Oshlack v Iron Gates Pty Ltd

[1996] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION:	AL OSHLACK v. IRON GATES PTY LIMITED [1996] NSWLEC 186 (11 July 1996) [1996] NSWLEC 2
PARTIES:	AL OSHLACK v. IRON GATES PTY LIMITED
FILE NUMBER(S):	40152 of 1996
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act National Parks and Wildlife Act
CASES CITED:	Ross v SRA (1987) 70 LGRA 91 ; Wakefield v Duke of Buccleugh (1865) 12 LT 628, 629
DATES OF HEARING:
EX TEMPORE JUDGMENT DATE :	07/11/1996
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: As Mr Rigg points out, this might be regarded as an unusual case in some respects. The present confrontation has some history, although the earlier confrontation did not directly involve the present respondent.

The subject development consent has been the subject of litigation in this Court. Findings by Justice Stein do not greatly assist the resolution of the current dilemma, which involves whether or not the consent should be enforced, having regard to alleged breaches of the conditions of consent and the potential for further breaches as seen through the eyes of the applicant.

It is also unusual, in a general sense, although not atypical in this jurisdiction, that the applicant does not offer an undertaking as to damages. With disarming frankness, Mr Larkin indicated to me when he appeared on the last occasion, in chambers, and again today, that even if an undertaking as to damages was forthcoming from the applicant, it would be of no value, having regard to the financial circumstances of the applicant.

This Court has, on previous occasions, initially as I recall in a determination by the former Chief Judge in Ross v SRA (1987) 70 LGRA 91 granted an injunction without the usual undertaking as to damages being given. However, it must be understood that before granting relief where the usual undertaking as to damages is not forthcoming, that fact in itself must be taken into account when the Court decides whether or not it will grant interlocutory relief.

The current direction in respect of the circumstances under which interlocutory relief should be granted in Australia, follows what is described as the American Cyanamid test noted in a decision by the House of Lords reported in (1975) Appeal Cases 396. It is instructive to refer to what Lord Diplock had to say at p 407 (at the foot of that page) where, after analysing the divergence of authority theretofore in regard to what was the proper test, his Lordship urged the other members of the House of Lords to take the opportunity of declaring what the real position was.

He referred to expressions such as "a probability", "a prima facie case", or "a strong prima facie case", in the context of the exercise of a discretionary power to grant an interlocutory injunction, as leading to confusion as to the object to be achieved by this form of temporary relief. He expressed the opinion that the Court must be satisfied the claim is not frivolous or vexatious, or in other words that there is a serious question to be tried.

However, he went on to say at the foot of p 407 - and I think this part is particularly instructive, to the circumstances of this case:

"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to the facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing: Wakefield v Duke of Buccleugh (1865) 12 LT 628, 629."

He went on:

"So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."


What his Lordship makes clear, in my view, and the other four members of the Court agreed with him, is that the test to be applied, when there is an undertaking as to damages in the usual form, is whether or not there is a serious question to be tried.

It follows that, for whatever reason this Court may in particular circumstances not require the undertaking as to damages, such as the reasons explained by Cripps CJ in Ross , some other test may be required.

I have already said that the fact that the failure on the part of the applicant to provide the usual undertaking as to damages is a factor to be taken into account, and noted that the Court must be satisfied that the claim is not frivolous or vexatious. However I think that when the usual undertaking as to damages is not forthcoming, something more than being satisfied on the strict application of the American Cyanamid test of a serious question to be tried should be required. What that is will depend upon the circumstances in each case. It will depend upon the extent to which the applicant has been able to show that there are issues which have substance. The Court must be satisfied that it has before it sufficient material to show that, in circumstances where the respondent is not protected by the undertaking in the event that the applicant is ultimately unsuccessful, the case has been made out to an extent where it might be described as something more than a serious question to be tried, but not necessarily always going so far as a strong prima facie case (see Ross at p 100).
I do not propose to take it any further than that today. It is not necessary to do that, because this case will be determined on its own merits.

