Australian Energy Ltd v Lennard Oil Ltd [2005] NSWCA 317 | Case summary

Australian Energy Ltd v Lennard Oil Ltd [2005] NSWCA 317 | Case summary | Zoe

DECISIONS OF PRIMARY JUDGE 8 On 22 April 2004, the primary judge considered a submission on behalf of the appellants that ss.28, 38 and 160 of the Criminal Procedure Act 1986 applied to the case, so that the Council should not be permitted to call any case in reply or to address in reply. That contention was rejected by the primary judge. 9 On 27 April 2004, the primary judge considered an application by the Council to reopen its case for the purpose of tendering affidavits of service of the orders on which the proceedings were founded. The application was made when the primary judge was in the course of delivering what otherwise would have been a final judgment in the case, in which the primary judge had indicated to the effect that he would dismiss the proceedings because the Council had not proved knowledge of the orders. The primary judge acceded to the application, and affidavits of service of the orders were then admitted into evidence. The deponents were cross-examined, but in his main judgment in the case the primary judge found that service of the orders was proved. 10 In his main judgment in the case, given on 29 April 2004, the primary judge held that the Land & Environment Court had power to punish for contempt, referring to the Land & Environment Court Act ss.20 and 67. He said that the Court would have to be satisfied that there was wilful disobedience of court orders, and that the proof had to be beyond reasonable doubt, although the proceedings were not of a criminal nature. As noted above, he found that the orders had been served on Mr. Athens and Athens Holdings. 11 The primary judge said that Mr. Athens was the sole director and shareholder of Athens Holdings. The Court of Appeal was informed that in fact he held nine out of ten of one class of shares and 99 out of 100 of another class of shares, with the other share in each case being held by a person with the same surname; but there is no suggestion that anything turned on this discrepancy. 12 The primary judge held that "back packers accommodation" in the charge had their ordinary meaning, not a meaning according with a definition contained in the Randwick Local Environment Plan 1998 (the LEP); and thus meant accommodation for backpackers, according to the dictionary definition of the latter term, which the primary judge took to be "a person who travels with clothes and personal belongings in a rucksack". 13 The primary judge found that the premises were used for backpackers accommodation from 11 May 2002 to 9 April 2004 and that during this period the appellants were wilfully disobeying the Court order of 1 June 2001. His judgment included the following reasons: 68 On the evidence before the Court it is clear that persons who answer that description have been residents of the premises during the period referred to in the charge. The evidence establishes that rooms within the premises were used for the purpose of dormitory style accommodation. This fact is not of itself sufficient, however when the evidence of the blue Collins diary and Ms Thompson is cross referenced, it is established that a substantial number of the residents were occupying the premises for short stays and were travellers. The photographs tendered in evidence showed rucksacks or backpacks which the Court infers belonged to such persons. The evidence also establishes that many such residents were tourists from foreign countries who possessed working holiday visas. The Court is satisfied that such evidence establishes that the premises were used for the purpose of backpackers accommodation. Conversations held with council officers with some of the residents simply confirm that they were travellers who were using the premises for short term accommodation.

