Caravan Parks and Camping Grounds Act 1995 (WA)

Health Act 1911 (WA)

Local Government Act 1995 (WA)

Supreme Court Act 1935 (WA)

Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538

Attorney General v Huber, Sandy & Wichmann Investments Pty Ltd (1971) 2 SASR 142

Attorney General v Mercantile Investments Ltd (1920) 21 SR (NSW) 183

Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246

Cooney v Ku-Ring-Gai Corporation [1963] HCA 47; (1963) 114 CLR 582

Department of Environment and Conservation v Szulc [2010] WASC 195

Dueschen and City of Stirling [2008] WASAT 181

Dueschen and City of Stirling [2008] WASAT 181 (S)

Dueschen and City of Stirling [2010] WASAT 64

Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Faithfull v Woodley (1890) 43 Ch D 287

Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435

Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638

Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

Pisano v Thrum [No 3] [2010] WASC 395

R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59

Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230

1 The first defendant, Ursula Dueschen, is a diminutive 82-year-old widow. Mrs Dueschen's daughter, Tatyana, is the second defendant. Tatyana is currently serving a term of imprisonment of 318 days for failure to pay fines amounting to over $150,000. This is explained in a statement of claim filed in this matter by the City of Stirling (the City) which seeks permanent injunctive relief against both women.

2 I am presently dealing with a motion for default judgment by the plaintiff made under O 13 r 8(1) of the Rules of the Supreme Court 1971 (WA) (RSC) against Mrs Dueschen and her daughter, filed on 11 March 2011. The motion is moved in circumstances whereby the City issued a writ against the Dueschens out of the Supreme Court on 25 February 2011. The writ has an indorsed statement of claim which seeks the perpetual, negative injunctive relief.

3 Mrs Dueschen and her daughter were personally served with copies of the City's writ on 28 February 2011. They have both failed to enter memoranda of appearance, as required by RSC O 12 within the time allowed (see RSC O 5 r 11(1)), or at all.

4 In the case of Tatyana Dueschen, the second defendant, it appears she was arrested only a few days after being served with the City's writ and was taken into custody on 3 March 2011. Tatyana must serve her term of imprisonment of 318 days unless her fines are paid. As of now, there looks to be little prospect of Tatyana being released from custody until after the end of the 2011 year. That consideration is relevant to my assessment of the level of (non) threat Tatyana currently poses and so, to the associated need for perpetual negative restraints against her.

5 At the conclusion of argument on 8 April 2011, I indicated that the plaintiff's application for an injunction by default judgment against Tatyana Dueschen would be refused, given an absence of any real threat of infringing conduct by her whilst incarcerated. I reserved my decision as regards the same relief sought against her mother, the first defendant.

6 The City's motion for default judgment is made pursuant to O 13 r 8(1). But this is not the more typical case where a debt, liquidated sum, or an assessment of unliquidated damages claim present as the end relief sought by a plaintiff. Here the plaintiff seeks judgment for a final discretionary equitable remedy, namely a permanent injunction.

1. judgment is entered in favour of the plaintiff and an injunction is granted restraining each of the first defendant and the second defendant from:

(a) placing food and water for wild birds or placing bird or animal food or water on the land at 143 Sixth Avenue, Inglewood, in contravention of the requisitions contained in the notices issued by the City of Stirling pursuant to s 184(1) of the Health Act 1911 and dated 29 April 2009 as varied by the State Administrative Tribunal by orders dated 30 April 2010; and

(b) camping on the land at 143 Sixth Avenue, Inglewood, in contravention of reg 10 of the Caravan Parks and Camping Grounds Regulations 1997.

8 The City also seeks that the defendants pay its taxed (legal) costs.

9 When the City's motion for default judgment came on for hearing on Friday 8 April 2011, Mrs Ursula Dueschen attended Chambers, in person. This was notwithstanding her failure to file any memorandum of appearance to that point.

10 Ursula Dueschen spoke briefly as to her position. She opposed all orders sought. There was no objection to Mrs Dueschen being heard raised by counsel for the City who presented the City's case with skill and fairness.

11 Certified copies of prosecution notices (exhibits B1 and B2) show that on 2 September 2010, convictions were recorded against both women for transgressions against s 184(3) of the Health Act, as well as against reg 10 of the Caravan Parks and Camping Grounds Regulations, in the absence of any attendance at court by either defendant ('accused', as they are designated on each prosecution notice).

12 Each Health Act offence is expressed to have occurred between '1st May 2010 and 12th day of July 2010, both dates inclusive'.

13 The camping offences span the period (in aggregate) 4 November 2009 to 12 July 2010.

14 The defendants appear to have attempted to have their convictions summarily set aside on the basis that they 'did not receive notice of the court date when the convictions were recorded'. There looks to have been an application made on 29 December 2010 by the Dueschens in person, asking to set aside their convictions. However, each prosecution notice records 'application to set aside refused'.

15 It is necessary to say something more about the nature of the final injunctions which are sought. I repeat that, in seeking permanent injunctions, the City pursues a purely equitable remedy and that is so, notwithstanding the City does not actually raise, or rely upon an equitable cause of action.

16 Using the characterisation terminology employed by Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (4th ed, 2002) ch 21 [21-055], the injunctive relief sought here looks to be classed as being in the 'auxiliary jurisdiction' of the court, rather than in the court's exclusive equitable jurisdiction. That distinction is uncommonly resorted to in Western Australia, since the Supreme Court of Western Australia has exercised a fused jurisdiction in both common law and equity since 1880 (see s 24 of the Supreme Court Act 1935 (WA) referring to the Supreme Court Act 1880 (WA)). A contemporary relevance in the distinction however is that, where no equitable claim or cause of action is raised by a plaintiff (as is the case here), a court will usually weigh as a relevant consideration whether or not an award of common law damages alone (the traditional common law relief) would be sufficient remedy to address the wrong complained of assuming the plaintiff is successful at a trial. If common law damages do present as potentially being an inadequate remedy, the court may then assess the basis for injunctive relief, see generally Meagher, Gummow & Lehane [21-015].

17 The causes of action said to support the permanent injunctive relief sought by the City are wholly grounded upon statute or in regulations. It is necessary then to assess provisions within the Health Act 1911 (WA), as well as regulations (reg 10 and reg 11 of the Caravan Parks and Camping Grounds Regulations 1997 (WA) (the Camping Regulations)) enacted pursuant to the Caravan Parks and Camping Grounds Act 1995 (WA).

18 Contraventions against these statutory provisions will constitute offences against the criminal law of Western Australia and the provisions have already been assessed by courts of summary jurisdiction to have been transgressed by both defendants. For that, Mrs Dueschen and Tatyana have been punished by fines imposed in the Magistrates' Court, on contraventions found proved against them regarding s 184(3) of the Health Act and as against reg 10 of the Camping Regulations. Indeed, Tatyana finds herself currently imprisoned by reason of her unpaid fines.

