Southern Properties (WA) Pty Ltd v Department of Conservation and Land Management
[2006] WASC 40
SOUTHERN PROPERTIES (WA) PTY LTD & ORS -v- DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT & ANOR [2006] WASC 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 40 | |
| Case No: | CIV:1065/2005 | 13-15, 17 FEBRUARY 2006 | |
| Coram: | LE MIERE J | 17/02/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SOUTHERN PROPERTIES (WA) PTY LTD (ACN 078 766 659) OLD VASSE VINEYARD PTY LTD (ACN 086 775 475) BARWICK ESTATE VINEYARD PTY LTD (ACN 008 749 273) SOUTHERN PROPERTIES SYNDICATE OLD VASSE SYNDICATE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT STATE OF WESTERN AUSTRALIA |
Catchwords: | Application for interlocutory injunction Application to prevent prescribed burning of Crown land Balance of convenience Public interest in prescribed burn proceeding |
Legislation: | Nil |
Case References: | Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 City of Richmond v Scantlebury [1991] 2 VR 38 Evans Marshall & Co Ltd v Bertola [1973] 1 WLR 349 Goldman v Hargrave [1966] 115 CLR 458 Kennaway v Thompson [1981] QB 88 Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] QB 485 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Rylands v Fletcher (1868) LR 3 HL 330 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Wood v Conway Corporation [1914] 2 Ch 47 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- OLD VASSE VINEYARD PTY LTD (ACN 086 775 475)
BARWICK ESTATE VINEYARD PTY LTD (ACN 008 749 273)
First Plaintiffs
SOUTHERN PROPERTIES SYNDICATE
OLD VASSE SYNDICATE
Second Plaintiffs
AND
DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant
(Page 2)
Catchwords:
Application for interlocutory injunction - Application to prevent prescribed burning of Crown land - Balance of convenience - Public interest in prescribed burn proceeding
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiffs : Mr R I Viner QC & Mr M M Mony de Kerloy
Second Plaintiffs : Mr R I Viner QC & Mr M M Mony de Kerloy
First Defendant : Mr B P King
Second Defendant : Mr B P King
Solicitors:
First Plaintiffs : Mony de Kerloy
Second Plaintiffs : Mony de Kerloy
First Defendant : State Solicitor's Office
Second Defendant : State Solicitor's Office
Case(s) referred to in judgment(s):
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
(Page 3)
Case(s) also cited:
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
City of Richmond v Scantlebury [1991] 2 VR 38
Evans Marshall & Co Ltd v Bertola [1973] 1 WLR 349
Goldman v Hargrave [1966] 115 CLR 458
Kennaway v Thompson [1981] QB 88
Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] QB 485
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Rylands v Fletcher (1868) LR 3 HL 330
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Wood v Conway Corporation [1914] 2 Ch 47
(Page 4)
1 LE MIERE J: The first plaintiffs each own land in the Pemberton area and the second plaintiffs lease various portions of that land for the purpose of grape cultivation and ultimately wine production. There are three vineyards on the land and 73 hectares of the land is planted with vines. Harvesting of grapes for wine production occurs annually, generally between March and May in each year.
2 The first defendant is an agency of the State, which is the second defendant. The plaintiffs' land adjoins crown land vested in the state. It is a function of the first defendant to manage the crown land. The first defendant is responsible for fire management in WA state forests, national parks and nature reserves. The first defendant uses planned fire or prescribed burns to manage these areas in order to maintain the biological diversity and to protect life, community assets and natural resources from damage by uncontrolled fire.
3 On 31 March 2004, the first defendant carried out a prescribed burn on crown land adjoining the southern, eastern and western boundaries of the plaintiffs' land. The plaintiffs allege that smoke and ash escaped from the crown land onto the plaintiffs' land. Smoke from the fires cloaked the vines and grapes for about seven days and ash fell on the vineyard until about 2 April and tainted the plaintiffs' grapes.
4 The defendants admit that at various times smoke was emitted from the burn area over the plaintiffs' land but say that during the majority of the time the winds were away from the plaintiffs' property. The defendants deny that ash was discharged from the burn area onto the plaintiffs' land.
