Land and Environment Court New South Wales

• Medium Neutral Citation: Turnbull v Director-General of the Department of Premier and Cabinet [2012] NSWLEC 121
• Hearing dates: 28 May 2012
• Decision date: 28 May 2012
• Jurisdiction: Class 1
• Before: Pain J

Decision

1. The Respondent's Notice of Motion filed on 27 April 2012 is dismissed.

2. The Respondent is to pay the Applicant's costs of the Notice of Motion.

• Catchwords: PROCEDURE - stop work order issued under the Native Vegetation Act 2003 - whether two stop work orders served - appeal commenced against later served stop work order - whether time to appeal against stop work order has expired
• Legislation Cited: Building and Construction Industry Security of Payment Act 1999 s 17(3)(c); Corporations Law (Cth) (repealed); Native Vegetation Act 2003 s 37, s 39, s 49
• Cases Cited: Calquid Pty Limited v A & D R Iles Pty Limited [2000] NSWSC 558; Chase Oyster Bar v Hamo Industries [2010] NSWSC 332; JAR Developments Pty Ltd v Casteplex Pty Ltd [2007] NSWSC 737
• Category: Procedural and other rulings
• Parties: Ian Robert Turnbull (Applicant); Director-General of the Department of Premier and Cabinet (Respondent)
• Representation: Mr T Alexis SC with Ms H Irish (Applicant); Ms A Essex with Mr P Barley (solicitors) (Respondent); Cole & Butler (Applicant); Office of Environment and Heritage, Department of Premier and Cabinet
• File Number(s): 10316 of 2012

EX TEMPORE Judgment

1 Mr Turnbull, the Applicant in the substantive Class 1 proceedings, appeals against a stop work order issued under s 37 of the Native Vegetation Act 2003 (the NV Act). A stop work order was sent by the Department by post and received by Mr Turnbull on 3 March 2012. That is the order appealed against as reflected in the Class 1 application filed on 30 March 2012.

2 The Director-General, the Respondent in the substantive proceedings, has filed a Notice of Motion dated 26 April 2012 seeking an order that the appeal be struck out because it was not filed within 30 days of service of the stop work order. The Respondent argues that the stop work order was served personally on 21 February 2012 and the period for an appeal has therefore expired.

3 Appeals can be commenced under s 39(1) of the NV Act which states:

A person aggrieved by a decision of the Director-General to make an order, or to give a direction, under this Division may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction.

4 Section 49 of the NV Act deals with service as follows:

Any notice under this Act or the regulations that is required to be served or given to a person may be served or given:

(a) by delivering it personally to the person to whom it is addressed, or

(b) by delivering it to the place of residence or business of the person to whom it is addressed and by leaving it there for the person with some other person, or

(c) by posting it to the person to whom it is addressed to the person's place of residence or business last known to the person sending the notice.

Evidence

5 The Respondent read the affidavit of Mr Turner dated 26 April 2012 attesting to personal service on 21 February 2012 of the stop work order and cover letter stating that a stop work order was enclosed. Exactly the same documents were sent by registered post to Mr Turnbull on 2 March 2012. The stop work order and letter sent by post were said to be provided as a courtesy in Mr Turner's affidavit.

6 The Applicant read the affidavit of Mr Turnbull dated 10 May 2012 which attests to his receipt of a stop work order and cover letter on 21 February 2012 and the receipt of these documents by registered post on 3 March 2012.

7 The stop work order and the cover letter both have "by registered post and hand delivery" on the first page. The order is dated 20 February 2012.

8 There is no dispute about the facts.

Director-General's (Respondent's) submissions

9 One stop work order has been served. The first service was effective and the time for appeal of the order commenced to run from that date, 21 February 2012. It was accepted in oral submissions that sending the order by registered post was also service, contrary to the submissions in writing that the later posting was the provision of a copy of the order only.

10 JAR Developments Pty Ltd v Casteplex Pty Ltd [2007] NSWSC 737 considered a similar issue in relation to the Building and Construction Industry Security of Payment Act 1999 s 17(3)(c) which provides for payment after receipt of a payment schedule. Such a schedule was received twice. The issue was whether time ran from the first date. Rein AJ held, uninstructed by authority, that time commenced from the first date of receipt in part because if service of the same payment schedule on the second occasion commenced its own chain of events then there would be two sets of process deriving from the one payment claim. He considered this to be unsatisfactory in that statutory regime at [26]. See also Chase Oyster Bar v Hamo Industries [2010] NSWSC 332 at [40] per Meagher J.