Submissions 24 Mr. Buchanan SC for the appellants submitted that the order was not enforceable because it was not expressed in clear, certain and unambiguous language: Harris v. Harris [2001] 2 FLR 895 at 922-3 and cases there cited; Attorney-General v. Punch Limited [2003] 1 AC 1046 at [111]. The order was contrary to the well-settled rule that an order should be so expressed that a person to whom it was directed should be able by reading it and without more to know at once what it was that he must do or refrain from doing in order to comply with its terms: The Commissioner of Water Resources v. Federated Engine Drivers & Firemen's Association of Australasia Queensland Branch [1987] 2 QdR 385 at 390. It was not permissible to look beyond the order to aid its construction: McNair Anderson Associates Pty. Ltd. v. Hinch [1985] VR 309 at 311-12, Re A Bankrupt: Rudkin-Jones v. The Trustee of the Property of the Bankrupt [1965] 109 Sol.Jnl. 334. 25 Mr. Buchanan submitted that these propositions were supported by Australian Consolidated Press Limited v. Morgan (1965) 112 CLR 483 at 503-4, 506, 515-16. In so far as the judgment of Barwick CJ at 491-2 was to the contrary, he was in the minority. In so far as Kirkpatrick v. Kotis [2004] NSWSC 1265 at [38]-[60] supported regard being had to surrounding circumstances to construe orders, this was limited to consent orders: cf. Rogers v. Wentworth (unreported, Court of Appeal, 18/4/88). In so far as Microsoft Corporation v. Marks (No.1) (1996) 69 FCR 117 at 143 and Wysznski v. Bill [2005] NSWSC 110 at [36] suggested that ambiguity does not aid an alleged contemnor unless, on at least one reasonable view, the contemnor is not in breach, and/or that ambiguity must carry a real risk of misleading a person bound by the order, these would be incorrect glosses on the principle. Any lack of precision permitted in cases of nuisance (Bankstown City Council v. Allamdo Holdings Pty. Ltd. [2004] NSWCA 325, 135 LGERA 312) was limited to nuisance, the justification being the existence of the possible ways in which nuisance could be committed. 26 Mr. Officer QC for the Council submitted that the rationale of all authorities was that the party bound should know what it is required by the Court order to do or refrain from doing. In this case, if the order is construed as involving the ordinary grammatical use of the words, the appellants would know that meaning. Alternatively, in this case regard could be had to context, particularly as the concession made by Senior Counsel before Sheahan J meant that considerations applied to this case similar to those applying to consent orders. Accordingly, regard could be had to the circumstance that these were class 4 proceedings and the Court's jurisdiction was to restrain breaches of the Environmental Planning Assessment Act and planning instruments, indicating that the intention of the order was to restrain use as backpacker accommodation as defined in the LEP. In any event, the possible ambiguity did not matter, because the ordinary grammatical meaning adopted by the primary judge was more favourable to the appellants, in that it required, in addition to the elements contained in the LEP definition, proof that the residents used backpacks.

