Szulc v Chief Executive Officer, Department of Environment and Conservation [No 4] - [2012] WASCA 143

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SZULC -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION [No 4] [2012] WASCA 143

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 3 JULY 2012

DELIVERED : 31 JULY 2012

FILE NO/S: CACV 152 of 2011

BETWEEN: MAXWELL JAN SZULC
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTIN CJ
Citation  :CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [No 2] [2011] WASC 315
File No  :CIV 2722 of 2009

Catchwords:

Criminal law - Contempt of court - Appellant failed to comply with injunction - Appellant without legal representation at trial of contempt charges - Whether appellant should have been granted adjournment to obtain legal representation - Dietrich principle - Appellant failed to establish indigent - No evidence appellant taken reasonable steps to obtain legal representation - No miscarriage of justice - Appeal dismissed

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr R M Mitchell SC & Mr T C Russell

Solicitors:

Applicant: In person
Respondent: State Solicitor for Western Australia

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

Cameron v Cole (1944) 68 CLR 571
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Chief Executive Officer, Department of Environment and Conservation v Szulc [2011] WASC 315
Craig v South Australia (1995) 184 CLR 163
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Karounos v The Queen (1995) 63 SASR 451
McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
R v Lucas (1993) 78 A Crim R 480
R v Marchi (1996) 67 SASR 368
Russell v East Anglican Railway Co (1850) 42 ER 201
The Queen v Phillips (Unreported, WASC, Library No 980638, 2 November 1998)

JUDGMENT OF THE COURT: On 11 November 2011, the appellant was convicted by Martin CJ on two counts of contempt of court and sentenced to terms of imprisonment of 9 months and 15 months respectively, to be served concurrently. The appellant appealed against the convictions. As the notice of appeal was out of time, the appellant required an extension of time to appeal.
On 3 July 2012, we granted an extension of time to appeal but dismissed the appeal, with reasons to be provided later. The following are our reasons.
Before turning to the issues on the appeal, it is convenient to describe briefly the relevant legislation.

The statutory framework

The Environmental Protection Act 1986 (WA) regulates, by pt 5 div 2, the clearing of native vegetation. 'Clearing' includes the killing, destruction or removal of native vegetation in an area: s 51A. Section 51C provides (relevantly) that it is an offence for a person to cause or allow clearing unless the clearing is done in accordance with a clearing permit or is of a kind authorised under sch 6 of the Environmental Protection Act or is prescribed for the purposes of that Act.
Certain prescribed exemptions are set out in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) (the Clearing Regulations). It is unnecessary to describe those. Nor is it necessary to consider sch 6 of the Environmental Protection Act.
Where the respondent suspects on reasonable grounds that unlawful clearing is likely to take, is taking, or has taken, place the respondent may cause a vegetation conservation notice to be given to the owner or occupier of the land requiring that person to ensure that no unlawful clearing, or no further unlawful clearing, takes place on the land: s 70(2), (3). A person who fails to comply with such a notice commits an offence: s 70(8).
Section 51S of the Environmental Protection Act provides (relevantly) that the respondent may apply for a clearing injunction to prevent a person from committing a breach of s 51C. A clearing injunction may be granted if the court is satisfied that it is appropriate to do so whether or not it is proved that the person has engaged, or intends to engage, in conduct contrary to, among others, s 51C: s 51S(4). An interim clearing injunction may be granted before the final determination of an application for a clearing injunction: s 51C(5).
The Soil and Land Conservation Act 1945 (WA) is also relevant. Under that Act, the Commissioner of Soil Conservation may issue a soil conservation notice if he or she is of the opinion that land degradation is occurring, or is liable or likely to occur, on that land or elsewhere, as a result of (relevantly) clearing or intended clearing: s 32(1). The soil conservation notice may (among other things) direct the person bound by it to refrain from clearing any land specified in the notice: s 32(2). It is an offence to contravene a soil conservation notice: s 35.