11 In Calquid Pty Limited v A & D R Iles Pty Limited [2000] NSWSC 558 Santow J was considering whether an application to set aside a statutory demand could be made where two statutory demands under s 459G of the Corporations Law (Cth) (repealed) had been served. The application to set aside was out of time if the first date was applied. His Honour held at [36] that the subsequent service of further copies of the statutory demand did not amount to a waiver of the first demand and there was no equivocal election to adopt the later recommunications of the statutory demand as the service intended to be relied upon.

12 The Director-General submitted that these cases could be applied and supported his approach to the appeal period.

Mr Turnbull's (Applicant's) submissions

13 In effect, two orders have been served (albeit in the same terms). The documents sent by registered post purport to effect service of a stop work order, as reflected in the cover letter dated 20 February 2012 also sent by post. The Applicant appeals against the second order served by the Department by post. He accepts the first order served personally on 21 February 2012 has to be complied with and that time to appeal in Class 1 proceedings has expired.

14 The statutory regimes in JAR and Calquid are different to that under the NV Act and the same reasoning is not applicable here.

Consideration

15 The particular circumstances before me of multiple service of a stop work order under the NV Act (on the Respondent's case) or the service of two identical but separate stop work orders (on the Applicant's case) have not arisen before so far as I am, and the parties are, aware. That service has been effected twice in accordance with the methods of service specified in s 49 of the NV Act is clear on the facts and is not essentially in dispute. In issue is s 39(1) which states that an appeal may be made to this Court against the decision to issue an order within 30 days of the service of the notice of the order or direction. This statutory regime is not the same as the Building and Construction Industry Security of Payment Act or the now repealed Corporations Law (Cth). I am not bound by the cases decided in those two contexts relied on by the Respondent and I did not find them to be of assistance.

16 Stop work orders issued under the NV Act take effect immediately unless otherwise specified in a notice and remain in force in this case for the period specified in the notice. Such an order must be complied with and failure to comply is an offence under s 37(5). Such orders contain potentially onerous requirements placed on landholders without notice. Under s 39(2) the lodging of an appeal does not stay an order. The appeal right in s 39(1) is an important right within the context of the NV Act. This statutory regime informs my approach to the appeal right as specified in s 39(1) that there is an appeal available within 30 days of the service of the notice of the order or direction.

17 Underpinning the Respondent's submissions is the fact that there is only one order and once service has been effected, and it was on 21 February 2012, the 30 days runs from that date and cannot be "restarted" by subsequent service.

18 The Director-General's department has chosen to serve an order in the same terms twice. On the precise application of s 39 the appeal right in relation to a notice of a stop work order arises as a result of an act of service of the notice of the order. Such a construction means that the Applicant can appeal against the order served on him by post as he is not out of time to do so within the terms of s 39(1). As Mr Turnbull's counsel submitted the question is whether the stop work order notice sent by post and received on 3 March 2012 was served under s 49(c) of the NV Act. I consider that it was. It is not a case of restarting the appeal period, contrary to the Director-General's submissions.

19 The Respondent has submitted that this interpretation is absurd and artificial. While I do not consider it is absurd, that it is artificial is easily corrected in the future by the Department effecting service once only in accordance with s 49 of the NV Act.

20 I do not consider there is a risk of the provision of copies of lost or misplaced stop work orders by post being interpreted as the service of these under s 49(c) as submitted by the Respondent. The Respondent can make clear in a covering letter that a copy of a document already served is being provided and can simply stamp the word "copy" on the copy when it is sent.

21 I consider that the Respondent's Notice of Motion should be dismissed.

22 [Oral argument heard on the Applicant's application for costs of the Notice of Motion after judgment was delivered. Costs awarded to the Applicant].

Orders

23 The Court makes the following orders:

1. The Respondent's Notice of Motion filed on 27 April 2012 is dismissed.

2. The Respondent is to pay the Applicant's costs of the Notice of Motion.

Decision last updated: 06 June 2012