5 The plaintiffs say that the grapes were tainted by the smoke and ash and were unsuitable for use in wine making and were rejected by a company contracted to purchase the grapes. The plaintiffs plead that the discharge and escape of ash and smoke onto the plaintiffs' land was caused by the negligence of the defendants.
6 The particulars of negligence include the allegations that the second defendant lit the fires when the weather conditions were unsuitable for avoiding smoke and ash falling upon the plaintiffs' vineyard and the defendants could have delayed doing so until after the harvest of the grapes. It is also alleged that the second defendant continued the fires along the southern boundary of the plaintiffs' land and did not control them so as to prevent ash and smoke falling on the vineyard.
(Page 5)
7 The defendants deny they were negligent. The defendants further say that pursuant to s 132 of the Conservation and Land Management Act ("CALM Act") they are exempt from liability for anything done or omitted to be done in good faith or in connection with the performance or purported performance of functions under the CALM Act. The plaintiffs claim to have suffered damages exceeding $1.3 million as a result of the loss of the 2004 vintage.
8 In January 2005 the plaintiffs commenced proceedings claiming damages and an injunction to restrain the defendants from lighting fires on the crown land until the harvest each year of grapes in the vineyards has been completed on the plaintiffs' land.
9 The action has been case-managed by a registrar of this court. The parties agreed to leave the action in abeyance pending the outcome of an application by the plaintiffs for ex gratia compensation. As a result, the action has not progressed to trial as it might have done had it been pursued with expedition. However, the plaintiffs said that they were trying to negotiate a settlement and as the defendants do not submit that I should have regard to any delay in prosecuting the action, I will not do so.
The proposed prescribed burn
10 By letter of 18 January 2006, the first defendant informed the plaintiffs that it intends to undertake a prescribed burn adjacent to the plaintiffs' land in the near future when suitable conditions allow. The plaintiffs wrote to the first defendant seeking an undertaking that the first defendant would not carry out the prescribed burn until the plaintiffs' grapes have been harvested. The defendants have declined to give that undertaking.
11 The defendants say the conditions are likely to be suitable for the burn in the next few days and intend to commence the burn tomorrow, Saturday, 18 February, unless restrained by injunction from doing so. The defendants have undertaken not to commence the burn until this injunction application is resolved, hence this application must be resolved expeditiously and without the luxury of taking further time to consider the matter.
12 The plaintiffs seek an interlocutory injunction to restrain the defendants from carrying out the prescribed burn until 15 May on any land adjacent to the plaintiffs' land. The proposed burn is not of an area immediately adjacent to the plaintiffs' land. The plaintiffs seek an injunction to restrain the burn of the DP60 area before harvest of the
(Page 6)
- plaintiffs' grapes. That area is to the south-west of the plaintiffs' land and at their nearest points are two kilometres apart.
Serious question to be tried
13 I must consider whether the plaintiffs have made out a serious question to be tried that they are entitled to an injunction in those terms or in the terms sought in their statement of claim, and if so, whether the balance of convenience favours the grant of the injunction sought.
14 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 the High Court confirmed that there was no separate principle involving strict liability for fire and that the Rylands v Fletcher principle has been absorbed into the general principles of negligence liability. Thus a person who takes advantage of his or her control of premises to introduce a dangerous substance or to carry on a dangerous activity or to allow another to do so owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.
15 There is evidence that smoke and ash from a fire may taint grapes so as to make them unsuitable for use in wine production and that if smoke falls on the plaintiffs' land, it may cause the plaintiffs' loss. It is arguable that the defendants owe to the plaintiffs a duty of care to take reasonable care not to cause such loss to the plaintiffs. It is arguable that the defendants breached the duty of care they owed to the plaintiffs by lighting and maintaining the fires as part of the 2004 prescribed burn. The defendants concede that there is a serious question to be tried that the plaintiffs are entitled to relief. I find there is a serious question to be tried.
