 18 minutes after the 16 January conversation, Mr Colby emailed a copy of the Letter to Mr La Rocca's email address (16 January email).
Mr La Rocca said he was at home that day. He admitted, however, that he still received emails on his iPhone and iPad when he was at home.
Those facts are not in dispute. However, Mr Colby and Mr La Rocca disagree about what Mr Colby said about the Letter. In particular, Mr La Rocca denies that Mr Colby mentioned a threatened ecological community. Mr La Rocca also claims not to have seen the 16 January email.

What did Mr Colby tell Mr La Rocca about the Letter?

Mr Colby's witness statement was to the following effect.
Mr Colby said that he told Mr La Rocca words to the effect that he had received a letter that referred to a threatened ecological community. Mr Colby said that he read the Letter, or most of it, to Mr La Rocca over the phone. Mr Colby said that Mr La Rocca told him that it was nothing to worry about, and all Mr Ardizzone would need to do is to spend about $3,500 on an environmental report which would allow him to clear the block. Mr Colby told Mr La Rocca that he was instructing Mr La Rocca, as his agent, to do whatever Mr Colby was required to do in relation to the Letter. Mr La Rocca said that Mr Colby should send the Letter to him and he would deal with it. Shortly after that conversation, Mr Colby sent an email to Mr La Rocca attaching the Letter.[63]
[63] Exhibit 13.9.1 [15] ‑ [17].
In his oral evidence, Mr Colby said he was sure he had read out to Mr La Rocca the first paragraph of the Letter,[64] which referred to there being a threatened ecological community on the Property and defined it as a 'TEC'. Mr Colby was also adamant that he had used the term 'TEC' in the conversation because 'that's what the letter was all about'.[65]
[64] ts 573.
[65] ts 617.
In his first witness statement, Mr La Rocca said that Mr Colby had only said 'you do realise that if the buyer wants to clear the trees that he will need to seek approval from the DEC and the City of Gosnells'. Mr La Rocca said that he told Mr Colby that he was aware of that and that the buyer had been told that. Mr La Rocca said that he understood that Mr Colby was talking about the 'usual requirement for landowners to gain approval before clearing land zoned as Rural'.[66] Mr La Rocca said he did not recall ever speaking to Mr Colby about a threatened ecological community on the Property and did not recall receiving Mr Colby's email or seeing the Letter prior to the commencement of these proceedings.[67]
[66] Exhibit 13.11.1 [79] ‑ [82].
[67] Exhibit 13.11.1 [122] ‑ [124].
The week before the hearing, Mr La Rocca filed a second witness statement.[68] In this, Mr La Rocca said that Mr Colby told him he had received a letter from 'the DEC' which 'concerned the trees' on the Property. Mr La Rocca said that he told Mr Colby that he had already informed Mr Ardizzone that he could not clear the trees without a permit or approvals from the relevant authorities. He said he asked Mr Colby to send him a copy of the Letter. He gave no other detail of the conversation. He said that he never saw a copy of the Letter.[69]
[68] The differences between his first witness statement and his second witness statement on this issue are discussed in the section headed 'Assessment of the witnesses'.
[69] Exhibit 13.11.2 [7] ‑ [9].
In cross‑examination, Mr La Rocca said that Mr Colby had also said something about a particular process that needed to happen and that Mr Ardizzone should investigate further.[70] He could not explain why that was not in his witness statements.[71] Mr La Rocca said that was all Mr Colby had said. Mr La Rocca said that Mr Colby had not said what the concerns were with the trees. He said this was 'never explained' to him.[72] He denied that Mr Colby had used the words 'threatened ecological community'.[73]
[70] ts 718.8, 735.9.
[71] ts 736.6.
[72] ts 718.9, 733.1, 735.
[73] ts 719.5.
In cross‑examination, Mr La Rocca said that Mr Colby had asked him for advice as to what to do with the Letter, and that he told Mr Colby that it should be passed on to Mr Ardizzone. Mr La Rocca said that Mr Colby asked him to do that, so he asked Mr Colby to send him the Letter so that he could.[74]
[74] ts 719 ‑ 721.2.
Mr La Rocca's evolving evidence about the 16 January conversation is particularly troubling in view of the significance of that conversation. The misleading conduct claim is based upon the failure of each defendant to disclose the Letter to Mr Ardizzone, alleged in par 19 of the Statement of Claim. Paragraph 15 of the Statement of Claim alleges that the Agent parties knew the contents of the Letter by at least 16 January 2013 (the day of the conversation and email). The particulars allege that Mr Colby provided the Letter to Mr La Rocca by email.[75] The Agent parties' defence, as it was prior to the trial commencing,[76] denied both par 15 and par 19 of the Statement of Claim.
[75] The Agent parties filed a Re‑amended Defence (Agents' Post‑Trial Defence) after the hearing, with leave, admitting in par 15 that Mr Colby sent the email attaching the Letter (although saying that Mr La Rocca had not read it) and admitting in par 19 that they did not disclose the Letter to Mr Ardizzone.
[76] Amended Defence of the Third and Fourth Defendant filed 10 July 2015 (Agents' Pre‑Trial Defence).
Mr Colby's account is more consistent with the objective evidence, namely the length of the telephone call (11 minutes) and Mr La Rocca's call to CRI one minute later.
In addition, as I will explain later,[77] I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest. While there were aspects of Mr Colby's evidence that were unsatisfactory,[78] I accept Mr Colby's account of the 16 January conversation.
[77] See the section headed 'Assessment of the witnesses'.
[78] See the section headed 'Assessment of the witnesses'.
I find, therefore, that Mr La Rocca knew of the Letter and the existence of the TEC by 16 January 2013.
Further, Mr La Rocca's knowledge is to be imputed to the third defendant, CRI, because he was acting as CRI's agent in the transaction. Accordingly, I find that CRI should be treated as knowing of the Letter and the existence of the TEC by 16 January 2013.

