State of Queensland v Envy Trading
[1997] QCA 150
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- Unreported Judgment
- Appeal Determined (QCA)
- State of Queensland v Envy Trading[1997] QCA 150
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State of Queensland v Envy Trading[1997] QCA 150
Reported at [1998] 1 Qd R 413
State of Queensland v Envy Trading[1997] QCA 150
Reported at [1998] 1 Qd R 413
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2203 of 1996
Brisbane
BETWEEN:
STATE OF QUEENSLAND
(First Defendant)
AND:
PRIMARY INDUSTRIES CORPORATION
(Second Defendant)
Appellants
AND:
ENVY TRADING (a firm)
(First Plaintiff)
AND:
N.V. & E.N. KRIEG
(Second Plaintiffs)
Respondents
Davies JA
McPherson JA
Mackenzie J
Judgment delivered 3 June 1997
Joint reasons for judgment of Davies J.A. and Mackenzie J.; McPherson J.A. concurring as to the orders made.
APPEAL ALLOWED IN PART. THE INJUNCTION GRANTED IN PARAGRAPH 2 OF THE JUDGMENT OF THE LEARNED PRIMARY JUDGE IS SET ASIDE AND IN LIEU THE APPELLANTS ARE RESTRAINED FROM REQUIRING PRODUCTION OF CHEQUES OF A SUM GREATER THAN $500 DRAWN ON ANY OF THE ACCOUNTS IDENTIFIED IN A NOTICE DATED 30 JANUARY 1996 OTHER THAN THE TWO CHEQUES SPECIFIED IN PARAGRAPH 3 OF THAT NOTICE.
NO ORDER IS MADE AS TO COSTS.
| CATCHWORDS: | INJUNCTIONS - interpretation of s. 18 Forestry Act 1959 - meaning of "in the forest officer's opinion" - whether opinion was reasonable. Attorney-General (NSW) v. Quin (1990) 170 C.L.R. 1 Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Limited (1979) 143 C.L.R. 499 Parramatta City Council v. Pestell (1972) 128 C.L.R. 305 Forestry Act 1959 (Qld) ss. 18, 53, 78 |
| Counsel: | Mr. M. P. Irwin, with him Ms. D. A. Silvester for the appellants Mr. G. Egan for the respondents |
| Solicitors: | Crown Solicitor for the appellants Murdochs for the respondents |
| Hearing Date: | 7 April 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2203 of 1996
Brisbane
| Before | Davies JA McPherson JA Mackenzie J |
BETWEEN:
STATE OF QUEENSLAND
(First Defendant)
AND:
PRIMARY INDUSTRIES CORPORATION
(Second Defendant)
Appellants
AND:
ENVY TRADING (a firm)
(First Plaintiff)
AND:
N.V. & E.N. KRIEG
(Second Plaintiffs)
Respondents
JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MACKENZIE J
Judgment delivered 3 June 1997
The State of Queensland and Primary Industries Corporation appeal against that part of a judgment which restrained them from requiring production of any document pursuant to a notice dated 30 January 1996. The notice which was addressed to the Manager of the National Australia Bank at Pittsworth, was one requiring production of the following documents:
"1.Specimen signature card bearing a signature by Neil Victor Krieg;
- cheques of a sum greater than $500 drawn on any of the following accounts;
- cheques for the sum of $2,075 and $2,950 bearing dates prior to 6th of May 1993 and drawn on any of the following accounts.
The accounts relevant to the records and writings listed in 1, 2 and 3 above are any bank account kept in any of the following names:
iNeil Krieg;
iiNeil Victor Krieg;
iiiN.V. & E.N. Krieg;
ivENVY Trading."
No period is specified in respect of the cheques, the subject of paragraph 2, though the period relevant to the inquiry is specified as being from 1 January 1991 to 1 November 1995.
It is said earlier in the notice that those "records and writings" are, in the opinion of the forest officer, material to an inquiry he is making pursuant to the provisions of s. 18(1)(c) of the Forestry Act 1959. The inquiry is then described in the notice as being one to ascertain if the provisions of ss. 53(1), 53(2) or 78 of the Act have been complied with by Neil Victor Krieg and others with respect to the destruction of or allowing destruction of sandalwood trees on Crown holdings situated within a distance of approximately 200 kms from Longreach in Central West Queensland and the transportation, selling and receiving or other dealing with that sandalwood.