19 Mrs Dueschen has been similarly punished by fine of the same magnitude as her daughter. Her fines have not been met either. However, no attempt has been made by the City to imprison her over the unpaid fines. Unlike Tatyana, the first defendant is the owner of premises at 143 Sixth Avenue, Inglewood (the Inglewood property), as I will explain.

Standing of the City to seek injunctive relief

20 Essentially, the City as plaintiff now seeks assistance from a court of equitable jurisdiction to buttress a statutory position - by the grant of negative permanent restraint injunctions - against both defendants. Breach of a court's injunction orders will give rise to exposure to a contempt sanction, which may be imprisonment. Counsel for the City did not resile from suggesting that the City may well seek to have Mrs Dueschen imprisoned by this Court for contempt were she in future to breach an injunction issued by the court, in the terms moved. As to the granting of injunctions in aid of statutory rights, I refer generally to the commentary at sections [21-170] and [21-190] in ch 21 Meagher, Gummow & Lehane.

21 Usually a court of equity will not injunct against the commission of a future crime (Meagher, Gummow & Lehane, 742 and authorities referred to at fn 92). Equity is not the 'handmaid of the criminal law' as Sir Edward McTiernan observed in Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230, 260. However, a court of equity may assist by grant of its injunction, if the likely future conduct at issue is also an infraction against a public right as well as an offence, see Sir John Harvey's observations in Attorney General v Mercantile Investments Ltd (1920) 21 SR (NSW) 183, 189. There, in the face of potential criminal conduct, but no more than that, an injunction sought to restrain the defendant from conducting an allegedly illegal lottery, was denied. See as well an explanation as to the jurisdiction of a court of equity in this public right context, by Bray CJ (dissenting) in Attorney General v Huber, Sandy & Wichmann Investments Pty Ltd (1971) 2 SASR 142, 159 - 161, which was referred to with approval by the plurality (Gleeson CJ, Gummow, Kirby and Hayne JJ) in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 144 [19], fn 25.

22 In a public right injunction case, the plaintiff will routinely be an Attorney General or, at least, a plaintiff that sues with an approval obtained from the Attorney General.

23 In Cooney v Ku-Ring-Gai Corporation [1963] HCA 47; (1963) 114 CLR 582, a decision mentioned by the City in its written submissions, the reasons of Dixon CJ (586) and Menzies J (605) show that a particular provision in the relevant New South Wales local government legislation (s 587) expressly conferred standing to bring suit upon New South Wales local authorities. Section 587 of the Local Government Act 1919 (NSW) then provided:

In any case in which the Attorney General might take proceedings on the relation or on behalf or for the benefit of the council for or with respect to enforcing or securing the observance of any provision made by or under this Act, the council shall be deemed to represent sufficiently the interests of the public and may take the proceedings in its own name.

24 In Western Australia, there is a standing conferral provision for local authorities which confers standing, somewhat akin to s 587 of the former NSW Act of 1919. The local provision (s 9.28 of the Local Government Act within Part 9 Div 2 of that Act), in present circumstances, resolves any concerns over the standing of the City in bringing these proceedings. Section 9.28 is in the following terms:

9.28 Interests of the public

(1) In any case in which the Attorney General might take proceedings on the relation, or on behalf, or for the benefit of a local government for or with respect to enforcing, securing the observance of, or preventing the breach of a statutory provision administered by the local government, the local government sufficiently represents the interests of the public and may take the proceedings in its own name.

(2) In subsection (1) -

statutory provision administered by the local government means a provision of -

(a) ...

(b) another Act conferring any function on the local government.

25 The standing of the City is sufficient to support it bringing this application on the basis of it asserting a public right position as regards both the Health Act and the Camping Regulations, essentially akin to that of an Attorney General's suit.

26 But a conclusion that the City has sufficient standing to bring the action does not impact against the court's underlying and abiding discretion, as regards a grant of equitable relief. Whilst the discretion will obviously be exercised in accordance with established precedent and principles, the discretionary character of equitable relief is a constant, even where the relief sought can be viewed as being sought in the public interest, see generally Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538, 559 - 560, where Lord Wilberforce explained how discretionary factors may operate differently than in suits as between private individuals. For instance, the court will not require proof of damage. Damage is assumed to result from an infraction against a public right. Laches (delay) evaluations may also be made from the broader public policy perspective.

27 In the present case, I do not detect any significant public right warranting support from a court of equity arising around reg 11 of the Camping Regulations. That regulation regulates persons camping on their own land. It looks to set down a criminal offence and no more, see Attorney General v Mercantile Investments Ltd. Regulation 11(1)(a) provides:

(a) for up to 3 nights in any period of 28 consecutive days on land which he or she owns or has a legal right to occupy, and may camp for longer than 3 nights on such land if he or she has written approval under subregulation (2) and is complying with that approval.

28 A transgression against Camping Regulation 11 presents merely as a statutory offence, contrary to reg 10. The transgression carries a summary punishment by fine. The punishment may be a continuing (daily) fine. Mrs Dueschen and her daughter have as we have seen, each incurred very substantial fines exceeding over $150,000, by reason of breaches assessed against reg 11.

29 It is argued by the City in seeking injunctive relief that heavy continuing fines imposed to date have not deterred the Dueschens from continuing to camp upon the Inglewood property. In fact, Tatyana Dueschen has, I think, been very much deterred (indirectly) at present from camping - since non-payment of her camping fines (exceeding $150,000) has seen her imprisoned for a period extending over 10 months - until just after the end of 2011 (unless her fines are earlier met).

30 The City has made a calculated policy decision, it would appear, not to seek to imprison Mrs Dueschen over the non-payment (to date) of her unpaid fines, exceeding over $150,000. I do not criticise that decision, taken as regards a homeless, 82-year-old widow. But the City's general submission that fines under the Camping Regulations have proved an 'ineffective remedy' as against Mrs Dueschen does not seem to me to be made out - where the City has itself chosen to stay its hand as against Mrs Dueschen from a fine enforcement perspective.

31 For Camping Regulation 11, I see no public right platform sufficient to warrant this Court overlaying its own injunctive restraints upon the criminal law (with a distinct possibility of imprisonment for any resulting contempt of court orders) upon the heavy monetary summary punishment already sustained by Mrs Dueschen by reason of her assessed breaches against reg 11 of the Camping Regulations, by her conduct in camping on her own land.

