Woolworths Limited v The Warehouse Group (Australia) Pty Limited

[2004] NSWLEC 748

Land and Environment Court

of New South Wales

CITATION:

Woolworths Limited v The Warehouse Group (Australia) Pty Limited and Another [2004] NSWLEC 748

PARTIES:

APPLICANT
Woolworths Limited

FIRST RESPONDENT
The Warehouse Group (Australia) Pty Limited

SECOND RESPONDENT
Liverpool City Council

FILE NUMBER(S):

40805 of 2002

CORAM:

Talbot J

KEY ISSUES:

Injunctions and Declarations :- stay.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

14/12/2004

EX TEMPORE
JUDGMENT DATE :

12/14/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M S Henry (Barrister)
SOLICITORS
Mallesons Stephen Jacques

FIRST RESPONDENT
Mr T F Robertson SC
SOLICITORS
Deacons

SECOND RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

14 December 2004

40805 of 2002 Woolworths Limited v The Warehouse Group (Australia) Pty Limited and Another

JUDGMENT

1 Talbot J: I think that the Court would be descending into the very detail that it sought to avoid originally if, as suggested by the applicant, it took out particular items such as Christmas trees and Christmas decorations when nothing has been put to me (except a statement from the bar table that there is a potential economic detriment for the applicant) that would suggest environmental harm or adverse impact will occur if the orders are stayed for a short period of time.

2 We are dealing with a operating retail store. It is not a small operation by any means nor is it significantly large in the sense that it is David Jones or was the type of operation that was the subject of the recent proceedings against Gazcorp. Nevertheless I appreciate that commercially and in practical terms it will take time to bring it into compliance.

3 I am prepared to allow the respondent a final opportunity, and everybody in this courtroom will be aware of what I mean by a final opportunity given the history of this matter over the last 12 months and for the nine months since 12 March 2004, to bring the store into compliance or at least show a substantial and significant attempt to do so within a short period of time.

4 If the respondent elects to follow any of the foreshadowed steps set out in paragraph 7 of the affidavit of Mr Tim Andrews, sworn 14 December 2004, then in order for successful submissions to be put in support of any further stay, there will need to be some convincing and persuasive evidence of the fact that those things are being done and that there is some reasonable expectation that a positive result can be achieved. I do not therefore expect that the mere making of the foreshadowed applications will be sufficient for the stay to be maintained any longer than the period that I am prepared to allow today. The nature of each application will have to be examined together with the prospect of success within the terms of the applicable environmental planning instruments and whatever else applies. At least, prima facie, each of these need to be examined and the Court will require some satisfaction in that respect.

5 But importantly it ill behoves the respondent to do nothing about the physical operation of its store in the meantime. If, for example, there is evidence of the fact that Christmas decorations and Christmas trees are not sold as from tomorrow that would be clear evidence of bona fides on the part of the respondent.

6 I do not propose to unnecessarily jeopardise the livelihood of 40 employees if it be the fact that in order for the store to comply with the orders as they stand the respondent would have to close the doors because it cannot be done overnight.

7 It is unfortunate that the time of the year in one sense makes a mockery of the circumstances if the Court allows something illegal to continue at a time when the most benefit is to be gained by the first respondent. Prima facie, although I have no direct evidence, I hardly need evidence to be aware that this is a peak trading period and it is commercially important to both parties in that respect.

8 I need to say no more than the fact that there will be a very serious consideration of the first respondent’s position when the matter is brought back for further consideration on 13 January 2005.

9 The orders that I make are:

1. Order 1 made by the Court on 13 December 2004 be stayed until 10.00am on 13 January 2005.

2. Costs in relation to today are reserved.