Pillay v Western Australian Planning Commission
[1999] WASC 97
PILLAY -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ORS [1999] WASC 97
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 97 | |
| Case No: | CIV:1280/1999 | 14 JULY 1999 | |
| Coram: | WHITE J | 22/07/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Injunction dissolved by consent, plaintiff to pay costs, inquiry into damages refused, with liberty to renew application when action against second defendants concluded | ||
| PDF Version |
| Parties: | DEBORAH ANNE PILLAY WESTERN AUSTRALIAN PLANNING COMMISSION GORDON STEPHENSON FLORENCE JANETTA STEPHENSON REGISTRAR OF TITLES |
Catchwords: | Interlocutory injunction Dissolution by consent Costs Whether inquiry into damages appropriate before conclusion of the action Turns on its own facts |
Legislation: | Supreme Court Rules |
Case References: | Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 Smith v Day (1882) 21 Ch D 421 T A Edison Ltd v Bullock (1912) 15 CLR 679 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Defendant
GORDON STEPHENSON
FLORENCE JANETTA STEPHENSON
Second Defendants
REGISTRAR OF TITLES
Third Defendant
Catchwords:
Interlocutory injunction - Dissolution by consent - Costs - Whether inquiry into damages appropriate before conclusion of the action - Turns on its own facts
Legislation:
Supreme Court Rules
(Page 2)
Result:
Injunction dissolved by consent, plaintiff to pay costs, inquiry into damages refused, with liberty to renew application when action against second defendants concluded
Representation:
Counsel:
Plaintiff : Mr P C Doherty
First Defendant : Ms N S Fauvrelle
Second Defendants : Mr I A Morison
Third Defendant : No appearance
Solicitors:
Plaintiff : Minter Ellison
First Defendant : State Crown Solicitor
Second Defendants : Richard Huston & Associates
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
Case(s) also cited:
Smith v Day (1882) 21 Ch D 421
T A Edison Ltd v Bullock (1912) 15 CLR 679
(Page 3)
1 WHITE J: On Friday, 19 March 1999, the plaintiff applied for and was granted an interim injunction restraining the second defendants, until 25 March 1999, from transferring their interest in certain land and also restraining the third defendant from registering any such transfer. The injunctions were granted subject to the usual undertaking as to damages being furnished by the plaintiff. It is clear that the application was brought as a matter of extreme urgency, arising from the impending settlement of the transaction the subject of the restraint, and without the filing of a writ or the usual papers or affidavits. It was ordered that no later than 5pm on the following Monday, 22 March 1999, the plaintiff was to serve on the defendants copies of the order and of the writ and affidavits to be filed in support of the application, which the plaintiff by her counsel, undertook to file.
2 On 25 March 1999, McKechnie J made an order, by consent, extending the injunction granted on 19 March 1999 to 5pm on 1 April 1999 and his Honour made a further order, again by consent, extending the injunction to 15 April 1999, on which latter date, his Honour extended the injunction until trial or further order of the Court.
3 On 14 July 1999, the second defendants applied for orders that (1) the injunction be dissolved, (2) the plaintiff pay the second defendants' costs and (3) that directions be given for an inquiry into the compensation payable to the second defendants by reason of the restraints imposed by the injunction. The second defendants agreed that the injunction should be dissolved but opposed the making of the second and third orders sought contending that these issues should await the result of the trial.
4 The basis of the application for dissolution of the injunction was the alleged failure on the part of the plaintiff to disclose to the Court at the time of the ex parte application, two letters, the contents and relevance of which will be discussed hereunder. An examination of the transcript of the proceedings before Parker J on 19 March 1999, coupled with the affidavit of counsel who then appeared for the plaintiff and who is unable to say whether or not the letters were placed before the Court, establishes, on a balance of probabilities, that they were not disclosed at that time. Subsequently, they were annexed to the plaintiff's affidavit filed pursuant to the order of Parker J.
5 The second defendants submitted that these letters were material to the grant of the injunction and that the failure on the part of the plaintiff to disclose them to the Court constituted misleading conduct. I should add at once that it was not suggested that the failure to disclose these letters,
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- assuming as I do that there was such a failure, was a deliberate concealment by counsel then appearing. It is suggested that the plaintiff's husband, a practitioner who was in attendance throughout the hearing on 19 March 1999, must have known about the letters and that the failure to disclose them would be misleading. In the absence of evidence by the plaintiff's husband, (who is not a party to the proceedings) however, I make no finding in that regard.