Decision 27 The construction of an order in respect of which a finding of contempt is sought may involve two inter-related questions. First, what does the order require, on its true construction? And second, is this sufficiently clear to the person affected by the order to support enforcement of that order against that person? 28 The first question may arise quite separately from the second question in proceedings other than proceedings alleging contempt. There is no doubt that, in addressing the first question, one can consider context in the case of consent orders, in much the same way as one can consider context in construing a contract: see Kirkpatrick at [38]-[45] and cases there cited. In my opinion, it is also plain that, in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings. 29 In a note on this question at 72 ALJ 117, it is stated that "in the case of real ambiguity extrinsic material such as the reasons for judgment may be considered". However, in my opinion the ability to advert to other material is at least as wide as is stated in Repatriation Commission v. Nation (1995) 57 FCR 25 at 34, namely that "evidence of surrounding circumstances is admissible to assist in construction of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a 'plain meaning'"; and cf. Australian Energy Limited v. Lennard Oil Limited [1988] 2 QdR 230 at 232, 233-4. However, in having regard to surrounding circumstances, it is in my opinion relevant to keep in mind that orders are generally framed with a view to their being self-contained and self-explanatory. 30 Approaching the relevant order in this case with these considerations in mind, in my opinion it is clear that the order was intended to engage the definition of "backpacker accommodation" in the LEP. The Court had no relevant jurisdiction to do any more than enforce terms of this planning instrument, and the relevant prohibited use was as "backpacker accommodation" as defined. The Court could possibly have made an order prohibiting some use that was narrower than the prohibited use, but it is not the case that use as backpacker or backpackers' accommodation in the ordinary meaning of the words is in all respects narrower, in that the LEP has the additional requirement that the premises not be licensed under the Liquor Act. The concession made by Senior Counsel for the appellants was in terms of the words referred to in the LEP and was based on the LEP, and no consideration was given either by Sheahan J or the Court of Appeal to the minor variations that existed between the phrase as used in the application, the order, and the definition in the LEP. In my opinion, it is plain from these circumstances that the order on its true construction prohibited use as "backpacker accommodation" as defined in the LEP. 31 Because the matter under consideration here is the question of contempt by breach of the order, it is necessary also to consider the second question I identified. I accept the general principle that, to be enforceable, an order must be so expressed that the person affected knows, or plainly should know, what he or she is required to do or refrain from doing. 32 However, in my opinion, in determining whether an order is so expressed, it is not appropriate to close one's mind altogether to context. For example, if an order refers to a named person or a named address, and it so happens that there are a number of persons with that name or a number of places with that address, the order will be sufficiently clear if the circumstances of the case, well known to the person affected by the order, make it clear which person or which place is being referred to: cf. Kirkpatrick at [55]. 33 Whether or not one can have regard to the judgment in considering this second question may depend on circumstances. In this case, there are the following relevant circumstances. First, the order was made at first instance after a contested hearing in which Senior Counsel for the appellants made the concessions referred to above. Second, an appeal was brought on the instructions of the appellants against these orders, indicating plainly that the appellants must have received advice as to the terms of the orders made against them and also advice concerning their effect. Third, the matter was contested on appeal on the assumption that the orders were against the use prohibited by the LEP, with the concession made at first instance being maintained. Fourth, the result of the appeal was to leave the orders made at first instance standing unaltered. 34 In those circumstances, the matters to which I had regard in approaching the first question were well-known to the appellants, and in my opinion the appellants' understanding of the meaning of the orders can be safely approached on that basis. In those circumstances, in my opinion the appellants knew, or plainly should have known, that the order had the effect of requiring them not to use the premises as backpacker accommodation as defined in the LEP. 35 I do not think the cases relied on by Mr. Buchanan, including Commissioner of Water Resources, McNair Anderson and Re A Bankrupt weigh against this conclusion, or make it a defect of the order that it has to be understood by reference to another document, that is the LEP. In Commissioner of Water Resources, the order in question required reference to the terms of a contract which was not in possession of the persons affected by the order, and also determination whether, by refusing to work in accordance with their own contracts of employment, they were procuring a breach of that other contract. In this case, the relevant terms of the definition in the LEP are set out in the judgment given and appealed against in the circumstances set out above. In the other two cases, the statements relied on were obiter, and not expressed in absolute terms. 36 It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law. 37 In my opinion also, if the only ambiguity on the face of the orders is between two meanings, and the recipient is shown to have breached the order whichever of the two meanings is adopted, that may in any event be sufficient to establish contempt, at least unless it appears that the breach may have been due to uncertainty as to what steps were required. 38 In the present case, the primary judge decided that there was a wilful breach of the order construed in accordance with the ordinary meaning of the relevant phrase. I will consider the significance of this in connection with the eighth issue.

