The Commissioner of Soil and Land Conservation v NABARLEK Nominees Pty Ltd

[2002] WASC 18

THE COMMISSIONER OF SOIL AND LAND CONSERVATION -v- NABARLEK NOMINEES PTY LTD & ORS [2002] WASC 18

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 18
Case No:	CIV:2926/2001	Heard:	1 FEBRUARY 2002
Coram:	WHITE AUJ	Delivered:	13/02/02
No of pages:	16	Judgment Part:	1 of 1
Result:	Leave granted to discontinue action against the first and second defendants Application for injunction dismissed
Category:	A
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Parties:	THE COMMISSIONER OF SOIL AND LAND CONSERVATION NABARLEK NOMINEES PTY LTD (ACN 007 951 475) SOILAND GARDEN SUPPLIERS PTY LTD (ACN 063 883 732) BGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Catchwords:	Practice and procedure Injunction to restrain the third defendant from committing the criminal offence of breaching a soil conservation notice Whether the Court has power to grant such an injunction Whether s 35 of the Soil and Land Conservation Act 1945 provides an exhaustive code of the remedies available for a breach of a soil conservation notice
Legislation:	Soil and Land Conservation Act 1945
Case References:	Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 Minister for Indigenous Affairs v Catanach & Ors [2001] WASC 268 Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1 Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 Waterworks Company v Hawkesford (1859) 6 CB(NS) 335; 141 ER 486 Brisbane City Council v Georgeray Pty Ltd t/as Dean Bros Contracting (1995) QSC 57 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Cohen v City of Perth [2000] WASC 306 Patrick Stevedores v Maritime Union of Australia (1998) 82 IR 87 Pell v National Gallery (1998) 2 VR 391 Stoke-on-Trent Council v B & Q Ltd [1984] 1 AC 754

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE COMMISSIONER OF SOIL AND LAND CONSERVATION -v- NABARLEK NOMINEES PTY LTD & ORS [2002] WASC 18 CORAM : WHITE AUJ HEARD : 1 FEBRUARY 2002 DELIVERED : 13 FEBRUARY 2002 FILE NO/S : CIV 2926 of 2001 BETWEEN : THE COMMISSIONER OF SOIL AND LAND CONSERVATION

Plaintiff

AND

NABARLEK NOMINEES PTY LTD (ACN 007 951 475)
First Defendant

SOILAND GARDEN SUPPLIERS PTY LTD (ACN 063 883 732)
Second Defendant

BGC (AUSTRALIA) PTY LTD
(ACN 005 736 005)
Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Injunction to restrain the third defendant from committing the criminal offence of breaching a soil conservation notice - Whether the Court has power to grant such an injunction - Whether s 35 of the Soil and Land Conservation Act 1945 provides an exhaustive code of the remedies available for a breach of a soil conservation notice

Legislation:

Soil and Land Conservation Act 1945

Result:

Leave granted to discontinue action against the first and second defendants

Application for injunction dismissed

Category: A

Representation:

Counsel:

Plaintiff : Ms C J Thatcher
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Mr M J McCusker QC & Ms M J Watson

Solicitors:

Plaintiff : State Crown Solicitor
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Hotchkin Hanly

(Page 3)

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

Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32
Minister for Indigenous Affairs v Catanach & Ors [2001] WASC 268
Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1
Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1
Waterworks Company v Hawkesford (1859) 6 CB(NS) 335; 141 ER 486

Case(s) also cited:

Brisbane City Council v Georgeray Pty Ltd t/as Dean Bros Contracting (1995) QSC 57
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Cohen v City of Perth [2000] WASC 306
Patrick Stevedores v Maritime Union of Australia (1998) 82 IR 87
Pell v National Gallery (1998) 2 VR 391
Stoke-on-Trent Council v B & Q Ltd [1984] 1 AC 754

(Page 4)

1WHITE AUJ: In this action, the writ issued on 17 December 2001 claimed an injunction, until 18 March 2002, restraining the first and second defendants from cutting down, destroying or otherwise damaging trees, shrubs, grass or other plants on two pieces of land described in the writ ("the Land"), other than for firewood, posts and timber.

2On 20 December 2001, Hasluck J granted an order joining the third defendant as a party to the proceedings and an interlocutory injunction in accordance with the claim referred to in the preceding paragraph, otherwise adjourning the matter to 27 December 2001.

3On 21 December 2001 the plaintiff amended the writ, adding the third defendant as a party pursuant to the order of Hasluck J and including a claim for the injunction against the third defendant on the same terms.