Did Mr La Rocca get a copy of the Letter?

Mr Colby sent a copy of the Letter to Mr La Rocca's email address 18 minutes after the 16 January conversation had ended. Mr La Rocca's evidence was that he never saw the email.
Mr La Rocca's efforts to explain this evidence were as follows.
In his first witness statement, Mr La Rocca said that he had been injured in a fall in November 2012. He said that, from the time of his injury until about the end of March 2013, he stopped working for CRI, except in relation to the sale of the Property. He said that, after the Contract was signed, he concentrated on recuperating from his injuries. He said that, during his recuperation, he was able to access his work email from home if required. He said he checked his emails occasionally, but was focussed on his recovery. He said he went into the office on maybe one or two occasions in relation to the sale of the Property.[79]
[79] Exhibit 13.11.1 [21] ‑ [23], [72] ‑ [76].

Mr La Rocca said that his recollection of CRI's procedure was that, when someone was away from work, another staff member would screen the emails and only refer urgent matters to that person.[80] The Agent parties did not adduce any evidence from CRI as to that alleged procedure or whether it had been implemented during the period Mr La Rocca claimed to have been recuperating. Nor did CRI, having identified the 16 January email in its discovery, adduce evidence that there had been any difficulty with its email systems during the relevant period.
[80] Exhibit 13.11.1 [77].
In cross‑examination, Mr La Rocca admitted that, despite the system he described, the original email would still appear on his iPad and iPhone. The only difference was, he said, that it would not show up as an unread email if it had been read by someone at the office.[81]
[81] ts 711 ‑ 715.
Counsel for the Agent parties, Mr Hancy, fairly conceded that it was open to me to conclude that the email was on Mr La Rocca's devices.[82] I do so conclude.
[82] ts 1306.
Mr La Rocca's evidence about the extent to which he was engaged in recuperation seemed overstated.[83] He was cleared to drive after only two weeks.[84]
[83] See, for example, ts 706.
[84] ts 685, 689.
In his oral evidence, he said he would check his emails 'on occasion'.[85] After some exchanges, he admitted he did that at least once a day.[86] He said, however, that he only looked at emails that had come in that day, and only those that were marked as unread.[87]
[85] ts 712.
[86] ts 713.
[87] ts 714.
He admitted that, after the 16 January conversation, he waited for the email to arrive. However, he said he did not check his iPhone for the email that day or the next.[88] He agreed he did not call Mr Colby to ask about the Letter. He agreed he had been instructed by Mr Colby to pass the Letter on to Mr Ardizzone. It was put to him 'And you did nothing to make sure that occurred?' He replied 'I did my best endeavours to check for the email at the time'. He was asked what his best endeavours were and he said 'to occasionally check my emails to see if it had come through'.[89]
[88] ts 721.
[89] ts 721 ‑ 722.
Mr La Rocca said that he was taking painkillers at the time that were affecting his judgment 'a little bit'.[90]
[90] ts 723.
Mr La Rocca was taken to his phone records that showed he had made 9 ‑ 15 calls on each day in the period 15 January 2013 (the day before the 16 January conversation) to 18 January 2013[91] (the last day for finance approval under the Contract, before time was extended).
[91] ts 723 ‑ 724.
Later, Mr La Rocca was taken to emails he had sent in early 2013. Mr La Rocca agreed he was overseas from 27 February 2013 to 7 March 2013. He admitted checking his emails while he was overseas in relation to the sale of the Property.[92]
[92] ts 752.
For the following reasons, I do not accept Mr La Rocca's evidence that he did not see the 16 January email and the attached Letter.
First, after the 16 January conversation, Mr La Rocca was waiting for the email. It was sent to him at 1.27 pm, 18 minutes after the conversation ended. It is to be expected that he would have received the email shortly after it was sent. It is likely that he would have received the email within half an hour of it being sent. Mr La Rocca used his phone six times from 2.01 pm to 2.31 pm that day. He used it another four times between 3.17 pm and 5.00 pm.[93]
[93] Exhibit 7.98 pages 2264 ‑ 2265.
Second, in the days following, Mr La Rocca sent many emails and made many phone calls, despite it being during his alleged period of recuperation. He checked his phone for emails even when he was overseas.
Third, as will be seen,[94] Mr La Rocca remembered the 16 January conversation when he subsequently spoke to Mr Ardizzone about finance approval eight days later. Despite this, he did not mention the Letter to Mr Ardizzone at that time (or ever). Further, despite remembering it eight days later, Mr La Rocca did not, at any time, contact Mr Colby to say he had not received it. Nor did he mention it in the communications that he had with Mr Colby later in January and in February 2013.
[94] See under the heading 'Mr La Rocca fails to disclose the Letter'.
Mr La Rocca's evidence was implausible and I reject it. I find his evidence to have been untruthful. I find that Mr La Rocca received the 16 January email and Letter the same day and read it the same day.
This conclusion is supported by my assessment of Mr La Rocca's credibility as a whole.[95]

The Letter is not disclosed

[95] This is explained in a subsequent section headed 'Assessment of the witnesses'.

It is common ground that Mr Ardizzone was never given a copy of the Letter, or told about it, by anyone prior to the settlement.[96]

The Valentino parties fail to disclose

[96] This had been Issue 15, but was struck out in the final list of issues.

