Submissions and consideration
24 The plaintiffs' primary submission is that neither the SERM Act nor the Amending Act in terms authorises the exclusion from the Botany Site by the defendants of the plaintiffs. They submit that the only power to exclude is in s 60L and it is common ground that the precondition for the operation of s 60L has not been established. It is also common ground that the defendants do not rely upon s 60L.
25 The plaintiffs submit that they have a right to possession of the Botany premises. Their exclusion by the defendants consequently involves the deprivation of a fundamental right which they have under the common law to occupy the Botany site. For either the SERM Act or the Amending Act to authorise that result there must be a clear provision to that effect in either or both the Acts. The plaintiffs rely upon the statement of principle in Coco v The Queen (1993 - 1994) 179 CLR 427 at 436:
"Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. "
26 The plaintiffs accept that under the Acts the defendants have authority to enter and occupy the Botany Site. They submit, however, that this authority does not extend to excluding the plaintiffs from also occupying the site. This is particularly so since the emergency works are essentially restricted to that part of the site adjoining Botany Road which leaves the majority of the site unaffected by the defendants' activities.
27 The plaintiffs submit that the correct characterisation of the legislation is that it does not contemplate the usurpation of the right to occupy the relevant site by those entitled to possession but authorises the entry of specified persons onto the site to carry out specified tasks. There is nothing in the legislation, either expressly or impliedly, which authorises the expulsion and exclusion from the site of those otherwise entitled to possession.
28 The defendants' response is that the Amending Act defines the Botany site as the whole of the development site not just that adjoining Botany Road and that the emergency works as defined are not restricted to any particular part of the Botany site but extend to the whole site, albeit with an emphasis on the walls. Accordingly the granting of access to the site to carry out the emergency works not only includes a power to enter and occupy the Botany site, but also includes a power to exclude those presently occupying the site. In other words there is an incidental power to exclude. The incidental power arises because it would not be possible to perform the emergency works on the Botany site without having such a power. In that regard the court's attention was drawn to the fact that clause 11 of the Amending Act not only gives a power to carry out the emergency works but imposes a requirement that those works be carried out.
29 As an issue of fact the defendants submit that Ward cannot carry out the emergency works as required by the Amending Act unless it not only has access to the whole of the Botany site but Baseline and the plaintiffs are excluded from it. This submission is based on the assertion of Mr Bradley [19] that it is not possible for Ward and Baseline to both occupy the Botany site and to perform work thereon safely.
30 I accept that the Acts authorise the entry onto the Botany site by the defendants and their contractors for the purpose of carrying out the emergency works. I accept that in terms the Acts do not authorise the exclusion from the Botany site of the plaintiffs. I accept that the Acts include an incidental power to exclude the plaintiffs from parts of the Botany site. I do not accept as a matter of statutory interpretation that the Acts necessarily exclude the plaintiffs from the whole of the Botany site. The incidental power only extends to excluding the plaintiffs from that part of the Botany site where the emergency works are being carried out.
31 I have reached this conclusion because I cannot see how from a practical point of view, the defendants could carry out the emergency works required under the Amending Act without having a power to exclude from those specific locations where the works were being carried out, anyone (including the plaintiffs) who might get in the way or interfere with the efficient completion of those works. However, I do not see why the power to exclude would extend beyond an area necessary to be occupied by the defendants and their agents in order to effectively carry out the emergency works. For example, I can see no basis for excluding from the whole of the Botany site senior executives of the plaintiffs when the site contains plant and infrastructure which is the property of Baseline. In other words I interpret the defendants' power to exclude as being no greater than that which is necessary to allow the emergency works to be carried out effectively (and therefore without interference or interruption).
32 It follows that I accept the characterisation of the legislation put forward by the plaintiffs, ie that the Acts envisage the owner, or those otherwise entitled to possession, remaining in possession of a site but being obliged to allow the Director-General and his contractors entry to perform emergency works and to allow those contractors to occupy so much of the site as is necessary to enable them to perform those works but no more. As I have indicated, that power to occupy and perform emergency work carries with it an incidental power to exclude persons from the specific locations on site where emergency works are being carried out. Once those emergency works have been carried out, however, the incidental power would not extend to the excluding persons from those locations unless those persons were likely to interfere with or in some way reduce the effectiveness of the emergency work.
33 That, of course, answers only part of what is at issue between the parties. The remaining question is really one of fact and degree. It is the question of how much of the Botany site needs to be occupied by Ward to perform the emergency works and therefore to what extent, if at all, Baseline and the plaintiffs should be excluded from that part of the site.