6 The background, stated briefly, to the proceedings is that the plaintiff and the second defendants are the respective owners of adjoining rural properties situated within the area of jurisdiction of the Shire of Swan, being respectively Lots 8 (owned by the plaintiff) and 9 (owned by the second defendants), Roland Road, Gidgegannup. These properties share a common boundary, about one kilometre long, which is located about 25 metres from the plaintiff's residence and about eight metres from her swimming-pool.
7 The second defendants applied for and obtained approval to the subdivision of Lot 9 into three lots. Mr and Mrs Kennedy ("the Kennedys") are the proprietors of Lot 12 which adjoins Lots 8 and 9 to the north and they have applied for and obtained approval to the subdivision of Lot 12. In the result, in order to obtain access to part of Lot 12, the Kennedys agreed to purchase and the second defendants agreed to sell a strip of land, part of Lot 9, which abuts the common boundary between Lots 8 and 9. The plaintiff complained that the location of the access road resulted in the creation of dust and noise, adversely affecting the amenities of her residence. Attempts at an agreed settlement failed.
8 On 12 March 1998, the first defendant had granted conditional approval to the second defendants' application for subdivision. Among the conditions were those numbered 2 and 3, reading:
"2. The battleaxe access leg(s) being constructed and drained at the subdivider's cost to the satisfaction of the Western Australian Planning commission.(LG)
"3. The applicant entering into an agreement with the Local Government to ensure reciprocal rights of access over adjoining battleaxe access leg(s). (LG)"
9 It is common cause that condition 3 has never, in fact, been implemented.
(Page 5)
10 In relation to condition 2, the Shire of Swan ("the Shire") wrote to the first defendant on 11 March 1999 a letter, saying in part:
"As we discussed today, can we stop progress on the above subdivision clearance until we can hold a joint meeting with yourself, the DEP, Mr Pillay, and Mr Kennedy regarding a dust problem at the above location."
11 On 15 March 1999, the Shire wrote to the first defendant a letter saying, in part:
"Council staff have no concern should the Ministry decide to approve the battleaxe leg as it was constructed in this instance. However as the Ministry has no set standards in this regard, your acceptance of the Council standards would be appreciated.
If you are not happy with the standard of the constructed battleaxe leg, Council would like to formally withdraw its approval to the subdivision."
12 In a further letter to the first defendant dated 16 March 1999, the Shire said, in part:
"I believe the standard of access provided and approved in this instance is appropriate for the area and for the number and type of traffic that will be using it. I also think that our response to the dust complaint by sealing the access was timely and reasonable."
13 Those two letters, dated 15 and 16 March 1999 are the letters which, the plaintiff complains, were not placed before the Court at the time of the application on 19 March 1999. As I have indicated, it is probable that they were not placed before Parker J - certainly, neither counsel nor his Honour in giving reasons mentioned them and counsel's submissions were inconsistent with knowledge of their contents. It is likely that counsel had not, at the relevant time, become aware of these letters.
14 The Shire wrote to the plaintiff's husband on 19 March 1999 a letter reading:
"Further to my fax of this morning, Council staff have asked the Ministry for Planning to put the approval on hold until after a meeting was held on site or the condition relating to the width and surface of the battleaxe leg was clarified.
(Page 6)
- As the Ministry for Planning have not formally responded to this fax or the subsequent letter from Council staff, this I believe constitutes a formal withdrawal of the Approval by Council.
As indicated to you this morning, the Ministry for Planning are the ultimate approval Authority in this regard."
15 There is no evidence that that letter was copied to the first or second defendants.
16 On 17 March 1999, the subdivisional proposals by the second defendants were approved by the first defendant and subdivisional plans signed by the latter accordingly. The second defendants wished to proceed with the settlement of their agreement with the Kennedys but were restrained by the injunction granted on 19 March 1999.
17 In applying for the injunction, counsel contended that neither of the two relevant conditions had been complied with. In granting the interim injunction, his Honour relied upon the non-compliance with both conditions. In fact, as appears from the two letters dated 15 and 16 March 1999 respectively, it seems that condition 2 was complied with, the access road having been constructed by and to the satisfaction of the Shire. Those letters are not relevant to condition 3.