What has been shown is that some land, depicted in some photographs, has been cleared in recent times. It is suggested by the applicant that the land has been cleared contrary to condition 9 of a document which purports to be a Notice to Applicant of Determination of a Development Application. Nothing has been put to me that would suggest the notice is not the relevant notice of determination.

The development consent however, on its face, is in a most unsatisfactory form. For reasons no doubt best known to the council at the time, which maybe explains why this consent has already been the subject of some litigation in this Court, there is the vaguest of references to documents in condition 1, which requires that development of the site be carried out generally in accordance with those documents.

At least part of a document which might represent some of the documentation referred to in condition 1 has been produced, together with what might be part of a report to an ordinary meeting of Richmond River Shire Council on Tuesday 16 March 1993. Obviously that report would not have been lodged by the consultants referred to in condition 1, but presumably has been prepared upon the basis of what was lodged. Whatever that was.

The documentation before me includes a copy of a report by Walker and Newton Pty Limited. Yet condition 1 refers to at least two other documentary reports which the author of the condition sought to emphasise, namely reports by Outline Planning Consultants and Dr Leon Lim. Reference specifically to those reports is only as being included in the documentation, rather than being the whole of the documentation.

Mr Larkin has submitted one can draw from the photographs that there has been extensive clearing of the land shown in the photographs.

However, relying as he does on a breach of the Environmental Planning and Assessment Act , administered in this case by the Richmond River Shire Council, and a breach of the National Parks and Wildlife Act , administered by the National Parks and Wildlife Service, there is nothing (other than some obscure and certainly unhelpful conversations which the applicant had, or those representing him had, with officers of the council and the National Parks and Wildlife Service) to show that either of those authorities, who both appear to have been involved in the approval process and are paying close attention to what is occurring and is to occur on the site, have seen fit to intervene.

Curiously, there is no indication that they were invited to intervene in any sense either by joining in the proceedings, providing some evidentiary material or even commencing independent proceedings.

I agree with Mr Rigg that, in the circumstances, his client stands to be seriously disadvantaged by being required to cease work in circumstances where there is no appropriate undertaking as to damages. I note that the complaint of the applicant as presently formulated, based upon the evidence such as it is before the Court, concerns firstly what has occurred (that is over and done with, at least until such time as some final relief might be forthcoming for rectification, if the applicant proves his case) and also in relation to the prospect of future clearing.

The applicant has obviously been in a situation of physical confrontation at the site. There have been some indications given to me about that. I have heard from Mr Oshlack about his recent attendances in the area of the property and on the property itself, meetings with the police, the National Parks and Wildlife and so on.

The Court might expect, in circumstances where no undertaking as to damages is forthcoming, that there would be some indication that the relevant authorities have at least a concern about what is actually happening, or is about to happen. That is not the case in the present proceedings.
There is no evidence which the Court could place any real weight on, even at this interlocutory stage, that work is ongoing. It is obvious that work has occurred in the very recent past.

Having regard to all of those circumstances, I am not satisfied that, in the absence of an undertaking as to damages, the applicant is entitled to a continuation of the order which I made in chambers. The application in chambers was made without notice to the respondent to whom, on the admission of Mr Oshlack himself, the applicant has not spoken in any formal way since 1995 - eighteen months ago, to use his words.

However, I am satisfied that the circumstances are such, from the point of view of both parties, that expedition is warranted.

I dismiss the application for interlocutory relief.

I discontinue the order No 1 made on 9 July 1996.

I expedite the hearing of the matter.

I give the parties leave to approach the Registrar for the purposes of appointing an early callover to establish a timetable for the filing and service of affidavits and obtaining a hearing date.

COUNSEL ADDRESSED

I think it is appropriate in the circumstances where the applicant has failed in the application, on the basis that, in the absence of an usual undertaking as to damages, he was not able to meet the requisite standard set by the Court and, having regard to the nature of the evidence generally, for the respondent to have a discrete order as to costs in respect of this part of the proceedings.

Accordingly, I order that the applicant pay the costs of the respondent in respect of the application for interlocutory relief.