Later, in dealing with Mr Ardizzone's claim of misleading conduct, I refer to the Valentino parties' pleading that their failure to disclose was inadvertent. As will be seen, I concluded that it was unnecessary to determine this issue in light of the way in which the Valentino parties ultimately put their case. However, in case I am wrong about that, it is appropriate to make findings as to the circumstances of the failure to disclose.
Both Mr and Ms Colby read the Letter around 2 January 2013 when they returned from a trip to Sydney.[97] Mr Colby said he thought it was his 'ethical responsibility' to let Mr Ardizzone know that 'there could be a problem'. He believed the Letter needed to be disclosed to Mr Ardizzone.[98] Ms Colby said that Mr Colby told her that he would contact Mr La Rocca and arrange for the Letter to be given to Mr Ardizzone. She assumed that had happened.[99]
[97] ts 565, 647 ‑ 648.
[98] ts 574.
[99] ts 647 ‑ 648.
Although Mr Colby believed the Letter needed to be disclosed to Mr Ardizzone, he did not immediately email it to Mr Ardizzone or attempt to contact him. He also did not immediately email it to Mr La Rocca. Mr Colby said that he wanted to speak to Mr La Rocca before he did anything with the Letter.[100]
[100] ts 568 ‑ 569.
Mr Colby was apparently not able to speak to Mr La Rocca when he first tried to call him, as the CRI office was closed.
Mr Colby did not actually speak to Mr La Rocca until 16 January 2013. In the interim, Mr Colby made no effort to disclose the Letter to Mr Ardizzone.
Mr Colby's evidence was that, when he spoke to Mr La Rocca during the 16 January conversation, he was reassured by Mr La Rocca's statements that the Letter was, in effect, 'nothing to worry about'. Mr Colby's evidence was that it was only at that point that he instructed Mr La Rocca to do whatever was required to be done with the Letter. He made it clear to Mr La Rocca that Mr Ardizzone should be told about the Letter.[101] He emailed the Letter to Mr La Rocca after the call.
[101] Exhibit 13.9.1 [16]. See also ts 572 ‑ 574.
Mr Colby's delay is to be considered in the context that, at that time, the latest date for Mr Ardizzone to obtain finance approval under the Contract was 18 January 2013.
I find that Mr Colby did not disclose the Letter to Mr Ardizzone, or arrange for it to be disclosed, prior to the 16 January conversation because he understood that the Letter might impact upon the sale of the Property, and he did not want to disclose the Letter to Mr Ardizzone before he had spoken to Mr La Rocca and ascertained what the impact might be. This was a deliberate decision to not disclose the Letter at that point. He only decided to disclose the Letter once he had been reassured by Mr La Rocca that it was nothing to worry about.
Mr Colby believed the Letter should be disclosed to Mr Ardizzone. Ms Colby said she believed that her husband was going to arrange that. Neither sought to have the Letter provided to Mr Ardizzone prior to the 16 January conversation. After the 16 January conversation, neither made any effort to confirm that Mr La Rocca had done so.

Mr La Rocca fails to disclose

Mr La Rocca said he advised Mr Colby in the 16 January conversation that the Letter should be disclosed to Mr Ardizzone.[102] Mr La Rocca did not say to Mr Colby that the Letter should not be, or did not have to be, disclosed. Mr La Rocca said that Mr Colby asked Mr La Rocca to pass the Letter on to Mr Ardizzone, and that he had asked Mr Colby to send him the Letter so that he could.
[102] ts 719.
I have set out my finding that Mr La Rocca received and read the 16 January email and Letter that day. I found his evidence to the contrary to be untruthful.[103]
[103] This is set out in the previous section. See also the section headed 'Assessment of the witnesses'.
Mr La Rocca did not pass the Letter on.
Mr La Rocca remembered the 16 January conversation and the Letter when he subsequently spoke to Mr Ardizzone about finance approval on 24 January 2014.[104] Despite this, he did not mention the Letter to Mr Ardizzone at that time (or ever).
[104] ts 741 ‑ 747.
Mr Hancy suggested that Mr La Rocca may have been confused about dates, and that Mr La Rocca may have been remembering a conversation with Mr Ardizzone prior to the 16 January conversation. I do not accept this for the following reasons.
(1)First, Mr La Rocca was asked if he recalled a telephone conversation with Mr Ardizzone on 24 January 2013. Mr La Rocca's response was 'Finance approval'. Mr La Rocca agreed that Mr Ardizzone had told him during that call that he could not obtain a residential loan and had asked for an extension of time.[105] On 25 January 2013, Mr La Rocca sent Mr Ardizzone a variation of contract form to vary the finance approval date to 15 February 2013, and asked Mr Ardizzone to sign the form and return it as soon as possible.[106] The fact that Mr La Rocca sent this on 25 January 2013 suggests he was right to say that his conversation with Mr Ardizzone about finance approval was on 24 January 2013.
(2)Second, Mr La Rocca testified that he had not told Mr Ardizzone about the Letter in this conversation because he instead told Mr Ardizzone about issues experienced by the owner of a nearby property, 37 Victoria Road, in relation to wetlands and trees, and had told Mr Ardizzone he should get advice. I do not accept that Mr La Rocca told Mr Ardizzone these things.[107] However, Mr La Rocca did not assert that the finance conversation occurred prior to the 16 January conversation. He was asserting that it was afterwards and that he had, in effect, discharged his obligation by telling Mr Ardizzone about the 37 Victoria Road issues.[108]
(3)Third, Mr La Rocca confirmed on multiple occasions that he remembered the 16 January conversation when he spoke to Mr Ardizzone about extending the time for finance.[109]
(4)Fourth, although of little additional weight, Mr La Rocca's written statement suggested that his conversation about finance approval with Mr Ardizzone occurred after the 16 January conversation with Mr Colby.[110]
[105] ts 741.
[106] Exhibit 7.107.
[107] This is discussed further under the heading 'Assessment of the witnesses'.
[108] ts 741 ‑ 743.
[109] ts 743 ‑ 744.
[110] Exhibit 13.11.1 [79], [83].
Mr La Rocca knew Mr Ardizzone wanted a large area of land,[111] and I find that he knew it was likely that Mr Ardizzone would seek to avoid the Contract if he knew about the TEC. Although Mr La Rocca described his work as a real estate agent as a hobby, he said he spent 'possibly 20 [hours] if that' each week doing it.[112] The evidence also showed that he sent emails early in the day and late at night, and he generated a lot of income from his real estate work.[113]
[111] See under the heading 'Events leading up to the signing of the Contract'.
[112] ts 772.
[113] ts 761 ‑ 763.
Mr La Rocca did not give evidence that his failure to disclose the Letter was inadvertent. Rather, his evidence was that he never received the Letter and that he had conveyed the concerns that he understood had been raised in the Letter by telling Mr Ardizzone about the 37 Victoria Road issues.
I find that Mr La Rocca's failure to disclose the Letter was deliberate.

