LDF Enterprise Pty Ltd v State of New South Wales

EX TEMPORE Judgment

1. LEEMING JA: This is an application for leave to appeal from the refusal of interlocutory injunctive relief sought by the owner of land to prevent officers within the Office of Environment and Heritage (OEH) from entering upon that land: LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWSC 350.

Factual background

1. The salient facts may be summarised succinctly. The applicant, LDF Enterprise Pty Ltd, owns land at Bundabah in New South Wales, north of Newcastle. The OEH is conducting an investigation to determine whether any person has contravened s 86 of the National Parks and Wildlife Act 1974 (NSW). That section creates various offences involving the harming or desecration of Aboriginal objects and Aboriginal places.
2. Officers from the OEH have previously visited the site. There was evidence that on 9 June 2016, they accompanied an Office of Water investigation and a note records that they "observed potential breach of Native Vegetation Act which was brought to the attention of the owner". A further visit was conducted on 10 August 2016, and a note records that "OEH officers observed potential breach of NPW Act". A further visit occurred on 21 September 2016, and again on 23 March 2017.
3. There was correspondence between OEH and LDF Enterprise's solicitor throughout this time, culminating in a letter dated 3 April 2017, which is reproduced in its entirety at [28] of the reasons of the primary judge. That letter referred to previous correspondence and stated that OEH intended to attend the premises from about 9.30am on 4 April 2017 to conduct an inspection. The letter named the officers proposed to attend and stated that "the power of entry to land for authorised officers is set out under s 196 of the Protection of the Environment Operations Act 1997". Speaking generally, s 156B of the National Parks and Wildlife Act picks up and applies most of the provisions of Chapter 7 of the Protection of the Environment Operations Act to authorised persons and permits such persons to exercise those functions, relevantly for present purposes, "for determining whether there has been compliance with or a contravention of national parks legislation": s 156B(2)(a). The letter gave particulars of the scope of the investigation and the intended inspection, confirmed that OEH was investigating potential offences under s 86(1), 86(2) and 86(4) of the National Parks and Wildlife Act 1974 but declined to specify the person or persons who were suspected of committing such offences or the date on which the offences were committed, those being matters "under active investigation". The letter concluded: "OEH would like to extend a final invitation to your client to grant his consent to the entry of OEH officers to his property tomorrow. Please provide your client's response at the earliest opportunity, and in all events before 9:00am on 4th April 2017. In the event that consent is not given, or is actively withheld, OEH officers intend to exercise the power of entry under section 196 at 9:30am on 4 April 2017."
4. Shortly before receiving that letter, and notwithstanding the extensive communications between the parties, LDF Enterprise filed a statement of claim and moved ex parte before the duty judge on 3 April 2017 seeking injunctive relief. That application was - unsurprisingly - refused, and instead short service was ordered and the matter stood over to 2pm on 4 April 2017. There was a short hearing that afternoon, following which the primary judge refused to grant the injunction sought. Her Honour gave reasons at 10am the following day.
5. In the meantime, by orders made on 6 April 2017 in this Court, an interim injunction up to and including 3 May 2017 (which is today) has been granted, and a concurrent hearing of the application for leave and the appeal has been directed.

