> Land and Environment Court of New South Wales CITATION : Woolworths Limited v The Warehouse Group (Australia) Pty Limited [No. 2] [2003] NSWLEC 72 APPLICANT: Woolworths Limited ACN 000 014 675 PARTIES : RESPONDENT: The Warehouse Group (Australia) Pty Limited ACN 000 038 702 FILE NUMBER(S) : 40243 of 2001 CORAM: Lloyd J Injunctions and Declarations :- breach of development consent condition - declaratory orders - relief - certainty - practicality KEY ISSUES: Words and Phrases: - "shop" LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 76B Fairfield Local Environmental Plan 1994 Pt 2 - General restrictions on development of land Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; Fishenden v Higgs & Hill Ltd (1935) 153 LT 128; Iberian Trust Ltd v Founder Trust and Investment Co [1932] 2 KB 87; CASES CITED: Kennard v Cory Bros & Co Ltd [1922] 1 Ch 265; Optus Networks Pty Ltd v City of Boroondora [1997] 2 VR 318; Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; Redland Bricks Ltd v Morris [1970] AC 652; Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31 DATES OF HEARING: 18/03/2003 DATE OF JUDGMENT: 03/28/2003 APPLICANT: Ms J M Jagot (barrister) SOLICITORS: Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT: Mr S D Rares SC, with him Mr M L Wright (barrister) SOLICITORS: Deacons JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40243 of 2001 Lloyd J Date Woolworths Limited ACN 000 014 675 Applicant v The Warehouse Group (Australia) Pty Limited ACN 000 038 702 Respondent JUDGMENT [No. 2] 1 On 17 February 2003 I delivered a judgment in which I found that the respondent, The Warehouse Group (Australia) Pty Ltd, was using premises being units 5, 6 and 7 of a building at Nos 824-850 Woodville Road, Villawood for the purpose of a shop, which is a prohibited use in the relevant zone under the Fairfield Local Environmental Plan 1994; and further, that the respondent was using the premises in breach of condition 10 of a development consent granted by Fairfield City Council on 24 July 2000 (Woolworths Limited v The Warehouse Group (Australia) Pty Limited [2003] NSWLEC 31). At the request of the parties I refrained from making any formal declarations and orders, so that they may be afforded the opportunity of bringing in short minutes of orders to give effect to my findings and conclusions. 2 The applicant has now brought in proposed short minutes of orders, but the form of such orders is opposed by the respondent. The respondent submits that the orders sought by the applicant fail the test of certainty. The respondent submits that it is entitled to know with some precision what it is entitled to do and what it is not entitled to do. As stated in Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), at 619-620 [21 100]: It has often been stated that an injunction will not be granted unless it is couched in completely unambiguous language; the recipient of it must be placed in a position where he knows exactly what he is obliged to do. The reason for the rule is the severity of the penalties for disobedience to an injunction. (See now Meagher, Heydon and Leeming, Equity: Doctrines and Remedies , 4th ed. (2002), at 813 [21-505].) 3 The authorities relied upon by the respondent clearly support its submission. In Redland Bricks Ltd v Morris & Anor [1970] AC 652 at 655, Lord Upjohn, speaking for the House of Lords, adopted what was said by Sargant J in Kennard v Cory Bros & Co Ltd [1922] 1 Ch 265 at 274: If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions. 4 Lord Upjohn (at 667) also adopted the principle summed up by Maugham LJ in Fishenden v Higgs & Hill Ltd (1935) 153 LT 128 at 142: I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do. 5 Australian Consolidated Press Limited v Morgan & Anor (1965) 112 CLR 483 concerned the form of an undertaking rather than an order, but the same principles apply to both. In that case Owen J (Windeyer J concurring) adopted (at 515) what was said by Luxmoore J in Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87 at 95: "If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done". Owen J went on to hold (at 516) that an undertaking must be clear, free of ambiguity and not lacking in precision. 6 In Patrick Stevedores Operations No. 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred (at 47) to two propositions of Lord Hoffmann in Co-operative Insurance Society Ltd v Argyll Stores (Holding) Ltd [1998] AC 1: first, that a person who is subject to a mandatory order attended by contempt sanction ought to know with precision what is required (at 13-14); and second, that the possibility of repeated applications for rulings on compliance with orders requiring a party to carry on an activity, such as running a business over a more or less extended period of time, should be discouraged (at 13). 