[1981] HCA 39
Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95
Source
Original judgment source is linked above.
Catchwords
[1981] HCA 39
Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95
Judgment (5 paragraphs)
[1]
Solicitors:
Local Government Legal (Applicant)
N/A (Respondents)
File Number(s): 2024/00061055-002
[2]
JUDGMENT
The First Respondent Mr Gazecki and the Second Respondent Ms Decorte (the Respondents) own rural land at Upper Myall Road Warranulla (the Land) on which they have built three dams. The Applicant Mid-Coast Council (the Council) has commenced Class 4 proceedings seeking declarations and an order that the Respondents submit the required landform restoration plan for Dam 1 to the Council in accordance with directions 1 and 2 of the restore works order inter alia. A related Class 1 proceeding commenced by Ms Decorte appeal a development control order issued in relation to dams on the Land by the Council and have a hearing date on 29 and 30 October 2024. As of 12 August 2024 the Respondents are representing themselves.
On 15 April 2024:
1. The Respondents gave an undertaking (the Undertaking) in the Class 4 proceeding for certain interim works to be done in respect of Dam 1; and
2. the Court made orders, by consent, in the Class 1 proceeding staying the development control order in respect of Dam 1 conditional on compliance with the Undertaking.
By notice of motion (NOM) filed 3 August 2024 set down for hearing on 13 August 2024 the Respondents sought to vary the Undertaking. The Undertaking required various things to be done including interim works to be carried out by 1 August 2024, which has not occurred. Following my questioning of whether the Court had power to amend an undertaking that had effectively lapsed the parties agreed I did not on 16 August 2024, the date the Respondents' NOM was stood over to. It is unnecessary to decide but I note that I probably do not have any power to amend an undertaking in the absence of agreement of the parties in any event, see Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 601, Cutler v Wandsworth Stadium Ltd [1945] 1 AII ER 103 at 105.
On the morning of 16 August 2024 the Respondents sent emails without leave to my chambers and the Registry attaching an amended NOM and multiple affidavits. The Respondents sought to rely on this amended NOM at 2.30pm on 16 August 2024 when the NOM was otherwise before the Court. The Council did not object to the amended NOM being before the Court despite the lack of notice. Hearing of the amended NOM commenced on 16 August 2024 and continued on 19 August 2024.
The amended NOM seeks an order that the Respondents be released from the Undertaking and proposes a new undertaking. These orders are opposed by the Council. The Undertaking states as follows:
Terms of undertaking
The respondents undertake to the Court to:
1. Within seven (7) days of the date of these Orders, the respondents must:
a. use an Industrial pump to dewater Dam 1, being the dam referred to in the Summons filed in these proceedings on 16 February 2024; and
b. create an opening in the northern wall of Dam 1 adjacent to the 3x600mm culvert pipes, providing a direct flow path from the dam to the pipes. The opening must be down to natural ground level as a minimum. The opening must be 3m wide at the base and a 1:4 batter applied to the sides of the opening to facilitate the anticipated flow potential.
2. Pursuant to section 9.46 of the Environmental Planning and Assessment Act 1979, within 21 days from the date of these Orders, the respondents are to prepare and submit to the Applicant for its review and approval, specifications in relation to the following interim works (Interim Works):
a. Alteration to the weir for Dam 1 to allow for the temporary drainage of dam waters, to an acceptable level, to mitigate any unacceptable risk to the Applicant's road infrastructure on the adjacent Upper Myall Road, Warranulla;
b. Installation of a new drainage pipe or pipes generally equivalent to the original (diameter/ hydraulic capacity, structural capacity, nature and extent) for the purposes of conveying water from the first order stream which crosses the registered easement adjacent to Dam 1; and
c. Reinstatement of the easement track adjacent to Dam 1 to its original approximate natural and state relative to levels, compaction and stability. For this purpose:
i. A geotechnical engineering report for the proposed rectification works to the easement is to be prepared on behalf of the respondents for the review and approval of the Applicant;
ii. The report is to be prepared by a suitably qualified NER (or equivalent) registered geotechnical engineer;
iii. The report is to identify the existing soil profile through core hole testing for not less than five (5) locations within the disturbed surface area in the easement; and
iv. Such report is to include recommendations as to the scope of, the engineering design specification and work method for returning the ground to its predevelopment condition.
3. The respondents are to carry out the Interim Works within 28 days of receiving the Applicant's approval pursuant to Order 2 above. In doing so, the reinstatement of the easement track is to be undertaken in accordance with the work method approved by the Applicant.
4. Within 7 days of completing the Interim Works, the respondents are to provide to the Applicant a final report from the engineer referred to in Order 2(c)(ii) above certifying that the works have been carried out in accordance with the recommendations of the report described in Order 2(c).
5. For the purposes of orders 1, 2 and 3 above, the respondents are to:
a. ensure that the release of any water from Dam 1 is carried out in an environmentally sensitive manner which, at a minimum, prevents the water from discharging from the Land referred to in the Summons;
b. at all times ensure that all spoil generated from the works required by Order 1(b) above or the Interim Works is stockpiled a minimum of 40 metres from any watercourse, easement or boundary. Any stockpiles must be no more than 2m high, have batters of no steeper than 1:2, be mechanically compacted and have their exposed surface smoothed;
c. within 7 days of the date of these Orders, install adequate erosion and sediment controls in accordance with Managing Urban Stormwater: Soils and Construction (commonly known as the 'Blue Book') to prevent pollution of the waters within the watercourse emanating from Dam 1, including within the Council stormwater pipes and associated works both under and on either side of Upper Myall Road. This is to include (but not be limited to) sediment fencing on either side of the piping inlet (to minimise polluted waters entering the pipes), and adjacent to the northern wall of the other dam within the Premises that is closest to the Myall River (to prevent waters escaping into the river and banks);
d. once installed, maintain the erosion and sediment controls referred to in Order 5(c) above in accordance with the Blue Book to prevent pollution of waters, until further notice from the Applicant or order of the Court; and
e. ensure that the replacement pipe(s) referred to in Order 2(b) above are located wholly within the easement referred to in that Order.
Paragraph 3 of the Undertaking required the Respondents to carry out the interim works listed in par 2 within 28 days of receiving the Council's approval of specifications prepared by the Respondents in relation to those works. Works required by the Undertaking were approved by the Council on 4 July 2024. The expiry date to do the work was 1 August 2024.
The proposed undertaking seeks to amend pars 2(b), (c), 3, 4 and introduces a new par 6. Amendments to par 4 do not need to be considered in light of my ultimate finding. The Respondents' proposed changes to par 3 are as follows:
3. The respondents are to carry out the Interim Works within 28 days of receiving confirmation from the proposed earthworks contractor that it is suitable for the works to commence receiving the Applicant's approval pursuant to Order 2 above. In doing so, the reinstatement building of the easement track is to be undertaken in accordance with the work method approved by the Applicant on 4 July 2024.
The Respondents' proposed new par 6 is as follows:
6. Should circumstances beyond the control of the contractor and/or respondents' arise, which prevent the continuation or completion of the Interim Works:
a. the respondents' will alert the applicant in writing within three (3) days explaining same and seeking consent for an extension of the 28 days in paragraph 3 above;
b. the applicant will, in writing, consent to, or oppose, the extension within three (3) days, explaining why its opposed, if applicable;
c. if the applicant opposes, the respondents' have liberty to restore proceedings 2024/00061055 and 2024/00112848, at 24 hours' notice, to seek from the Court such an extension, supported by Affidavit; and
d. if the circumstances requiring an extension arise within six (6) days of the expiry of the 28 day period in paragraph 3 above, the respondents have liberty to apply at 24 hours' notice, without following the steps outlined in paragraphs (a) and (c) above.
The Council accepts that the Court has the power to release the Respondents from the Undertaking and accept a new undertaking including where the new undertaking is not agreed. The power to do so should be exercised rarely by a court particularly, as here, where the parties reached an agreement for how the Class 1 and Class 4 proceedings would be managed based on the terms of the Undertaking, the Council citing Paino v Hofbauer (1988) 13 NSWLR 193 at 198, 201 (McHugh JA, Samuels and Clarke JJA agreeing) which supports its submission. As the Council submitted, in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 the High Court confirmed a court does have power to accept a new undertaking, an undertaking being essentially an interlocutory order, and a further order may be made when new facts come to light or its enforcement would be unjust, at 177-8 (Gibbs CJ, Aickin, Wilson and Brennan JJ). The high bar faced by the Respondents is demonstrated in Starcevich v Swart and Associates Pty Ltd [2006] NSWSC 1387 at [4] where the voluntary nature of an undertaking is identified as a reason for it not being lightly varied.
An undertaking ought not to be accepted by the Court if it is vague and uncertain and enforcement is likely to prove impossible, see Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95; [2006] FCA 1215 at [29].
The Respondents bear the onus of establishing that the Court should exercise its discretion to make the orders sought by them.
While the Respondents originally sent through lengthy affidavits including extensive annexures, they sensibly reduced the material to be relied on to:
1. An affidavit of Mr Marshall earthworks contractor dated 15 August 2024. Mr Marshall has been in the earthmoving industry since 1996. Mr Marshall inspected the Land on 11 July 2024 for the first time. After the initial inspection site conditions were unsuitable to commence works due to significant rainfall. The entire month of July continued to receive rainfall and created poor drying conditions. The Respondents were eager to get the earthworks completed and impressed upon Mr Marshall their time limitations. Mr Marshall deposed that as soon as the site conditions were suitable, he would commence works. Mr Marshall made a further site inspection on 11 August 2021 and the ground had dried significantly. Mr Marshall deposed he would commence dewatering Dam 1 on 12 August 2024.
2. Part of the affidavit of Mr Gazecki dated 16 August 2024. Mr Gazecki was unable to comply with parts of the Undertaking as he could not obtain the specified 1300mm GRP pipes. The Council agreed to the Respondents obtaining 1200mm GRP pipes which Mr Gazecki then ordered. Dewatering of Dam 1 commenced on 12 August 2024. Between 13 and 15 August 2024 32mm of rain fell creating unfavourable conditions for planned excavations and bringing about saturation of the site. Mr Gazecki deposed that dewatering of Dam 1 was intended to recommence on 16 August 2024.
3. An affidavit of Mr Cole former solicitor of the Respondents dated 2 August 2024 which annexed emails between him and Mr Cottom solicitor for the Council, Bureau of Meteorology (BOM) data for Cabbage Tree Mountain and correspondence between the Respondents and Mr Garrick of Jason Garrick Excavations and Haulage. In the latter correspondence Mr Garrick advised via email on 12 July 2024 that he would not be able to commence interim works, stating relevantly:
'Sorry John won't be able to make it mate, not much use atm as it to wet to even get around the paddock, if it helps you I wouldn't be able to start nothing for at least 14 days sorry.'
The Council relied on the affidavit of Mr Cottom dated 8 August 2024 which attached correspondence between the parties' solicitors, including a letter from Mr Cottom to Mr Cole dated 30 July 2024 setting out what appeared to be his views on why the alleged wet weather did not justify a delay in commencing the interim works.
The Respondents tendered:
1. a copy of BOM data detailing daily rainfall in the Cabbage Tree Mountain area between January to August 2024;
2. A photograph taken on 18 August 2024 of earth moving equipment belonging to Mr Marshall located on the Land; and
3. Extracts of a geotechnical report prepared by Douglas Partners on 9 May 2024 specifying works necessary to restore the area around Dam 1 (pars 6.2.1-6.2.2).
Mr Marshall was briefly cross-examined in relation to the statement in his affidavit that the entire month of July 2024 continued to receive rainfall given that BOM data for Cabbage Tree Mountain provided in Mr Cole's affidavit showed no rain in the area from 11 July 2024 to 25 July 2024. Mr Marshall agreed that the BOM data demonstrated it did not rain every day in July, nor most days in July. Mr Marshall stated that Cabbage Tree Mountain was 30 minutes away from the Warranulla area which did not have a BOM data collection point. Mr Marshall confirmed he commenced dewatering Dam 1 on or around 12 August 2024 but that since 12 August 2024 the Dam had refilled due to further rain. He agreed his equipment is now on the Land as shown in the photograph tendered by the Respondents above in [14(b)].
Mr Cottom was briefly cross-examined about the email from Mr Garrick extracted above in [12(3)] and his letter to Mr Cole dated 30 July 2024. Mr Cottom explained that the views stated in the letter were based on instructions from a council officer. He agreed he did not have expertise in the practical aspects of conducting earthworks in wet conditions.
The Respondents' explanation for their failure to comply with the Undertaking is that wet weather has prevented work in July and August 2024 and that these events were beyond the Respondents' control. Mr Garrick's email identifies that no work could commence for 14 days after 12 July 2024 due to the wet weather, namely not before 26 July 2024. Mr Marshall, a very experienced contractor, has given uncontradicted evidence that wet conditions did not permit him to do the work in July 2024. The work required as specified in the geotechnical report prepared by Douglas Partners is extensive and needs heavy machinery. The amendments are appropriate to ensure that work is undertaken when conditions allow.
The Council submits that the Undertaking should be maintained and the work required by it undertaken as soon as possible by the Respondents so that they purge their contempt promptly. The Undertaking reflects an agreement between the parties for how the Class 4 and Class 1 proceedings should proceed. The Council submits the Respondents have not discharged their onus in seeking to 'blame' rainy conditions for why work was not done. There is no evidence of inspections of the Land during the 15 day dry period in July 2024 when Dam 1 could have been dewatered and other work commenced. Mr Marshall inspected the Land on 11 July 2024 and did not conduct another inspection until 11 August 2024.
Even if the Respondents discharge their onus the proposed undertaking is too vague and unenforceable in the amended pars 3 and 6.
[3]
Finding
As already identified the Respondents bear the substantial onus of demonstrating why they should be released from the Undertaking entered into on 15 April 2024 and a new undertaking accepted. The evidence of Mr Marshall an experienced contractor is that conditions in July 2024 were too wet for work to be undertaken albeit he accepted that there was a 15 day period of no rain based on the BOM data from Cabbage Tree Mountain. That rain did not fall for a 15 day period in the middle of July according to the BOM data as the Council emphasised does not necessarily mean that the conditions on the ground were suitable for the work required, which apparently needs heavy machinery. The nature of the work required is identified in the geotechnical report prepared by Douglas Partners at pars 6.2.1-6.22.
Whether greater efforts could have been made by the Respondents to get the work done is difficult to assess. Mr Marshall visited the site for the first time on 11 July 2024 and did not visit again until 11 August 2024. Mr Garrick's email of 12 July 2024 while suggesting the conditions were then too wet essentially says he was otherwise unavailable for at least 14 days, which was not obviously linked to wet conditions preventing work for that whole period.
Accepting that the Respondents had some difficulties getting the work done by their contractor in July 2024 it does not follow that I will make the orders sought by them in light of all the circumstances. Significantly the Undertaking was accepted by the Council as part of the management of the Class 4 and Class 1 proceedings. As a result of the Undertaking the Council agreed to consent orders in the Class 1 proceeding including that the development control order in relation to Dam 1 could be stayed. The Council reasonably seeks to have the interim works completed as soon as possible.
The overall history of the proceedings also needs to be considered. Both the Class 1 and Class 4 proceedings have a lengthy procedural history before the Court. I was informed that there have been some eight mentions to date. The Undertaking made on 15 April 2024 for interim works to be done was not able to be actioned until 4 July 2024 when approval was granted by the Council as provided by par 2 of the Undertaking.
The terms of the new undertaking proposed are not satisfactory in key respects. Turning to the amendments proposed, the Council accepted that pars 1 and 2 of the Undertaking have been complied with by the Respondents and submitted that no amendment of these is needed. I agree.
The amendment sought of par 3 is unsatisfactory for the reasons given by the Council. No hard deadline for when the necessary work of installing a pipe would be undertaken is provided in that the discretion remains in the hands of a contractor. Even if the contractor can be named and has suitable experience, as I accept is the case based on the Respondents' evidence, that provision is simply not enforceable. Had a particular period been specified my view may have been different but it has not been. I cannot dictate what a voluntary undertaking must include.
Additionally, par 6 in the proposed undertaking which purports to provide a mechanism for seeking extensions of time from the Court to do work is drafted with an unnecessarily complicated scheme in the circumstances, would entail considerable extra work on the Council's part to administer and is not necessary. As the Council submitted the matter can be restored to the list on short notice.
For all these reasons I will not make the orders sought in the Respondents' amended NOM and it will be dismissed.
I observe that the evidence of the Respondents demonstrates that substantial efforts are presently being made to comply with the Undertaking. Mr Marshall is poised to complete the works required. Those efforts can be considered by the Council in assessing the level of seriousness of non‑compliance with the Undertaking.
As I have not heard any argument on costs these will be reserved.
[4]
Orders
The Court orders that:
1. The Respondents' amended notice of motion filed on 16 August 2024 is dismissed.
2. Costs reserved.
[5]
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: 21 August 2024