Lade & Co Pty Ltd v Black[2005] QSC 325

SUPREME COURT OF QUEENSLAND

1. This is an application by the applicant plaintiffs seeking declarations that the respondent defendant has breached an undertaking given by him to the court on the 22 August 2005 and seeking orders that he be dealt with for contempt. In addition there is a claim for compensation for breach of the undertakings. There is also an application by the defendant seeking an order that he be released from the undertaking.

2. The defendant is a 73 year old grazier who runs cattle on lands near Proserpine which are adjacent to lands upon which the plaintiffs conduct cane farming operations. The plaintiffs’ cane farming operations and the defendant’s grazing operations have been carried on for many years.

3. The plaintiffs separately farm the lands which are adjacent to the defendant’s grazing lands. There are maps of the cane farms showing which lands are farmed by which of the plaintiffs. The various lands of the plaintiffs and their juxtaposition to the lands of the defendant appear in exhibit WL1 to the affidavit of William Alexander Lade filed on 28 September 2005.

4. The plaintiffs instituted proceedings against the defendant in July 2004 claiming damages in respect of trespass by the defendant’s cattle upon their lands. The defendant’s cattle are alleged to have trespassed upon the plaintiffs’ land in October/November of 2002.

5. Further trespasses are alleged to have occurred in August 2005 and an application for an interim injunction was made on the 2 August 2005. The respondent says that he was not aware of these proceedings until shortly before the matter came before the court. He was represented by his solicitor on the hearing of the application.

6. An undertaking was given by the respondent and the applicants gave the usual undertaking as to damages. The terms of the undertakings are as follows:

“Upon the First Plaintiff, the Second Plaintiff and the Third Plaintiff giving the usual undertaking as to damages and upon the Defendant undertaking until judgment in this proceeding or further earlier order to prevent cattle from straying from the Defendants lands onto lands respectively described as Lot 2 on RP 720312 and Lot 11 on RP 725690 (“the First Plaintiff’s land”) and Lot 4 on RP 858283 (“the Second Plaintiffs’ land and the Third Plaintiffs’ land”) it is ordered:

1. That the application be dismissed.

2. That the costs of and incidental to this application be reserved.”

7. On the day on which the application for an interlocutory injunction came before the court but before the undertaking was given, the solicitor for the defendant communicated with the solicitor for the plaintiff in the following terms:

“We advise that our client has instructed that he is prepared to resolve your clients application by our client giving an undertaking to prevent the straying of cattle from his land onto the First Plaintiffs land and Third Plaintiffs land.

We have passed on to our client Mr Egans comments as to your clients belief that the problem with the fence relates primarily to an inner fence inside the boundary fence.

We are further instructed to advise that it is our clients intention to comply with this undertaking by removing cattle from those parts of his property where the cattle have access to areas adjacent to the boundary with your clients properties.  This process of moving the cattle is likely to take 2-3 days.

Could you advise if there is some form of order your clients propose.”

8. The significance of this letter was the subject of some argument before me. Counsel for the applicants contended that there was an agreement to take the steps necessary to prevent cattle trespassing and to conclude those steps within two to three days. This was contested by the respondent.

9. There is a boundary fence between the lands of the plaintiffs and the lands of the defendant. It appears that the defendant had works carried out on approximately 750 metres of this and that there is a virtually new fence in this area. There is some dispute as to the quality of the fence over the remainder of the (in total) 3.8 kilometres of the boundary fence. The evidence satisfies me that it is not in good order throughout with there being places where it is not stock proof. A creek runs along the boundary and the fence (which is a give and take fence) runs near the creek. There is a point at which it crosses the creek and this, I am satisfied on the evidence, is a place where at all relevant times cattle were able to access the plaintiff’s lands. There are videos in evidence which show that the fence in some areas is not stock proof.

10. It is plain that having given the undertaking, the defendant proposed to achieve what he had undertaken, namely to prevent the trespass of cattle onto the plaintiff’s land by removing all cattle from a 4,000 acre paddock which adjoins the plaintiff’s lands.