7 In Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318, Charles JA, speaking in the context of an interlocutory injunction, said (at 336): The relevant principles relating to the wording of interlocutory injunctions are well-settled, although their application is often a matter of difficulty. Because a restraining injunction prevents the person affected from acting in a particular way, on pain of penalties for contempt of court, it is essential that the injunction be certain in its terms, so that the defendant may know precisely what may or may not be done pursuant to the injunction. Imprecision and ambiguity must, so far as possible, be avoided in the language used: Australian Consolidated Press Ltd. v. Morgan (1964) 112 C.L.R. 483 at 503, 515; Redland Bricks Ltd. v. Morris [1970] A.C. 652 at 666-7; Meagher, Gummow and Lehane, Equity, Doctrines and Remedies , 3rd ed., (1992), pp. 619-620. Furthermore an interlocutory restraining injunction should be made no wider in ambit than is necessary: National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. [1991] 1 V.R. 386 at 556-9. 8 Although Charles JA was concerned with an interlocutory injunction, the same principles apply equally to a final injunction. 9 In the present case, "shop" is defined in the Fairfield Local Environmental Plan 1994 as follows: Shop means a building or place used for the purpose of retail sale, auction sale, hire or display for the purpose of sale or hire of goods, materials and merchandise, but does not include a building or place elsewhere defined in this plan. 10 A "bulky goods salesroom or showroom" is elsewhere defined in the plan. It follows that if the use of the premises is as a bulky goods salesroom or showroom, then it is not a shop. It seems that, by imposing condition 10 of the development consent, the council purported to restrict the use of the premises to that of a bulky goods salesroom or showroom. 11 As noted above, however, I found that the nature or type of the respondent's business amounted to a use of the premises as a "shop", which is a prohibited use in the zone. 12 As I understand it, the respondent submits that any declaration or order to be made should specify with particularity precisely what goods may be sold within the premises and precisely what proportion of the floor space therein may be devoted to each category of goods, so that the respondent may know precisely what it may or may not do. 13 I am unable to agree with the submission. Meagher, Heydon and Leeming, Equity: Doctrines and Remedies, 4th ed. (2002), at 813 [21 505] states: Nevertheless, common sense and practice alike demonstrate that it is impossible to specify in the language of an injunction every detail of the obligations which it imposes on the person to whom it is addressed. In some cases, the practicalities of the facts may make it impossible to frame an injunction in anything but the most general terms; and, in any event, the danger of an order couched in overly particular terms is that it may leave the defendant at liberty to indulge in reprehensible conduct which is almost but not quite enjoined, without committing any contempt. Thus, the standard form of injunction in a nuisance case consists of an order forbidding the defendant from doing the acts complained of "in such a manner as to constitute a nuisance to the plaintiff": Thompson-Schwab v Costaki [1956] 1 All ER 652 at 655; [1956] 1 WLR 335 at 340. 14 If it is appropriate to make an order forbidding a defendant from doing acts complained of in such a manner as to constitute a nuisance to the plaintiff, without specifying the particular acts enjoined, then it seems to be equally appropriate to forbid the present respondent from using the premises as a shop. In the present case the nature of the business is plainly that of a shop and bears no resemblance to a bulky goods salesroom or showroom. 15 The orders which will now be made will prevent the respondent from using the premises for the business of a shop. This is sufficient particularity to enable the respondent to arrange its business accordingly. 16 It is thus appropriate that the following declarations and orders be made: (1) A declaration that the respondent, The Warehouse Group (Australia) Pty Ltd, is using the property being lot 3 in deposited plan 877672, known as Nos. 824-850 Woodville Road, Villawood ("the property") for the purpose of a shop in breach of section 76B of the Environmental Planning and Assessment Act 1979. (2) A declaration that the respondent, The Warehouse Group (Australia) Pty Ltd, is using the property in breach of condition 10 of development consent No. 992/2000 granted by Fairfield City Council on 24 July 2000, contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979. (3) An order that the respondent, The Warehouse Group (Australia) Pty Ltd, its servants and agents abstain from carrying out, causing, permitting or suffering the use of the property for the purpose of a shop (as defined in the Fairfield Local Environmental Plan 1994). (4) An order that the respondent, The Warehouse Group (Australia) Pty Ltd, abstain from using the property in breach of condition 10 of development consent No. 992/2000 granted by Fairfield City Council on 24 July 2000. (5) An order that orders (3) and (4) above be postponed for a period of twenty eight (28) days from today. (6) An order that the respondent pay the applicant's costs. (7) An order that, if no notice of appeal is filed within twenty eight (28) days from today, the exhibits be returned. ********** I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate Dated: 28 March 2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.