Jurisdiction

1. The first question is whether the primary judge had jurisdiction to make the orders sought (and whether this court had power to grant an interim injunction). The "first duty" of a court is to determine whether it has jurisdiction: see Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [9].
2. There is no issue as to the title of LDF Enterprise, nor its right to exclude a trespasser. There is no issue that officers of the OEH claim an entitlement to enter the land deriving from s 196 of the Protection of the Environment Operations Act 1997 (NSW). The issue arising before the primary judge, and sought to be reagitated in this Court, is whether the lawful authority relied upon by the OEH was vitiated by reason of an alleged failure to afford procedural fairness. The primary judge addressed jurisdiction at [49] in her reasons as follows: "For completeness, I note that I raised the issue of this Court's jurisdiction to hear the proceedings, which concerns legislation often considered by the Land and Environment Court. Mr Larkin submitted that, as the relief sought was an injunction to protect a common law right (to be free of trespassers), this Court was appropriate. He referred me to s 20 of the Land and Environment Court Act 1979 (NSW) and submitted that none of the provisions was apt to describe these proceedings. Mr Jordan did not submit to the contrary."
3. Without intending to convey any criticism, given the urgency with which proceedings had been commenced, with which the defendant was required to respond, and in respect of which a decision was required of her Honour, it appears that her Honour was not as well assisted on this threshold question as she might have been.
4. Section 71 of the Land and Environment Court Act 1979 provides as follows: "71 Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act."
5. Section 58 of the Land and Environment Court Act deals with appeals and is not relevant. Section 20(1)(e) identifies the general class of matters falling within "Class 4" of the jurisdiction of the Land and Environment Court, by reference to the proceedings referred to in subsection (2). That subsection provides as follows: "20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement ... (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract."
6. The "planning or environmental law" referred to is defined in subsection (3), by reference to a series of statutes, including the National Parks and Wildlife Act 1974 and the Protection of the Environment Operations Act 1997.
7. The consequence is that in respect of matters involving what may broadly be described as judicial review of the enforcement of rights, obligations or duties, or the exercise of functions, conferred or imposed by a wide range of planning or environmental laws, including the National Parks and Wildlife Act and the Protection of the Environment Operations Act, not only is jurisdiction invested in the Land and Environment Court, but that jurisdiction is exclusive of that of the Supreme Court. Proceedings answering that description may neither be commenced nor maintained in the Supreme Court.
8. Section 72 of the Land and Environment Court Act authorises the Supreme Court to transfer "proceedings commenced or purporting to have been commenced in the Supreme Court" which "could or should have been commenced" in the Land and Environment Court to that Court. That section does not apply to proceedings in, inter alia, Class 4 of the jurisdiction of the Land and Environment Court. However, s 149B of the Civil Procedure Act 2005 (NSW) confers power to do so, including on the Court's own motion.
9. LDF Enterprise's statement of claim seeks declarations that various entries onto its land would constitute trespasses and injunctions preventing officers of the OEH from entering onto the land without its consent. True it is that on the face of the statement of claim there is no reference to the statutory authority and the alleged obligation to accord procedural fairness on which LDF Enterprise's case rests, which had been debated in the extensive correspondence between the parties. But the real issue between the parties, which was argued before the primary judge and in this Court, was whether there was an obligation to afford procedural fairness to LDF Enterprise before exercising the statutory function of entering onto the land, and, if so, whether that obligation was breached.
10. There are at least two ways in which the prohibitions in s 71(1) read with s 20(2) are attracted. The first is that the declaratory relief sought by LDF Enterprise, to the effect that various proposed entries onto its land and activities on the land "would, if carried out, constitute a trespass to the Land", answers the description of a declaration of right in relation to a right, obligation or duty or the exercise of a function conferred by a planning or environmental law, within the meaning of s 20(2)(c).
11. The second is that the injunctive relief sought by LDF Enterprise all turns upon its claim that it was not accorded procedural fairness when the power under s 196 of the Protection of the Environment Operations Act was or was to be exercised. LDF Enterprise contended that the power under s 196 may only be exercised after first according procedural fairness to the landowner, and seeks injunctive relief to enforce the obligation or duty it claims is owed to it. Even if the obligation or duty to accord procedural fairness is better regarded as an incident of the common law rather than statute, it still falls naturally within the ordinary meaning of s 20(2)(a). That is because the issue in dispute concerns the limits of the statutory power.
12. It is no answer to either of the ways in which s 71(1) read with s 20(2) is engaged to say, as did Mr Larkin who appeared with Ms Byrne for LDF Enterprise, that the proceeding is "tortious" or alleges a cause of action in tort. The legislation does not speak in terms of causes of action, but instead refers to the concepts of enforcing, reviewing and commanding certain rights, obligations, duties or functions, and making declarations of right in relation thereto.
13. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558, Gummow J observed that: "[i]n the past, significant questions of public law frequently were determined not by the prerogative writ procedures but as issues in actions for damages at law or in equity suits. In such litigation the plaintiff claimed redress for tortious injury to private or individual rights." After instancing Ashby v White (1703) 2 Ld Raym 938; 92 ER 126; Musgrove v Chun Teeong Toy [1891] AC 272 and Bradlaugh v Gossett (1884) 12 QBD 271, his Honour observed: "This appeal shows that such issues may still arise for determination in this fashion. It also demonstrates the need to avoid a narrow classification of what is involved in 'administrative law' litigation."
14. The same reasoning applies to the construction of s 20(2) of the Land and Environment Court Act, and the evident purpose of that provision, which is to entrust matters of that nature to the exclusive jurisdiction of that specialist court. The proceedings commenced by LDF Enterprise answer the description of the proceedings specified in s 20(2) of the Land and Environment Court Act. The only issue was the scope and nature of the power conferred upon OEH officers by s 196 of the Protection of the Environment Operations Act.
15. In reaching that conclusion, no question arises as to the principle of construction stated in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 as to the inappropriateness of reading provisions conferring jurisdiction upon courts by making implications or imposing limitations which are not found in the express words. Section 20(2) read with s 71 delineates an area of exclusive jurisdiction, conferring jurisdiction on one superior court of record and denying that same jurisdiction to another superior court of record. The principle has no operation.
16. It is not necessary to consider the position where part of a proceeding attracts the prohibition in s 71, but another part does not. This is a clear case. The whole of the case raised by LDF Enterprise falls within the section.
17. That is a threshold reason why it was inappropriate to grant any interlocutory relief.