11. The defendant’s property overall is some 16,000 acres divided into a number of paddocks.

12. The application for declarations and to have the defendant dealt with for contempt relates to a number of days in August 2005. As the application was filed it sought relief in respect of the following occasions:

(a) between 5.30 pm on 22 August 2005 and 6.30 am on 23 August 2005;

(b) between 6 pm on 23 August 2005 and 7.00 am on 24 August 2005;

(c) between 6.30 pm on 24 August 2005 and 7.00 am on 25 August 2005;

(d) between 6.30 pm on 26 August 2005 and 6.30 am on 27 August 2005;

(e) between 6.30 pm on 27 August 2005 and 6 am on 28 August 2005;

(f) between 5 pm on 28 August 2005 and 7.00 am on 29 August 2005;

(g) between 6.20 pm on 29 August 2005 and 7.00 am on 30 August 2005.

13. Before me the applicants did not seek any relief in respect of the first three of these occasions, consistent with what they claim was an agreement that the defendant would be allowed two to three days to carry out the necessary steps to remove cattle from the adjacent lands. There was a significant dispute before me as to what the undertaking required of the applicant. In its terms it seems to be unequivocal and requires him to prevent cattle trespassing on the plaintiffs’ lands. For the plaintiffs it was said that there was an agreement or collateral undertaking that this would be done within two to three days and that the plaintiffs exclusion of the first three occasions specified in the application was a concession on their part to the defendant. The defendant, it was argued, was liable immediately from the time that he gave the undertaking to prevent any cattle trespassing and would be liable except in the case of a trespass which was casual or unintentional. Reliance was placed upon the judgment of Warrington J in Stancomb v Trowbridge Urban District Council [1910] 2 Ch D 190.

14. For the defendant it was argued that the undertaking that he gave has to be understood in the sense of requiring him to do all things reasonably possible to prevent cattle trespass and to do so as soon as reasonably possible. See Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) & Ors (2001) 2 Qd R 118 per McMurdo P at page 126 and Pincus JA at page 131.  For the plaintiffs it was contended that the remarks that McMurdo P and Pincus JA in that case should be understood as being limited to a case in which an employer gave an undertaking.

15. It was said by the defendant that the estimate that the solicitor for the defendant gave of three days, qualified as it was by the word “likely” was no more than an estimate and it that it has not been demonstrated that the respondent has failed within time which might meet the description of “as soon as reasonably possible” to prevent the trespass of cattle.  It was contended for the plaintiffs that the failure to remove all of the cattle in the two to three days should also lead to the conclusion that the means adopted to remove the cattle were inadequate or unreasonable and that the respondent has been shown to be in breach of the undertaking.

16. The proceedings are criminal in nature and the onus of proof is proof beyond a reasonable doubt. See Whitham v Holloway (1995) 183 CLR 525.

17. Any undertaking has to be construed against the factual matrix which was known to both parties. See S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358.

18. It is in the result, in my view, not necessary to express any concluded view on the issue of precisely what the undertaking required of the defendant as in my view on either approach the same result follows.

19. On 22 August 2005 the defendant and his brother-in-law, one Holmes, mustered the 4,000 acre block. The means by which the cattle were mustered was by laying out molasses which brought the cattle together. Some 200 head of cattle generally run in this paddock and the steps taken were successful in bringing virtually all of the cattle together and enabling them to be removed into another paddock. The defendant was however aware that there were some cattle which had not been able to be mustered in this way. According to his evidence, some of this paddock is broken and hilly and difficult to access and the cattle were, so he believes, able to get into these areas and thus avoid being mustered. The muster took place by four wheel drive vehicles.

20. On each subsequent day for a little more than a week he and Holmes inspected the paddock looking for the remaining cattle. They found seven of them and were able to obtain three but four got away. They were able ultimately to get the final four on 2September 2005.

21. There has been some criticism of the course taken by the defendant. It is said that he ought to have mustered the property on motor bike or on horseback and should have obtained the assistance of contract musterers. It is also said that helicopters ought to have been used for the muster.

22. There is an affidavit from one Roy Paine who is a stock and station agent with considerable experience in the cattle industry. He has never been on the defendant’s property but says that it could have been adequately mustered in one to two days. I am not prepared to accept this evidence in preference to the defendant’s own evidence of the difficulties associated with some areas on the property.