Extensions of time for finance

Mr Ardizzone did not get finance approval before the deadline imposed by the Contract of 18 January 2013. A variation to the Contract to extend the deadline was made on 4 February 2013 and a further variation made on 20 March 2013.

Settlement

Settlement occurred on 22 March 2013.
On that day, Mr Ardizzone attended the Property and met with Mr La Rocca and Ms Colby. Ms Colby handed him the keys.
According to Mr Ardizzone, at one point, Mr La Rocca said to Mr Ardizzone 'Congratulations. By the way, there is some sort of easement on the trees out the back but it's nothing to be concerned about'. Mr Ardizzone did not know what an easement was, but trusted Mr La Rocca and believed his assertion that it was nothing for him to be concerned about.[114]
[114] Exhibit 13.1.1 [102] ‑ [104].
Mr Hancy submitted that, if Mr La Rocca had said this, it was not credible that Mr Ardizzone would not have asked him about it.[115]
[115] ts 1310.
Mr La Rocca said he did not recall mentioning some sort of easement to Mr Ardizzone. He was given two opportunities to deny he had said that and, on each occasion, repeated that he did not recall it.[116]
[116] ts 766.
I accept Mr Ardizzone's evidence. I accept that he did not ask Mr La Rocca any questions, or take any other steps, because he believed Mr La Rocca's assertion that it was nothing for him to be concerned about.

Events following the settlement

Clearing in 2013

Around April 2013, Mr Ardizzone and his partner, Ms Flight, began clearing some of the vegetation on the Property. They did this over a period of several months.
They cleared all around the house and the demountable unit. They cleared the middle of the Property. They cleared some of the vines and creepers in the front, middle and rear of the Property and trees in the middle and rear. They also cleared an area of about 50 m in diameter at the rear of the clearing in the middle of the Property to allow trucks to turn around.[117]
[117] Exhibit 13.1.1 [117].
Some of the vegetation cleared towards the rear of the Property was within the TEC area. At that time, Mr Ardizzone did not know that there was a TEC area on the Property.
There is no evidence that any of the vegetation cleared outside of the TEC area was native vegetation. Therefore, there was no evidence that any clearing outside the TEC area was unlawful. Some of the vegetation cleared was clearly not native vegetation.[118]
[118] There was evidence that at least some of the trees cleared had been planted by a previous owner of the Property. The term 'native vegetation' in the EP Act is defined to exclude vegetation that was intentionally sown, planted or propagated.
The clearing within the TEC area was, of course, unlawful.[119] Mr Ardizzone did not become aware of that, however, until he was contacted by the City.[120]

City Notice

[119] Issue 11A was whether Mr Ardizzone unlawfully cleared the land. It was common ground that he did.

[120] Exhibit 9.159.

In January 2014, Mr van Lieven, the coordinator of environmental management for the City, became aware that native vegetation on the Property had been cleared. In early February, he met with Mr Ardizzone to advise him there was a TEC on the Property.[121]
[121] ts 444 ‑ 445, 460 and exhibit 13.7.1 [38] ‑ [39].
On 18 February 2014, Mr Ardizzone received a letter from the City which referred to the storing of equipment and clearing without planning approval. It directed Mr Ardizzone to make an application for approval. The letter also referred to clearing over a 'Threatened Ecological Area' and said that the attached 'Planning and Development Notice' had been issued for the restoration of that area.
I will refer to the City's letter and the notice collectively as the 'City Notice'.
As a result of the City's advice, Mr Ardizzone became aware of the TEC on the Property.
After becoming aware of the TEC, Mr Ardizzone engaged with the City and the Department in relation to it.
As a result of Mr Ardizzone's engagement with the City, a vegetation rehabilitation plan was agreed in relation to the TEC area. Among other things, it required the TEC area to be fenced. The TEC area was only to be accessed for the purposes of maintenance and fire management.[122] Later, when Mr Ardizzone made an application to build a hardstand on the Property, the City required that there be a buffer zone between the fence around the TEC area and the hardstand.[123]

Mr Ardizzone asked the defendants if they knew about the TEC

[122] Exhibit 13.1.1 [172] ‑ [188], exhibit 9.200.

[123] Exhibit 13.2.2 [101] ‑ [102], [114] ‑ [115]. See also exhibits 9.172, 9.206, 10.227, 10.228, 10.234, 11.252, 11.254, ts 455.

Mr Ardizzone also telephoned Mr La Rocca and Ms Colby after receiving the City Notice to ask if they were aware of the TEC. Of course, both Mr La Rocca and Ms Colby were aware of the Letter long before Mr Ardizzone telephoned them.[124]

Mr La Rocca

[124] See under the heading 'Valentino parties receive the Letter and communicate with Mr La Rocca'.