Background

The appellant and his wife are joint registered proprietors of a farming property (the Property) in Munglinup, in the south of the state. At all material times, the appellant was the sole occupier of the Property.
On 30 September 1994, a soil conservation notice was issued to the appellant and his wife, pursuant to s 32 of the Soil and Land Conservation Act, restraining the appellant from carrying out 'further development' on the Property until a satisfactory land management plan was lodged.
Satellite monitoring of the Property in the second half of 2008 suggested that, despite the notice, clearing had occurred on the Property between 2006 and 2008. On 10 December 2008, an inspector from the Department of Environment and Conservation inspected the Property and explained to the appellant that the clearing legislation had changed in 2004 and the appellant would need to apply for a clearing permit to conduct further clearing.
Subsequent satellite monitoring data indicated that a further area of approximately 130 ha of native vegetation had been cleared between 3 August 2009 and 4 September 2009. Having viewed that data, the inspector returned to the Property on 23 September 2009. He told the appellant that if he did not have a clearing permit or exemption he would have to cease further clearing. The inspector served on the appellant a vegetation conservation notice under s 70 of the Environmental Protection Act. The notice required the appellant to ensure that no unlawful clearing, or no further unlawful clearing, took place on the Property. The appellant told the inspector that he intended to continue clearing.
The respondent commenced proceedings on 2 October 2009 for a clearing injunction restraining the appellant from clearing native vegetation on the Property. At the same time, the respondent applied for an interim clearing injunction under s 51S of the Environmental Protection Act.
The respondent's application for an interim clearing injunction came before the primary judge on 8 October 2009. The appellant appeared by video link. He told the primary judge that he required time to put on evidence in opposition to the application. His Honour adjourned the application but granted an interim clearing injunction in the meantime. The interim clearing injunction was (relevantly) in the following terms:
1.Until the trial of this action or further order, the [appellant] be restrained and a clearing injunction be granted restraining the [appellant] from causing or allowing:
(a)        the killing or destruction of;
(b)        the removal of;
(c)        the severing or ringbarking of trees or stems of; or
(d)        the doing of substantial damage to,
native vegetation on [the Property], including by ploughing, raking or burning areas cleared in 2009, except in accordance with:
(a)        a clearing permit; and
(b)Soil Conservation Notice F728801, which is annexed to this order and marked 'A'.
2.…
3.The parties have liberty to apply on 48 hours' notice to vary or dissolve these orders.
The soil conservation notice referred to in the order was the notice issued to the appellant and his wife on 30 September 1994.
The primary judge told the appellant that it would be a serious breach of the law if he contravened the order and that a contravention would be a contempt of court. The appellant confirmed that he understood that.
The interim clearing injunction was personally served on the appellant on 9 October 2009.
On 2 November 2009, the primary judge extended the interim clearing injunction until the trial of the action for a clearing injunction. The order was varied slightly to authorise the clearing of a 6 m wide firebreak on the external boundaries of the Property.
On 10 May 2010, the inspector attended the Property again and observed that clearing of native vegetation had been carried out since the appellant had been served with the interim clearing injunction.

The first contempt application

The respondent subsequently applied for an order that the appellant be committed for contempt of court for failing to comply with the interim clearing injunction. On 26 July 2010, the appellant was found by the primary judge to be in contempt and was sentenced to 3 months' immediate imprisonment: Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195. At the conclusion of that hearing the primary judge noted, in the presence of the appellant, that the interim clearing injunction continued in force.
There was no appeal against that decision. The appellant completed the term of imprisonment on 25 October 2010. After his release, he was convicted of contempt for two further breaches of the interim clearing injunction. It is those convictions which are the subject of this appeal.

