LDF Enterprise Pty Ltd v State of New South Wales

On 3 April 2017 LDF Enterprise Pty Ltd (the plaintiff) applied, ex parte, for an injunction restraining the State of New South Wales and four of its officers (the defendants) from entering upon the plaintiff’s land at 251 Bundabah Road, Bundabah (the Property) until further order. I refused the application; ordered short service of the statement of claim and affidavits; and stood the matter over to 2pm on 4 April 2017. Mr Larkin SC, who appeared with Ms Byrne, did not require reasons for my refusal of ex parte relief on 3 April 2017.

On 4 April 2017 the hearing of the plaintiff’s application for interlocutory relief commenced at 3pm in my list as Duty Judge. Mr Jordan, who appeared on behalf of the State of New South Wales and its named officers, opposed the interlocutory relief sought. At the conclusion of the hearing, I refused to grant the injunction sought and indicated that I would give reasons at 10am on 5 April 2017. Mr Larkin informed me that the plaintiff would appeal my decision once reasons had been given and would seek interim orders to permit it to do so. In order to deal with this interim period, Mr Jordan was instructed to give an undertaking on behalf of the Chief Executive of the Office of Environment and Heritage (OEH) that none of his officers would enter the Property before 1pm on 5 April 2017. He confirmed that it ought not be inferred from the giving of this limited undertaking that any further undertaking would be forthcoming.

The power to enter “premises”, which includes land, is conferred on authorised officers of the OEH by statute, the relevant provisions of which are set out below.

The long title of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) is: “An Act to protect the environment; to replace other environment protection legislation; and for other purposes.” Chapter 7 of the POEO Act is entitled “Investigations”. Section 184, which is contained in Part 7.1, provides:

Part 7.2 deals with authorised officers and enforcement officers and, by s 187, provides for the appointment of authorised officers. Part 7.3 confers powers to require information or records by notice. Part 7.4 provides for powers of entry and search of premises. It contains s 196, which provides:

Section 197 limits the powers conferred by s 196 by providing that entry to residential premises may only occur with the permission of the occupier or the authority of a search warrant under s 199. Section 198 confers power on officers who have lawfully entered premises to do anything necessary on the premises, including but not limited to examining articles, taking and removing samples and making examinations, as well as seizing anything connected with an offence, including a thing that will afford evidence of the commission of an offence. Section 199 provides in part that:

Section 202 of the POEO Act provides that the regulatory authority that appoints an authorised officer (in this case, the OEH) must compensate all interested parties for any damage caused by the authorised officer in exercising a power of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.

Section 211(3) of the POEO Act makes it an offence for a person to wilfully delay or obstruct an authorised officer in the exercise of the authorised officer’s powers under Chapter 7 (which includes the power of entry).

Section 2A(1) of the National Parks and Wildlife Act 1974 (NSW) provides that its objects include:

Section 85 of the National Parks and Wildlife Act provides that the Chief Executive of the OEH is the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.

Section 86(1) – (4) of the National Parks and Wildlife Act provides that it is an offence to harm or desecrate Aboriginal objects and Aboriginal places.

Section 87A of the National Parks and Wildlife Act provides in part:

Section 156B of the National Parks and Wildlife Act provides in part:

Section 12 of the Native Vegetation Act 2003 (NSW) provides in part:

The factual background has been the subject of affidavit evidence and statements from the bar table. Because of the urgency of the application, none of the facts has been tested and some are disputed. Accordingly, the following narrative is necessarily limited and does not represent any finding on any disputed fact.

The OEH is conducting an investigation to determine whether any person has contravened ss 86(1), 86(2) or 86(4) of the National Parks and Wildlife Act. The investigation relates to middens that are said to be located on the Property. Middens are places where debris from eating shellfish and other food has accumulated over time. They can contain remains of shellfish, the bones of animals and birds used for food; charcoal from campfires; and tools made from stone, shell and bone. They can provide information about Aboriginal activities and marine environment in the past. Middens are vulnerable to damage from humans, including pedestrian and vehicular traffic, earthworks and development of land.

The OEH maintains the Aboriginal Heritage Information Management System (AHIMS) which includes information about Aboriginal objects that have been reported to the Director-General, Department of Premier and Cabinet; and information about Aboriginal places that have been declared by the Minister for the Environment to have special significance with respect to Aboriginal culture. A registered AHIMS site, where the middens are situated, is located on the Property.

