Walker Corporation v Director-General, Department of Environment and Climate Change [2009] NSWCA 392

Walker Corporation v Director-General, Department of Environment and Climate Change [2009] NSWCA 392

Although there appeared to be difficulties in the way of success, the appeal was arguable. Because the appellant narrowed the relief sought, undertook to proceed expeditiously, the limitation period for action by the respondents expired in August 2010, and the threatened entry would affect the appellant's asserted right not to be subjected to trespass before the appeal was determined, the balance of convenience narrowly favoured granting the narrower injunction pending appeal.

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Notice of Motion Seeking Interlocutory Injunction Pending Appeal / Court of Appeal Interlocutory Application Pending Determination of Appeal From the Land & Environment Court
Outcome
Interlocutory injunction granted pending determination of the appeal; appeal expedited; costs of the application to be costs in the appeal.
Legal Topics
['interlocutory Injunction Pending Appeal' 'balance of Convenience' 'native Vegetation' 'entry Onto Land Under Statutory Authority']
['procedure' 'environmental Law'] ['interlocutory Injunction Pending Appeal' 'balance of Convenience' 'native Vegetation' 'entry Onto Land Under Statutory Authority']

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Procedural Posture

Notice of Motion Seeking Interlocutory Injunction Pending Appeal / Court of Appeal Interlocutory Application Pending Determination of Appeal From the Land & Environment Court

Legal Issues

  1. 1 ['Whether the appellant had arguable grounds of appeal against dismissal of proceedings concerning whether authority under s 35 of the Native Vegetation Act 2003 was spent.' "Whether the balance of convenience favoured restraining the respondents from entering the appellant's land pending determination of the appeal."]

Ratio Decidendi

Although there appeared to be difficulties in the way of success, the appeal was arguable. Because the appellant narrowed the relief sought, undertook to proceed expeditiously, the limitation period for action by the respondents expired in August 2010, and the threatened entry would affect the appellant's asserted right not to be subjected to trespass before the appeal was determined, the balance of convenience narrowly favoured granting the narrower injunction pending appeal.

Court Disposition

Interlocutory injunction granted pending determination of the appeal; appeal expedited; costs of the application to be costs in the appeal.

Orders

  • ['NOTE that the appellant gives to the Court the usual undertaking as to damages.' 'ORDER that pending the determination of the appeal herein the first respondent be restrained from authorising any person pursuant to s.35 of the Native Vegetation Act 2003 ("the Act") to enter the land of the appellant comprised in...