Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012

Supreme Court New South Wales

Medium Neutral Citation: Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012 Hearing dates: 15 July - 9 August 2013 Decision date: 25 July 2014 Before: Fullerton J Decision: On the plaintiffs' case judgment for the first, second and third defendants. Catchwords: MALICIOUS PROSECUTION - whether institution and maintenance of criminal proceedings for illegal clearing of native vegetation in the Land and Environment Court and by a case stated to the Court of Criminal Appeal was malicious and without reasonable and probable cause - misfeasance in public office - negligent misrepresentation - interference in trade or business - principle in Jones v Dunkel - claim of client legal privilege - whether plaintiffs exempt from the need to obtain development consent prior to clearing native vegetation - whether clearing part of "designated development" under s 12(f) Native Vegetation Conservation Act 1997 - whether plaintiffs entitled to rely on "rural structures" or "farm dam exemption" - whether any valid or conforming application under Part 8 of the Water Act 1912 Legislation Cited: Civil Liability Act 2002 (NSW) Criminal Appeal Act 1912 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 1994 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1969 (NSW) Native Vegetation Act 2003 (NSW) Native Vegetation Conservation Act 1997 (NSW) State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation Uniform Civil Procedure Rules 2005 (NSW) Water Act 1912 (NSW) Water Administration Act 1986 (NSW) Water Amendment (Flood Control Works) Act 1999 (NSW) Water Management Act 2000 (NSW) Cases Cited: A v State of New South Wales [2007] HCA 10; 230 CLR 500 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 411 ASIC v Hellicar [2012] HCA 17; 247 CLR 345 Bailey v Department of Land and Water Conservation (Supreme Court (NSW), James J, 22 May 2008, unrep) Bailey v Department of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333 Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 Cooper v Hobbs [2013] NSWCA 70 Bailey v Director General, Department of Natural Resources (Supreme Court (NSW), Fullerton J, 21 April 2013 unrep) Birch v Allen [1942] HCA 17, 65 CLR 621 Director-General of the Department of Land and Water Conservation v Bailey [2003] NSWLEC 160 Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361 Director-General Department of Land and Water Conservation v Jackson and Ors [2003] NSWLEC 81 Film Financial Consultants Ltd v Becker Group Ltd & Anor [2006] NSWSC 319 Grant v Roads and Traffic Authority of NSW [2014] NSWSC 379 Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 Kable v State of New South Wales [2012] NSWCA 243 Jones v Dunkel (1959) 101 CLR 298 Northern Territory v Mengel (1995) 185 CLR 307 Pinkstone v R [2004] HCA 23; 219 CLR 444 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Adams [1935] HCA 62; 53 CLR 563 RPS v R [2000] HCA 3; 199 CLR 620 Sanders v Snell (l995) 196 CLR 329 Smith v Corrective Services Commn (NSW) [1980] HCA 39, 147 CLR 134 Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 Wentworth v Lloyd (1864) 10 HL Cas 589 Williams v The Queen [1986] HCA 88, 161 CLR 278 Category: Principal judgment Parties: Bruce Clyde Bailey (1st Plaintiff) Janet Beatrice Shafik-Bailey (2nd Plaintiff) Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) (1st Defendant) Water Administration Ministerial Corporation (2nd Defendant) State of NSW (3rd Defendant) Representation: Counsel: PE King/FA Sinclair (Plaintiffs) NJ Williams SC/IL Harvey/JL Roy (Defendants) Solicitors: Hicksons Lawyers (Plaintiffs) Crown Solicitor's Office (Defendants) File Number(s): 2006/267230