LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWSC 350

LDF Enterprise Pty Ltd v State of New South Wales [2017] NSWSC 350

Even assuming procedural fairness applied to the exercise of the statutory power of entry, the plaintiff had received ample notice of the proposed inspection, the source of power, its timing, purpose and proposed steps, and had an adequate opportunity to respond. It was scarcely arguable that procedural fairness had been denied. The balance of convenience also favoured refusing relief because the proposed inspection was non-invasive, concerned protected middens of cultural and historical significance, and delay would prejudice the investigation in a way not adequately answered by an undertaking as to damages.

Jurisdiction
Australia
Judgment Date
04 April 2017
Procedural Posture
Application for Interlocutory Injunction Restraining Entry Onto Land by OEH Officers / Interlocutory Relief After Refusal of Ex Parte Relief
Outcome
Application for interlocutory relief refused.
Legal Topics
['procedural Fairness' 'statutory Power of Entry' 'investigative Powers' 'aboriginal Objects and Aboriginal Places' 'balance of Convenience' 'adequacy of Damages']
['administrative Law' 'statutory Construction' 'interlocutory Relief' 'environmental Law'] ['procedural Fairness' 'statutory Power of Entry' 'investigative Powers' 'aboriginal Objects and Aboriginal Places' 'balance of Convenience' 'adequacy of Damages']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction Restraining Entry Onto Land by OEH Officers / Interlocutory Relief After Refusal of Ex Parte Relief

Legal Issues

  1. 1 ["Whether authorised officers owed a duty to accord procedural fairness before exercising a statutory power to enter the plaintiff's land for investigative purposes." 'Whether the plaintiff had been given sufficient notice and particulars of the proposed inspection and its purpose.' 'Whether there was a serious question to be tried supporting interlocutory relief.' 'Whether the balance of convenience and adequacy of damages favoured granting an injunction.']

Ratio Decidendi

Even assuming procedural fairness applied to the exercise of the statutory power of entry, the plaintiff had received ample notice of the proposed inspection, the source of power, its timing, purpose and proposed steps, and had an adequate opportunity to respond. It was scarcely arguable that procedural fairness had been denied. The balance of convenience also favoured refusing relief because the proposed inspection was non-invasive, concerned protected middens of cultural and historical significance, and delay would prejudice the investigation in a way not adequately answered by an undertaking as to damages.

Court Disposition

Application for interlocutory relief refused.

Orders

  • ["The plaintiff's application for interlocutory relief was refused."]