The second contempt application

On 30 November 2010, the inspector again visited the Property. He observed that additional clearing, which he estimated to involve at least 20 ha, had recently occurred on the Property, resulting in the destruction of regenerating native vegetation. The appellant had not obtained a clearing permit under the Environmental Protection Act.
On 17 January 2011, the respondent applied for an order that the appellant be committed for contempt of court for again failing to comply with the interim clearing injunction.
The contempt application came before the primary judge on 16 February 2011. The appellant did not appear. His Honour adjourned the application to 21 March 2012 and ordered the appellant to attend on that date.
On 21 March 2011, the appellant appeared without legal representation. He told the primary judge that he had been unable to obtain legal representation. He said he had applied for legal aid but had been refused because of his 'high asset base' (ts 103). The appellant said he was unable to borrow funds to obtain legal representation as the Property was mortgaged and he had a poor credit rating. To raise any money to pay for legal representation it would be necessary to sell the Property (ts 104). (We note in passing that the appellant did not suggest there was any particular reason why that could not be done.) The appellant said that as he did not have the means to obtain legal representation, the contempt application should be 'indefinitely adjourned' on the basis of the 'Dietrich principle' (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292) (ts 103). The primary judge declined to do so but adjourned the application to 6 May 2011 to give the appellant more time to seek legal representation. In relation to the possible application of the Dietrich principle, his Honour ordered the appellant to file and serve, by 29 April 2011, an affidavit setting out the steps the appellant had taken to obtain legal representation, or finance for legal representation, and a statement of his assets and liabilities.
When the matter came on for directions on 6 May 2011, the appellant told the primary judge that legal aid had been granted, but the lawyer initially assigned to him had refused to take the case. His Honour adjourned the application to 1 June 2011 to enable the appellant to obtain other legal representation. We should mention that the appellant had not filed the affidavit directed by the primary judge and no such affidavit was ever filed.

The third contempt application

On 18 May 2011, the inspector returned to the Property and observed that more clearing had been carried out, resulting in further destruction of native vegetation. The inspector concluded that, between 30 November 2010 and 18 May 2011, the appellant had burnt, ploughed, or burnt and ploughed, an area of approximately 40.4 ha containing native vegetation.
On 27 May 2011, the respondent made a third application for the appellant to be committed for contempt for failing to comply with the interim clearing injunction in relation to that clearing.

The hearing of the contempt applications

The second and third contempt applications were set down for directions on 6 July 2011. By then the appellant had obtained legal representation through the Legal Aid Commission and he was represented by counsel at the directions hearing. The primary judge directed that the second and third contempt applications be listed for hearing on 7 September 2011.
On 7 September 2011, shortly before the hearing commenced, the appellant terminated the retainer of his counsel and solicitor. The reason for the termination of their retainer was not clearly explained by the appellant at the hearing but the primary judge inferred from what the appellant said that the appellant was not satisfied the lawyers had exhausted every possible avenue of defence (ts 149). His Honour acceded, with 'serious misgivings', to the appellant's application for an adjournment to obtain other legal representation (ts 150).
At a directions hearing on 21 September 2011 the appellant told the primary judge that he had been unable to secure legal representation but he wished to continue looking. He said that he had approached a number of solicitors but that they were either too busy or did not want to take the case. His Honour adjourned both contempt applications to 11 November 2011 for hearing. His Honour stressed to the appellant that the hearing on 11 November 2011 would have to proceed 'come what may' (ts 155).
The appellant was again unrepresented at the hearing on 11 November 2011. He told the primary judge that the Legal Aid Commission had refused funding for further representation and that he had applied for a review of that decision. The appellant applied to have the contempt applications dismissed on the basis of the Dietrich principle. That was opposed by the respondent.
On the question of the appellant's ability to afford his own legal representation, the respondent tendered an affidavit annexing a copy of the certificate of title for the Property which showed that the appellant and his wife were the joint registered proprietors. However, senior counsel for the respondent drew his Honour's attention to a number of caveats and mortgages on the title and observed that they could make it difficult to sell, or raise money against the security of, the Property (ts 168). For his part, the appellant commented that his financial position had 'never been made available to the court' but that that could be done 'in due course' (ts 168). The primary judge pointed out that he had previously made it clear that if the appellant sought to rely on Dietrich, details of his financial position had to be provided (ts 169). That was plainly a reference to the hearing on 21 March 2011.
The primary judge refused the appellant's application to have the contempt proceedings dismissed. Having referred to the history of the proceedings, his Honour said:
I am satisfied that the court has provided [the appellant] with every reasonable opportunity to obtain legal representation … but as he himself concedes, he can't say to the court that if there were an adjournment there would be any reasonable - he cannot identify any particular prospect that the situation would be any different at any identifiable time in the future.
The Dietrich principle is of course a principle that goes to the fairness and justice of proceedings, but it is not a principle that can be invoked by a defendant who has been given every opportunity to obtain legal representation so as to effectively defeat claims that are brought against that defendant.
I am therefore satisfied that every reasonable opportunity having been given to [the appellant] to obtain legal representation, he, having failed to secure that legal representation it would not be in the interests of justice to further defer the hearing and determination of these proceedings, and so I will invite [senior counsel for the respondent] to proceed (ts 170 ‑ 171).
The hearing then proceeded. The appellant expressly declined to take any active part in it (ts 171).
The primary judge found both contempts proved and sentenced the appellant to 9 months' imprisonment on the first count and 15 months on the second, to be served concurrently. His Honour said that in imposing those sentences he had taken into account that the appellant was not eligible for parole, the provisions concerning parole in the Sentencing Act 1995 (WA) and the Sentencing Administration Act 2003 (WA) having no application: Chief Executive Officer, Department of Environment and Conservation v Szulc [2011] WASC 315 [75]).