Mr Ardizzone said he called Mr La Rocca on 25 February 2014. He asked Mr La Rocca if he knew there was a threatened ecological community on the Property. Mr Ardizzone said that Mr La Rocca said 'I am shocked, Joe. Shocked. I didn't know. There was nothing on the title. I'm not sure if the owner knew either'.[125]
[125] Exhibit 13.1.1 [150].
Mr Ardizzone was cross‑examined about this evidence.[126] Mr Hancy asked him how Mr La Rocca could express shock when all that Mr Ardizzone had asked him was if he knew there was a threatened ecological community on the Property. Mr Hancy submitted it was not credible that Mr La Rocca would say he was shocked when that was all that had been said.[127] I do not accept that submission. Mr La Rocca knew about the contents of the Letter and had a copy of it. In addition, Mr La Rocca knew he had been told to give the Letter to Mr Ardizzone and had decided not to do that.
[126] ts 350 ‑ 352.
[127] ts 1309 ‑ 1310.
Mr La Rocca did not refer to this conversation in his evidence. In cross‑examination, he denied it. He was taken to phone records which showed that, on 25 February 2014, there was a telephone call from Mr Ardizzone's phone to Mr La Rocca's phone that lasted more than 10 minutes. Mr La Rocca said that he did not recall speaking to Mr Ardizzone for about 10 minutes in February. He said he did not recall telling Mr Ardizzone that he did not know about the Letter from the Department.[128]
[128] ts 758 ‑ 759.
As explained in a later section,[129] I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest. Further, while I do not accept Mr Ardizzone's evidence entirely,[130] I accept his evidence on this point.
[129] See the section headed 'Assessment of the witnesses'.
[130] See the section headed 'Assessment of the witnesses'.
I find that Mr La Rocca falsely denied that he knew about the TEC in the 25 February 2014 conversation.

Ms Colby

After obtaining Ms Colby's telephone number from Mr La Rocca, Mr Ardizzone then called Ms Colby. He made a note of his conversation with her at the time.[131] He said that Ms Colby said she did not recall getting a letter about a TEC but was aware that something was going on. Towards the end of the conversation he said he asked her if she made a habit of non‑disclosure. He claims she replied 'I am going to choose my words carefully'.[132]
[131] Exhibit 9.163.
[132] Exhibit 13.1.1 [153] ‑ [157].
Ms Colby's evidence as to this is detailed in a later section.[133] In short, Ms Colby did not deny the telephone conversation took place but said that she could not recall it.[134]
[133] See under the heading 'Assessment of the witnesses'.
[134] ts 657.
As to this conversation, I accept Mr Ardizzone's evidence and do not accept Ms Colby's evidence.[135] I infer from Ms Colby's words that she knew that admitting her knowledge of the TEC might be adverse to her interests.

Mr Keighery explained that:[761]
The Swan Coastal Plain Survey was a regional study and our sites rarely had Banksia menziesii present in our quadrats, meaning that we did not rank this as a 'typical' in more than 75% of sites or an 'other common species' in 50% of sites. Normally, on the Swan Coastal Plain north of Serpentine, the two species (Banksia menziesii and Banksia attenuata) occur together or in some localities one species predominates. So sampling more sites could lift the recording of either species.
[761] Exhibit 14.4 [30].
Additionally, Mr Keighery said that Banksia attenuata and Banksia menziesii are co‑dominant species and several sites that have been subsequently identified as belonging to FCT 20a (that is, after the Gibson and Keighery Report) have been 'mainly to entirely Banksia menziesii'.[762]
[762] ts 988 and exhibit 14.4 [30].
I have already explained that the names given to the FCTs by Gibson and Keighery were not definitions, but were merely labels. The positive presence of Banksia menziesii on the Property does not indicate that the vegetation in Site 22 was not properly assigned to FCT 20a and should instead have been assigned to FCT 23a.[763]
[763] ts 858, 986, 1046.
I am not satisfied that Site 22, and the Area, should have been assigned to FCT 23a.

Was Tauss and Weston's conclusion justified?

I am also not satisfied that the Valentino parties have proved, on the balance of probabilities, that Tauss and Weston's conclusion that the vegetation in the Area should be assigned to FCT 20a was not justified.
I have explained why I do not accept the various criticisms of Tauss and Weston's reasoning by Dr Mattiske and Dr van der Moezel, and why I do not accept other submissions made by the Valentino parties.
In terms of the experts' opinions, Dr Mattiske's final position was that she did not know. Dr van der Moezel's oral evidence was that he thought it was a transitional site. Mr Keighery had no reservations that Site 22 was properly assigned to FCT 20a. I have set out my evaluation of the points made by each of the experts above, and commented on issues of weight. I have explained why I accept Mr Keighery's evidence.
All of the experts agreed that determining whether an area is a particular FCT is a matter of expert judgment on which reasonable minds may differ.[764] All agreed that the persons best placed to make that judgment were those who conducted the formal surveys of the Property.[765] Those people were Tauss and Weston. Neither Dr van der Moezel nor Dr Mattiske conducted a formal survey.
[764] ts 1024 ‑ 1025.
[765] See the discussion under the heading 'Use of results'.
The Valentino parties accepted that they bore the burden of proving that Tauss and Weston's conclusion, that the vegetation in the Area should be assigned to FCT 20a, was not justified. They have failed to discharge that burden.
If I am wrong about this, the next question is whether the Valentino parties have proved the second matter that they are obliged to prove - that the Area was not in fact covered by FCT 20a and that Ms English was wrong to conclude it was.

Was it FCT 20a?

