Contents (1999 - 80)
Pesticides Act 1999 No 80
Division 3 Restraining orders
81 Application of Division
(1) This Division applies where:(a) proceedings have been commenced against a person for an offence under this Act or the regulations and, as a result of those proceedings, the person may be required to pay an amount referred to in section 95, or(b) proceedings have been commenced against a person under section 96.(2) In this Division:the defendant means the person referred to in subsection (1) (a) or (b).
82 Nature of restraining order
A restraining order is an order of a court directing that any property of the defendant is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order.
83 Application for restraining order
(1) The person bringing the proceedings (as referred to in section 81) may apply for a restraining order in relation to property of the defendant.(2) An application under this section may be made:(a) in the case of proceedings taken before the Local Court—to the Land and Environment Court, and(b) in the case of other proceedings—to the court before which the proceedings are brought.(3) On an application under this section:(a) the court may, if it thinks fit, require the person making the application to give notice of the application to a person who the court has reason to believe has an interest in the property or part of the property, and(b) a person to whom the court requires notice to be given under paragraph (a) is entitled to appear and to adduce evidence at the hearing of the application.
84 Making of restraining order
On an application under section 83, the court may make a restraining order in relation to the defendant’s property, if it is satisfied (on the information contained in or accompanying the application) that:(a) the defendant has committed the relevant offence, and(b) amounts are or are likely to be payable under section 95 or 96, and(c) it is appropriate to make an order under this section in the circumstances of the case.
The court may refuse to make a restraining order if the person making the application refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making or operation of the order.
86 Ancillary orders
(1) A court that makes a restraining order may make any ancillary orders that the court considers appropriate.(2) Without limiting the generality of subsection (1), ancillary orders may include any one or more of the following:(a) an order for the examination on oath of:(i) the defendant, orbefore the court, or an officer of the court prescribed by rules of court, concerning the affairs of the defendant, including the nature and location of any property of the defendant,(ii) another person,(b) an order varying the restraining order in respect of the property to which it relates,(c) an order varying any conditions to which the restraining order was subject.(3) An ancillary order may be made on application:(a) by the applicant for the restraining order, or(b) by the defendant, or(c) with the leave of the court, by any other person.(4) Ancillary orders may be made when or at any time after the restraining order is made. An ancillary order referred to in subsection (2) (a) may be made in advance of the restraining order.
87 Charge on property subject to restraining orders
(1) If:(a) a court has made a restraining order in respect of particular property or all of the property of the defendant, andthere is created by force of this section, on the making of the order referred to in paragraph (b), a charge on all the property to which the restraining order applies to secure the payment to the Environment Protection Authority or a person of the amount referred to in section 95 or 96.(b) the court orders the payment of an amount referred to in section 95 or 96,(2) Such a charge ceases to have effect in respect of the property:(a) on payment by the defendant to the Environment Protection Authority or person of the amount concerned, or(b) on the sale or other disposition of the property with the consent of the court, orwhichever first occurs.(c) on the sale of the property to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,(3) Such a charge is subject to every charge or encumbrance to which the property was subject immediately before the order referred to in subsection (1) (b) was made and, in the case of land under the provisions of the Real Property Act 1900, is subject to every mortgage, lease or other interest recorded in the Register kept under that Act.(4) Such a charge is not affected by any change of ownership of the property, except as provided by subsection (2).(5) If:(a) such a charge is created on property of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, property of that kind, anda person who purchases or otherwise acquires the property after the registration of the charge is, for the purposes of subsection (2), taken to have notice of the charge.(b) the charge is so registered,(6) If such a charge relates to land under the provisions of the Real Property Act 1900, the charge has no effect until it is registered under that Act.
88 Registration of restraining orders
(1) If a restraining order applies to property of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, property of that kind, the authority responsible for administering the provisions is required, on application by any person, to record the particulars of the order in the register kept under those provisions.(2) If the particulars of a restraining order are so recorded, a person who afterwards deals with the property is, for the purposes of section 87 (2), taken to have notice of the charge created by this Act on the making of the order.(3) If a restraining order applies to land under the provisions of the Real Property Act 1900, a caveat may be lodged under that Act in relation to the order.
89 Contravention of restraining orders
(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the order is guilty of an offence.Maximum penalty: A fine equivalent to the value of the property (as determined by the court) or imprisonment for 2 years, or both.(2) If:(a) a restraining order is made against property, and(b) the property is disposed of, or otherwise dealt with, in contravention of the restraining order, andthe person who applied for the restraining order may apply to the court that made the restraining order for an order that the disposition or dealing with the property be set aside.(c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,(3) If an application is made under subsection (2), the court may make an order:(a) setting aside the disposition or dealing as from the day on which the disposition or dealing took place or as from the day of the order under this subsection, and(b) (if appropriate) declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order.
90 Court may revoke restraining order
(1) The court that made a restraining order may revoke the order, on application made to it by the person in relation to whose property it was made.(2) The court may refuse to revoke the order if the person does not:(a) give security satisfactory to the court for the payment of any amount referred to in section 95 or 96 that may be imposed on or ordered to be paid by the person under this Act in respect of the person’s conviction for the offence, or(b) give undertakings satisfactory to the court concerning the person’s property.(3) Subsection (2) does not limit the discretion of the court to revoke or refuse to revoke a restraining order.
91 Time when restraining order ceases to be in force
If, after a restraining order was made in reliance on the charging of a person with an offence under this Act or the regulations:(a) the charge is withdrawn and the person is not charged with a related offence by the time of the withdrawal—the restraining order ceases to be in force when the charge is withdrawn, or(b) the person is acquitted of the charge and the person is not charged with a related offence by the time of the acquittal—the restraining order ceases to be in force when the acquittal occurs.