Procedural fairness

1. If the primary judge lacked jurisdiction to deal with the matter, arguably this Court should do no more than record that conclusion. On the other hand, the way the parties presented the case to the primary judge and the correctness of the reasoning may affect orders as to costs, both below and in this Court. Further, if there were any doubt about the correctness of the conclusion as to jurisdiction, the need for an expeditious resolution of the dispute warrants this Court dealing with the substantive issues, if it is in a position to take that step. It is in that position because the parties have made written and oral submissions on a further question of law, which is whether there was an obligation to accord procedural fairness to the landowner before exercising the power of entry under s 196 of the Protection of the Environment Operations Act, in its operation as picked up by s 156B(2)(a) of the National Parks and Wildlife Act.
2. The primary judge said that she had "considerable reservations" about an obligation to accord procedural fairness. Her reasoning on this point at [42]-[43] was as follows: "The duty to act fairly may not, in these circumstances, require the landowner to be given an opportunity to be heard before the power to enter is exercised. There is much force in the argument that to imply such an obligation would impair the operation of the POEO Act and the investigative powers conferred on authorised officers. It is, in my view, also of significance, that s 196 contemplates that entry can be authorised by a warrant issued pursuant to s 199. The obtaining of a warrant by its nature excludes procedural fairness, at least for a limited period. Indeed, one might think that it would compromise the purposes of the exercise of the power in some cases for the landowner to be notified of the timing and purpose of the entry. However, for the purpose of an application for interlocutory relief, when there was little time for detailed argument on the question, I am prepared to accept that it is arguable that the principles of procedural fairness regulate the exercise of the power of entry in the present case and that the plaintiff had to be given some notice of the proposed exercise of the power of entry and some opportunity to be heard."
3. Her Honour found, on the assumption that procedural fairness was required, that it had been given, and indeed that the contrary was "scarcely arguable": at [46]. Her Honour also considered that the balance of convenience favoured declining relief.
4. Section 196 is the first section contained in Part 7.4 of the Act, which is headed "Powers of entry and search of premises". The section provides: "196 Powers of authorised officers to enter premises (1) An authorised officer may enter: (a) any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out - at any time during which those activities are being carried out there, and (b) any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused - at any time, and (c) any other premises - at any reasonable time. (2) A power to enter premises conferred by this Act authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft, or in any other manner. (3) Entry may be effected under this Act by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force. (4) Entry may be effected to any premises with the authority of a search warrant under section 199."
5. LDF Enterprise pointed to the importance of a landowner's right of exclusive possession: Plenty v Dillon (1991) 171 CLR 635, and to the requirement that "Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language": Coco v The Queen (1994) 179 CLR 427 at 436.
6. LDF Enterprise acknowledged that the obligation to accord procedural fairness could be excluded, but maintained that the Act did not sufficiently clearly do so. In Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75], the High Court framed the principle as follows: "The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme."
7. For the reasons which follow, the statutory scheme clearly displaces the presumption that the power conferred by s 196 is conditioned by an obligation to accord procedural fairness.
8. Before identifying those reasons, however, it should be noted that there is, arguably, an antecedent question, namely whether any common law duty to accord procedural fairness is engaged. Generally, the obligation to accord procedural fairness is engaged only where there is a decision-making process which precedes the exercise of a power. For example, the powers of police officers to conduct investigations, arrest persons and obtain search warrants are not subject to any obligation to give the object of the proposed action an opportunity to be "heard" before the action is taken. An example may be found in the powers conferred on maritime officers to detain persons at sea and remove them to another place: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [51]-[53] (French CJ); [358]-[361] and [366]-[368] (Gageler J, Crennan J at [227] agreeing) and [500]-[503] (Keane J). The fact that there may be communications between an officer and another person prior to the exercise of the power, or that the person is given notice of the time and place at which a power may be exercised, are not circumstances which necessarily demonstrate an obligation to hear the person as to why the power should not be exercised. On that approach, the valid exercise of the powers of entry and inspection involved in this case were not conditioned upon any common law obligation to accord the owner of the property an opportunity to be heard as to why the power should not be exercised.
9. The alternative approach is that which underlay the submissions by LDF Enterprise, namely a consideration of whether, by implication if not expressly, the statutory provisions excluded the obligation to accord procedural fairness. It is convenient to turn to the reasons why, on that approach also, the applicant's case fails.