For the same reasons as for my previous finding, I find that the Valentino parties have not proved that the Area was not covered by FCT 20a or that Ms English was wrong to conclude it was.
Further support for this conclusion comes from the evidence of Ms English, and, perhaps, from a submission made by the Valentino parties. I will deal with the submission first.

The Valentino submission that it is uncertain

In his oral closing address, Mr Coyle said this:[766]
Mr van der Moezel, you will recall, said he was a fence‑sitter, and what he means by that is he's a firm fence‑sitter. And I think your Honour asked him a question and he said, quite clearly, that his opinion was that he could not see any proper basis for travelling beyond and transcending that, that equivocation.
[766] ts 1286.
I asked Mr Coyle how that would assist him to prove that the Area was not SCP 20a.
He replied (emphasis added):[767]
[W]e don't need your Honour to find for us to succeed anything more than that. The best position, the most scientifically supported position to the exclusion of all others, is that it rests on uncertainty. It's not 20a. It can't be put into 20a or 23a because there's no support for that.
[767] ts 1286.
I then asked Mr Coyle if I had misunderstood his concession that he bore the onus of proving that the Area was not SCP 20a. He said he did not resile from that.[768]
[768] ts 1286.
After further discussion on the meaning of his concession, I indicated that, if he had conceded that he had to prove the Area was not SCP 20a, he would have to prove it, unless he sought to withdraw the concession. At Mr Coyle's request, the issue was postponed until the next day.[769]
[769] ts 1287.
The following day, Mr Coyle indicated that he accepted that the Government parties had correctly identified that the Valentino parties bore the burden of proving that the Area was not SCP 20a, and he did not seek to withdraw his concession. He went on to state that I could 'properly be persuaded' that it was not.[770] He also recast his characterisation of Dr van der Moezel's evidence.[771]
[770] ts 1314.
[771] ts 1314 ‑ 1315.
In that context, I am left with Mr Coyle's statement that the most scientifically supported position is that 'it rests on uncertainty. It's not 20a. It can't be put into 20a or 23a because there's no support for that'.[772] While this of course does not mean that he was right to say that, it arguably indicates that the expert evidence at its highest for the Valentino parties did not support a conclusion that the Area was not SCP 20a. However, as these submissions were made orally, I have concluded that I should not rely on them adversely to the Valentino parties. Instead, I will disregard them.

Ms English

[772] ts 1286.

The decision to list the Area on the Property as a TEC was made by Ms English. This decision was challenged by the Valentino parties. For that reason, she was not an independent expert and did not participate in the 'hot‑tubbing' of the experts. Nevertheless, she is an experienced botanist with extensive expertise in TECs.[773]
[773] Exhibit 13.12.1 [1] ‑ [5], [15] ‑ [18], [27], [55A] ‑ [63] and Attachment VJE1 and ts 790 ‑ 792, 800 ‑ 801.
Ms English has a Bachelor of Science Degree in biology and a Postgraduate Diploma in environmental impact assessment.[774]
[774] Exhibit 13.12.1, at [3]; ts 790.
She is employed as principal ecologist in the Species and Communities Branch of the Department. She has published widely on the subject of TECs. Since 1994, she has worked in the Department on a series of projects, and occupied various positions, relating to TECs.
She was project officer on a project to develop the procedures for identifying, listing, and conserving TECs in Western Australia.
Ms English has been an official member of the TEC Scientific Committee, which replaced the TECSAC, since 6 November 2001.
Ms English is currently the manager of 'the TEC specialist group', which manages the ongoing process of nominating and listing TECs and maintaining the TEC database on behalf of the Department. The TEC specialist group evaluates a potential TEC occurrence to determine its veracity.
I am satisfied that Ms English was an experienced botanist, and a credible and reliable witness.

Evaluation process

Ms English explained the range of actions that the TEC specialist group might take in an evaluation, depending on the nature of the information provided and the reliability of the source. Ms English's duties include, where necessary, undertaking site visits and surveys to clarify the status of potential TEC occurrences, including by verifying or determining their condition and boundaries, and evaluating the veracity of claims that a TEC occurs at the site. This includes consulting with persons with specific expertise as required. On other occasions, the information and reliability of the source means that the evaluation can be done without a site visit or survey. Ms English did not consider there was any need for a site visit or survey in order to evaluate the Tauss and Weston Report.[775]

Involvement with Tauss and Weston

[775] Exhibit 13.12.1 [60] ‑ [63], [116] ‑ [138] and ts 799 ‑ 804.

On 24 October 2007, Ms English and a colleague visited some sites within the MKSEA with Dr Weston, including the one on the Property, Site 22. This was the day after Tauss and Weston did their first formal survey of Site 22.
Understandably, Ms English now has little memory of the visits and does not specifically recall Site 22. However, she did make notes when she was in the field.[776]
[776] Exhibit 2.27 and ts 811.
Her notes indicate that Dr Weston showed her the location of a series of potential occurrences of TECs, that she numbered 1 ‑ 11.[777]
[777] Exhibit 13.12.1 [83] ‑ [85].
The site she numbered as '1' in her notes was on the Property. She recorded her view that the vegetation was in 'good, excellent condition' and noted down a number of species. She also wrote 'poss 20A'.[778] She said it was 'an awfully long time ago but I can remember them [Tauss and Weston] saying that there were a few floristic community types that they would like us to look at. And one of them was, possibly, 20a'.[779] She said she would interpret her notes to mean that this was said in relation to the site on the Property, Site 22.[780]
[778] Exhibit 2.27 and ts 811.
[779] ts 812.
[780] ts 816.
Ms English said that, when she visited the lot in 2007, she was quite satisfied with Tauss and Weston's suppositions (at the time of her visit, the Tauss and Weston Report had obviously not been completed). She said their suppositions were quite logical.[781] She agreed that she did not conduct a detailed survey and neither, at that time, had Tauss and Weston done so.[782]

Review of the Tauss and Weston Report

[781] ts 802. See also exhibit 13.12.1 [89].

