Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318

Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318

The Director-General’s construction of the statutory exemptions (s 12(f) Native Vegetation Conservation Act 1997 (NSW) and SEPP 46, Sch 3) was reasonably open based on the broader legislative planning context and the scale of development. Allens' advice was not conclusive, and departmental assessment found it unpersuasive. There was no evidence of improper purpose or absence of honest belief in probable guilt by the Director-General. The trial judge was correct to find no malicious prosecution. The respondents’ offer of compromise complied with the rules, and it was proper to award indemnity costs including costs associated with damages assessment.

Parties
First Appellant: Bruce Clyde Bailey; Second Appellant: Janet Beatrice Shafik-Bailey; First Respondent: Director-General, Department of Natural Resources; Second Respondent: Water Administration Ministerial Corporation; Third Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
14 October 2015
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed; costs orders against appellants
Legal Topics
Malicious Prosecution, Exemptions Under Environment and Planning Statutes, Costs—indemnity Basis—offer of Compromise, Statutory Interpretation—planning and Environment, Elements of Malicious Prosecution, Evidence—inferences From Failure to Call Witness
Tort Law Planning and Environment Law Civil Procedure Malicious Prosecution Exemptions Under Environment and Planning Statutes Costs—indemnity Basis—offer of Compromise Statutory Interpretation—planning and Environment Elements of Malicious Prosecution +1 more

Case Brief

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Parties

Bruce Clyde Bailey

First Appellant

Janet Beatrice Shafik-Bailey

Second Appellant

Director-General, Department of Natural Resources

First Respondent

Water Administration Ministerial Corporation

Second Respondent

State of New South Wales

Third Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the prosecution for clearing native vegetation was instituted and maintained without reasonable and probable cause
  2. 2 Whether the proceedings were commenced for an improper purpose (malice)
  3. 3 Whether the exemptions under s 12(f) of the Native Vegetation Conservation Act 1997 (NSW) and State Environmental Planning Policy 46, Sch 3 applied

Ratio Decidendi

The Director-General’s construction of the statutory exemptions (s 12(f) Native Vegetation Conservation Act 1997 (NSW) and SEPP 46, Sch 3) was reasonably open based on the broader legislative planning context and the scale of development. Allens' advice was not conclusive, and departmental assessment found it unpersuasive. There was no evidence of improper purpose or absence of honest belief in probable guilt by the Director-General. The trial judge was correct to find no malicious prosecution. The respondents’ offer of compromise complied with the rules, and it was proper to award indemnity costs including costs associated with damages assessment.

Court Disposition

Appeal dismissed; costs orders against appellants

Orders

  • Dismiss the appeal with respect to the dismissal of the first appellant's claim for damages for malicious prosecution.
  • Order that the first appellant pay the respondents' costs of the appeal on liability.