23. The defendant says that he has, for some years now, mustered the property by the use of four wheel drives and that it would be dangerous to use motor bikes in some areas and that mustering on horseback would also not be practicable.

24. He says that whilst, in some years, he obtains the assistance of mustering contractors when he musters his property this is at the beginning or the end of the year. He says that it would be difficult to obtain contract musterers in August because they tend to work in the sugar industry or in the mining industry and would not be readily available.

25. Notwithstanding the challenge that has been made to the steps he took I am satisfied that the defendant adopted a means of removing the cattle from the paddock which was reasonable and I am not convinced that any of the alternatives suggested would have been likely to have been more successful.

26. There has been no trespass of cattle upon the applicants’ lands since 30 August. These proceedings were instituted on 23 September 2005 more than three weeks after the last of the trespasses to which I have referred.

27. As I have already said, the steps that he has taken to muster the cattle were reasonable and I am not persuaded that the fact that he was not able on the 22^nd to muster all of the cattle in any way suggests that the method of mustering that he used was inadequate or unsatisfactory.  

28. Were consideration to be limited only to the method of mustering adopted by the defendant I would not be prepared to find that he had failed to do all things reasonably possible to prevent the cattle trespassing if this is the correct approach. Moreover if this was the only consideration I would be inclined to think that it would be a not unreasonable description of the trespasses by such cattle (if it was indeed such cattle) after they had got into inaccessible areas at the time of the muster to call such trespass casual or unintentional events as those terms were used by Warrington J in Stancomb v Trowbridge Urban District Council.

29. However the matter does not rest there.

30. It is apparent from the evidence of William Lade and Keith Lade and also the evidence of John Robert Agnew (who inspected the plaintiffs’ lands on 23 and 30 August 2005) and the evidence of Geoffrey David Bolster the manager of the Proserpine District Cane Growers Cooperative Limited who attended on 30 August, that cattle were trespassing upon the plaintiffs’ lands for a little over a week after the undertaking was given. In addition there is also evidence from Robert Harold Lade and Stephen Robert Lade in support of this. William Lade inspected the plaintiffs’ lands daily and provides the most direct evidence of the trespass of cattle during the dates, the subject of the application. He saw on each of the relevant dates fresh signs of trespass of cattle coming from the defendant’s lands. Keith Lade saw cattle which are shown on a video on 25 August 2005. He identified these as the defendant’s cattle. The defendant, when shown the video, accepted they were his cattle but did not accept that it showed his cattle trespassing on the plaintiffs’ lands. I am satisfied that they did trespass and that the video shows this.

31. The plaintiffs obviously made contact with their solicitors following each of these trespasses and letters were written to the solicitors for the plaintiff. These are exhibited to the affidavit of Mr Cooper filed on 23 September 2005.

32. The evidence to which I have referred of the trespass of cattle shows that the cattle were entering upon the plaintiff’s lands as a result of the inadequacy of the boundary fencing in a number of areas adjacent to each plaintiff’s lands. One particularly problematical area was at the point where the fence crosses a creek and cattle were getting into the first plaintiff’s lands from this area.

33. The defendant made some attempt to repair the fence but the evidence satisfies me that it was inadequate to prevent the cattle from trespassing.

34. It would seem a fair conclusion to draw from the number of cattle which the defendant was unable to get upon his muster and the number of cattle which appear to have trespassed upon the plaintiffs’ lands that these were the same cattle. In any case I am satisfied from the evidence that the cattle were the defendant’s cattle.

35. The trespass of these cattle upon the plaintiff’s lands on the various days the subject of the application (which does not include the evening of the 25^th or the morning of the 26^th) is made out by the evidence.  The trespasses occurred each evening, the cattle moving from the defendant’s lands to the plaintiffs’ lands and then back.

36. These trespasses must be taken to have been in breach of the undertaking by the defendant to the plaintiffs. It would, of course, have been impossible to replace the whole fence in the time involved and this was not as I have said, what he intended to do to overcome the problem and to achieve what he had undertaken. However, once he knew that he had not obtained all of the cattle in the paddock adjacent to the plaintiffs’ lands when he sought to do so he ought to have taken urgent steps to fix those parts of the fence which allowed the cattle to trespass onto the plaintiffs’ lands. He would have known that the plaintiff’s were at this time alleging that cattle were still trespassing from the complaints made by Mr Cooper to his solicitor. The first of these is 25 August 2005.