Section 53(1) prohibits the destruction of trees or the getting of forest products on Crown holdings otherwise than in accordance with a lease licence, agreement or contract granted under one of several Acts. Section 53(2) prohibits a selector, lessor or holder of a Crown holding from allowing or permitting acts prohibited under sub-s. (1). And s. 78 prohibits a person from receiving any forest products the getting of which is an offence under the Act, knowing the same to have been so got. Section 18(1) relevantly provides:
"18(1)Any forest officer, in addition to such other powers and duties as from time to time devolve upon the forest officer under this Act, may -
...
- be accompanied and aided by any person the forest officer may think competent to assist the forest officer in making any inspection or examination; and
- make such examination and inquiry as may be necessary to ascertain whether the provisions of this Act have been or are being complied with by any person or in respect of any State forest, timber reserve, forest entitlement area, or any forest products or quarry material, the property of the Crown; and
- question, with respect to matters under this Act, the owner or occupier of any place, every person whom the forest officer finds in any place, and every person who has been within the preceding 6 months employed in or on any place to ascertain whether this Act has been or is being complied with, and require any such person to answer the questions put and to sign a declaration of the truth of the person's answers; and
- require the production of any licence, permit, or other authority granted or agreement or contract made under and for the purposes of this Act and of any book, notice, record, list or writing which by this Act is required to be had or kept or which is in the forest officer's opinion material to any inquiry under paragraph (b), and inspect, examine, and take copies of or extracts from the same;
... ".
The discrepancy between the reference in paragraph (e), which was relied on as authority for the requirements in the notice, to an inquiry under paragraph (b) and that in the notice to an inquiry under paragraph (c) may, for the moment, be put on one side. The question, more generally, before the learned primary Judge and this Court, is whether each of the categories of documents required by the notice to be produced was, in the forest officer's opinion, material to an inquiry he was making to determine whether ss. 53(1), 53(2) or 78 had been breached by N.V. Krieg, his partnership or firm. It may be accepted that he was making such an inquiry; he has sworn to it and the contrary was not asserted.
The argument for the respondents below and in this Court, and the judgment below, concentrated on the second of the categories of documents required to be produced; cheques of a sum greater than $500 drawn on any of the stated accounts. Having held that requirement to be invalid because, as he put it, it "does not give the bank manager any discretion to exclude from documents and records required to be produced for inspection such cheques as clearly deal with the personal affairs of one or other of the plaintiffs not having any connection with their timber business", his Honour held the notice to be invalid. However the question in this case, unlike that in Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Limited,[1] to which his Honour referred, is not whether a notice in writing complies with a statutory provision permitting certain notices to be given but whether a requirement complies with a statutory provision that permits the production of certain documents to be required. Here there were three requirements purportedly made under s. 18(1)(e) and the question must be considered separately in respect of each of them whether it was a requirement which complied with that provision. It therefore does not follow from the fact that one of the requirements exceeded what was permitted, that the notice which conveniently contained two others was wholly invalid.
The application of s. 18(1)(e) to the second requirement meant that the forest officer had a discretion - "in the forest officer's opinion" - as to whether all cheques to a sum greater than $500 drawn on any one of four named accounts over an unspecified period, or over a specified period of nearly five years (the period specified as relevant to the inquiry), were material to the inquiry which he was conducting. But he would not have exercised that discretion according to law if he could not reasonably have formed the opinion that all such cheques were material to the inquiry.[2]
Before this injunction was granted a number of cheques had been supplied by the bank to the appellants pursuant to an earlier notice, in more general terms, the subject of an injunction granted by the learned primary Judge but not of this appeal. These related to a period between 30 June 1995 and 18 September 1995. There were 40 cheques in all. Of those, the respondent Neil Victor Krieg has sworn, 23 related to the private and business affairs of N.V. & E.N. Krieg totally unconnected with the sandalwood industry (they also carry on the business of grazier as well as that of sandalwood exporter); 11 related to the payment of transport costs and wages relating to the processing of sandalwood which, it is said, in no way could be related to the inquiry; 3 related to the purchase of sandalwood from the Department of Primary Industry; and 3 related to the purchase of sandalwood from freehold landholders. In other words none of them, it was sworn, could have been material to the inquiry. Moreover, it was sworn that, for reasons which it is unnecessary to consider here, the cheques contained commercially sensitive information, the disclosure of which to some officers of the Department of Primary Industry might harm the respondents' business commercially. The evidence that none of the cheques during one relevant period of about two and a half months was material to the inquiry is not relevant, or at least of only marginal relevance, to the question whether a forest officer could reasonably have formed the opinion that all were. However it points up the absurdity of such an opinion which, in our view, could not reasonably have been formed.