[782] ts 811.

When Ms English received the Tauss and Weston Report, she reviewed it to see whether it was logical, consistent and scientifically valid.[783]
[783] ts 803.
Ms English was satisfied 'with the level of scientific rigor applied' to Tauss and Weston's survey, Griffin's analysis and Tauss and Weston's critical review of Griffin's analysis.[784]
[784] Exhibit 13.12.1 [116].
Ms English formed the view that the methods used by Tauss and Weston, as reported by them, to identify TECs were appropriate and supported and that their conclusions were explained in detail.[785]
[785] Exhibit 13.12.1 [117].
Ms English said that the best way to determine FCTs on the southern SCP is to replicate the survey methods used in the Gibson and Keighery Report. She referred to guidelines of the appropriate survey methodology for determining TECs, provided by the Department to consultants. She said that she could see that Tauss and Weston had done everything the Department asked consultants to do in identifying TECs on the SCP. She said they had used the appropriate methodology, and explained why she said that.[786]
[786] Exhibit 13.12.1 [118] ‑ [120]. See also [121] ‑ [134] and ts 821, 823 ‑ 825, 839 ‑ 840, 848 ‑ 849, 857, 864 ‑ 867.
Having been satisfied with Tauss and Weston's methodology and conclusions on reviewing their report, and having visited the Property with Dr Weston, Ms English was satisfied that it was unnecessary that an additional formal survey be conducted.[787]

Ms English's conclusion that it should be listed

[787] Exhibit 13.12.1 [137] ‑ [138], ts 799 ‑ 800, 801 ‑ 802.

Ms English said:[788]
In this case, having reviewed the Tauss and Weston Report, and being satisfied with the methodology and conclusions set out in it, and having visited [the Property] with Dr Weston and Ms Downes on 24 October 2007, I was satisfied that [the Property] could be listed as an occurrence of TEC SCP20a [the label used by the Department for FCT 20a] in the Department's database.
[788] Exhibit 13.12.1 [138].
In her oral evidence, Ms English explained that she was satisfied that the Property should be listed as an occurrence of TEC SCP 20a from the 'full weight of all the information, including a site visit which indicated to me that it was compatible with 20a'. By 'compatible', she meant that what she saw of the plants and habitat when she was there was compatible with 20a. She said that, if it had not been compatible, she would have written that in her note. She said she remembered thinking at the time that it was likely to be the TEC that Tauss and Weston thought it was (FCT 20a).[789]
[789] ts 817. See also ts 819 ‑ 821 and exhibit 13.12.1 [89].
Following Ms English's decision that the Property should be listed in the database as an occurrence of SCP 20a, the full boundary location of the Area of the TEC was entered into the database, based on Tauss and Weston's mapping.[790]
[790] More detail of this is given under the heading 'What did the Letter do?'
Subsequently, Ms English sent the Letter to Valentino.
I am not satisfied on the balance of probabilities that the Area was not covered by FCT 20a and that Ms English was wrong to conclude it was.

Issue 3 - did the Letter notify of the area on the Property covered by the TEC?

Issue 3 is whether, as a matter of fact and law, the Letter notified Valentino of the area on the Property covered by the TEC within the meaning of cl 4(5)(b) of the ESA Notice.
The relevant provisions of the ESA Notice are set out earlier in these reasons. Under cl 4(5)(b) of the ESA Notice, an area that would otherwise be an ESA because of cl 4 is (relevantly) not an ESA unless the owner of the land has been notified of 'the area covered by' the TEC.
The Valentino parties argued that the Letter did not notify Valentino of 'the area on the Property covered by the TEC' as required by cl 4(5)(b) because the identification of the area in the Letter was not sufficiently precise.[791]

Presumption against interference with vested property rights?

[791] ts 1289 ‑ 1290.

