Walker Corporation v Director-General, Department of Environment and Climate Change
[2009] NSWCA 392
•30 November 2009
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Walker Corporation v Director-General, Department of Environment and Climate Change [2009] NSWCA 392
FILE NUMBER(S):
40416/09
HEARING DATE(S):
30 November 2009
JUDGMENT DATE:
30 November 2009
EX TEMPORE DATE:
30 November 2009
PARTIES:
WALKER CORPORATION PTY LIMITED (applicant)
DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE (first respondent)
Ray GIDDINS (second respondent)
David NOBEL (third respondent)
Robert PUPO (fourth respondent)
Greg STONE (fifth respondent)
JUDGMENT OF:
Hodgson JA
LOWER COURT JURISDICTION:
Land & Environment Court
LOWER COURT FILE NUMBER(S):
LEC 40239/09
LOWER COURT JUDICIAL OFFICER:
Lloyd J
LOWER COURT DATE OF DECISION:
19 October 2009
LOWER COURT MEDIUM NEUTRAL CITATION:
Walker Corporation Pty Ltd v Director-General of the Department of Environment Climate Change (No.2) [2009] NSWLEC 177
COUNSEL:
J IRELAND QC/ C AMATO (applicant)
S RUSHTON SC/ T HOWARD (respondent)
SOLICITORS:
Colin Biggers & Paisley (applicant)
CATCHWORDS:
PROCEDURE – Interlocutory injunction pending appeal – Balance of convenience.
LEGISLATION CITED:
Native Vegetation Act 2003 s 35
CATEGORY:
Procedural and other rulings
CASES CITED:
Coward v Allen (1984) 52 ALR 320
Fox v Percy [2003] HCA 22; (2003) 219 CLR 118
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Zang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580
TEXTS CITED:
DECISION:
(1) I note the matter in par 1 and I make the orders in pars 2 and 3 of the short minutes of order, which I initial and date. [Those orders are set out below for ease of reference:
1. NOTE that the appellant gives to the Court the usual undertaking as to damages.
2. ORDER that pending the determination of the appeal herein the first respondent be restrained from authorising any person pursuant to s.35 of the Native Vegetation Act 2003 ("the Act") to enter the land of the appellant comprised in Lot 1 DP 816861, Lot 2 DP 239247 and Lot 62 DP 1064019 at Macquariedale Road, Appin New South Wales ("the Land") for the purpose of determining whether there has been contravention of the Act by clearing on the land between 5 February 2005 and 17 September 2006.
3. ORDER that pending the determination of the appeal herein the second, third, fourth and fifth respondents and each of them be restrained from entering the Land for the purpose of determining whether there has been contravention of the Act by clearing on the land between 5 February 2005 and 17 September 2006.]
(2) I note that the appellant undertakes to the Court to pursue the appeal with all due despatch.
(3) I expedite the hearing of the appeal.
(4) I order that the costs of this application be costs in the appeal.
PUBLICATION RESTRICTION:
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40416/09
LEC 40239/09HODGSON JA
Monday, 30 NOVEMBER 2009
WALKER CORPORATION PTY LIMITED v DIRECTOR-GENERAL of the DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE
Judgment
HODGSON JA: I am dealing with a Notice of Motion seeking an order that in general terms can be described as an order precluding the respondents from entering the land of the appellant for purposes associated with the Native Vegetation Act 2003. The primary judge dismissed proceedings brought by the appellant seeking relief to the effect that any authority in the respondents pursuant to s 35 of that Act was spent. It is put by the appellant that there are arguable grounds of appeal, and that the balance of convenience favours the granting of an injunction such as that sought.
There does appear to be difficulty in the way of success on the appeal. On one reading of the primary judges' decision, there is a finding of fact that no determination has been made in terms of s 35 of the Act. However, there are passages in that judgment that suggest that the judge was not making a final conclusion to that effect; and in circumstances where the crucial document has been excluded from evidence because of objections taken on behalf of the respondents, the question of whether a determination was made seems to me to be a question of inference, so that the question on appeal can be described generally as a Warren v Coombes ([1979] HCA 9; (1979) 142 CLR 531) question, rather than a Fox v Percy ([2003] HCA 22; (2003) 219 CLR 118) question.
It seems to me there may also be difficulties with the construction of s 35 contended for by the appellant; but taking all these things into account, it does seem to me that the appeal is arguable.
I come to the question of balance of convenience. In submissions made today and in draft short minutes of orders, it has been made clear for the appellant that it is seeking a rather narrower order than suggested by the notice of motion. In those circumstances, it does not seem to me to be relevant to the balance of convenience that the respondents may be able to create and rely on some other basis for entry on to the appellant’s land.
The appellant in its submissions today has also offered to undertake to conduct the appeal expeditiously; and in circumstances where the relevant limitation period for action by the respondents expires in August 2010, it seems to me that the grant of the narrower injunction sought does not involve substantial inconvenience for the respondents.
For the appellant, it is put that if there is no injunction, the appellant's right not to be subjected to trespass, which is the very matter raised by the appeal, would in effect be determined adversely to it in advance of determination of the appeal. It is put also that there could be unlawfully obtained evidence.
In relation to unlawfully obtained evidence, there is some protection to the appellant, because a court would have a discretion to exclude it in any prosecution proceedings; and as regards the right not to be subjected to trespass, it seems to me that this carries some weight, though not so much weight as if some identifiable substantive harm was indicated as a consequence of such a trespass.
Mr Rushton relied on the cases of Coward v Allen (1984) 52 ALR 320 and Zang v Commissioner, Australian Federal Police [2009] FCA 1170; (2009) 260 ALR 580. The former case concerned search warrants, and as I understand it, the issue raised in the interlocutory proceedings dealt with in that case was whether the defendant could examine items already seized under a warrant, the exercise of which was under challenge. As I understand it, there was no threat of a further trespass in reliance of challenged search warrant. In that case it was held that the balance of convenience did not favour restraining the police from examining the items that had already been seized. In Zang there was reference made to Coward v Allen. As I understand it, the question was a rather similar one, and in that case, injunctive relief was granted.
I found this case quite difficult, but on balance I think the balance of convenience narrowly favours the narrower injunction now sought, and I would propose to grant that injunction. I would also note the undertaking of the appellant to prosecute the appeal expeditiously, and I would propose to order the hearing of the appeal be expedited.
As regards the costs of this motion, as I understand it the narrowing of the relief sought and the undertaking to proceed with expedition only occurred either today or very recently and, subject to any further submissions that might be made, in my opinion the appropriate order would be that the costs of the motion be costs in the appeal.
Orders
The orders that I make are:
(1)I note the matter in par 1 and I make the orders in pars 2 and 3 of the short minutes of order, which I initial and date.
(2)I note that the appellant undertakes to the Court to pursue the appeal with all due despatch.
(3)I expedite the hearing of the appeal.
(4)I order that the costs of this application be costs in the appeal.
oOo-
LAST UPDATED:
2 December 2009
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