10. First, s 196(1) is to be read as a whole. The subsection distinguishes between the power of entry "at any time" in paragraphs (a) and (b), where an authorised officer reasonably suspects any industrial, agricultural or commercial activities are being carried out or pollution occurring, and "at any reasonable time" in paragraph (c), which applies to all cases falling outside paragraphs (a) and (b). There is no scope for holding that the obligation to accord procedural fairness applies only to paragraph (c) and not paragraphs (a) or (b), and, to be fair, LDF Enterprise did not submit that it did. It is difficult to construe words of generality ("at any time") as meaning "at any time, subject first to the landowner having been notified and given an opportunity to be heard".
11. Secondly, s 196(3) in terms authorises the use of "reasonable force". That is to say, it authorises entry where the occupier has not consented. The most likely circumstance for the need for reasonable force is that the occupier has not been notified in advance of the entry being effected. This accordingly tells against LDF Enterprise's construction.
12. Thirdly, s 211(3), which is also in Chapter 7, provides: "(3) A person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer's powers under this Chapter is guilty of an offence."
13. For the same reasons, the presence of s 211(3) tells against LDF Enterprise's construction. A likely occasion for wilful delay or obstruction is when a landowner has not received notice of entry.
14. Fourthly, Chapter 7 is entitled "Investigation". The chapter commences with s 184, which is in the following terms: "184 Purposes for which powers under Chapter may be exercised Powers may be exercised under this Chapter for the following purposes: (a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act, (b) for obtaining information or records for purposes connected with the administration of this Act, (c) generally for administering this Act and protecting the environment."
15. The purpose of investigating compliance and contravention in legislation to protect the environment would not be furthered by qualifying the generally worded power of authorised officers to enter premises, so that it may only be exercised after notice has been given. It is easy to see how many investigations could be frustrated if notice were given (consider pollutants being discharged on occasion into waterways rather than in a more expensive lawful fashion). This Court is required to prefer a construction which promotes the purpose of the Act: Interpretation Act 1987 (NSW), s 33.
16. Fifthly, s 197 provides that the Part does not empower entry into residential premises without the permission of an occupier or the authority of a search warrant under s 199. Section 199 authorises search warrants to be issued generally in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) where an authorised officer believes on reasonable grounds that the Act is being or has been contravened or that there is a matter or thing on the premises connected with an offence under the Act. Those provisions do not require notice to be given of the possible issuing of a warrant. Rather, s 65 of the latter statute gives the person the right to receive notice of a warrant at the time of entry or as soon as possible thereafter.
17. Although LDF Enterprise submitted that the regime required a warrant in all cases of nonconsensual entry onto residential premises and involving "independent judicial oversight", there is some force in the submission advanced by Mr Hutley, who appeared with Mr Emmett for the State, that it would be incongruous if, in the case of entry into residential premises, there was no right to be heard in advance, but in the case of entry into non-residential premises, there was by implication sourced in s 196 a right to a greater level of notice. That incongruity tells against the construction for which LDF Enterprise contends.
18. Sixthly, s 189(2) qualifies the rights conferred upon authorised officers, including the right of entry. That subsection provides: "In the course of exercising the functions of an authorised officer or enforcement officer under this Act, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person the officer's identification card, issued in accordance with this section, or, in the case of a police officer, the officer's police identification."
19. Once again, the terms of that provision tend to sit ill with the right only being exercisable after notice has first been given to the landowner. Further, this obligation, together with those in s 196(3) and s 211(3) referred to above, is suggestive of an analogy with the powers conferred on police officers. So too does the power of seizure conferred by s 198(2)(h) and (3) of things connected with offences. More generally, that analogy is strengthened by the law enforcement function of Chapter 7, at least in its application by s 156B(2)(a) of the National Parks and Wildlife Act.
20. In its written submissions, LDF Enterprise relied on this Court's decision in D'Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374. That decision imposed minimal requirements upon the contents of a notice issued under s 193 requiring the production of information or records. The decision does not relevantly bear on the issue in the present case. A decision on the scope of the obligation to notify under a different section, in which notification is expressly required, does not assist the construction of s 196 which is silent as to notice.
21. For those reasons, the duty on which LDF Enterprise's claim for interlocutory relief depends, does not exist. The requirement of unmistakable and unambiguous language is made out. The abrogation of the right to procedural fairness does not, contrary to the tenor of some of LDF Enterprise's written submissions in reply, require express language. The question being one of law, and in light of the full submissions received from both sides in advance of the hearing, there is no utility in merely addressing this issue at the level of a serious question to be tried.
22. For that further reason, there was no error in the primary judge refusing interlocutory relief.