The Health Act and Health Act offence regime of punishments for offences

32 However, public right considerations in relation to breach of the Health Act present somewhat differently. Here I can detect, as regards s 184(1) Health Act notices, a wider public right and interest, warranting potential protection or vindication under a court of equity's injunctive orders directed against underlying conduct that is a local statutory nuisance (as defined). Section 182 of the Health Act defines statutory nuisance in unique terms - not necessarily akin to the common law's designation of a public or private nuisance.

33 A s 184(1) Health Act notice's command to abate a 'nuisance' by remedial conduct, is a measure found within Part VII of the Health Act. Transgression against the commands of a s 184(1) notice is punishable as an offence, contrary to s 184(3). A proviso to s 182, having defined statutory nuisance and identified a possible defence in a court of summary jurisdiction, concludes this way, 'Every person whose act, default or sufferance [of] any nuisance within the meaning of this Act arises or continues commits an offence'.

34 Section 361 of the Health Act provides a general penalty by a fine for an offence against the Health Act or a regulation, where no other more specific penalty under the Health Act is prescribed. Currently the general penalty is set by Parliament as a fine 'not exceeding $10,000'. However, for a breach against s 184(3), Parliament has provided for a very specific penalty under its detailed punishment regime set under the Health Act for many offences contrary to its provisions. Section 184(3) falls expressly within a punishment regime for offences set in Part I in Sch 5 to the Health Act.

35 Currently, there are eight different and elaborately designated regimes of specific punishment found under Sch 5 of the Health Act. By s 360(1)(a) of the Health Act, a person who is convicted of an offence under a provision of the Health Act specified in:

(a) Part I of Schedule 5 is liable to -

(i) a penalty which is not more than $500 and not less than -

(A) in the case of a first such offence, $50;

(B) in the case of a second such offence, $100; and

(C) in the case of a third or subsequent such offence, $250;

and

(ii) if that offence is a continuing offence, a daily penalty which is not more than $50 and not less than $25.

36 It can be readily seen that imprisonment as a punishment is not mentioned under Part I of Sch 5.

37 In contrast, however, it may be seen that for other Health Act offences which are expressly specified under Part VII of Sch 5 (against ss 129, 131(2), 228(2), 237(2), 238(1), 245E and 312), the Health Act does explicitly provide for the imposition of a potential penalty that allows for imprisonment. That differentiation in a harsher potential penalty presents obviously as a deliberate decision by the Legislature to provide for the higher level penalty (potentially) as regards a Part VII offence, but not it would seem for a Part I Sch 5 offence.

38 It is important at this point to observe the conceptual distinction as between activities which may constitute a general law nuisance, such as noise, odour or mess, and a s 184(1) Health Act notice, which commands the taking by a person of remedial steps (positive or negative). Such a notice is framed by the local authority by reference to a perceived statutory nuisance (as defined). However, the subsequent transgression against the criminal law arises only by reason of the remedial commands in the notice not being complied with or, more correctly, not being complied with in the time allowed.

39 Intervention by a court to restrain conduct possibly amounting to a common law nuisance is one thing. Damages may need to be assessed as a potentially adequate remedy rather than an injunction. Intervention by a court in furtherance of a statutory command under s 184(1) not complied with in the time allowed, as regards the required remedial conduct, is another concept altogether.

40 What is sought to be permanently restrained is the further putting out of water, food or bird seed upon Mrs Dueschen's Inglewood property. Such conduct, said by the City to be contrary to a s 184(1) Health Act notice, is sought to be restrained on the basis that it is said to promote, attract or exacerbate a higher than usual or acceptable level of birds, cats or rats to the Inglewood property and from there, in effect, to unsettle the local surrounding neighbourhood.

Punishment for offence against the Health Act an inadequate remedy?

41 Reliance is placed by the City upon s 5(3) of the Health Act, a provision in these terms:

5(3) The CEO or any local government (with the approval of the Minister) may, if in his or its opinion summary proceedings would afford an inadequate remedy, cause any proceedings to be taken against any person in the Supreme Court to enforce the abatement or prohibition of any nuisance, or for the remedying of any sanitary defects, or for the recovery of any penalties from, or for the punishment of, any person offending against the provisions of this Act.

(my emphasis in bold)

42 Here of course summary proceedings have been taken against the Dueschens with summary punishments imposed by fine. There is, I suppose, always a prospect of further proceedings issued upon a fresh s 184(1) notice. But that has not happened to date.

43 In any event, the Minister for Health, Dr Hames, on 26 February 2011 (attachment GD64 to Mr Ducas' first affidavit), has provided approval to the commencement of proceedings by the City as regards the contravention of the s 184 Health Act notices of 24 April 2009 (as amended by the order of the Western Australian State Administrative Tribunal (SAT) dated 30 April 2010). [That approval does not mention proceedings also being commenced by the City by reference to contraventions by the Dueschens against the Camping Regulations, which fall outside the regime of the Health Act.]

44 Section 5(3) of the Health Act focuses attention on what is, in my view, a key issue. To date, have summary proceedings taken to completion against the Dueschens for breach against s 184(1), proven to be an 'inadequate remedy'? I have already concluded that I would not reach that position, as regards punishments by heavy fine imposed against the Dueschens for assessed breaches against the Camping Regulations. But the position under the Health Act must be discretely evaluated.

45 Authority referred to by the authors of Meagher, Gummow & Lehane explains, 'even in cases where prima facie criminal proceedings are the solely appropriate remedy for a breach of the law, the Attorney General may exceptionally obtain an injunction where the defendant has so frequently committed the offence in question that his conduct manifests that the available criminal penalties are inadequate to deter him in his chosen course to flout the law'. The exceptional position is further explained in a speech of Lord Wilberforce in Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 481C - H as follows:

This is a right, of comparatively modern use, of the Attorney-General to invoke the assistance of civil courts in aid of the criminal law. It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty - see Attorney-General v Harris [1961] 1 QB 74; or to cases of emergency - see Attorney-General v Chaudry [1971] 1 WLR 1614. It is one not without its difficulties and these may call for consideration in the future.

If Parliament has imposed a sanction (e.g., a fine of £1), without an increase in severity for repeated offences, it may seem wrong that the courts - civil courts - should think fit, by granting injunctions, breaches of which may attract unlimited sanctions, including imprisonment, to do what Parliament has not done. Moreover, where Parliament has (as here in the Post Office Act 1953) provided for trial of offences by indictment before a jury, it may seem wrong that the courts, applying a civil standard of proof, should in effect convict a subject without the prescribed trial. What would happen if, after punishment for contempt, the same man were to be prosecuted in a criminal court? That Lord Eldon LC was much oppressed by these difficulties is shown by the discussions in Attorney-General v Cleaver (1811) 18 Ves Jun 210.