Grounds of appeal

There are two grounds of appeal as follows:
(a)The learned Trial Judge erred in not accepting I was unrepresented. Legal Aid had been withdrawn prior to trial. A Review Committee hearing to re‑establish Legal Aid was applied for and pending. I have been convicted without a fair trial which is a miscarriage of justice. The first ground of appeal is an error of law.
(b)The injunction was unsafe. Existing laws and fact allowed alleged actions of defendant. CEO of DEC was aware that native vegetation was cleared legally in 1984, two years before [the Environmental Protection Act] became law. [The Clearing Regulations] allow for clearing of regrowth. This fact and law was not made available to the learned judge when he made the injunction order. The [plaintiff] has no grounds for complaint and I have been put on trial unjustly. The second ground of appeal is an error mixed of fact and law.

The disposition of the appeal

Ground 1

It is evident from the appellant's oral submissions on the appeal that the first ground of appeal is, in substance, a contention that the primary judge erred in failing to grant an adjournment of the proceedings to enable the appellant to obtain legal representation, resulting in a miscarriage of justice. The appellant acknowledged that he had not sought an adjournment but had sought to have the contempt applications dismissed. He submitted, however, that the primary judge should, in the alternative, have adjourned the proceedings on the basis of the Dietrich principle.
The common law does not recognise a right of litigants to be provided with legal representation at public expense: McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575, 579. However, an accused has the right to receive a fair trial and, in some circumstances, a lack of representation may mean that an accused person is unable to receive, or did not receive, a fair trial: Dietrich (311, 337, 343, 357). What is now commonly known as the Dietrich principle was described by Mason CJ and McHugh J in Dietrich to apply where a trial judge is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, 'through no fault on his or her part', is unable to obtain legal representation. Their Honours said:
In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial (315).

The reference to an accused being unable to obtain legal representation 'through no fault on his or her part' is a reference to a test which focuses on the reasonableness of the conduct of the accused in all of the circumstances: Craig v South Australia (1995) 184 CLR 163, 183 ‑ 184.
What constitutes a 'serious offence' in this context is not entirely clear. The primary judge did not decide whether the contempt charges against the appellant were serious offences for the purpose of the Dietrich principle but proceeded on the assumption that they were. The respondent did not take issue with that approach either before the primary judge or on the appeal. We, too, consider it unnecessary to decide the point. We would proceed on the same assumption for the purposes of the appeal.
We accept, however, the respondent's contention that the appellant failed to establish that the Dietrich principle had any application. The appellant's reliance on Dietrich falls at the first hurdle; the appellant did not establish that he was indigent.
Indigent for this purpose does not mean that the accused must be penurious in the sense of living in poverty. The test of indigence is satisfied if the accused lacks the means to engage appropriate legal representation to conduct his or her defence: R v Marchi (1996) 67 SASR 368; R v Lucas (1993) 78 A Crim R 480, 485; The Queen v Phillips (Unreported, WASC, Library No 980638, 2 November 1998).
There was, however, no evidence that the appellant was indigent in that sense. The only evidence relating to the appellant's financial position was the affidavit tendered by the respondent, annexing a copy of the certificate of title to the Property. The appellant did not attempt to put before the primary judge any material dealing with his financial circumstances and his overall financial position remained unknown.
The appellant's failure to produce such evidence cannot be put down to lack of opportunity, and nor can it be attributed to ignorance or oversight. On the hearing of the appeal the appellant explained that he did not file the affidavit which his Honour had ordered on 21 March 2011 because he understood it to be required only if he had not obtained legal representation and wished to pursue the Dietrich point. He said that as he obtained legal aid soon after the hearing on 21 March 2011, the affidavit was unnecessary (appeal ts 63 ‑ 64). That does not, however, explain his failure to provide any details of his financial position prior to the hearing on 11 November 2011 in circumstances where he again sought to rely on the principle in Dietrich. In light of what had occurred at the hearing on 21 March 2011, the appellant could not have been in any doubt that such evidence was required. His comment on 11 November 2011 that it could be produced 'in due course' had more than a touch of insouciance about it.
In the absence of evidence as to the appellant's overall financial position, there was no proper basis upon which it could be concluded that the appellant was indigent.
We would add that we do think any inference can be drawn as to the appellant's financial position from the fact that, in about the middle of 2011, he was granted legal aid. Legal aid was initially refused, so the appellant informed the primary judge, because of his 'high asset base'. The circumstances in which, and the terms on which, he subsequently received legal aid funding have not been disclosed, although in the course of the appeal the appellant did say that the Legal Aid Commission had taken security over the Property for the cost of it. In any event, a decision by the Commission that a person is entitled to legal aid, based on criteria which no doubt may vary from time to time with the funds available to the Commission, does not determine that a person is indigent for the purpose described in Dietrich. That is a decision to be made by the court on the material before it.
As the appellant did not establish that he was indigent, this ground of appeal must fail.
That, however, is not the only basis upon which this ground must fail. A person cannot be said to be deprived of a fair trial by reason of lack of legal representation if he does not take reasonable steps to obtain it: Karounos v The Queen (1995) 63 SASR 451, 457. The appellant was the only person in a position to say what endeavours he had made and why those endeavours had been unsuccessful. His explanation of what he had done in that regard fell well short of demonstrating that he had taken reasonable steps.
On 7 September 2011, the appellant was given clear notice that the hearing would proceed on 11 November 2011. When, on 11 November 2011, the appellant was again without legal representation his explanation of the attempts he had made to obtain it was at best sketchy. He did not disclose when he had sought the further legal aid which he said had been refused and nor did he say when, or on what basis, it had been refused or when he had sought the review. The appellant did not suggest that he had made any other efforts to secure legal representation. And as we have mentioned, there was no evidence that the appellant's financial circumstances were such that legal aid was his only means of securing legal representation.
Again, the appellant's failure to provide a satisfactory description of what he had done cannot be put down to ignorance or oversight. The affidavit which, on 21 March 2011, the primary judge had ordered the appellant to file in support of the application the appellant had made at that time based on Dietrich, was also required to contain an account of the steps the appellant had taken to obtain legal representation. When, on 11 November 2011, the appellant again sought to rely on the Dietrich principle it can hardly have escaped his attention that evidence of that kind was required. In the circumstances, his failure to provide such evidence meant that it could not be concluded that the lack of legal representation had occurred without fault on his part.
In addition, as the primary judge concluded, there was no reason to believe that an adjournment would assist the appellant. There was nothing to indicate that the appellant had any reasonable prospects of success on the legal aid review. His prospects were to be viewed against the circumstances that, having initially been refused legal aid because of his assets, after he subsequently managed to obtain a grant of legal aid he had dismissed his legal aid funded lawyers on the morning of the hearing because they were not prepared to conduct the defence wholly as the appellant wished it to be conducted. There was no cause for optimism that a further grant of legal aid would result from the review.
Finally, we would add the following. An appellate court will not interfere with a conviction where an accused was without legal representation unless it is persuaded there was a miscarriage of justice. The absence of legal representation does not of itself mean that a trial was unfair so as to give rise to a miscarriage of justice: Dietrich (310 ‑ 311, 325, 362).
We are not persuaded that in this case there was a miscarriage of justice. The issues in the proceedings were by no means complex or difficult and the appellant has not identified any unfairness at the hearing. None is apparent from the transcript of the hearing. For his own reasons, the appellant chose not to take any active part in the hearing. That does not make it unfair. Nor has the appellant identified any ground of defence which might have entitled him to be acquitted and again none is apparent. For reasons we will come to, the matters alleged under ground 2 are misconceived and provide no defence. It is, however, evident that it was the refusal of his previous lawyers to rely on those matters by way of defence that led to the appellant's dissatisfaction with those lawyers and ultimately to the termination of their retainer (appeal ts 64).
This ground of appeal must be dismissed.

Ground 2

The second ground, as amplified in the appellant's oral submissions, appears to be based upon the proposition that the interim clearing injunction was contrary to various statutory provisions, to which the attention of the primary judge had not been drawn by the respondent, which permitted the clearing the appellant had carried out. The appellant submitted that he was not therefore bound by the injunction, which had to yield to the statutory provisions.
In that connection, the appellant referred to an exemption under r 5, item 3 of the Clearing Regulations relating to clearing to remove fire hazards; to s 74A and s 74B of the Environmental Protection Act dealing with defences to prosecutions under that Act; and to s 23(1)(a) of the Bushfires Act 1954 (WA), which permits bush to be burned to protect buildings or crops from damage by fire and to s 33(1)(a) which enables a local authority to require an occupier of land to plough or clear fire‑breaks. (The appellant also sought to rely on s 10.5 of the Criminal Code (Cth) and s 45 of the Criminal Code (WA), neither of which could possibly have any application.)
This ground proceeds upon a fundamental misapprehension as to the law.
In the first place, contrary to the appellant's submission there is no conflict between the various statutory provisions to which he referred and the terms of the injunction. Those statutory provisions permit the clearing of native vegetation in certain specified circumstances. The respondent's case, in substance, is that the clearing carried out by the appellant did not fall within any relevant exemption but was unlawful. The effect of the interim clearing injunction was to restrain the appellant from carrying out any further clearing until that issue could be determined on the application for a clearing injunction. That is an entirely orthodox application of interim injunctive relief.
In any event, once the injunction was granted the appellant was bound to comply with it. The position can be stated very simply. An order of a superior court, as the Supreme Court is, is valid and binding in its terms unless and until it is set aside: Cameron v Cole (1944) 68 CLR 571, 590, 598, 605. In the meantime, the order must be complied with. If a person affected by an order of the court contends that the order has been made in error their only recourse is to apply to have the order set aside or varied, or to appeal against the order, as the circumstances may require. The order cannot simply be disregarded. The position is as stated by Lord Truro, speaking of the Court of Chancery, a superior court, inRussell v East Anglican Railway Co (1850) 42 ER 201:
[I]t is not open to any party to question the orders of this Court, or any process issued under the authority of this Court, by disobedience. I know of no act which this Court may do which may not be questioned in a proper form, and on a proper application; but … it is not competent for anyone … to disobey an injunction or any other order of the Court, on the ground that such orders were improvidently made. The parties must take a proper course to question their validity, but while they exist they must be obeyed (206).
The appellant was aware that he was entitled to apply on 48 hours notice to vary or set aside the injunction (ts 73). If the appellant thought it had been wrongly made that course was open to him. He did not take it.
We should add that there is nothing before this court to suggest that in fact the interim clearing injunction was wrongly granted. Nor is there any foundation for the appellant's assertion that counsel for the respondent failed to draw the attention of the primary judge to relevant statutory provisions. The provisions that the appellant thought were relevant were not relevant.
This ground of appeal must be dismissed.

Conclusion

It was for those reasons that we concluded the appeal should be dismissed.