Decision 45 I accept that, if the terms of a charge are sufficiently uncertain, there is no need for a person accused of an offence to show that he or she has been prejudiced. However, where an alleged uncertainty is minor or otherwise such that prejudice is unlikely, it is in my opinion relevant to address the question of prejudice; and if an accused person is unable to point to any realistic possibility of prejudice, that may lead the Court to regard the alleged uncertainty as immaterial. 46 The primary judge held that the particulars given by the Council meant that the charge was that the premises were used as backpackers' accommodation in the ordinary meaning of the words, because the particulars had made no reference to the LEP. Plainly, it would have been better if the particulars had referred to the LEP and set out the terms of the definition; but for the reasons given earlier, in my opinion the proscribed use was use as backpacker accommodation as defined in the LEP, and the appellants knew or should have known this. The absence of specific reference to the LEP in the particulars does not, in my opinion, introduce significant uncertainty into the charge; and where there is no suggestion of actual confusion or prejudice to the appellants in conducting their defence, I do not consider that any uncertainty is material. 47 In my opinion also, there is no ambiguity as to what aspect of use amounted to the proscribed use. The offence is not constituted by particular occasions of provision of temporary accommodation for tourists, but by use of the building for that purpose. It is not a case where an offence is committed in relation to each person so accommodated, and as I will indicate, the case is therefore very different from Johnson. Nor is it the case that the offence can be committed in a variety of different ways, as is the case with the offence of negligent driving, considered in Ex Parte Graham. Furthermore, the service of evidence to be relied on in advance of the hearing meant that the appellants were in no doubt as to the substance of the case they had to meet. 48 The offence charged was a single offence of using the premises as backpacker accommodation, particularised as being for the period from 31 March 2002 and "continuing up to the present time". The particulars were given on 15 October 2003; and at that time the Council could not have alleged a breach occurring after that date. But the allegation of the breach as "continuing up to the present time" would suggest an intention to allege an ongoing breach. 49 There is the theoretical possibility of uncertainty arising from the statement of a commencement date of 31 March 2002, when the order in question was stayed until 15 April 2002 and the Council gave the appellants until 10 May 2002 to conform; and also as to the concluding date, ie whether it should be taken as 15 October 2003 or the date of the hearing. However, in the absence of any suggestion of actual confusion or prejudice, in my opinion these possibilities are immaterial. 50 The fact that the order was stayed until 15 April 2002, and that the Council gave the appellants until 10 May 2002 to conform, means that the Council must have been unable to prove the offence exactly as charged and particularised, that is, commencing on 31 March 2002. But in my opinion, the circumstance that the Council could not prove that the offence continued for the whole of the period alleged in the charge and particulars would not prevent a finding that the offence was proved to the extent of the period actually proved: cf. Caruso v. Holtby [1999] WASC 39, Prout v. La Rosa [2005] WASCA 98. Again, if some actual confusion or prejudice could be suggested, the position might be different, but that is not so in this case. 51 The case is very different from Johnson. In that case, an offence was committed each time a person was seen coming from a licensee's premises on a Sunday outside certain hours, unless the licensee could prove the person was on the licensed premises for a purpose not contrary to the provisions of the licensing statute or without the knowledge or consent of the licensee. In those circumstances, plainly there was a separate offence in relation to each person seen, and the identification of the person the subject of the charge was essential in order that the accused have the opportunity to address the exception to the offence. Accordingly, to charge a licensee in terms that could extend to a number of unidentified persons involved both duplicity and unfair uncertainty in the expression of the charge. For reasons given above, neither consideration applies in this case.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 59 In my opinion, there was no error by the primary judge on the s.138 issue. Mr. Mulcahy's evidence was received into evidence over objection as to hearsay, but no objection to the effect that s.138 applied. Later on, Counsel for the appellants sought to cross-examine Mr. Mulcahy concerning the meaning of the search warrant, and the primary judge ruled that this matter was irrelevant. The question was then not pursued, and no application was made to the primary judge for him to revisit the admissibility of the affidavit in the light of s.138. In those circumstances, while I accept that Mr. Mulcahy's understanding of what he was entitled to do under the warrant could be relevant to an exercise of discretion under s.138, in the circumstances no occasion had arisen for the primary judge to address s.138 at all. 60 In any event, my tentative view is that a warrant authorising a person to search premises for evidence authorises that person to speak to persons encountered with a view to obtaining evidence from them, albeit that those persons are not obliged to respond; that is, in my opinion, for the person authorised by the warrant to take that course is neither a trespass to land nor an impropriety. 61 The dictionary of the Evidence Act defines "civil proceedings" as "proceedings other than a criminal proceeding"; and "criminal proceeding" as meaning "a prosecution for an offence" with qualifications not here relevant. "Prosecution" is not defined. "Offence" is defined as meaning "an offence against or arising under an Australian law"; and "Australian law" is defined to mean "a law of the Commonwealth, a State, or a Territory". 62 Witham v. Holloway (1995) 183 CLR 525 established that proceedings for contempt must realistically be seen as criminal in nature; although this case maintained a distinction between such proceedings and the trial of a criminal charge. The question whether the subject proceedings are "a prosecution for an offence" for the purposes of the Evidence Act is not an easy one. It does not have to be determined in this case, and I will assume in favour of the appellants that it is. 63 In those circumstances, the conversations deposed to by Mr. Mulcahy are not admissible hearsay under s.64. I accept that the stringent requirements for showing that the maker of a statement is "not available" were not satisfied. However, in my opinion not all of what the persons said to Mr. Mulcahy was inadmissible as hearsay. In so far as they said what their intentions were as to the length of their stay, in my opinion this was admissible under s.72 of the Evidence Act as evidence of their intentions, which can in turn be some evidence of the fact: Dobson v. Morris (1975) 4 NSWLR 681. In so far as these persons gave their names, this was hearsay as to whether this was their true identity; but in my opinion it was some direct evidence that this was the name under which they were holding themselves out, so as to be some evidence linking them with other contemporary references to the same name. Accordingly, in my opinion the evidence of conversations was admissible on the crucial question of the length of stay of the persons encountered. 64 As regards the second category, it appears that only three of about 36 names identified by Miss Thompson depended solely on Mr. Mulcahy's evidence: other names were obtained from the blue Collins diary which was admissible as a business record. Even the remaining three were in my opinion appropriately linked, for the reason given above. Since the LEP definition was the relevant one, there was no need to associate persons staying at the property with the actual use of backpacks. In any event, even if there were a need to associate them with backpacks, this would not make the evidence inadmissible. 65 As regards the third and fourth categories, this material was not admissible as hearsay. However, it had possible marginal relevance, in showing that persons looking for backpacker accommodation could have been directed to the appellants, in which event they may have followed the matter further. This evidence is so weak on its own, that it may well have been appropriate to exclude it under s.135 or, on the assumption that these were criminal proceedings, s.137. However, although this material was admitted and recited in the judgment, it was not explicitly relied on in the judge's findings. I do not think material error was shown in relation to these categories of evidence.

