Chief Executive of the Office of Environment and Heritage v Turnbull

Ex Parte Application 8Initially, the application for temporary injunctive relief was sought on an ex parte basis because of a fear, expressed by Mr Fox in his affidavit, that further clearing of native vegetation, including groundcover, would occur on Colorado if Mr Turnbull was made aware of the prospect of interlocutory orders being sought. 9The Court refused to hear the application on an ex parte basis because the evidence contained in Mr Fox's affidavit did not disclose that adjourning the application for an hour to permit Mr Turnbull, or his solicitor (who was known to OEH) to be given notice of the application would cause irreparable harm to Colorado, or would in some way accelerate the alleged clearing of the native vegetation. That is to say, there was nothing in the affidavit of Mr Fox that gave rise to an urgency or harm that was sufficient to abrogate the obligation of OEH to afford Mr Turnbull procedural fairness. 10As was recently emphasised by the Court in McCullagh v Autore [2014] NSWLEC 46 (at [16]-[19]): 16 It is a fundamental tenet of our system of justice that a party whose interests will be adversely affected should be given the opportunity to be heard. It is an aspect of the rule of law. 17 In this regard I rely on the observations made by Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 (at [150]) (where his Honour quoted from National Commercial Bank Jamaica Limited v Olint Corporation Ltd [2009] 1 WLR 1405, footnotes omitted): 150 Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd: "Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. ... Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none." (Emphasis in original.) 18 International Finance has been quoted and endorsed by this Court on many occasions (for example, in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [6]). 19 There are instances where, by reason of the subject-matter of the litigation (for example, cases involving demolition), it is appropriate to proceed with an application for interim injunctive relief on an ex parte basis notwithstanding that a feeble, or no, attempt has been made to notify the party the subject of the injunctive relief. But these are rare. This was certainly not one of them. 11Accordingly, the matter was stood down for half an hour to permit OEH to contact Mr Turnbull's solicitor. 12Upon resumption, the Court was informed by Mr Howard SC, appearing for OEH, that Ms Heather Irish of counsel would be appearing for Mr Turnbull at noon. On this basis, and given the concession by OEH that it was unlikely that much native vegetation could be unlawfully cleared within 60 minutes, the Court adjourned OEH's application until that time. 13When the matter resumed at midday, Ms Irish informed the Court that Mr Turnbull was travelling from Moree to Queensland (where he resided) by motor vehicle and that it was difficult to obtain instructions due to poor reception. She therefore requested additional time in order to read the documents relied upon by OEH and to obtain instructions from her client. The request was reasonable, and the Court acceded to the application for a brief adjournment of the application. 14The matter continued at 4pm. At that time, Mr Turnbull indicated that he was willing to give an undertaking in terms of the injunctive relief sought by OEH in the summons absent any admissions. Mr Turnbull did not consent, however, to the Court making an order restraining him in the terms sought by OEH.

Legal Principles to be Applied 15The legal principles to be applied in determining whether or not to grant interlocutory relief have been set out in a number of cases in this Court (see Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [6]-[58]; Shoalhaven City Council v Bridgewater Investments [2010] NSWLEC 103 at [4]-[6]; Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 at [37] and Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 at [69]-[82]). 16In Bridgewater Investments, Biscoe J helpfully and succinctly summarised those principles, which I respectfully adopt, as follows (at [4]-[5]): 4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]-[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536. 5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court's anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The "usual undertaking as to damages" is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows: "25.8 Meaning of "usual undertaking as to damages" The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking."

No Undertaking as to Damages Proffered by OEH 17No undertaking as to damages was proffered by OEH. But in circumstances where the party seeking the temporary injunctive relief is a public body acting in the public interest this is not fatal to the application. 18In this regard, r 4.2(3) of the Land and Environment Court Rules 2007 provides the following: 4.2 Proceedings brought in the public interest (3) In any proceedings on an application for an interlocutory injunction or interlocutory order, the Court may decide not to require the applicant to give any undertaking as to damages in relation to: (a) the injunction or order sought by the applicant, or (b) an undertaking offered by the respondent in response to the application, if it is satisfied that the proceedings have been brought in the public interest. 19I am satisfied that the proceedings have been brought by a public body acting in the public interest insofar as there is a real and necessary public interest in protecting the native vegetation of this State by a prosecuting body such as OEH (see Willoughby City Council v Sahade [2000] NSWLEC 38 at [24]; Tegra at [28]-[31]; Hooper v Port Stephens Council [2009] NSWLEC 234 at [28]; Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 at [14] and Liverpool Plains Shire Council v Vella [2013] NSWLEC 54 at [29]).

There is a Serious Question to be Tried 20Turning to whether there is a serious question to be tried, in my opinion, the affidavit evidence of Mr Fox plainly demonstrates that, if the allegations contained in it are demonstrated, Mr Turnbull is likely to have breached the Native Vegetation Act. This is sufficient for present purposes.

The Balance of Convenience Favours the Granting of an Injunction 21As to the balance of convenience, again the evidence of Mr Fox makes it tolerably clear that this favours the granting of the interlocutory injunctive relief in the terms sought by OEH. 22As the ecologists have indicated, only a small proportion of native vegetation is now left on the property by reason of the past and present unlawful clearing of the land. In the absence of Mr Turnbull indicating that he would suffer any prejudice if the restraint was made, there is a need to take immediate action to protect whatever native vegetation remains on Colorado.

Orders 23In conformity with the reasons given above, the order of the Court is that, until 5pm on Wednesday, 24 September 2014, Mr Grant Turnbull is restrained from clearing, or causing, or permitting the clearing, of native vegetation on the land comprising Lots 1 and 17 in DP 755998, known as "Colorado" at, or near, Croppa Creek in New South Wales, in contravention of the Native Vegetation Act 2003. 24Further consequential orders are required to be made upon the granting of the relief above by the Court. These are contained in a short minute of order dated 19 September 2014 provided to the Court by OEH. The Court makes the orders contained in that minute.

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