These and other examples which can be given show that this jurisdiction - though proved useful on occasions - is one of great delicacy and is one to be used with caution. Further, to apply to the court for an injunction at all against the threat of a criminal offence, may involve a decision of policy with which conflicting considerations may enter. Will the law best be served by preventive action? Will the grant of an injunction exacerbate the situation? (Very relevant this in industrial disputes.) Is the injunction likely to be effective or may it be futile? Will it be better to make it clear that the law will be enforced by prosecution and to appeal to the law-abiding instinct, negotiations, and moderate leadership, rather than provoke people along the road to martyrdom? All these matters - to which Devlin J justly drew attention in Attorney-General v Bastow [1957] 1 QB 514, 519, and the exceptional nature of this civil remedy, point the matter as one essentially for the Attorney-General's preliminary discretion.

46 The City's submissions, in effect, contend that the Gouriet line of exceptional authority is presently apposite, based upon a proven 'flouting' of the Health Act by ongoing non-compliance with the s 184(1) notices of 24 April 2009. But the cautionary tone of Lord Wilberforce's observations in Gouriet is a sage reminder of limits which a court of equity will recognise, when asked to lend its remedies to the support of the criminal law.

RSC O 13 motion for judgment in default of appearance

47 The plaintiff has complied with O 13 r 8(1) in bringing its motion for default judgment. It also has met O 13 r 8(1A) by provision of a certificate stating that no appearance has been entered by either defendant (see exhibit D, issued by reference to a search of the court file pursuant to O 67 r 10 confirming an absence of memoranda of appearance filed by or on behalf of either defendant).

48 The absence of memoranda of appearance assists the City as plaintiff, towards establishing part of the evidentiary platform for the relief sought. The absence will generate a deemed admission of facts alleged in a statement of claim, see Faithfull v Woodley (1890) 43 Ch D 287, 289.

49 Given that final equitable (injunctive) relief is sought, counsel for the City, appropriately in my view, in moving for default judgment, sought, by evidence, to show a basis for the grant of the discretionary injunctive relief by further materials tendered on a basis that, notwithstanding the absence of any memorandum of appearance, the City as plaintiff still needed to establish a case for equitable relief. That was proper, notwithstanding that a judgment obtained by default, albeit final, would be capable of being challenged by subsequent application to set it aside, see Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 per Mason J (as he then was) at 254.

50 The City tendered further evidentiary materials towards influencing the court's exercise of its discretion to grant equitable relief in the City's favour, see Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638, (albeit that was a case concerning judgment in default of a defence), 644 where Woolf MR said (by reference to a local equivalent of RSC O 22 r 7(1), cf RSC O 13 r 8(1)):

[J]udgment in default is given upon the facts pleaded in the statement of claim and that affidavit evidence to supplement or support those facts is not appropriate as the pleaded facts are deemed to be admitted. However, that cannot be rigidly applied where the judge has to exercise a discretion whether to grant the relief sought. Where an injunction is sought facts relevant to the grant of that injunction, which are not deemed to be admitted, should be brought to the attention of the judge by way of affidavit or otherwise.

51 The further materials relied upon by the City comprised:

(a) The affidavit sworn 25 February 2011, by Gregory Robert Ducas, an environmental health officer employed by the City with knowledge of events concerning the defendants and their occupation over time of the Inglewood property. I observe that a certificate of title search (GD1) for the Inglewood property shows that the first defendant and her late husband Konstantin Dueschen as the registered proprietors of the Inglewood property, as joint tenants. However, Mr Dueschen died in December 1979 (GD3). No step has yet been taken to record the transfer, by survivorship, of the late Mr Dueschen's interest as joint tenant in the Inglewood property to his widow (see p 20, attachment GD1 to Mr Ducas' affidavit). Mr Ducas' affidavit became exhibit A in the proceedings, albeit pars 27 and 42 were not read on this application.

(b) Exhibits B1 and B2, comprising six certified copies of prosecution notices issued separately, four on 22 July 2009 and two on 9 April 2010, against Mrs Dueschen and her daughter Tatyana. Charges were brought for transgressions against s 184(3) of the Health Act (by failing to comply in time, or at all, with statutory commands issued to them under notices pursuant to s 184(1) of the Health Act). The other prosecution notices found within exhibits B1 and B2 concern the further charges against both defendants for camping upon the Inglewood property, in contravention of reg 10 of the Camping Regulations. The Dueschens began camping on the land after a dwelling house formerly on the Inglewood property was compulsorily torn down in 2008 under orders of the SAT obtained by the City.

(c) Mr Ducas' affidavit (second affidavit) of service for each defendant with a copy of the writ with indorsed statement of claim, on 25 February 2010 (exhibit C). Counsel for the plaintiff properly drew my attention to a minor irregularity regarding an indorsement as to personal service being effected by Mr Ducas, by reason of his late indorsement of the word 'Monday' occurring outside the three day period allowed under RSC O 9 r 1(4). I am satisfied that it is appropriate to excuse that minor irregularity, in accordance with RSC O 2 r 1(2), this being essentially a small transgression with no prejudice caused to either defendant as a result, see Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [47] - [54].

(d) A certificate that is required for the purpose of RSC O 13 r 10(1A) to which I have referred dated 8 April 2011 (exhibit D).

(e) A third affidavit from Mr Ducas sworn 7 April 2011, essentially describing what he observed more recently, when he once again inspected the Inglewood property on the afternoon of Wednesday 6 April 2011 (note: par 6 of that affidavit was not read).

52 It is convenient to set out the facts within the City's statement of claim, which for the purpose of this application, are, as I have mentioned, to be taken as established:

1. The Plaintiff is a local government established under the Local Government Act 1995 (Local Government Act').
2. The First Defendant is the registered proprietor, jointly with her deceased husband, of land at 143 Sixth Avenue, Inglewood, Western Australia and being the land described as Lot 798 on Deposited Plan 32702 in Certificate of Title Volume 1202 Folio 798 ('Land').
3. Prior to 6 November 2008 the First and Second Defendant lived in a house on the Land.
4. The Land is in the Plaintiff's district within the meaning of the Local Government Act 1995.
5. On 24 April 2009 the Plaintiff issued requisitions pursuant to section 184(1) of the Health Act 1911 ('Health Act') to each of the First and Second Defendants ('Notices').
6. The Notices required the First and Second Defendants to abate a nuisance on the Land by, amongst other things, ceasing to place animal and bird food and water around the Land.
7. On or about 13 May 2009 the First and Second Defendants applied the State Administrative Tribunal for a review of the Plaintiff's decision to issue the Notices.
8. On 30 April 2010 the State Administrative Tribunal affirmed the Notices subject to varying the Notices to require, amongst other things, that the First and Second Defendants:

(a) cease placing food and water for wild birds; and

(b) not place bird or animal food or water on the Land; ('Requisitions').