16 Counsel for the defendants submitted that before considering the balance of convenience I should consider whether damages would be an adequate remedy if the plaintiffs are entitled to relief and whether the plaintiffs could adequately compensate the defendants if an injunction is granted and the plaintiffs subsequently are found not to be entitled to relief. Counsel for the plaintiffs submitted that the adequacy of damages and the balance of convenience should be considered together because in this case they are interrelated.
Balance of convenience
17 I turn to consider the balance of convenience and whether the plaintiffs may be adequately compensated in damages. The plaintiffs may suffer substantial damage if the injunction is not granted. The first
(Page 7)
- defendant has given an assurance that it will take all reasonable steps to see that smoke and ash do not escape from crown land on which it is carrying out a prescribed burn onto adjoining land. However, if the wind conditions change after the burn has commenced, the wind may cause smoke and possibly ash to fall on the plaintiffs' vines and the plaintiffs' grapes may be rendered unsuitable for wine production. Thus it is possible that if the first defendant carries out the prescribed burn before harvest, the plaintiffs' grapes will be tainted and the plaintiffs will suffer substantial loss.
18 The plaintiffs have contracts in place with their related winery and marketing company, known as Barwick Estates, to supply grapes or wine. That company has in turn commitments to supply a number of customers. The plaintiffs could be compensated in damages for loss of the 2006 vintage. However, the plaintiffs say they cannot sustain another crop being lost and the very viability of their investment is at stake. The plaintiffs say their reputation was damaged by the loss of vintage in 2004 and would be irremediably damaged if a similar happening was to occur again.
19 In his affidavit sworn on 10 February 2006, John Louis Casey, a director of some of the plaintiffs, swore in par 28 of his affidavit as follows:
"The plaintiff cannot sustain another crop being lost and the very viability of their investment is at stake. Smoke taint and ash damage will invariably destroy the current contracts as well as cause further loss of reputation of both the plaintiff's vineyard and of the region as a premium wine producer. The vineyard and its staff have worked tirelessly to overcome the loss of both reputation and product in 2004. We have rebuilt contracts and assured suppliers of our reliability and product quality. A smoke burnout would destroy both the vineyard's product as well as destroy the hard work and spirit of the people involved in its endeavour."
20 There are three matters that go beyond loss of income for which the plaintiffs could be adequately compensated in damages. They are loss of contracts through their related company, Barwick Estates, to sell grapes, wine juice or wine; secondly, loss of reputation; and thirdly, loss of the whole enterprise by reason of loss of all revenue from the 2006 vintage on top of losses from the 2001 and 2004 vintages.
(Page 8)
21 The evidence in support of these claims is limited but there is evidence that if the plaintiffs' grapes are tainted by smoke, the plaintiffs may suffer loss of the kinds I have referred to. The test of whether the plaintiffs can adequately be compensated by an award of damages is whether it would be just to confine the plaintiffs to damages. The answer to that question is related not only to the magnitude of the harm that may be caused to the plaintiffs but also to the likelihood of it occurring. I will consider that issue shortly.
22 The defendants submit that the public interest will be adversely affected if the defendants are restrained from carrying out the burn. The DP60 block is in a strategic location. The burn will provide protection to the Pemberton town site and to private properties and homes to the east of the DP60 area. The risk of bushfire damage increases with the fuel load of a forest.
23 The area where the burn is scheduled, that is the DP60 block, is already overdue for a prescribed burn. It is nine years since a burn was conducted in the area. The fuel load has built up to the point that it is hazardous now and continues to be increasingly hazardous with every season that a burn does not take place. The burn is not to be seen in isolation. It is part of a comprehensive integrated plan and any delay would increase the risk of greater intensity and the size of any uncontrolled bushfire. Therefore, there is a weighty public interest in the burn proceeding if the opportunity arises.
24 It is important that the DP60 burn proceed this summer if at all possible given the level of fuel load, the strategic location of the burn, the potential consequences should a wildfire occur and the general backlog of prescribed burns in the district.