In their written outline, but not in their oral argument, the appellants sought to overcome this difficulty by contending that, on its proper construction, the notice required production only of such of those cheques as were material to the inquiry. It was submitted that this construction should be inferred from the statement in the notice that the documents required are, in the forest officer's opinion, material to the inquiry. Merely to state that proposition is to expose its absurdity. To say that specified documents required to be produced are material to an inquiry is not to say that only such of them as are so material are required to be produced.
His Honour was therefore plainly right in granting the injunction in respect of the second requirement. To reach that conclusion it is not necessary to resolve the question whether the reference in s. 18(1)(e) to paragraph (b) should be interpreted as a reference to paragraph (c). However, for reasons which will appear, it is necessary to resolve that question.
In our opinion it should be so interpreted. Paragraph (c) is the only paragraph, other than paragraph (e), which uses the word inquiry and, it seems to us, is the only paragraph to which the reference in paragraph (e) can sensibly relate. In those circumstances, notwithstanding the opportunities, not taken by the legislature, to correct this error, it is in our view permissible to so interpret paragraph (e).[3]
The third requirement was for production of two specific cheques identified as being cheques for sums of $2,075 and $2,950 respectively and bearing dates prior to 6 May 1993. The forest officer did not disclose in his affidavit how he identified cheques in this way though it does appear that he received information from a number of persons who leased Crown land and, on 19 September 1995, was shown a letter dated 5 May 1993 purporting to be from the respondents referring to payment by enclosed cheque for timber and he says that he was told that they exist. Moreover these cheques are sufficiently identified, the forest officer has said that they are relevant to his inquiry and the respondents have not sworn to whether cheques to those amounts either were or were not drawn on one of the named accounts. Accordingly it could not be said, in our view, that the forest officer could not reasonably have formed the opinion that these cheques were material to the inquiry identified in the notice which was an inquiry of the kind referred to in paragraph (c). Consequently an injunction should have been refused in respect of the requirement with respect to those cheques.
It was conceded on the respondents' behalf before this Court that if either of the second or third requirements was valid then so was the first because it would be necessary to compare the specimen signature of Neil Victor Krieg with any cheques which were produced purportedly signed by him. Accordingly the injunction should have been refused in respect of that requirement also.
The appeal should therefore be allowed in part. The injunction granted in paragraph 2 of the judgment of the learned primary Judge should be set aside and in lieu the appellants should be restrained from requiring production of cheques of a sum greater than $500 drawn on any of the accounts identified in a notice dated 30 January 1996 other than the two cheques specified in paragraph 3 of that notice.
Although the appellants have partly succeeded in this appeal they have failed in what appears from their written outline of argument and their oral argument before this Court to have been their main contention and the main substance of the injunction granted below. It is not appropriate in our view in those circumstances to make any costs order on this appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 2203 of 1996
Brisbane
| Before | Davies JA McPherson JA Mackenzie J |
BETWEEN:
STATE OF QUEENSLAND
(First Defendant)
AND:
PRIMARY INDUSTRIES CORPORATION
(Second Defendant)
Appellants
AND:
ENVY TRADING (a firm)
(First Plaintiff)
AND:
N.V. & E.N. KRIEG
(Second Plaintiffs)
Respondents
JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MACKENZIE J
Judgment delivered 3 June 1997
I agree with the orders proposed by Davies J.A. and Mackenzie J. for the reasons they have given.
Footnotes
[1](1979) 143 C.L.R. 499.
[2]Parramatta City Council v. Pestell (1972) 128 C.L.R. 305 at 322-3, 327-8; Attorney-General (NSW) v. Quin (1990) 170 C.L.R. 1 at 36.
[3]Acts Interpretation Act 1954, s. 14A(1); see also Lindner v. Wright (1976) 14 A.L.R. 105 at 111; Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297.