1. The First and Second Defendants failed to comply with the Requisitions, thereby committing an offence under s 184(3) of the Health Act.
2. By a prosecution notice dated 22 July 2010, David Schwenke ('Mr Schwenke'), an environmental health officer appointed by the Plaintiff under section 27 of the Health Act and employed by the Plaintiff, commenced prosecutions of the First and Second Defendants for failing to comply with the Requisitions.
3. On 2 September 2010 the First and Second Defendants were each convicted of failing to comply with the Requisitions ('Health Act Convictions').
4. As a result of the Convictions, on 2 September 2010 the First and Second Defendants were each fined $500 and daily penalties of $3,650, totalling $4,150 ('Health Act Fines').
5. Despite the Health Act Convictions and the Health Act Fines, the First and Second Defendants continue to fail to comply with the Requisitions, resulting in a continuing nuisance on the Land within the meaning of section 182(4) of the Health Act.

Large numbers of wild birds, particularly ibis, cats and rats are attracted by bird and animal food and the water placed by the First and Second Defendants on the Land. As a result:

(a) bird faeces and feathers accumulate on the Land, on nearby homes and property, and on the footpath and the road in front of the Land;

(c) cats' faeces and urine are deposited in the neighbourhood of the Land;

(c) offensive odours occur in the neighbourhood of the Land;

(d) cat noise occurs in the neighbourhood of the Land; and

(e) cats stray onto properties neighbouring the Land.

1. On 6 November 2008 the house on the Land was demolished.
2. Since on or about 5 January 2009 the First and Second Defendants have camped on the Land in breach of regulation 10 of the Caravan Parks and Camping Grounds Regulations 1997 ('Regulations').
3. By prosecution notices dated 9 March 2009, 7 December 2009, 9 April 2010 and 22 July 2010 Mr Schwenke, an authorised person appointed by the Plaintiff under section 17 of the Caravan Parks and Camping Ground Act 1995 and employed by the Plaintiff, commenced prosecutions of the First and Second Defendants for offences of camping on the Land in breach of regulation 10 of the Regulations.
4. Each of the First and Second Defendants were convicted of offences of camping on the Land in breach of regulation 10 of the Regulations on the dates set out in the first column of the table below ('Camping Convictions') and fined in relation to each conviction in the amount set out in the second column of the table below ('Camping Fines').

$750 together with daily penalties of $1,500, totalling $2,250 each.

$750 together with daily penalties of $23,400, totalling $24,450 each.

$1,000 together with daily penalties of $76,500, totalling $77,500 each.

$1,000 together with daily penalties of $49,000, totalling $50,000 each.

1. Despite the Camping Convictions and the Camping Fines the First and Second Defendants continue to camp on the Land in breach of regulation 10 of the Regulations.
2. The First and Second Defendants intend, unless restrained by this Honourable Court from doing so, to continue to flout the Health Act and the Regulations as pleaded.
3. On 24 February 2011, the Minister for Health approved, pursuant to section 5(3) of the Health Act 1911, the Plaintiff commencing proceedings in this Honourable Court to seek an injunction to restrain the First and Second Defendants in the terms set out in paragraph (a) below.

53 Each defendant (par 12 statement of claim) has incurred fines by reason of convictions for Health Act offences amounting to $4,150. In addition, exhibits B1 and B2 show costs of $1,500 each against the defendants by reason of their respective Health Act offences.

54 By par 17 of the statement of claim, it may also be seen, as regards the Camping Regulation infringement fines, that each defendant has been punished by an imposition of fines exceeding, in aggregate, $150,000.

Evidence of a threat sufficient to sustain a permanent injunction

55 Material before the court under Mr Ducas' first affidavit relates back to 1992, going mainly to many difficulties encountered with the Dueschens by the City, due to an excessive number of cats at the Inglewood property, in the period before a house built on that land was ordered by SAT to be demolished (in 2008).

56 On 24 April 2009, the City issued a s 184(1) Health Act notice to each of Mrs Dueschen and her daughter.

57 In the period after the house was demolished in 2008 up to April 2009, the main issues of concern for the City appear to relate to high levels of vegetation on the Inglewood property, and associated concerns over rats, more cats (alive and dead) and wild birds (mainly ibis).

58 Numbers of wild birds must be accepted to be attracted to the Inglewood property by reason of bowls of water, bird seed and other unspecified food, being deliberately left out by the Dueschens, at the Inglewood property. This in turn is said to have led to rats and excessive numbers of wild birds (mainly ibis) being attracted to the (general detriment of) the neighbourhood. The ibis in particular are unwelcome creatures. These wild birds it seems create excessive noise (by squawking loudly), odours (from excessive bird excrement) and their general mess (feathers). The attracted wild birds will sit in trees on the Dueschens' Inglewood property and fly from there to neighbouring house roofs or into neighbouring trees, where the overall bird noise, odours and mess perpetuate.

59 On 30 April 2010, the SAT modified the 2009 notices issued by the City under s 184(1) of the Health Act, a year before. The 2009 notices as issued had required 'all vegetation' be removed by the Dueschens from the Inglewood property. But this command was modified by SAT - down to removing ground cover and to dead trees. In addition, SAT adjusted the terms of the (negative) commands of the s 184(1) notice regarding food and water for animals.

60 It is apparent (Mr Ducas' first affidavit pars 23 and 24) that the City, after 30 April 2010, took unilateral action (as the s 184(1) notice had warned it would) to clear vegetation, remove rubbish (including dead cat carcasses) and to generally clean up the Inglewood property. Photographs within Mr Ducas' first affidavit (see pp263 to 270) show the Inglewood property cleared of much vegetation, although there are seen to be several trees remaining. Clearance by the City of substantial vegetation appears to have removed the rats' habitat.

61 Some live cats were also caused to be removed or relocated by the City. However, photographs taken post 30 April 2010 show at least five live cats still present. One photo (p269) shows a crate of unopened tinned cat food at the Inglewood property.

Events subsequent to SAT's variation orders of 30 April 2010

62 Mr Ducas relates that he has, since 1 June 2010, attended at the Inglewood property on many occasions, see first affidavit commencing at par 23 and following. Also relevant is Mr Ducas' third affidavit concerning events of 6 April 2011, when he attended the Inglewood property yet again. I have not overlooked the factual assertions as to continued camping and continued breaches (expressed as 'to flout') of the Health Act and the Camping Regulations referred to in pars 18 and 19 of the statement of claim which, for the purposes of this application, must be accepted as established.

63 By a very truncated summary, Mr Ducas' evidence for this last period (i.e. 30 April 2010 up to the present), is that there are still 'nuisance' problems at the Inglewood property, particularly with an ongoing putting out by the Dueschens of bowls of water and food - thereby attracting excessive wild birds (mainly ibis) as well as the ongoing transgressions against the Camping Regulations by the defendants (until the second defendant's arrest and imprisonment in early March 2011) continuing to either camp in tents, or by occupying a caravan on the property, in breach of reg 11.

64 Mr Ducas' third affidavit mentions his recently speaking to Mrs Dueschen at a café and asking her whether she was still camping on her Inglewood property. He relates the answer he was given, in these terms:

The first defendant said words to the effect that she was camping on the Property but that she intended to move in the next week or so. The first defendant also said words to the effect that she had been ill and this had delayed her moving from the Property, and that she intended to sell the Property as soon as possible.

65 When Mrs Dueschen appeared in person in Chambers on 8 April 2011, I asked her about her future intentions, in terms of her moving away from the Inglewood property (she would as of now, currently appear to still be occupying the caravan stationed on the Inglewood property). Her response seemed to be wholly non-committal. I do not think therefore that I can, as of now, attribute much, if any, weight to a suggestion that she is now taking active steps to sell her Inglewood property (i.e. steps towards sale that might, in the future, see her cease occupying and so, camping on her Inglewood property).

66 Were a looming sale and departure by Mrs Dueschen from the Inglewood property to be shown, that would be a factor going against the exercise of discretion to grant injunctive relief, on the basis that the statutory nuisances complained about may soon cease, through Mrs Dueschen moving elsewhere once the Inglewood property was sold. That however is not the position on the evidence now before me.

67 Mrs Dueschen also told me (again from the bar table) that she now 'wanted to find a house in which to live'. But I can give that expressed wish only little weight, bearing in mind that this seemed to be expressed as more of an aspirational desire, rather than presenting to me any firm course of conduct likely to transpire in the short or medium term.

68 I also refer to par 7 of Mr Ducas' third affidavit, where he says:

I have on a number of occasions in the past, on behalf of the City, told the first and second defendant that the City would assist them in locating alternative accommodation. The City continues to be prepared to assist the first defendant in locating alternative accommodation.

69 Albeit not contradicted, I find myself in the position, having reviewed all materials, including the multiple cat-related events as referred to in Mr Ducas' first affidavit going right back to October 1992, that an expression of an open ended general preparedness to assist the Dueschens, given an intangible content and enforceability, must be afforded little weight. A more tangible offer of alternate accommodation for the Dueschens from the City by way of undertaking would be a different matter. However, that level of commitment to assist has not been manifested to date.

70 The works by the City unilaterally to clean up the Inglewood property since May 2010 are apparent. I am satisfied that the City has power to act to protect against any serious public health nuisance that presents at the Inglewood property, where that is necessary.

71 Since 30 April 2010, it appears that the Dueschens have caused a caravan to be stationed on the Inglewood property and have occupied the caravan. There is no reason in my view why the City could not initiate steps now, to have the caravan removed.

72 Nor can I see any reason why the City could not, were it minded to do so, by its officers, unilaterally remove any cat food, bird seed, or water bowls left lying around the Inglewood property, if those matters are generating public health concerns in the local neighbourhood.

73 Wild birds (ibis - which for some reason would appear to be a protected species) pose a more difficult challenge. If they are creating a public health risk then they should be caught, culled or dealt with by the appropriate governmental body.

74 For the purposes of the permanent injunction sought, the emerging nuisance/health issue, in the wake of all the clean up work performed by the City post May 2010, seems to be excessive wild birds (ibis), carrying associated problems for the neighbourhood by reason of noise, odours and mess (from bird excrement or feathers).

75 But my overall assessment of the evidence surrounding this motion for default judgment (accepting the facts emerging from the statement of claim) is that the City's concerns relate more to the overall amenity of the surrounding neighbourhood to the Inglewood property, rather than over any serious perceived risks to public health or safety (such as, for instance, from a bird spread disease).

The s 184(1) Health Act notices of April 2009, modified by SAT in 2010

76 Without objection, Mrs Dueschen told me at the hearing that she emigrated to Australia in 1950 from Germany. She presented as a woman of firm convictions.

77 From exhibit A, Mr Ducas' first affidavit, it can be seen that there is now a sad and significant ongoing history of disputation between the City and the Dueschens. Mr Ducas' affidavit goes back to events commencing in October 1992 in relation to nuisance issues which then arose concerning large numbers of cats kept at the Inglewood property. The cat-related problems grew worse over the years. The Dueschens have manifested over the years a sincere, but almost obsessive, commitment to the feeding of birds and animals at the Inglewood property. I accept that there is little likelihood that after so long, they are likely in future to be persuaded to desist from expressing their self-perceived compassion towards birds and animals by ongoing feeding conduct on the Inglewood property, that is likely to see them clash with public authorities such as the City.

78 The Dueschens' relationship with the City has seen a number of applications heard before SAT. In Dueschen and City of Stirling [2008] WASAT 181 (attachment GD34 to Mr Ducas' first affidavit) it was decided that a dwelling house built on the Inglewood property had become unfit for human habitation. In accordance with provisions of the Health Act, the house was ordered to be taken down and removed. The demolition orders were confirmed in a supplementary decision of SAT in Dueschen and City of Stirling [2008] WASAT 181 (S) delivered 9 October 2008.

79 Those cat-related proceedings before the s 184(1) Health Act notices of 24 April 2009 only provide background to the present proceedings. Both s 184(1) Health Act notices were dated 24 April 2009. (Copies are found respectively at between pp177 to 179 of Mr Ducas' first affidavit, concerning the first defendant and at pp 180 - 182, concerning the second defendant). They carry the signature of Mr Peter Morrison, an environmental health officer of the City. For convenience, I append the three page notice issued to the first defendant, Mrs Ursula Dueschen, to these reasons as a Schedule. The s 184(1) Health Act notice commanded Mrs Dueschen to do something within seven days of service of the notice. The second schedule to the s 184(1) notice of 24 April 2009 specified that the action required within seven days to 'abate the nuisance' was:

Second Schedule

All vegetation is to be removed from the premises. The placement of animal and bird food and water around the yard of the premises is to cease. All cats are to be removed from the premises.

80 An offence was not committed in creating the statutory 'nuisance' (defined by s 182 Health Act). Rather, the offence is the failure to act as the notice commands, within the time allowed.

81 The s 184(1) notice said that failure to act would constitute an offence against s 184(3) of the Health Act, for which a range of possible penalties could be imposed, including if the offence was a continuing offence, a daily penalty (fine). The 24 April 2009 notice also said, if a default in compliance continued, the City itself would cause the requisite work to be done at Mrs Dueschen's expense and that she and her daughter would be 'jointly and severally liable' for that expense.