Decision 81 The cross-examination on the subpoena was not explicitly made on the "voir dire" or made the subject of directions as in Arnott's and Nortex. I accept that events that occur on the return of subpoenas are often treated informally and regarded as part of the evidence in a case without a formal tender. 82 However, in this case, the subpoena had been returned and partly dealt with before the Registrar, and the cross-examination was then explicitly made in a matter that had been stood over by the Registrar. The proceedings were of the nature of criminal proceedings, and Mr. Athens was one defendant in those proceedings. He could not have been compelled to give evidence in the proceedings themselves, and was subject to being called and cross-examined only because he was the relevant officer of the subpoenaed company. If it had been clear that the evidence would be sought to be used as part of evidence in the proceedings, Mr. Athens had the option of objecting to the evidence under s.128 of the Evidence Act as evidence that might tend to incriminate him, and obtaining a certificate that would have precluded the evidence being used in the proceedings themselves. Finally, the statement of the appellants' Counsel clearly signalled that he had regarded the cross-examination as not being part of the evidence in the case, and he was not contradicted. 83 In all those circumstances, in my opinion the evidence should not have been used as evidence in the case unless tendered or unless an explicit order was made to that effect. If there had been such a tender or if such an order had been sought, there would in my opinion have been a real question as to whether the evidence would have been so treated, having regard to the considerations referred to above. Further, although, if the evidence had been evidence in the case the primary judge could have drawn inferences from his disbelief of Mr. Athens, it would not have been appropriate for him to draw inferences against the appellants on a Jones v. Dunkel basis. 84 For those reasons, in my opinion the primary judge was in error in the way he treated this material. I will further consider the consequences of that error in relation to issue 8.