4The plaintiff's Statement of Claim was filed on 24 December 2001 and contained allegations, inter alia, that the third defendant is the owner, for the purposes of the Soil And Land Conservation Act1945 of the Land; that the second defendant had been engaged by the first and second defendants to undertake work on the Land, including works involving cutting down, destroying or otherwise damaging trees, shrubs, grass or other plants on the Land and that on 15 and 16 December 2001, persons employed or engaged by the second defendant undertook clearing on the Land over an area of approximately 80 hectares. It was alleged that none of the defendants had given notice to the plaintiff of the intention to clear the Land pursuant to reg 4 of the Soil And Land Conservation Act or otherwise.

5 The Statement of Claim went on to allege:

"8. Because the Plaintiff has not had any notice pleaded in paragraph 7 prior to the commencement of clearing on the Land, the Plaintiff has not been able to form an opinion as to whether or not, as a result of clearing or intended clearing on the Land, land degradation is occurring or is liable or likely to become liable to occur on the Land or elsewhere, so as to be able to issue a Soil Conservation Notice under section 32 of the SLC Act.

9. The First, Second and Third Defendants intend, unless restrained, to continue clearing on the Land notwithstanding the requirements of regulation 4 of the SLC Regulations.

(Page 5)

10. The Land is not 'controlled land' within the meaning of that term set forth in section 12AA of the Country Areas Water Supply Act 1947 and which is specified in Schedule 3 to the SLC Regulations."

6The prayer was in the same terms as the endorsement on the writ, as amended.

7 On 27 December 2001, Pullin J granted an interlocutory injunction in similar terms and directed that the matter be heard at a special appointment on 1 February 2002, on which day the matter came before me.

8The plaintiff seeks, inter alia, leave to discontinue the action against the first and second defendants with no order as to costs. As this order is by consent, I shall grant it accordingly.

9 The plaintiff then asks that the interlocutory injunction granted by Pullin J on 27 December 2001 be amended in terms of a minute filed and that he have leave to amend the writ in accordance with a minute filed.

10Subsequently, further developments have occurred. The third defendant has on 22 January 2002, filed a notice of intention to clear 98 hectares of the Land for the purpose of extending the granite hard rock quarry which the third defendant operates on an adjoining property. On 25 January 2002, the plaintiff issued a soil conservation notice which was served on the third defendant requiring it to refrain from clearing the Land, to refrain from destroying, cutting down or injuring any tree, shrub grass or other plant on the Land, and to refrain from undertaking any activity on the Land that might inhibit the regeneration of native vegetation.

11The plaintiff seeks now to amend the terms of the injunction to provide as follows:

"The Plaintiff's claim is for:

1. An injunction restraining the Third Defendant, whether by itself or by its officers, servants, employees, agents or otherwise, from clearing, destroying, cutting down or otherwise injuring any trees, shrubs, grass or other plants on:

(Page 6)

(a) portion of Avon location 1881 and being lot 14 on diagram 87525 and being the whole of the land comprised in certificate of title volume 2026 folio 554; and

(b) portion of Avon location 1881 and being lot 11 on plan 16617 and being the whole of the land comprised in certificate of title volume 1814 folio 479

('the Land'), while the soil conservation notice issued by the Plaintiff in relation to the Land on 25 January 2002 pursuant to section 32 of the Soil and Conservation Act 1945 remains in force.

2. Costs."

12The plaintiff seeks the injunction as amended, because it is of the opinion that the statutory penalty for the offence of acting in breach of a soil conservation notice, namely a fine of $3,000.00 is inadequate to ensure that the third defendant complies with that notice.

13The plaintiff submits that:

"While it is acknowledged that the Courts are reluctant to grant injunctive relief where the legislature provides criminal sanctions that have not been exhausted, nonetheless circumstances occur in which injunctive relief will be afforded. These circumstances include (but are not limited to) where:

(a) the particular penalty may be ineffective to deter the defendant in the particular circumstances;

(b) the defendant has made it clear that he or she (or it) will continue to flout the criminal law; and

(c) the defendant's defiance could lead to widespread breaches of the law by others similarly situated.

Peek v New South Wales Egg Corporation(1986) 6 NSWLR 1 at p4-5.

See also Stoke-on-Trent Council v B & Q Ltd [1984] 1 AC 754 at 776; Commonwealth of Australia v John Fairfax & Sons Ltd

(Page 7)

(1980) 147 CLR 39 at 49, Cohen v City of Perth [2000] WASC 306 at [174-180]."