18 In the course of his submissions to Parker J, counsel said, in relation to condition 3:
"There is a further condition which, as far as we are aware, has not been satisfied and it's condition 3.
… my client has been informed by the second defendants that they have not entered into any agreement concerning reciprocal access with the local government which that condition requires. My understanding is that the Western Australian Planning Commission is satisfied that that condition – or at least the officer, it appears from the file, was satisfied on the basis of easements granted, as far as we can ascertain, under section 136C of the Transfer of Land Act which effectively provides for the granting of easements in plans of subdivision, but the flaw in that approach is twofold.
First of all, it is not precisely in accordance with the terms of this condition, but it would be nitpicking to say, well, if it had
(Page 7)
- the same effect, perhaps it would be in some was reasonable to clear the condition. However, as far as I can ascertain this clearly, the easements were granted without making the local government a party. That's important because without that, it is possible - and I can't say that I have had the opportunity to research this point fully, but I believe it's possible under the Transfer of Land Act, for the parties to agree to different arrangements.
There's a good reason why that condition says the local government should be a party, so it can ensure that the parties do not make alternative arrangements"
19 Although counsel for the second defendants apparently understood that submission as accepting that to contend that the third condition had not been satisfied amounted to "nit-picking", I understand the submission somewhat differently. In my opinion, counsel was saying that, if what had been done had the same effect as compliance with the condition, to contend that there had been non-compliance would be nit-picking, but that what had been done did not have the same effect, for the reasons adumbrated by counsel. Be that as it may, it seems clear that the third condition was not in fact complied with, although the first defendant seems to have accepted that there had been sufficient substantial compliance with the condition to satisfy it.
20 Accordingly, I do not think that the second defendants have demonstrated that the interim injunction would necessarily have been refused had the two letters to which I have referred been placed before Parker J. In the absence of a deliberate withholding of evidence at the stage of an ex parte application for injunctive relief, the fact that material evidence was not placed before the Court, in circumstances where the proceedings are necessarily instituted in great haste, does not render the dissolution of the injunction inevitable: see, for example, Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 at 88 and Seaman: Civil Procedure in Western Australia at 52.1.14.
21 On 14 July 1999, I made an order by consent dissolving the injunction, as extended, and reserved my decision in relation to the remaining orders sought by the second defendants.
22 The action is still on foot, it appears, although it is difficult to see what relief as against the second defendants remains to be pursued, in the circumstance that the injunction against disposal of their land has been
(Page 8)
- dissolved. No statement of claim has as yet been filed in the action, but the indorsement of claim sets out certain declaratory relief as to the validity of the subdivisional approval and, as against the second defendants, the following claim only (apart from costs):
"An injunction pending trial and permanently restraining the second defendants from transferring the land in their ownership referred to in the subdivision approval as a battle axe leg ('battleaxe leg') to any other party without first having the conditions of the subdivision approval in particular conditions 2 and 3 lawfully complied with to the satisfaction of the first defendant or otherwise obtaining a lawful subdivision approval."
24 In my opinion, the dissolution of the injunction by consent should carry with it the costs of the injunctive proceedings. The plaintiff obtained the injunction and has now consented to its dissolution without the intervention of any significant subsequent event, so far as the material before me goes. Accordingly, I direct that the plaintiff is to pay the costs of the second defendants of the proceedings relating to the injunction, including the extensions thereof and the hearing before me on 14 July 1999, such costs to be taxed if not agreed and to be paid forthwith.
25 In relation to the claim by the second defendants for an inquiry into the question of compensation arising from the plaintiff's undertaking as to damages, counsel for the plaintiff submitted that no such order should be made until the conclusion of the proceedings. The question whether there was good cause to seek the injunctive relief may depend upon the outcome of the plaintiff's claims for declaratory relief against the first defendant, if such claims are indeed pursued by the plaintiff. No evidence has been placed before me to show that damages have in fact been sustained by the second defendants and they will not be prejudiced by the deferment of this claim until the conclusion of the action as against the second defendants. I shall therefore refuse the application for an order for
(Page 9)
- inquiry into damages but shall grant liberty to the second defendants to renew that application when the action against them has been concluded.
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