The entry in March 1978 described the site in the following terms:

Mr Giles-Sproule, who is an authorised officer under the National Parks and Wildlife Act and senior legal officer at the OEH, swore an affidavit in opposition to the plaintiff’s application for an interlocutory injunction. He deposed that the OEH suspects that there are other middens on the Property, in addition to those that have been registered. Mr Giles-Sproule attached a chronology of events relating to the OEH investigation on the Property which is extracted below:

Mr Giles-Sproule deposed that the current investigation arose as a result of observations made by OEH officers who were on the Property on 10 August 2016 (see items 5 and 6 above) for the purposes of investigating whether any person had contravened s 12 of the Native Vegetation Act 2003 (NSW). As referred to above (item 9) a site inspection was carried out on 21 September 2016. The plaintiff was represented by Greg Pevitt and OEH officers attended, including Mr Giles-Sproule and an archaeologist. According to Mr Giles-Sproule, two areas of interest were identified and the allegation made that there had been damage to the two registered Aboriginal middens. I note that this matter is disputed by the plaintiff. It is accepted that, on that occasion, Grahame Price, an authorised compliance officer of the OEH, informed Mr Pevitt that OEH staff would need to attend at a later date to conduct further inspections of the area.

In September 2016 there was correspondence between the plaintiff and the OEH in the course of which the plaintiff was provided with a document headed “Authorisation of entry onto land” dated 16 September 2016, which identified the officers who were authorised to enter the land; the relevant purpose of the entry (being “for the purpose of determining whether a person is contravening or has contravened the National Parks and Wildlife Act 1974”); and the period within which entry was authorised (19 September 2016 to 30 September 2016).

Mr Pow, the plaintiff’s solicitor, wrote to the OEH requesting particulars of the sections relied upon and the alleged contraventions. Mr Price responded that the section relied upon “at this stage of the investigation” is s 86 of the National Parks and Wildlife Act but that this may vary as the investigation progresses. He continued:

Following the inspection on 21 September 2016 Mr Price wrote to Mr Pow summarising the OEH’s actions to date and future intent. He informed Mr Pow that, during the inspection, evidence of a relic stone wall, which may relate to early settlement, had been recorded and that the OEH Heritage Branch had been advised. As a result further site investigation was to be deferred pending further information. The letter concluded:

Mr Giles-Sproule deposed that on 6 March 2017 specialist investigator Robert Evans informed Mr Pow of the details of the investigation and the alleged breach. Mr Larkin indicated that this evidence is disputed. However, Mr Pow’s affidavit annexed an email dated 6 March 2017 from Mr Evans to Mr Pow setting out the details of the investigation and the potential breach of s 86 of the National Parks and Wildlife Act (harming or desecrating Aboriginal objects or places) as well as the proposed entry to the Property by OEH officers and its timing. There was further correspondence between Mr Evans and Mr Pow about the proposed inspection; how many people would be coming; and how they would be transported. It is common ground that an inspection was scheduled for the week commencing 13 March 2017. This was later deferred to 23 March 2017 as a result of inclement weather. On 23 March 2017 an inspection took place and a further inspection was foreshadowed.

On 28 March 2017 Mr Pow wrote to Mr Price expressing concern about the legal basis for the inspection and its “real purpose”. Mr Pow alleged that the plaintiff’s representatives had been told that excavation was planned on the Property at the ensuing inspection. Mr Giles-Sproule responded by letter dated 29 March 2017. He set out the text of s 196 of the POEO Act and also informed him of s 211 of the POEO Act, which makes it an offence to obstruct an officer in the performance of powers under Chapter 7. Mr Giles-Sproule confirmed as follows:

By letter dated 31 March 2017, Mr Pow responded by contending that the proposed entry was ultra vires. He referred to D’Anastasi v Environment Climate Change & Water (2011) 81 NSWLR 82; [2011] NSWCA 374 at [40]-[55] and required particulars of the nature and limits of the investigation. Mr Pow sought an undertaking that notice would be given before officers entered the Property and warned Mr Giles-Sproule that, in the absence of an undertaking being given, his client would apply to this Court for an ex parte injunction.

Mr Pow wrote a further letter to Mr Giles-Sproule on 3 April 2017 in which he set out a detailed request for particulars of the purpose of the entry.

Mr Giles-Sproule responded by letter dated 3 April 2017. Because of the detail given in the letter and its importance, I propose to set it out in full, notwithstanding its length:

As referred to above, in the introduction to these reasons, the plaintiff commenced these proceedings by statement of claim filed in Court on 3 April 2017.

