Matters to be taken into account on interlocutory applications
27 In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Mason ACJ states at 153 - 154:
The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
28 In relation to item (2) referred to in the above quotation, as to whether the Applicant will suffer irreparable injury for which damages will not be adequate compensation unless the injunction is granted, I note that the Applicant filed an affidavit sworn 13 November 2002 of Associate Professor Peter Hiscock who is Head of Archaeology at the School of Archaeology and Anthropology, Australian National University. Attached to the affidavit is his report titled "Appraisal of Archaeological Studies at Sandon Point New South Wales". In his affidavit Dr Hiscock states that the available evidence obtained by archaeologists reveals that within the development area at Sandon Point there is an enormous archaeological site containing several million artefact fragments that, known disturbances notwithstanding, those artefacts are likely to contain significant scientific information that can be obtained from few if any other sites and further, that the archaeological investigations have failed to provide an extensive or detailed characterisation of the site that would stand as a final statement of scientific significance. He further concludes that he believes the proposed development activities will irreparably damage the archaeological material at Sandon Point and that inadequate archaeological salvage actions have been taken to recover an adequate level of cultural information about past Aboriginal activities. His view is that without further investigations the proposed and current development of the archaeological site at Sandon Point will result in the loss of considerable and significant heritage information.
29 I note that Dr Hiscock's report is essentially a review of the archaeological investigations undertaken at Sandon Point and focuses on the area known as stages 2 - 6. The area before me in Lot 235, the AIR land and the residue of Lot 238 is outside this area. Mr Oshlack put to me that the land the subject of these interlocutory proceedings is contiguous to this area and all of it is one large site of considerable significance for aboriginal heritage. The material in Dr Hiscock's report is not directed to the issues raised in these interlocutory proceedings. It appears more relevant to an analysis of the processes giving rise to the issue of a s 90 permit by the National Parks and Wildlife Service in relation to the site. It is therefore of limited assistance in determining the precise matters before me in this application. I note however that the statements set out above relating to Dr Hiscock's conclusions suggest that the Sandon Point area generally has considerable significance from an Aboriginal heritage perspective, and I take it into account to that extent only.
30 The Applicant has offered an undertaking to pay damages. The First Respondent submitted that this was worthless as the applicant is impecunious, a statement not challenged by the Applicant.
31 Mr Hedge, the First Respondent's development manager for Sandon Point, stated in his affidavit that the First Respondent is currently marketing the lots in subdivisions for stages 1 - 6 and has sold 14 lots. The program of works is scheduled to be completed by November 2002. If an interlocutory injunction is granted it is likely to delay the issue of a linen plan, with delays in sales and attendant costs such as land tax, Council rates and water rates. Estimated site costs if there is delay are contractor's delay costs at $15,000 - $20,000 per day, contractor's site reestablishment costs when work recommences at $20,000 and security cost at $12,000 a week.
Findings and Orders
32 In relation to the first order sought in the Applicant's notice of motion concerning permit No. 1427 and activity on Lot 235 and residue Lot 238, I cannot be satisfied on the evidence before me that there is a serious question to be tried. I therefore decline to make that order.
33 In relation to the second order sought concerning the AIR land, it seems to me that there is a serious question to be tried in relation to the issues raised by the Applicant. As I have heard no submissions from the Second or Fourth Respondents, despite their representation at the hearing, I am not aware of their views on these questions which clearly concern them as the relevant responsible government agencies. The irreparable damage caused to the Applicant in terms of the destruction of Aboriginal heritage on the AIR land in the absence of a s 90 permit from the National Parks and Wildlife Service is also a serious matter for the Applicant and not one for which damages are appropriate compensation. While there is inconvenience and possible loss of income to the First Respondent which I must consider in weighing up the balance of convenience if I make an interlocutory order in relation to the AIR land, in light of all these matters I am minded to make the interlocutory order sought in par 2 of the Applicant's Notice of Motion.
34 I note that the Applicant is prepared to give an undertaking as to damages.
35 In relation to the fourth order sought, that the Court order that a representative of the Third Respondent attend at the site, I am not prepared to make that order. The Third Respondent has filed a notice of submitting appearance, did not appear at the hearing and sent a letter to the Second Respondent stating that it opposed the orders sought and asked the Second Respondent to draw the letter to the Court's attention.
36 Before finalising the orders in relation to the second and third orders sought, further discussion with the parties is necessary.
Orders
Accordingly, the Court makes the following orders (second and third orders sought still to be finalised):
- The orders sought in par 1 and 4 of the Applicant's notice of motion are not granted.
- The question of costs is reserved.
- The exhibits may be returned.