25 The plaintiffs' response to those matters is that they do not seek to prevent CALM from carrying out protective burning of the DP60 area. They say it is a question of timing and they say CALM can carry out the burn after the harvest. Senior counsel for the plaintiffs, Mr Viner QC, put it this way at p 39 of the transcript:
"So that in terms of balance of convenience, the status quo can be conveniently preserved by allowing the plaintiff to harvest its crop and then CALM will be in a position to proceed with the burn in autumn or spring of 2006 as I have indicated, so the balance of convenience is satisfied by the grant of an interim
(Page 9)
- injunction which preserves the status quo and therefore protects the private interests of the plaintiff."
26 The defendants say that if they don't do the burn before harvest, it is unlikely that they will have the opportunity in 2006. That raises the issue of when CALM has an opportunity to carry out a burn of the DP60 area. That is an important issue in the determination of this application.
Opportunity to conduct burn
27 The plaintiffs point to statements in the affidavits of Mr Walker and Mr Gillard and in documents attached to those affidavits to the effect that, or from which it may be inferred that, CALM can carry out a burn of the DP60 area in 2006 after the harvest.
28 I find the oral evidence of Mr Walker to be the most compelling evidence on this issue. The predominant vegetation in the DP60 area is karri, although there is also jarrah. Mr Walker said that karri cannot be burnt in spring because the fuels within that vegetation type are too moist. Mr Walker said it was possible that the conditions might make a burn possible in May but it was unlikely because the fuel is unlikely to be dry enough. Once the autumn rain commences, the fuel becomes too moist. The likelihood of being able to carry out a burn of the DP60 area would be extremely low and, furthermore, there are some jarrah fuels in the DP60 area and they would be extremely dry in late April and burning those fuels at that time would lead to unacceptable fire behaviour.
29 I find the effect of Mr Walker's evidence to be as follows. It is possible that a burn might be carried out in May after the grape harvest, but the likelihood of being able to do so effectively and safely is extremely low. If the first rains have commenced, the karri fuel is likely to be too moist for effective burning. If the karri fuels are dry enough, the jarrah fuel is likely to be too dry for the burn to be safely undertaken.
30 If the injunction is granted, the defendants will lose the opportunity to do the burn before mid-May. There is a very low probability that they will have an opportunity to carry out the burn in autumn after the harvest. There is no real likelihood they will have an opportunity to carry out the burn in spring 2006. Thus the next opportunity is not likely to be before January or February 2007. A burn at that time would raise the same possibility of harm to the plaintiffs that the plaintiffs now complain of.
(Page 10)
31 The injunction sought by the plaintiffs is or is in the nature of a quia timet injunction. In "Equity and Trusts in Australia and New Zealand", Dal Pont and Chalmers discuss quia timet injunctions at p 834 as follows:
"Quia timet injunctions are granted for the purpose of preventing a threatened unlawful interference with the exercise of the plaintiff's rights prior to any actual interference. These injunctions can be interlocutory or perpetual, prohibitory or mandatory. In a quia timet application, the plaintiff must show a strong probability that what the defendant proposes to do will cause imminent and substantial damage to the plaintiff's property or business. The term "imminent" in this context is used in the sense that the circumstances must be such that the remedy sought is not premature, although this is not to be taken as conveying that it need not be shown to be likely at all. Moreover, degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties having regard to all the relevant circumstances."
Probability of harm to plaintiffs
32 It is important to consider the probability of the plaintiffs suffering harm if the injunction is not granted. The plaintiffs will only suffer loss if smoke drifts over their land. The weather predictions for the relevant period indicate there will be steady winds carrying smoke away from the plaintiffs' property. If the forecasts come to pass, then the plaintiffs will suffer no harm from a burn.
33 Of course there can be no guarantee that the winds will not change. The plaintiffs point to what happened in 2004 as evidence from which it should be inferred that there is a real prospect of the winds changing and smoke covering the plaintiffs' vineyard. However, there are significant differences between the 2004 burn and the planned burn of DP60. The 2004 burns were of areas to the east, south and west of the plaintiffs' property. That meant that it was much more difficult to avoid winds that would carry smoke onto the plaintiffs' land. Furthermore, the 2004 burn was of land adjoining the plaintiffs' land. The initial fires were lit on the boundary of the plaintiffs' land.
34 The planned DP60 burn will be two to four kilometres from the closest point of the plaintiffs' property. Importantly, the DP60 area is to the south-west of the plaintiffs' property. Smoke will only blow onto the plaintiffs' land if the prevailing winds are from the south-west. The forecast is that there will not be south-west winds during the burn.
(Page 11)
- Mr Walker gave evidence that the probability of south-west winds is extremely low. He said at p 11 of the transcript as follows:
"Generally during those months, as I said before, it is a predictable and repeatable pattern and for the proposed burn DP60 it's very important to us if we are going to achieve one of the objectives of the burn to ensure that that pattern has commenced. I said before that the repeatable pattern is that a trough of low pressure forms down the west coast and a high pressure cell forms in the Great Australian Bight. That leads to the development of south-easterly winds across the lower south-west, the lower south-west including Pemberton, and those winds will normally prevail for two to three days. The cycle then moves to an easterly wind direction and then through north-east, north-west and then with the movement of the trough to the east, you'll get winds commencing from the west and the south-west before returning to the south-east but the earlier part of that cycle following a trough movement where prevailing south-easterly winds occur is very predicable and it's under those conditions that we intended to commence the DP60 burn so that the south-easterly winds burning for several days would blow the smoke away from the plaintiffs' vineyard."
Evidence of irreparable injury to plaintiffs
36 An interlocutory injunction to restrain the state and a state agency from carrying out a public function is an extraordinary remedy. No injunction will issue if there is an adequate remedy in damages. In general, irreparable injury is an essential prerequisite to the grant of an interlocutory injunction to restrain the state and a state agency from carrying out a public function. Temporary loss of income or other alleged injury involving only the loss of money is generally not irreparable injury.
(Page 12)
37 It is true that the plaintiffs claim that the loss of the 2006 vintage will damage their reputation, but the evidence of that is limited. The contracts referred to are with a related company. Non-performance of those contracts is not likely to affect the reputation of the plaintiffs.
38 Mr Casey says in his affidavit that that company has supply commitments to a number of customers. No particulars are given of the nature of those commitments. The volume of grapes or wine the subject of those commitments exceeds the volumes to be yielded from the plaintiffs' land. The plaintiffs have not explained that difference. Counsel for the defendants, Mr King, submitted that it might be that Barwick Estates source grapes and wine from other producers. There is no evidence of a shortage of grapes or wine that Barwick Estates might obtain from other producers.
39 Mr Casey says in his affidavit that the plaintiffs cannot sustain another crop being lost and the very viability of their investment is at stake. Again that claim is left as an unparticularised assertion.
40 There is evidence from which it might be inferred that if the injunction is not granted and smoke taints the plaintiffs' grapes, the plaintiffs will suffer irreparable loss and damage that cannot be compensated in damages, but the evidence is not compelling.
41 Before an injunction is granted the plaintiffs must show a probability that they will suffer irreparable injury if the injunction is not granted. The degree of probability of irreparable injury occurring is not an absolute standard. What is to be aimed at is justice between the parties having regard to all the relevant circumstances.
Conclusion
42 After weighing all the relevant circumstances to which I have referred, I am not persuaded that an injunction should be granted. In the exercise of its discretion a court of equity should pay particular regard for the public consequence of employing the extraordinary remedy of injunction. There is a weighty public interest in the burn proceeding. An injunction would prevent or at least seriously impede a state agency carrying out a public function.
43 If the injunction is granted, the defendants will lose the opportunity to do the burn before mid-May. There is a very low probability that they will have an opportunity to carry out the burn in autumn after the harvest. There is no real likelihood that they will have an opportunity to carry out
(Page 13)
- the burn in Spring 2006. Thus the next opportunity is not likely to be before January or February 2007. The conditions may not then be suitable, and in any event a burn at that time would raise the same possibility of harm to the plaintiffs that the plaintiffs now complain of.
44 The effect of the failure to carry out the burn will be to increase the risk of damage by bushfire. On the other hand, there is only a low probability of the plaintiffs suffering any harm if the injunction is not granted. The balance of convenience is against the grant of an injunction. In the exercise of my discretion I decline to grant an injunction.
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