37. I am satisfied that the defendant did not act contumaciously and did in fact take substantial, but in the result, inadequate steps, to prevent the cattle trespassing. I was left with the impression that the defendant may not have been sufficiently imbued with the urgency of the situation and certainly not as concerned about it as the plaintiffs were. He was in something of a state of denial about the trespass of his cattle upon the plaintiffs’ lands.

38. I make the following declarations:

That the defendant in breach of the undertaken given to the Supreme Court on 22 August 2005 failed to prevent cattle from straying from his lands onto the first plaintiff’s lands:

(a) between 6.30 pm on 26 August 2005 and 6.30 am on 27 August 2005; 

(b) between 6.30 pm on 27 August 2005 and 6.00 am on 28 August 2005;

(c) between 5.00 pm on 28 August 2005 and 7.00 am on 29 August 2005;

(d) between 6.20 pm on 29 August 2005 and 7.00 am on 30 August 2005.

39. I make a further declaration that:

The defendant in breach of the undertaken given to the Supreme Court on 22 August 2005 failed to prevent cattle from straying from his lands onto the second plaintiff and the third plaintiffs’ lands:

(a) between 6.30 pm on 26 August 2005 and 6.30 am on 27 August 2005; 

(b) between 6.30 pm on 27 August 2005 and 6.00 am on 28 August 2005;

(c) between 5.00 pm on 28 August 2005 and 7.00 am on 29 August 2005;

(d) between 6.20 pm on 29 August 2005 and 7.00 am on 30 August 2005.

40. As already mentioned the plaintiffs did not contend for a finding in respect of the first three occasions set out in the application.

41. It is plainly not a case in which the imprisonment sought in the application for breach of the application is appropriate in view of the circumstances I have outlined.

42. In my view the most appropriate course is to impose a single fine pursuant to s 49(1) of the Penalties and Sentences Act 1992 (Qld) in respect of all of the breaches of the undertaking.

43. I order that the defendant be fined $500 and I allow two months to pay.

44. There are claims pursuant to rule 900(3) of the UCPR for compensation for breach of the undertaking. Part of this claim relates to the cost of a fence in the sum of $28,734 and in part it relates to losses of income from damaged crops.

45. I do not see on what basis it can be contended that the costs of the erection of a fence can be said to have arisen from the breaches of the undertaking that have been found. So far as the claims for loss of income are concerned, these are the subject of a report by Mr Agnew but they are undifferentiated as between the occasions of the various trespasses alleged so that there is no way that any losses the subject of the trespasses which have been found to have occurred in breach of the undertaking can be identified.

46. In my view the plaintiffs’ losses of income said to result from the trespasses should be determined at the one time at the hearing of this action.

47. The defendant, as I have said, sought to be relieved of the undertaking that he gave on the grounds that the parties varied its terms by an arrangement between them. This is a reference to the letter set out in paragraph 7 of these reasons and the acquiescence in this proposal or its acceptance by the plaintiffs. Reliance was placed upon Gilbert v Gilbert (1955) St R Qd 245 and Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170.

48. There is however, in my view nothing in the dealings between the parties which can be regarded as a variation of or a dispensation with the undertaking. The plaintiffs have at all times asserted the right to enforce the undertaking. The letter from the solicitor for the defendant should be regarded as no more than the defendant’s outlining of the means he proposed to adopt to make the undertaking effective. It was for him to devise the appropriate means to do so and to ensure that the undertaking was not broken. This application is dismissed.

49. The plaintiffs sought an order for costs on an indemnity basis. Such orders are not unknown in proceedings of this kind. However in view of the findings I have made about the defendant’s genuine attempts to comply with the order by removing all of the cattle from the paddock which is adjacent to the plaintiff’s lands and the circumstances generally that I have outlined, I do not think this is a case for the award of costs on an indemnity basis.

50. I order the defendant to pay the plaintiffs’ costs of and incidental to each of the applications to be assessed.