82 The s 184(1) notice also said that, notwithstanding the obligation to act affirmatively within seven days as the notice commanded, that there was an opportunity for Mrs Dueschen to seek a review of the commands in the notice within 21 days before the SAT. The Dueschens did challenge the April 2009 notices before SAT, as was their right. The review application was heard across August, September and December 2009 by SAT. A decision was delivered on 30 April 2010, see Dueschen and City of Stirling [2010] WASAT 64, found as attachment GD46 to Mr Ducas' affidavit.

83 SAT allowed the Dueschens' review application in part (p 214 of Mr Ducas' first affidavit), although order 2 of the SAT order expressed itself as affirming (subject to order 3) the s 184(1) notices of 24 April 2009.

84 Order 3 of the orders of SAT of 30 April 2010 provided:

The abatement requirements contained in the Second Schedule of the notices dated 24 April 2009 are varied as follows:

(a) The words 'all vegetation is to be removed from the property' are deleted and replaced by the following:

'All groundcover, together with the understorey of all mature healthy trees, is to be removed to a height of 2 metres from ground level.

Any trees which are dead or, in the opinion of a horticulturalist will not survive, are to be removed.

All disused material is to be tidied and stacked so as to prevent any harbourage of rats.'

(b) The words 'placement of animal and bird food and water around the yard of the premises is to cease' are deleted and replaced by:

'The placing of food and water for wild birds is to cease and no bird or animal food or water is to be placed on the premises.'

(c) For the avoidance of doubt, the direction that 'all cats are to be removed from the premises' is not varied.

The orders made by SAT on 30 April 2010, are attachment GD47 (pp 216 and 216) to Mr Ducas' first affidavit.

85 Very surprisingly in my view, in the aftermath of that SAT review outcome, no amended or corrected notice under s 184(1) of the Health Act was ever prepared or re-served upon either Mrs Dueschen, or her daughter by the City.

86 SAT on 30 April 2010 had made alterations to the 2009 statutory commands that had issued more than a year before to the Dueschens under s 184(1) of the Health Act (with the failure to act as commanded within seven days punishable as an infraction against the criminal law). It is, to my mind, highly unsatisfactory that now modified statutory commands to the Dueschens, as citizens, to do different things (within seven days, or be punished) were not re-issued and re-served by the City - so that the Dueschens would know precisely what was required to be done by them within seven days - in order to avoid their committing an offence against s 184(3) of the Health Act. It is not to the point that the Dueschens had been the applicants before SAT (acting in person) and so, would likely have seen SAT's reasons. The remedial conduct commanded of them, as of 30 April 2010, was now different. A corrected s 184(1) notice served on the Dueschens should have been re-issued and served by the City to make all this crystal clear, especially to self-represented parties.

87 It is not necessary for me to finally resolve here any issue over whether or not a failure by the City to re-issue and re-serve an amended notice under s 184(1) of the Health Act to the Dueschens is such a vitiating defect as would undermine subsequent Health Act convictions against the Dueschens for breach of the commands of the notice. But I would further observe that my concerns go further than that. The Dueschens' transgressions against the 24 April 2009 notices, 'as modified by SAT on 30 April 2010' were asserted to have taken place in the period between 1 May 2010 and 12 July 2010.

88 The prosecution notices against Mrs Dueschen and her daughter as regards the alleged contraventions against s 184(3) of the Health Act are expressed on the basis of offences commencing from 1 May 2010. Therefore, one day immediately following the review orders of SAT of 30 April 2010, continuing offences against the Health Act are alleged to commence. That time frame manifestly did not allow a seven day period after 30 April 2010 to pass - to allow the Dueschens to meet now modified conduct commands - in the aftermath of the orders of SAT of 30 April 2010. This all took place in circumstances where the Dueschens appear to have acted, before SAT, in the Magistrates' Court and then subsequently (for Mrs Dueschen) in this Court, without any legal representation.

89 The disturbingly premature prosecutions, by themselves, raise fair play considerations going heavily against a court of equity presently exercising a discretion to grant remedies by way of assistance to the City, against citizens. Equitable relief will not be granted to a party, especially to a public authority, that has not exhibited the requisite standards of fairness in its own conduct (in equity's terminology - has not acted with 'clean hands').

90 There is, as I discern, real potential for this Court to be asked in future to punish Mrs Dueschen by a contempt sanction of imprisonment, upon a breach of injunctive orders. This would be on the basis of her continuing to feed bird seed, cat food or water to cats and birds on her property, in accord with her unwavering beliefs. This would also be in circumstances where very heavy fines have already been levied against Mrs Dueschen for camping on her Inglewood property, after the house once standing on it was demolished by compulsive orders of SAT in 2008. This leads me to wider concerns, also going to exercise of the judicial discretion to grant equitable relief.

91 I have referred to the City's reliance upon s 5(3) of the Health Act and the approval obtained from the Minister sanctioning the City's pursuit of relief from the Supreme Court. Section 5(3) is grounded upon the local authority acting to obtain relief from the Supreme Court where, in his or its opinion, 'summary proceedings would afford an inadequate remedy'. Inadequacy of the remedy in the summary proceedings taken to date under the criminal law against the Dueschens is pressed by the written submissions of the City, in these terms:

1. Criminal sanctions have proven ineffective to prevent the offending behaviour.
2. The defendants have, over very many years, persistently refused to comply with the Health Act. There have been issues concerning the numbers of cats kept by the defendants on the land for 19 years, since 1992. Requisitions requiring the defendants to cease placing food and water for animals and birds was served nearly two years ago, on 25 April 2009. The defendants' neighbours may well have hoped that the SAT decision of 30 April 2010, nearly one year ago, would be the end of the matter. That proved not to be the case.

92 But as I have explained, I am a long way from being satisfied, as regards transgressions against s 184(1) of the Health Act, that the sanctions of the criminal law have proven, to date, to be an ineffective remedy against the Dueschens, in respect of the feeding of food and water to animals and birds, on the Inglewood property. I have already observed, in fact, only one s 184(1) notice has ever issued to each defendant in April 2009. Each notice was reviewed, then varied by SAT, effective 30 April 2010. It has been assumed by the City that the 2010 SAT outcome would automatically cause its April 2009 s 184(1) notice to be read differently as from 1 May 2010. For the reasons already given, I disagree.

93 The City's position seems to be that the Health Act only allows the transgressor against s 184(1) to be fined and fines have not curtailed the Dueschens' conduct. Therefore, stronger relief is now justified from this Court. In context, stronger relief can only be imprisonment, under committal orders of the Court, in the face of a likely contemptuous future breach of injunctions.