Decision 96 In my opinion, the element of the charge that the premises not be licensed under the Liquor Act was proved by documents produced by Athens Holdings in answer to the subpoena, being documents which it can readily be inferred were prepared by the appellants for signature by residents. These documents included a statement to the effect that the premises were not licensed. That admission applied at the time of the preparation of the document, but in my opinion the nature of the subject premises together with the presumption of continuance enables the inference to be drawn beyond reasonable doubt for the period covered by the charge. 97 Otherwise, in my opinion, it was proved beyond reasonable doubt that the premises were used for backpacker accommodation for the period charged, essentially for the reasons given by the primary judge, leaving out of the account the matters in respect of which he made errors. 98 I would add to the reasons given by the primary judge, as follows. 99 The issue was whether it was proved beyond reasonable doubt that the building was used for a relevant period for providing temporary accommodation for tourists whose principal place of residence was elsewhere, and was not licensed. The building could not be bed and breakfast accommodation, unless it provided temporary accommodation for not more than five persons; and it could not be a boarding house unless it was not backpacker accommodation. So leaving aside the question of licence, what the Council had to prove beyond reasonable doubt was that, for a relevant period, the building was used for providing accommodation that was temporary to five or more persons who were tourists having a principal place of residence elsewhere. 100 The building in question is a three-storey building. A plan marked up on 16 January 2003 showed it as being set up with about 25 or 30 bedrooms (depending on what are counted as separate rooms), some having one or two beds and some having four, six or eight beds, the total number of beds being about 100. Many of the beds were observed to be bunks. The building had a communal kitchen on each floor. A Council officer attending on 16 January 2003 observed signage giving daily and weekly rates for guys and girls for various "flats" and various types of accommodation (twin, double, triple or four); and also gave evidence that Mr. Athens said to him that there were 66 guests presently at the premises. 101 Copies of receipt books marked "Nightly", "Weekly" and "Check-Ins" were taken on that day, and put into evidence. Those from the "Nightly" book showed many receipts from the end of August 2002 to January 2003 for periods of accommodation for one or two nights, and some for a week. Those from the "Weekly" book showed receipts from October 2002 to January 2003 for periods of accommodation generally of one week. Those from the "Check-Ins" book showed receipts in December 2002 and January 2003 for periods varying between one night and one week. Even allowing for the circumstance that some guests may have stayed longer than a week and paid in weekly instalments, this evidence showed clearly that many guests were using the building as temporary accommodation. 102 Photographs were taken on 16 January 2003 of the pages for 1 to 15 January 2003 of a blue Collins diary which the primary judge inferred was a guest register showing names and addresses of persons staying at the premises on the days in question. Most of the addresses were outside Australia. These names were linked with the evidence from Ms. Thompson concerning working holiday visas. 103 Mr. Mulcahy spoke to a number of persons, including eight who said they intended to stay for periods from two days to two weeks, four who said they intended to stay for between one and six months, and three whose conversations indicated an intention to stay longer term. Some of these persons were also linked to Ms. Thompson's information. 104 On 17 June 2002 and 18 September 2002, the appellants paid invoices for inclusion in The Backpackers Guide to Australia of an advertisement for the building, in which the premises were called "The Aegean Lodge shared budget accommodation" and which included the text "Dorms for $14 per night or weekly discount". 105 In June 2003 and January 2004, the website of the premises, among other things, gave an international phone number, referred to rates from $25 per night per person or weekly discounts, and stated "We can arrange a bus shuttle to pick you up from the airport". 106 Receipts produced on subpoena for the period 17 February 2004 to 9 April 2004 showed receipts for payments for periods of accommodation generally for periods of a few nights or one week, with some being for two or three weeks; and also over 40 statements with names and signatures, in the following printed terms: The Aegean Lodge