Mr Giles-Sproule deposed that the authorised officers who are to undertake the inspection are currently standing by in the neighbouring areas of Nelson Bay and Tea Gardens. Two such officers come from Sydney; one from Wollongong and two from Newcastle. The daily cost of delay in the inspection is approximately $8,500. The purpose of the inspection is to obtain a three-dimensional electronic diagram of the middens to assist the investigators in modelling the area. The inspection is to be non-intrusive. Lantana will be removed with hand tools, if need be. Mr Jordan informed me from the bar table that lantana is a noxious weed and, accordingly, no exception could reasonably be taken either to its disturbance or removal. Mr Larkin submitted that one could discern from the aerial photographs in evidence, which showed the location of the two middens, that there was other vegetation in their vicinity, which would necessarily be disturbed.

Mr Larkin submitted that the defendant had failed to accord procedural fairness to the plaintiff by refusing to provide particulars as sought and that, accordingly, the plaintiff had been deprived of a valuable right to be heard as to the course of the investigation and as to whether its right to keep its Property free of intrusion ought be interfered with by officers of the OEH. He relied on the following propositions:

Mr Jordan submitted that all that was proposed was that the OEH officers conduct a non-intrusive inspection for the purposes of creating a three-dimensional laser model of the middens with a view to determining whether there had been any damage, and also to create a record of their state at a particular time. He submitted that the inspection had been proposed with ample consultation and notice but that it was not appropriate to give full particulars in the circumstances given that there was an investigation into the possibility of offences having been committed. He contended that the exercise of the power of entry, as part of an investigation, is of a different order from administrative decisions which affect rights in any permanent or substantial way.

Accordingly, he submitted that there was no serious question to be tried as the plaintiff’s right to exclude others from its land had been effectively modified by statute. Further, he submitted that the balance of convenience was against the grant of an injunction as the team which was to embark on the inspection comprised of experts who were not generally, and could not readily, be replaced. Mr Jordan informed me that he was instructed that the officers were required to perform their duties in an economically viable way and that they had assembled in the area for the purposes of this inspection. Further, he contended that all that was proposed was that experts enter the land for a limited period for a non-invasive purpose to conduct investigations before departing. He submitted that as the land was not residential there was no need for a warrant and that any personal sense of invasion would be inapposite in the circumstances.

He submitted that the undertaking as to damages was not an adequate remedy as the officers were required to perform their duties for the statutory purposes and that the heritage value of the middens was such that there was no adequate reason to delay the inspection. I understood him to submit that if the present expert team could not proceed as scheduled, there could be significant delay having regard to the other commitments of the individual experts and the specialty of their respective areas of expertise.

The application of the principles of natural justice was summarised in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23; by five members of the court at [11] in the following terms:

It is not every exercise of statutory power that attracts the principles of natural justice. Rather the principles regulate the exercise of power where the statute confers a power to “destroy” or “prejudice” a person’s rights or interests. It might be accepted, for the purposes of the present application, that the plaintiff’s right to control who can come onto the Property, and for what purpose, is a right which could be prejudiced by the exercise of power by an OEH authorised officer to enter the land for the purposes provided for by the statute. However, even in such a case, as the passage from Kioa v West relied on by Mr Larkin makes clear, the implication of procedural fairness is subject to statutory intention to the contrary. Thus, in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1, it was held, by majority, that s 72(4) of the Maritime Powers Act 2013 (Cth), which empowered a maritime officer to detain a person and take the person to a place, was not subject to an obligation to accord procedural fairness. The consequences of implying such obligations were adverted to by Gageler J at [367]-[368] and resulted in his Honour’s conclusion at [368] that such an “implication would go beyond ‘supply [ing] the omission of the legislature’ to the point of impairing the operation of the legislation.”

The power of entry granted by s 196 of the POEO Act, when read with s 156B of the National Parks and Wildlife Act and the objects of the latter Act in s 2A(1)(b), is plainly an important investigative power, having regard to the circumstance that objects, places and features of historical and cultural significance which may be located on private property. For example, an offence against s 86 of the National Parks and Wildlife Act would tend to become unenforceable in respect of Aboriginal objects on private land, but for the power of entry. At common law, a person in possession of premises has the right to exclude others. The statutory power granted by s 196 is necessarily inconsistent with the plaintiff’s common law right to exclude Departmental officers from the premises. Persons who interfere with the exercise of that statutory power are at risk of the criminal sanctions imposed by s 211.

Moreover, the investigation of a possible contravention is, by its nature, inquisitorial and preliminary. These circumstances generally make it inappropriate to require the disclosure of adverse information: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296.

I do not consider D’Anastasi v Environment Climate Change & Water to be of particular assistance, since it concerned s 193 of the POEO Act, which in terms required a notice to be given. The Court of Appeal found that in order to be valid the notice had to set out various matters in order to be valid. The present case is distinguishable since there is no notice provision required before the power of entry is exercised. In Walker Corporation v Director-General, Department of Environment and Climate Change (No. 2) the power of entry was not found to be spent since it was conducted for the purpose of determining whether a person is contravening; or has contravened, the Act. It does not appear to have been argued in that case that the power of entry required procedural fairness to be accorded.

Although Quirindi Shire Council v Gigli concerned entry onto land, the entry was for the purpose of the Council carrying out sewerage construction works. Accordingly, the power of entry did not arise for the purposes of investigating possible contraventions of laws, but rather for the purposes of undertaking works which would have a long-term effect on the land and could be expected to cause disruption to the quiet enjoyment of the landowner. That case is, in my view, far removed from the present, both in terms of the purposes for which the power to enter was conferred, and the effect that the power of entry would have on the landowner.

The exercise of investigative powers may attract the obligations of procedural fairness, even where there is no determination of rights: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576-577. However, generally speaking, less will be required by way of procedural fairness in order to act fairly, in the investigative stage, as opposed to the determinative stage: Shaw Stockbroking Ltd v Australian Stock Exchange Ltd (1998) 26 ACSR 702 at 718-719 per Bryson J.

I have considerable reservations as to what is required by way of procedural fairness, in the context of a power to enter onto land to investigate possible contraventions of the relevant law. 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.

The variability of the requirements of procedural fairness was addressed by Gageler J in CPCF v Minister for Immigration and Border Protection at [367] in the following terms:

If procedural fairness has not been excluded by the statute which confers the power, the starting point is to identify the decision or conduct which is said to be tainted by procedural unfairness: Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [79] (Basten JA, Beazley and Hodgson JJA agreeing). Here, the decision is the decision to exercise the power to inspect, although the relevant conduct, which is yet to occur, is the entry onto the Property for the purposes of the investigation into whether there have been contraventions of the POEO Act. Assuming in favour of the plaintiff for the purposes of the present application, that procedural fairness is applicable, what does it require in the present case?

It is plain from the evidence that notice was given of the inspection. Particulars were sought by the plaintiff of the purposes of the inspection and what would be involved. The plaintiff has been on notice since September 2016 that a further inspection was proposed. The letter dated 3 April 2017 from Mr Giles-Sproule, which is set out in full above, provides ample notice of what the plaintiff can expect; the source of the power; and the timing and purposes of the inspection. The plaintiff’s solicitor has corresponded with the OEH over a long period. The plaintiff knew that charges against it based on what was observed on inspection were a possibility; had the opportunity to get his own legal advice and legal representation; and had an adequate opportunity to comment on the inspection that was proposed by OEH. In my opinion, within the limitations imposed by an urgent interlocutory hearing, it is scarcely arguable that the plaintiff has not been accorded procedural fairness in the circumstances of the present case. There is much to be said for the conclusion that the plaintiff has been given ample opportunity to respond and a reasonable opportunity to be heard. To require more would, in my view, tend to derogate from the nature and purpose of the statutory conferral on the power to enter.

Further, in my view, the balance of convenience favours the refusal of relief. What is proposed is a non-invasive inspection for the purpose of creating a three-dimensional model of the middens, which are a protected resource of cultural and historical significance, in circumstances where human interference with the integrity of the two middens is suspected. I do not consider that the undertaking as to damages is sufficient to outweigh the inconvenience and prejudice to the investigation which delay would occasion.

For these reasons, the plaintiff’s application for interlocutory relief was refused.

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.

Mr Larkin sought leave to file an amended statement of claim, in which he sought to add the names of four more officers of OEH. Mr Jordan submitted that it was sufficient that the Chief Executive be named as a defendant (rather than the present incumbent named) and that it was not necessary that all potential authorised officers be named. I am confident that this issue can be resolved between the parties if the matter is to be proceeded with. Accordingly I did not grant leave to the plaintiff to amend its statement of claim in accordance with the draft handed up.