The Valentino parties argued that, '[c]onsistent with the relevant principles of statutory construction, the notice requirement under cl 4(5)(b) of the Gazettal Notice should be strictly construed. This means that a notice must clearly identify "the area covered by the TEC" '.[792]
[792] Valentino Counterclaim Submissions [181].
The reference to 'the relevant principles of statutory construction' appears to be a reference to the presumption that legislation does not interfere with vested property rights. This was raised by the Valentino parties in their written opening submissions.[793] The Government parties' opening submissions, repeated in their closing submissions, set out the relevant principles, including the circumstances in which the presumption will not apply.[794]
[793] Submissions of the First and Second Plaintiffs by Counterclaim filed 29 May 2018 (Valentino Counterclaim Opening Submissions) [15], [19]. However, it was there raised in the context of notice being an independent requirement, as distinct from publicity.
[794] Government Parties' Opening Submissions filed 5 June 2018 (Government Opening Submissions) [256], Government Closing Submissions [202] ‑ [203].
The Government parties submitted that the ESA Notice did not affect any vested property rights. Further, they submitted that, to the extent it affected property rights, it did so clearly. Finally, they submitted that the Valentino parties had not identified any constructional choice.[795]
[795] Government Opening Submissions [257] ‑ [263], Government Closing Submissions [204] ‑ [210].
The Valentino parties did not respond to these submissions in their oral or written closing submissions.
I accept, with one qualification, the Government parties' submissions. The qualification is that the Valentino parties did identify a constructional choice in their opening submissions.[796]
[796] Valentino Counterclaim Opening Submissions [19].
The Government parties had initially submitted that cl 4(5)(a) had been satisfied by the publication of the TECs and that this was sufficient to make the area an ESA, without the need for cl 4(5)(b) to be satisfied. The Valentino parties submitted that, regardless of publication, cl 4(5)(b) had to be satisfied. This was the constructional choice they identified, and it was Issue 7 in Valentino's first list of counterclaim issues. However, during the trial, the Government parties indicated that they did not press the proposition that there had been publication. Issue 7 was struck out of the final list. Accordingly, from this point on, there was no apparent constructional choice.
The Valentino parties' closing submissions, set out earlier, sought to apply the statutory construction principle to the construction of the notice requirement under cl 4(5)(b) of the Gazettal Notice. It was submitted that, strictly construing that requirement meant that a notice must clearly identify 'the area covered by the TEC'. To the extent that this could be described as a constructional choice, I discuss later whether the Letter did meet the requirement of identifying the area covered.
In any event, it is my view that the ESA Notice does not attract the presumption. Given that the Valentino parties did not respond to the Government parties' submissions at all, despite those submissions having first been made in the Government parties' opening submissions,[797] I consider that I can deal with the issue very briefly.
[797] Government Opening Submissions [255] ‑ [263].
While I accept the Government parties' submissions on this issue, the most obvious obstacle to the application of the presumption is that the ESA Notice does not, in fact, affect any vested property rights.
The effect of an area being declared to be an ESA is only that the Non‑ESA exemptions do not apply. The effect is not to prohibit clearing of native vegetation in the area.
In 2003, prior to the ESA Notice, the Clearing Provisions removed the right of any person to clear native vegetation without a clearing permit unless a relevant exemption applied.
In 2004, interim regulations in the Clearing Regulations declared any area covered by a TEC to be an ESA in certain circumstances.[798]
[798] The circumstances were similar to the circumstances required by the ESA Notice - see the Government Closing Submissions [42] ‑ [47], in particular [44] ‑ [46].
The ESA Notice simply replaced the interim regulations.

What did the Letter do?

The Letter stated that it enclosed a map showing the approximate location of the TEC on the Property and that the boundaries shown on the map were an approximation.
The map enclosed with the Letter reproduced an aerial photograph of the Property and parts of adjacent properties. The map was headed 'Occurrence of the threatened ecological community "Banksia attenuata woodland over species rich dense shrublands" [on the Property]'. The legend indicated that the area enclosed by the crimson line was the approximate location of the TEC. The map included a disclaimer at the bottom stating that 'The Dept of Environment and Conservation does not guarantee that this map is without flaw of any kind and disclaims all liability for any errors, loss or other consequence which may arise from relying on any information depicted'.
The boundary of the TEC shown on the map was based on the area of the TEC mapped by Tauss and Weston (as shown in Figure 11 of their report, and to which I have referred as 'the Area'), using Tauss and Weston's original data files, called 'shapefiles'. Minor adjustments were made to exclude small portions along the firebreaks where vegetation had been cleared. A shapefile is a digital file that contains locational information for a digital mapping system which can be used to generate a map of an area.[799]
[799] ts 843 ‑ 846, exhibit 13.12.1 [113] ‑ [115].
The Letter invited Valentino to contact the Department if, among other things, Valentino needed help in identifying the TEC, and provided the number of the contact officer.

Extent of precision required

The Valentino parties accepted that the requirement to give notice of 'the area covered by the TEC' did not mean that the notice had to advise of the area by reference to precise GPS co‑ordinates, or that the area had to be marked out with survey pegs. It was accepted that some level of imprecision could still satisfy the requirement.[800] This concession was properly made.
[800] ts 1288 ‑ 1290.
The extent of precision required by cl 4(5)(b) must be evaluated in light of the context of the sub‑clause and the ESA Notice as a whole, as well as the purpose of the ESA Notice. In my view, the objective intention was that the notice must provide the approximate location of the area covered by the TEC. While I accept that it would have been possible to send out officers to accurately map the boundaries with GPS, this would involve additional cost and time. In my view, it was not intended that that level of precision be required.
The purpose of the ESA Notice was to provide a mechanism whereby ESAs could be protected, subject to the owners first being notified of their approximate location. This would ensure that an owner who wished to undertake any clearing in that area would be aware of the existence of the TEC.
If the owner wished to know the precise boundaries of the TEC, the owner could make enquiries. As I have noted, the Letter invited the owner to contact the Department if they needed help in identifying the TEC. It is apparent from the evidence that departmental and local government officers were willing to attend an individual property and give advice.

Evaluation

I accept that the Letter did not use the word 'cover'. I accept that the Letter did not identify, or purport to identify, the precise location of the area covered by the TEC. However, it did identify the approximate location. In my view, this notified Valentino of the area on the Property 'covered by' the TEC as required by cl 4(5)(b).

Summary of findings in counterclaim

I have set out my conclusions in most sections of the above reasons. In summary, I found as follows.
The Minister determined that Banksia attenuata woodlands over species rich dense shrublands, FCT 20a, is a 'threatened ecological community' within the meaning of that term as defined in cl 3 of the ESA Notice.
I am not satisfied that the Area was not covered by FCT 20a or that Ms English was wrong to conclude it was.
The Letter notified Valentino of the area on the Property covered by the TEC within the meaning of cl 4(5)(b) of the ESA Notice.
The counterclaim should be dismissed.

Outcome

In short, I find for Mr Ardizzone in relation to his breach of contract claim against Valentino and his claim under s 18 of the ACL against all of the defendants. I find against him in relation to his claims under s 30 of the ACL.
I find against the Valentino parties in relation to their counterclaim.
I will hear from the parties as to the appropriate orders and costs. In particular, I will hear from the parties in the original action as to the appropriate quantum of damages to reflect my findings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Research Associate/Orderly to the Honourable Justice Archer
27 FEBRUARY 2019