                  * delete if not applicable
  107 On some of the signed forms, the words "Address of Lodger" are struck out, and on others the word "here" is placed after those words. The trial period is stated to be either one week, or in some case a period between one and three days.
  108 In my opinion, the primary judge was correct in holding that this did not raise any reasonable doubt that substantial numbers of the persons staying at the premises were tourists and were using the premises for temporary accommodation. As noted earlier, these forms, which must have been prepared by the appellants, demonstrated that the premises were not licensed; and also indicated that the appellants were attempting to suggest that, contrary to the true position, they were not providing temporary accommodation for tourists.
  109 In my opinion, these matters together with the other evidence referred to by the primary judge do show beyond reasonable doubt that the premises were being used in January 2003 for providing temporary accommodation for tourists whose principal place of residence was elsewhere. The fact that some of the occupants were or may have been staying longer term does not count against this finding.
  110 In my opinion, inferences from the content of the website during 2003 and the documents of early 2004, together with the presumption of continuance, justifies a finding beyond reasonable doubt that this state of affairs continued until the dates of the 2004 receipts. In my opinion, leaving aside the issue concerning June 2002, the placing of advertisements in The Backpackers Guide to Australia for which payments were made in June and September 2002, and also receipts going back to August 2002, justify a finding beyond reasonable doubt that this state of affairs did exist from about June 2002 to January 2003. There is some force in the submission that, having regard to the admission made on 18 June 2002 and the non-calling of persons who inspected on 17 June 2002, the Court should not infer beyond reasonable doubt that the premises were used for the purpose of backpacker accommodation around this time; but in my opinion it is not a reasonable possibility that there was use as a boarding house at that time, that is, use essentially to accommodate persons on a long-term basis and not to accommodate tourists on a short-term basis, and that this use then changed, particularly having regard to the receipts to which I have referred, the advertisements in the second half of 2002 and the evidence concerning January 2003.
  111 Finally, I note that, even if it had been necessary to prove that a sufficient number of persons accommodated at the premises used backpacks, so as to show that the premises were used for the purpose of providing backpacker accommodation in the ordinary meaning of the words, evidence of a substantial number of backpacks on the premises on 16 January 2003 would justify an inference beyond reasonable doubt that it was so used, at least at around that time. However, for reasons I have given, this question does not arise.
  112 For those reasons, in my opinion the appeal should be dismissed so far as it relates to the finding of guilt on the first charge.