94 However, it is now very clear that the Health Act, under Sch 5 Part I, does not allow for imprisonment for a breach against a s 184(1) notice. The legislation expressly allows only for a fine to be imposed. That may be contrasted to the heavier sanction of potential imprisonment, being expressly provided for offences falling under Part VII in the elaborately set down punishment regime in Sch 5 of the Health Act. A decision by the Legislature to allow a fine, but not imprisonment for a breach of s 184 of the Health Act, must be taken to be deliberate. I refer to the cautionary observations of Lord Wilberforce in Gouriet to which I earlier referred about a court providing a potential sanction, when the Legislature does not.

95 In my view, it is generally not appropriate to seek, via 'the back door' from this Court, a level of heavier punishment which Parliament itself was not more directly prepared to allow. The level of appropriate punishment for a breach of the criminal law is a policy issue affecting the liberty of subjects in a democracy. It carries with it serious questions that warrant proper public scrutiny under the processes of Parliament. These processes should not be circumvented in the usual course. I would not allow them to be circumvented here.

96 Equity ameliorates unconscientious or unfair strictures under the common law. It ought not, in my view, be called upon to act as a de facto 'enforcer', in circumstances where Parliament might easily have allowed the potential sanction of imprisonment for a breach relating to this section of the Health Act. Again, I would not allow equitable injunctive relief as a matter of discretion, based on these considerations alone.

Formulation of orders sought on the motion for default judgment by City of Stirling

97 Formulation of the injunctive relief as sought on the motion for default judgment, looks to have its genesis, to an extent, in the terms of the varied orders of SAT, of 30 April 2010. However, the terms of orders as issued from SAT, by reference to the requirements of s 184(1) of the Health Act, do not automatically carry a necessary conclusion that replicating their terminology is automatically appropriate in the formulation of the orders by injunction as sought in this Court.

98 Both subpars (a) and (b) of the orders sought (see [7] earlier), can be seen to be formulated by reference to the restraint of conduct that is expressed to be 'in contravention of' either the requisitions contained in the notices issued under s 184(1) or 'in contravention of' reg 10 [sic] of the Caravan Parks and Camping Grounds Regulations' (note: it would rather be a contravention of reg 11 - as that is the penalty for a contravention that is provided for under reg 10).

99 Irrespective of whether they be interim, interlocutory or final orders sought as injunctive relief, it is imperative that commands issued by a court to a citizen be formulated in clear and certain language. There is no room for ambiguity or for self-assessment over the issue about whether conduct may or may not constitute a transgression of the court's orders.

100 Court orders, if transgressed, are liable to be punishable by the sanction of contempt. Contempt penalties are at large in terms of what is appropriate, see generally, RSC O 55 r 7. See also the observations by the Chief Justice in Department of Environment and Conservation v Szulc [2010] WASC 195 at [35] in the following terms:

The powers of the court to punish for contempt are unlimited. There is no maximum penalty applicable and the Court can either impose a sentence of imprisonment or a fine under the Rules of Court. If a sentence of imprisonment is imposed then the provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 2003 (WA) including those provisions relating to parole are excluded from application as a consequence of s 3 of the Sentencing Act and s 3 of the Sentence Administration Act.

101 The basal requirement for certainty in the formulation of a court's restraints is explained in observations of Owen J (as he then was) in R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 78. His Honour said:

When it comes to enforcement proceedings the court will look for clarity of meaning so that the liberty of the subject is not put in jeopardy due to difficulties of interpretation which could have been avoided in the drafting of the order. It was said in Iberian Trust Ltd v Founders Trust & Investment Co (1932) 2 KB 87, 95 (in a passage approved by Owen J in Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 515 - 516 that 'if the court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done'. It is the presence or the absence of ambiguity which is at the heart of this dispute.

102 These observations were recently referred to and applied in Pisano v Thrum [No 3] [2010] WASC 395 [14] and [15].

103 In my assessment, the injunctions in the terms sought by the City, are wholly flawed - by reference to self-defining contravention criteria - as is seen in qualifying words of the proviso phrase 'in contravention of', found in both subpars 1(a) and 1(b) of the motion for default judgment. That proviso effectively leaves it to the defendants to decide if their conduct contravenes, or not. This is unacceptably uncertain and problematic from an enforcement perspective of an injunction issued by a court, in my view.

104 Even if that deficiency could be cured by a severance of the words 'in contravention of' in the case of the Health Act transgression (albeit severance would not present as a viable option, in my view, for the Caravan Parks and Camping Grounds Regulation order (b)), there are further difficulties.

105 The words of proposed order (a), 'placing food and water for wild birds or placing bird or animal food or water on the land at 143 Sixth Avenue, Inglewood', look to have their genesis in the terminology of the reviewed orders issuing from SAT on 30 April 2010. But when viewed from the perspective of potential injunctive orders of this Court, they are effectively unworkable and so, inappropriate. The qualifying phrase 'for wild birds', which follows the reference to food and water, is problematic. On its face that terminology seems to apply to the subject matter of food and water, where the purposive intent is shown for future consumption by wild birds. Viewed from the perspective of a court's future enforcement (potentially by contempt sanctions), a looming future debate over disputed purpose(s), as regards that subject matter, is both undesirable and unworkable. Is the required purpose an exclusive purpose? Would it extend to a shared purpose for a consumption of the food and water by wild birds along with other creatures? From an enforcement perspective by a court at a future time, the chosen terminology may readily be seen to lead to likely future arguments over disparate purposes. Subjectively held purpose arguments are difficult in their factual resolution. They are best avoided in court orders.

106 Likewise, use of the word 'placing' carries potentially problematic intent considerations. 'Placing' looks to have embodied within it as a concept, an element of deliberative conduct, as regards the subject matter of food and water. Any ensuing enforcement debate over whether food and water was deliberately, as opposed to unwittingly 'placed', is again, in my view, best avoided.

107 The proposed restraint order goes on, seeking to inhibit the placing of bird or animal food or water. In this respect, there now emerges a distinction, apparently to be drawn, as between the earlier reference to 'wild birds' with the more generic 'bird or animal food'. That ambiguity is once again unsatisfactory, viewed from an enforcement perspective - in the context of any future asserted breach of orders.

108 The proposed orders, viewed alone, are not in their formulation, appropriate for issue as injunctive orders by this Court.

109 By reason of deficiencies in the formulation of the proposed orders, the lack of any threat in respect of the second defendant (by reason of her imprisonment), an unsatisfactory failure to afford both defendants notice of varied s 184(1) statutory commands arising as a result of the SAT's modification orders of 30 April 2010 (or allowing a sufficient period to comply with such modified commands), and wider policy concerns I have mentioned, as a matter of overall discretion, at this time I refuse the City's motion for injunctive relief.

(a) Motion for injunctive relief by way of default judgment against defendants, is refused.