Other matters and orders

1. It is not necessary to address the balance of convenience, although it should be noted that an essential aspect of LDF Enterprise's claim for equitable relief was that damages would not be adequate. LDF Enterprise repeatedly submitted in writing that if an injunction were not granted, its rights would be rendered nugatory. That submission tends to elide the obligation upon LDF Enterprise to demonstrate the inadequacy of its remedies at law.
2. In my view, although there should be a grant of leave to appeal, the appeal should be dismissed, with costs.
3. In accordance with s 71, the underlying proceeding should not have been commenced, and may not be maintained in the Supreme Court. However, the proceeding is not a nullity, and this Court had, at the very least, jurisdiction to determine whether its jurisdiction had been properly invoked: Re Macks; ex parte Saint (2000) 204 CLR 158; [2000] HCA 62; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32. It also had power to order costs: Proust v Blake (1989) 17 NSWLR 267 at 272; Khatri v Price (1999) 95 FCR 287.
4. It was conceded that if this Court reached the view that there was no obligation to accord procedural fairness, then there was nothing left in the case. Accordingly, the statement of claim should be dismissed, with costs. No order is necessary, but it follows also that the notice of motion which may have been filed seeking further interlocutory relief is dismissed.
5. The orders proposed are:
6. Grant leave to appeal.
7. Direct LDF Enterprise to file a notice of appeal in the form contained in the white folder within 7 days, and otherwise dispense with the rules as to service.
8. Appeal dismissed.
9. Dismiss the statement of claim in proceeding 2017/100386.
10. LDF Enterprise to pay the State's costs in this Court, including the reserved costs of the hearing before Emmett AJA.
11. LDF Enterprise to pay the defendants' costs at first instance.
12. BASTEN JA: I agree with the orders proposed by Leeming JA and with his reasons.
13. MACFARLAN JA: I agree with the orders proposed by Leeming JA and, subject to one qualification, with his Honour's reasons. The qualification is that I would base my conclusion concerning jurisdiction only on s 20(2)(c) of the Land and Environment Court Act and not express a view concerning the applicability of s 20(2)(a) to this case.

Amendments 16 February 2018 - [11] - heading added to legislative extract; legislation amended to correct form. [20] - second line - "Land and Environment Act" corrected to "Land and Environment Court Act". [20] - fourth line - "LDK Enterprise" corrected to "LDF Enterprise". [29] - authorised citation for Minister for Immigration and Border Protection v SZSSJ added [40] - first line - "requiring" corrected to "required". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2018