14There is no evidence that the third defendant has acted in breach of that notice nor that it has threatened to do so. The plaintiff fears that the third defendant will in fact breach the soil conservation notice if the amended injunction now sought is not ordered. The basis for that fear is said to be the past conduct of the third defendant in relation to this matter coupled with the fact that the third defendant has refused to give an undertaking that it will comply with the terms of the soil conservation notice. It is not, of course, obliged to give any such undertaking, although it does have the legal obligation to comply with the notice.

15There is no evidence supporting the proposition that the third defendant "has made it clear that it will continue to flout the criminal law" nor that the third defendant's "defiance could lead to widespread breaches of the law by others similarly situated." In fact, as I have mentioned, the third defendant has, on 22 January 2002, given notice of an intention to clear the land.

16Failure to comply with a soil conservation notice attracts a criminal penalty as a contravention of s 35(2) of the Soil And Land Conservation Act, as I have indicated above. The refusal by the third defendant to give an undertaking that it will not breach the notice may well give rise to a not unreasonable apprehension on the part of the plaintiff that the third defendant will be tempted to act contrary to its terms and risk having to pay the comparatively small fine involved.

17Against that, however, is the fact that the clearing of the land will not achieve the third defendant's objective of increasing the extent of its quarrying operations – it still needs the approval of, or, at least, the absence of objection from, each of the Department of Environmental Protection, the Department of Minerals and Petroleum Resources and the Department of Agriculture and a deliberate flouting of the law by the third defendant might be thought to augur ill for the prospects of obtaining such approvals.

18The third defendant submits that the injunction should not have been granted in the first place. An injunction is an equitable remedy and Mr McCusker QC for the third defendant referred to the judgment of Pullin J in Minister for Indigenous Affairs v Catanach & Ors [2001] WASC 268, pars 55 - 57, where his Honour said:

(Page 8)

"[55] In Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1, the New South Wales Court of Appeal had to consider whether an injunction was rightly granted on an application by the New South Wales Egg Corporation to restrain the Peeks with respect to their production and sale of eggs in contravention of the Egg Industry Act. In that case, there was evidence that one of the defendants had evinced an intention to produce and market unlicensed eggs in an extensive systematic way unless the Board agreed to a proposition which it found unacceptable. Prosecutions had already been launched which had failed to inhibit the defendants, seizure was an unwieldy remedy and was fraught with the possibility of violence, and the scale and continuity of the defendants' operations could not be effectively checked by the occasional imposition of criminal penalties. There were also difficulties with proof of the offences and evidence that the continuation of the defendants' conduct would encourage other rebel producers and undermine confidence in the ability of the Corporation to enforce a statutory scheme. The Court of Appeal therefore held that the injunction was rightly granted.

[56] In discussing the principles which were applicable, however, Kirby P pointed out that courts of equity have no general duty to enforce the law, including the criminal law, whether at the behest of the Attorney General or any other person with the requisite standing. The primary rule is that the criminal law is enforced by appropriate procedures in the criminal courts - see Peek v New South Wales Egg Corporation, at 2; Gouriet v Union of Post Office Workers [1978] AC 435; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 and Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 3rd ed, par 2135. Kirby P, in Peek's case, advanced six reasons why restraint should be exercised in providing injunctive relief where criminal sanctions have not been exhausted. Those reasons led Mackenzie J in Brisbane City Council v Georgeray Contracting Pty Ltd (1995) 79 A Crim R 265 and Harper J in Pell v National Gallery [1998] 2 VR 391 to refuse applications for an injunction. Mackenzie J noted that proof that there is a deliberate flouting of the law is fundamental in an application of this kind or that the potential consequences of the threatened action are so serious that urgent action is required to stop it. Harper J, in Pell's case, noted in particular

(Page 9)

that if, in a statutory offence, it had been intended to provide amongst the sanctions enacted the facility of injunctive relief, the legislature could readily have done so.

[57] An example of a legislative provision for an injunction, as well as criminal sanction, is to be seen in this State in s 42 and s 43A of the Metropolitan Region Town Planning Scheme Act 1959."

19In Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, Mason J (as he then was) said at 49:

"The issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional."

20In Deputy Federal Commissioner of Taxation v Brown (1958) 100 CLR 32 at 42, Dixon CJ cited with approval the statement by Willes J in Waterworks Company v Hawkesford (1859) 6 CB(NS) 335; 141 ER 486 at 495 with reference to "cases of the third class":

" ... where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue then course applicable to cases of the second class."

21Willes J referred to "cases of the second class" as those "where the statute gives the right to sue merely, but provides no particular form of remedy."

22The "cases of the first class" referred to by his Lordship were those where "a liability already existing at common law is affirmed by a statute, which gives a special and peculiar form of remedy different from the remedy that existed at common law." With regard to such cases, Willes J added:

" ... unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing may elect to pursue either the common law remedy or the statutory remedy.''

23Dixon CJ, in referring to Willes J's statement as to cases of the third class said:

(Page 10)

"That of course is a very general statement of principle and the particular application was very remote from this case. It operates however over the whole field of statutory liabilities and it can hardly have a safer application than in a taxing measure."

24Mr McCusker submits that the present case falls within the "third class" described above and I agree with that submission. Before the Act, there was no liability at common law in relation to the clearing of land and the Act creating the liability and the offence also provides a particular form of remedy.

25In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 396, par 33, Gaudron, McHugh, Gummow and Callinan JJ, in their joint judgment, said:

"Whilst s 23 of the federal Court Act empowers the Federal Court to 'make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate' the federal Court is not thereby authorised to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction."

26Counsel referred also to Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425 - 426, 456 and to Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1 at 29.

27Section 35 Soil And Land Conservation Act1945 provides:

"Enforcement of orders

35. (1) A reference in this section to the clearing of land includes a reference to the destruction, cutting down or injuring of any tree, shrub, grass or other plant on the land.

(2) If a person bound by a soil conservation notice contravenes or fails to comply with the notice he commits an offence.

(2a) A person who commits an offence against subsection (2) of this section is liable to a penalty not exceeding $3 000; and if the offence of which he is convicted is continued after the conviction he commits a further offence against that subsection.

(Page 11)

(2b) Where, in proceedings for an offence against subsection (2) of this section, it is proved that land has been cleared, the person who was, at the time the land was cleared –

(a) the occupier of the land is, in the absence of evidence to the contrary, deemed to have so cleared the land; and

(b) the owner of the land is unless the contrary is proved, deemed to have permitted the land to be so cleared.


(3) If a person bound by a soil conservation notice fails to do any thing which the notice requires him to do, any person authorized by the Commissioner, with or without assistants –

(a) may do that thing and all things incidental thereto;

(b) for the purpose of doing those things may, with or without plant and equipment, enter, remain upon, and pass and repass over, any land.


(4) If a person bound by a soil conservation notice obstructs or hinders the Commissioner or his assistants in exercising the powers conferred by subsection (3) of this section, he commits an offence.

Penalty - $2 000.

(5) Expense incurred by the Commissioner in exercising his powers under this section -


(a) is a debt due to the Crown by any person required by the notice to do anything done by the Commissioner, and may be recovered by the Attorney General by action in any Court of competent jurisdiction; and

(b) shall be deemed to be incurred in respect of the whole of the farm, pastoral holding, or other area of land, on which the thing in respect of which the expense is incurred, is done.

(6) If a person bound by a soil conservation notice fails to comply therewith, and damage is caused to the land of any other person which would not have been caused if the notice had been

(Page 12)

complied with, the owner or occupier of the land so damaged has a right of action against that person for the damage.

(7) In any proceedings in which a question arises as to whether or not a person has contravened or failed to comply with a soil conservation notice, a document purporting to be -


(a) a true copy of an aerial photograph marked so as to identify, and show the boundaries of, land according to official survey; and

(b) signed and certified by an authorized land officer within the meaning of the Land Act 1933 as being a true copy of a photograph taken under the authority of an authorized land officer within the meaning of the Land Act 1933 on the date specified in the certificate and as correctly identifying, and showing the boundaries of, the land according to official survey,


is, without proof of the signature of the authorized land officer first mentioned in paragraph (b), admissible as evidence of the matters so certified and of the condition, on the date so specified, of the land and the vegetation on the land so identified.

(8) A document shall not be admitted pursuant to subsection (7) of this section as evidence that the land has been cleared contrary to a soil conservation notice unless the court is satisfied that the Commissioner or a person acting with his authority has entered upon and inspected the land for the purpose of ascertaining whether the land has been so cleared.

(9) In any proceedings for an offence under subsection (2), a document purporting to be signed and certified by an authorized land officer within the meaning of the Land Act 1933 stating that a particular geographic location is the area to which the notice relates is, without proof of the signature of that officer, admissible as evidence of the matter so certified."

28In my opinion, that section provides an exhaustive code of the available remedies. It does not authorise the grant of an injunction. As Dixon CJ pointed out in Deputy Federal Commissioner of Taxation v Brown(supra) at 32, there can be no implication of the availability of

(Page 13)

other remedies, where the remedy is provided by the statute creating the liability or offence.