34 The plaintiffs submit that it is not necessary for the defendants and their contractors to occupy the whole of the Botany site. They submit that the evidence makes clear that the focus of the emergency works is the wall and berm adjoining Botany Road. They submit that the defendants should be restricted to that part of the site and that they should be allowed to carry out development work associated with their project on the rest of the site. They accept that such development work must not interfere with the carrying out of the emergency works.
35 Although the plaintiffs are of the opinion that the earth ramp constructed by the defendants and running from Wyndham Street has unnecessarily complicated the development work, they are prepared to accept its presence and to perform other work on the site which neither interferes with it nor the emergency works.
36 The plaintiffs point to the fact that Botany Road was opened on 16 April together with the completion of the berm adjoining Botany Road as an illustration that the immediate emergency has now been largely addressed and that the only works to be carried out by the defendants involve a consolidation of the work which has already been done, ie the affixing of rock anchors to ensure the stability of the Botany Road wall.
37 The plaintiffs refer to the intervention of the CBA and that the defendants may be in occupation of the Botany site for up to sixteen weeks. They submit that unless they are allowed to reoccupy the Botany site, or at least part of it, they will lose their finance, the project will be aborted with consequential job losses and they will suffer losses of millions of dollars, not only from the failure of the project but because of unfulfilled contracts and sub-contracts.
38 The defendants submit that they need to occupy the whole of the Botany site. They point to the possibility that problems might arise in relation to the other walls and they specifically refer to a leak which has appeared in the Wyndham Street wall. The leak in the Wyndham Street wall, of course, is controversial in that the plaintiffs' contend that this was a problem caused by Ward in excavating too deeply beneath the Wyndham Street wall in order to strengthen the berm supporting the Botany Street wall.
39 As indicated, the other matter relied upon by the defendants is that it will be impractical to have two head contractors on site performing different kinds of work, ie Baseline and Ward. Ward would be performing the emergency works, whereas Baseline would be trying to carry out development work associated with the project. The defendants referred the court to photographs of the emergency works and the Botany site to illustrate that the site is not sufficiently large to enable employees of Ward and Baseline to work together without difficulties arising, particularly safety considerations.
40 In essence they submit that it is simply not practical to have Baseline and Ward occupying the Botany site and that consequently the court should not make such an order. They also point to the likelihood that such a situation would give rise to conflicts on site which will again require the intervention of the court.
41 In relation to that submission, I have been troubled in these proceedings by the somewhat highhanded approach of the defendants. Given that the ultimate purpose of the legislation and subsequent entry and occupation of the Botany site was to deal with the emergency as effectively and as quickly as possible, it is extraordinary that no attempt to consult or co-operate with the plaintiffs occurred after entry. This, of course, was contrary to the recommendation of Mr Wilkins from the Department of Commerce to the Department of Premier and Cabinet of 4 April 2008 (see para [16] of previous judgment).
42 Even if it were necessary initially to occupy the whole of the Botany site it was never necessary, or for that matter permissible under the legislation, to exclude senior executives of the plaintiffs from the site by the use of security guards.
43 It is also clear and was implicitly conceded in submissions, that the defendants have little regard for the very real financial problems confronting the plaintiffs and are not prepared to co-operate or assist to alleviate same. I can see no benefit for anyone if the development project collapses. Whereas the defendants' approach may have been an appropriate response when the focus was on re-opening Botany Road and protecting the surrounding properties which was the position on 7 April, it is not an approach which is appropriate at the present time when those objectives have been largely achieved. Without wishing to sound too sanctimonious, now that the emergency situation has been stabilised, co-operation to complete the emergency without unnecessarily delaying the development project, should be the focus of both sides.
44 As indicated, the legislation did not authorise the defendants to exclude senior executives of the plaintiffs from entering the Botany site unless those persons were likely to interfere with the carrying out of the emergency works. There is no evidence to that effect nor has any submission been made to that effect.
45 The plaintiffs have persuaded me that it is not necessary for the defendants and Ward to occupy the whole of the Botany site in order to carry out the emergency works. They have not satisfied me, however, that a division of the Botany site into sectors such as "Area X" and "Area Y" provides an adequate solution to the dispute. Such a division into sectors has no regard to the requirement for both workforces to have access to toilet and ablution facilities and other joint infrastructure on site. I am also mindful of the defendants' complaint at the commencement of this application that they did not have enough time to respond to the plaintiffs' factual evidence on this issue.
46 Accordingly, although the plaintiffs have generally succeeded in their submissions as to how the Act should be interpreted and applied, I find that I am not able to make the orders sought by them. Those orders largely depend upon a division of the Botany site into "Area X" and "Area Y". The best I can do on the limited evidence available is to make orders in general terms allowing the plaintiffs to re-enter the Botany site and to carry out work in relation to their development project provided that such work does not impede the carrying out of the emergency works by the defendants and Ward.
47 I make the following declarations and orders: