Tamworth Regional Council v Johnson

Legal Principles Applicable to Determining if Interlocutory Injunctive Relief Ought to be Granted

1. In Shoalhaven Biscoe J helpfully summarised the general principles applicable in ex parte applications for interlocutory injunctive relief (at [4]-[6]): 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. 6. On an ex parte application for an interlocutory injunction, the applicant must make full and frank disclosure of all material facts adverse to the applicant's case which are known to the applicant or would have been known if the applicant had made proper inquiries: Thomas A Edison Pty Ltd v Bullock (1912) 15 CLR 679 at 681-2; Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676-7 (CA). The form of an ex parte interlocutory injunction and whether it should be granted at all were considered in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49 by Heydon J: 146. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them… 148. Interlocutory injunctions in equity. The sensitivity of the law towards the interests of parties who may be affected by ex parte substantive orders is illustrated by various aspects of equitable practice in relation to interlocutory injunctions. 149. There is a general rule of practice that no injunction will be granted ex parte unless it takes one of two forms. One form of injunction is that granted for a very short period within which notice is given to the defendant of its existence, so that the defendant may oppose any extension of it beyond that very short period. The second form of injunction is that granted until further order, but with liberty for the defendant to make a speedy application for it to be set aside. The former type of order is usually regarded as the more desirable. But our equitable practice knows nothing of an ex parte injunction granted until trial without liberty to apply for speedy dissolution. 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.
2. I have gratefully adopted and applied those principles in the present case.
3. It should be noted in this regard that the Council has proffered the usual undertaking as to damages.

The Attempted Demolition of a Dilapidated Structure Containing Asbestos

1. The factual background to the application was found in three documents tendered to the Court: 1. a Notice of Clean Up Action issued under s 91 of the Protection of the Environment Operations Act 1997 ("the POEOA") to Ms Johnson on 20 July 2018 in respect of the Property ("the s 91 Notice"); 2. a cover letter dated 20 July 2018, serving the s 91 Notice; and 3. a file note of an inspection of the Property by Mr Ross Briggs, a Council officer, on 21 March 2019, which was written on the same day as the inspection.
2. In short, the s 91 Notice was issued because, by reason of a fire on the Property in 2011 that damaged the building and structures on it (the Property has been vacant since this time), much of the bonded asbestos was reduced to friable fragments (a known carcinogen) which were scattered in and around the Property, causing surface contamination of the soil of the Property. The building materials scattered throughout the Property were similarly likely to be contaminated with asbestos. Samples taken at the Property confirmed that the land was contaminated with asbestos.
3. A pollution incident having occurred, the Council ordered an urgent clean up of the property to occur. The s 91 Notice directed clean up action on the Property. In particular, measures 4 to 7 stated as follows: 4. Prepare and submit to the Council by 5pm on Friday 7 September 2018, a Remediation Action Plan ("RAP") prepared by a suitably qualified person who is the holder of a Class 1A friable asbestos licence by Safework NSW. The RAP must identify appropriate control measures in accordance with: a. Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC:2002(2005)] b. Australian/New Zealand Standard 1716-2003 Respiratory Protective Device c. Australian/New Zealand Standard 1715-1994 Selection, Use and Maintenance ofRespiratory Protective Devices d. Australian/New Zealand Standard 3544 Industrial vacuum cleaner for particulateshazardous to health e. Code of Practice How to Safely Remove Asbestos 1st Edition Workcover NSW and must identify and specify works and other control measures and remediation measures required to safely and satisfactorily remediate the following parcels of land: (i) Lot A DP333031 (ii) All adjacent and adjoining public roads, footpaths or public places contaminated or likely to be contaminated by asbestos. 5. By 5.00pm on Friday 28 September 2018, carry out all of the measures and works specified by the approved RAP referred to in paragraph 4 hereof (including any amendments to the RAP as required by the Council); and 6. Submit to the Council at a minimum of seven day intervals, commencing seven days from the date of this Notice, a progress report setting out what steps have been taken to comply with this Notice and what steps need still to be completed to comply with this Notice and when it is likely such steps will be completed. 7. Ensure that all material removed from the land is immediately transported to New South Wales Environment Protection Authority (NSW EPA) approved land-fill site and further ensure that at least 24 hours notice is given to the land-fill site prior to any waste material! being delivered and further ensure that any waste material delivered is sealed in heavy duty polythene [sic] bags, which must be marked with the words "Caution Asbestos" with letters at least 40 millimetres high
4. None of the steps directed in the s 91 Notice have been carried out by Ms Johnson.
5. Mr McEwen SC told the Court that as a consequence of Ms Johnson's non-compliance with the s 91 Notice, the Council had determined to carry out the remediation works itself. It had erected a fence around the Property to ensure that no one trespassed upon it until such time as the works could be carried out.
6. At around 8am on 21 March 2019, Mr Briggs received a telephone call from a person living adjacent to the Property informing him that a person was on the Property attempting to remove material, including asbestos waste, from it.
7. Mr Briggs, together with police officers and Mr David Norton, a Council ranger, arrived at the Property shortly thereafter to give a direction to the people on the Property not to remove any materials from it. Upon arrival, Mr Briggs noticed a fire burning. This was a matter of concern because it could pose a serious health risk if the material being burnt contained asbestos because the fire could spread the asbestos around the neighbouring areas.
8. Mr Briggs further observed the following: Ranger David Norton, Senior Constables Sears and Wainwright and I then walked to 24 Northbrook Lane. I observed a tall man with a shaved head and white goatee beard carrying some material out of the house on the property. The material appeared to be fire damaged material. The man then dumped it, onto a sheet that another man known as Bob McDonald had spread on the ground in the front yard. I also observed that the large trailer two of my staff had seen on the previous Saturday was no longer on site. They had seen it in the front yard full of fire damaged rubbish that had been removed from the house. I do not know were [sic] this material went and did not have a chance to ask during the ensuing encounter. If this material had been removed from site, even if taken to a landfill, this constitutes breaches of the notice and the POEO act and would pose a clear risk to the public from the unsafe transport of asbestos waste. A fence had been erected across the front of the property using fire damaged roofing iron from the house and fire damaged timber from the house. This shows that fire damaged material has been disturbed on site in direct contravention of the clean up notice. The disturbance caused by removing the roof iron and placing on the ground would have stirred up asbestos fibres causing them to potentially leave site in the wind. The removal of the roof iron also opens the asbestos material inside the house to the affects of wind. This will therefore increase the risk of asbestos fibres leaving site.
9. Upon approaching Ms Johnson, she told Mr Briggs to leave the Property and the following conversation took place: JJ said: "Get yourself off my property." At this point we were still standing on the edge of the tarred surface of Northbrook lane and the grassed verge. I said: "Jennifer I am here to give you a direction that you are already in breach of the clean up notice that we issued to you." Glen said: "How can you issue a clean up notice and then take the mini skip bin away when she is trying to do the clean up?" I said: "Excuse me Glen, the clean up notice specified how the clean up was to occur. You haven't done that by the timeframe that was required." JJ said: "You had a fence across here for four years and refused me entry into my home." I said: "Jennifer I will be issuing you with fines for breaching that notice and if any material leaves this site that will be a further breach of the notice that will go against you and anyone that's responsible for it." I was then interrupted by Glen. Glen said: "How do you clean up if you are not allowed to take stuff off the site?" I said: "You have had your chance to clean up. Council is now stepping in to do that work." I was interrupted by all three trying to talk at once over the top of me. This was a general theme of the encounter with each person talking at the same time. I said: "If you remove any material from the site you will be in breach of the Protection of the Environment Operations Act and I will fine you or prosecute you." The male known to me as Bob McDonald (BM) said: "On what grounds?" I said: "This material is contaminated with asbestos waste." BM said: "It is only one room mate. It's not even friable." I said: "You are not licensed or approved to do anything with this material." I have searched the SafeWork NSW register and Robert "Bob" McDonald is not listed as having a Class A Friable Asbestos removal license. Glen said: "You don't need to under 10 metres. Have a look at the rules." BM said: "10 metres and less you don't need to." I said: "I have given you the instructions. If you remove anything from this site I will issue you with a fine." BM said, while I was still talking: "Bring it on."
10. Mr Briggs asked what material was being burnt. The response was paper. Mr Briggs indicated that even paper could be contaminated with asbestos. Mr Briggs again told the people on the Property not to "touch the site" and not to remove any material from the Property. Upon leaving he said, "so leave the material on site and put the fire out".
11. It is because the Council does not believe that further material will not be removed from the Property and that therefore a risk of asbestos contamination to the people on the Property and to the wider community exists, it sought, at short notice, interlocutory injunctive relief in this Court.

There is a Serious Question to be Tried

1. Section 91 of the POEOA provides as follows: 91 Clean-up by occupiers or polluters (1) Notices the appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring, (b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident, to take such clean-up action as is specified in the notice and within such period as is specified in the notice. (2) Notices by EPA in emergency The EPA may, if it considers that it is necessary to do so because of an emergency, give the clean-up notice even if it is not the appropriate regulatory authority with respect to the pollution incident. (3) Reports The clean-up notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on the carrying out of the clean-up action. (4) Recovery by person given notice If the person given a clean-up notice complies with the notice but was not the person who caused the pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pollution incident. (5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence. Maximum penalty: (a) in the case of a corporation--$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual--$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
2. Section 91(5) therefore makes it an offence to fail to comply with a clean up notice such as the s 91 Notice the subject of these proceedings.
3. Section 252 of the Act permits any person, such as the Council, to bring proceedings in this Court to restrain a breach of the Act: 252 Remedy or restraint of breaches of this Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. (4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach…
4. The evidence before the Court suggested that, by reason of Ms Johnson's failure to comply with the s 91 Notice, a breach of s 91 of the POEOA has been committed, and continued to be committed, by her. I was therefore satisfied that there was a serious question to be tried.

Balance of Convenience

1. As for the balance of convenience, the evidence before the Court indicated that the s 91 Notice continues to be breached, and moreover, that activity on the Property is being carried out contrary to the s 91 Notice and in a manner that is causing, or likely to cause, environmental harm, including harm to human health and safety, by reason of asbestos contamination. Asbestos, particularly friable asbestos, is a known carcinogen with potentially fatal consequences. There is, therefore, evidence indicating that immediate action is needed to minimise or prevent any further harm occurring, especially given the location of the Property in a residential area and in close proximity to a school.
2. Given that Ms Johnson did not reside at the Property, which was otherwise vacant, and that, in any event, the Council had given the usual undertaking as to damages, the Court considered it unlikely, on the evidence currently before it, that Ms Johnson would be unduly prejudiced if an interim injunction of limited duration was granted to the Council.
3. I was therefore satisfied that the balance of convenience favoured the granting of an ex parte interlocutory injunction for a short period of time whereupon Ms Johnson could, if she chose, have the opportunity to be heard.
4. Although the Court made orders for substituted service in the manner suggested by Mr McEwen SC, upon closer inspection of the letter serving the s 91 Notice after the orders were made, the following was noted: Council has served this Notice to your PO Box address and to your email address, both these addresses having been notified to Council as being your address for service. This Notice has also been served to Belinda Rayment of the Environmental Defenders Office and Mr Robert Bell as these legal officers have represented you on this matter in recent correspondences.
5. Any further orders for service should therefore, in my opinion, include service to the email address for Ms Belinda Rayment at the Environmental Defenders Office, to the email address for Mr Robert Bell, and to the email address given in the letter for Ms Johnson.

Amendment of the Orders Pursuant to the Slip Rule

1. Finally it must be noted that the original orders made by the Court at approximately 7pm on 22 March 2019 contained two errors. The first (alerted to the Court by the solicitor for the Council on Saturday, 23 March 2019) was an incorrect address for the Property, that address having been copied from the Summons (filed with leave in the Court at the time the application for interim relief was made) where the original mistake was made. The second was the omission of the time for short service, namely, 7pm 23 March 2019.
2. Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the 'slip rule'), the orders were amended by the Court on 23 March 2019. It is the amended orders that must be served on Ms Johnson using one of the methods specified below.

Orders

1. The orders of the Court are therefore as follows: 1. that the defendant and her employees, agents, contractors, invitees, friends, associates or any other person/s acting under her direction, authority or instruction, be immediately restrained from carrying out any works at the property known as 24 Northbrook Lane, Manilla NSW 2346 ("the Property") until 10.00am, 26 March 2019; 2. that the defendant and her employees, agents, contractors, invitees, friends, associates any other person/s acting under her direction, authority or instruction, immediately vacate the property and are restrained from entering the property until 10.00am, 26 March 2019; 3. stand the matter over to the Duty Judge at 10.00am, 26 March 2019; 4. a copy of these orders is to be served on the defendant by 7pm, 23 March 2019, by either: 1. inserting a copy of them into PO Box 3233, Glendale, NSW 2285; or 2. by affixing a copy of them to either the fence surrounding, or any structure upon, the Property; or 3. personally on the defendant; 1. leave granted to the plaintiff to file an amended summons by 25 March 2019, such amended summons to be served on the defendant by one of the methods specified in order 4; 2. liberty to restore on 1 day's notice; and 3. reserve the question of the cost of the application to the Duty Judge at 10.00am, 26 March 2019.

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: 25 March 2019