29In his written submissions, Mr McCusker has conveniently summarised the evidence in the affidavits filed herein, as follows:

"14. Under the Act (s 13) the Commissioner is responsible for, among other duties, 'the prevention and mitigation of land degradation'. Under the Act land degradation includes:

'(a) soil erosion, salinity, eutrophication and flooding; and

(b) the removal or deterioration of natural or introduced vegetation

that may be detrimental to the present or future use of the land' (s 4).


15. Mr Watson states (para 6 of his affidavit of 17 December 2001) that before being in a position to establish the nature and extent of the land degradation hazard

'it would be necessary for the Plaintiff to conduct a site inspection and survey. The inspection and survey would examine the likelihood of salinity, on-site or off-site, as a result of the clearing and the risk of soil erosion'.
Despite having now issued a Soil Conservation Notice, the Commissioner has not given evidence of any site inspection or survey, or the results of any such inspection or survey.

16. Dr Sydney Shea and Dr Elizabeth Mattiske have examined the likelihood of land degradation, on-site and off-site, as a result of clearing, Dr Sydney Shea states (in his affidavit sworn 14 January 2002) that

'the vegetation occurring on the Land and specifically the area proposed for clearing consists primarily of low quality Jarrah (e. marginata) and Marri (E. calophylla) woodland with sporadic occurrences of Wandoo (E. wandoo)' (para 7)

(Page 14)

and
'The woodland is of low quality and has been logged several times over the past 50 years' (para 8)
and
'It is possible that because of its degraded state, the woodland is allowing above normal recharge of the groundwater table' (para 9).
and
'I do not believe that the proposed clearing of the Land will cause any soil erosion' (para 12). 'There is no evidence that clearing 98 hectares of the Land will cause erosion on or off the Land' (para 20)
and
'There is no evidence of erosion resulting from the operation of the Quarry' (para 13).
and
'The proposed clearing of 76.76 hectares represents only 0.076% of the existing remnant vegetation in the catchment' (para 16)
and
'I do not believe that the clearing of 98 hectares of native vegetation on the Land will result in the mobilisation of salt in the soil profile or cause a significant quantifiable increase in soil and water salinity' (para 18)
and
'In the medium term (2-3 years), I believe the net recharge of the groundwater table will be less than currently occurs as a consequence of establishing at least 98 hectares of Mallee Eucalypts on adjacent cleared agricultural land or elsewhere in the catchment. Consequently, I believe that there will be a net decrease in soil and water salinity in the medium and long term' (para 19).

17. Dr Elizabeth Mattiske states (Annexure 'EMM2' of her affidavit sworn 16 January 2002) that

(Page 15)

'the majority of the survey area appears to have been burnt within the last five years as the litter load is generally low' (page 1)
and
'The number of trees with coppice re-growth also reflects the previous logging regime ... the different ages of stumps reflects the history of different logging operations in the area' (page 2)
and
'The soils are dominated by sandy or sandy-gravel soils and relatively shallow soils' (page 2)
and
'In summary, the forest and woodland areas of the survey area provide clear evidence of historical logging operations at the majority of the sites' (page 3).

18. The Commissioner's letter to the Third Defendant dated 25 January 2002 (affidavit of Watson sworn 29 January 2002, Annexure 'ANW2') states

'I understand, from discussions with officers of BGC and from the affidavits sworn by Sydney Ronald Shea and Francesco Antonio Italiano, that BGC proposed to implement measures to mitigate soil erosion, soil degradation and salinity. It appears likely that the implementation of those measures would be effective in mitigating or preventing land degradation'."

30The plaintiff has based its application on the principles applying to the case of an exception to the general rule that injunctions will not be granted to restrain a criminal act unless the criminal sanctions are exhausted. As it seems to me, however, the case which is an exception to the general rule is to be distinguished from the case, such as the present, where the statute in question provides an exhaustive code of the available remedies.

31That distinction is expressed by Kirby P (as he then was) in Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1, where his Honour says at 4:

(Page 16)

"Sixthly, where the criminal law which it is sought to enforce is itself laid down by statute, it will sometimes be plain that the legislature intended the statutory provision to constitute a complete code of the remedies and sanctions to be applied in respect of breaches. If the statute, upon its true construction, excludes other sanctions and remedies, that is an end of the matter. But the jurisdiction to protect a right by injunction will not be excluded unless the statute expressly or by necessary implication so provides ... "

32In the light of the authorities mentioned, I am of the opinion that this Court does not have the power to grant an injunction to restrain the third defendant from committing the offence of breaching a soil conservation notice.

33Accordingly, the application to amend and to extend the operation of the injunction will be dismissed.