CONCLUSION 127 For those reasons, in my opinion the appeal should be dismissed with costs. 128 SANTOW JA: I agree with Hodgson JA in the result and, subject to the observations which follow, his reasons. My observations concern how if at all ambiguity may be resolved in court orders and the related question of whether court orders can ever be "completely self-contained and self-explanatory" or indeed should be. Those matters are dealt with at [27] to [38] of the judgment of Hodgson JA. 129 To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows. Likewise the transfer must conform to the contract. To speak therefore of the originating judgment as providing context for resolving ambiguity understates the primacy of that judgment as a source of interpretation of the order. 130 If an order were made in clear disconformity with its originating judgment, that would ordinarily invalidate the order pro tanto. It is the judgment which controls the scope of any consequential orders, setting the parameters for what conformance requires. Contractual context does not operate in so controlling a manner in resolving contractual ambiguity. It is but one aid to construction amongst several. Whereas in the case of ambiguous court orders, it is the judgment which is ordinarily the primary reference point in resolving ambiguity though the wider proceedings may also on occasion assist. 131 I should at this point acknowledge that there is a slight but perceptible divergence between two lines of authority in relation to whether recourse may be had to the reasons for judgment or indeed any other extrinsic material when construing an order. These two lines of authority may be described as representing weak and strong variants of the same principle. 132 One trend of authority (the weak variant) is that it is seldom permissible to go behind an order and examine the reasons for judgment as an aid to construction of that order, the exception being where the order is ambiguous: see P W Young, "Construing Court orders" (1998) 72 ALJ 117; McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 311-312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33-34. 133 The other trend of authority (the strong variant) is that the meaning of words in an order should in an appropriate case be considered by reference to the reasons for judgment, themselves finding their context in the overall proceedings: see for example Australian Energy Ltd v Lennard Oil Ltd [1988] 2 QdR 230 at 232; Kwikspan Putlin System Pty Ltd v Federal Commissioner of Taxation (1986) 86 ATC 4602 at 4605; Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (Santow J, SCNSW, 12 November 1997, unreported). I prefer the latter line of authority. 134 Both lines of authority therefore permit recourse to the reasons for judgment in resolving ambiguity. 135 Ambiguity in orders is resolved primarily by reference to the originating judgment. The premise for doing so is that the judicial officer making the orders must be taken thereby to have intended to give effect to that judgment. However, if the language of the orders proves intractably obscure, then the orders must fail pro tanto. 136 The making of orders is not always a mechanical extrapolation from the originating judgment. There may be room for a range of possible orders, and possible meanings of those orders, which would conform. Then the wider context of the proceedings can have an important bearing, particularly the pleadings which should identify the orders sought. When the meaning of an order is ambiguous, and that ambiguity is not able to be resolved solely by reference to the judgment itself, resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context. Thus it can be highly relevant to know what the successful claimant sought by way of relief. The judgment may need to be understood by reference to how the parties put their cases. 137 Orders when delivered have a continuing life of their own, once the umbilical cord has been thereby severed from the originating judgment. But it does not follow that orders so launched are to be treated thereafter as completely self-contained when it comes to their interpretation. Convenience and clarity, especially for the party bound, dictate that the orders should so far as reasonably practicable, be self-standing. But where, as here, an expression like "back-packer accommodation" is used in Sheahan J's orders, it is perfectly proper to construe it by reference to his originating judgment. Sheahan J, clearly enough, employed that terminology by reference to the relevant LEP, as the context of the proceedings before him makes clear. That should have been the meaning which Cowdroy J attributed to the orders when dealing with their enforcement. Nonetheless, his failure to do so is not fatal to their enforcement by way of contempt, for the reasons given by Hodgson JA, with which I agree. 138 That leads to the question, can and should orders be completely self-contained and self-explanatory? Given that ambiguity is inherent in all language, it would be too much to expect that orders can be expected to be self-explanatory, though that be a worthy ideal. 139 Self-containment for orders is in any event not essential. Thus concision in orders is not always achievable without incorporation by reference of some more complex or detailed matter. The legitimacy of doing so will depend on what is incorporated and how. The fundamental requirement is that such incorporation by reference must not impede the recipient of an order from understanding what the order requires in order to obey it. So long as what is incorporated is readily accessible to the parties, that requirement is fulfilled. Here, for example, had the orders expressly incorporated by reference the relevant definition in the LEP, that would have occasioned no difficulty. Indeed it would have assisted in terms of clarity. The LEP was readily available as a public document and was very much part of the context of the proceedings. Moreover, it was of legislative force, though that feature is by no means essential. Orders would become excessively long if one had to repeat laboriously what could simply and accessibly be incorporated by reference. 140 To sum up: (a) Orders must conform to the judgment which gave rise to them, within the latitude conferred by that judgment. That originating judgment is not just an aid to construction. Rather it is the primary reference point. In that respect construing orders is not like resorting to extrinsic circumstances or external context to resolve ambiguity in a clause in a contract. (b) Where orders are ambiguous, that ambiguity must be resolved first by reference to the originating judgment, unless the language of the orders proves intractable. (c) Orders may also need explication by reference to the proceedings in which the judgment is given, particularly the pleadings. This recognises that a range of orders and their possible meanings may conform to the judgment. (d) While orders should ideally be self-explanatory, language is inherently ambiguous so permitting that resort to resolve ambiguity. (e) Orders should so far as practicable be self-contained. But incorporation by reference is permitted where that to which reference is made is readily accessible and likely to be familiar to the parties, like an LEP. The cardinal principle is that the person to whom an order is directed should readily understand what is required of him by that order. Incorporation by reference may actually assist that understanding, if concision is thereby achieved without loss of clarity. 141 TOBIAS JA: I have had the benefit of reading in draft the judgments of Hodgson JA and Santow JA. I agree with the orders proposed by Hodgson JA for the reasons he has given. I also agree with the additional observations of Santow JA. **********

Australian Energy Ltd v Lennard Oil Ltd

At a glance

Court

Decision date

Before

Source

Judgment (194 paragraphs)

Parties

Cases Cited (25)

Cited By (50)