Applicant's submissions in reply
43 With respect to the submissions of Stockland, the applicant submits that it was highly unlikely there were no Aboriginal objects discovered on lot 224, given the extensive scattering of artefacts on the Sandon Point site. The applicant also relies upon the fact that Stockland fenced lot 224 thereby preventing investigation by other parties and says that Mr Hedge had not been on site at the time of the excavation. The applicant also submits that no workmen carrying out excavation work on the site were called and accordingly the inference arises pursuant to the principle in Jones v Dunkel and Anor (1959) 101 CLR 298 at pp 304-305 that the evidence of such persons would not have assisted Stockland. Additionally the applicant submits that the nature of Aboriginal objects were such that the presence of an archaeologist was necessary to enable their identification.
44 With respect to the submissions of the Director-General, the applicant takes issue with such submissions. The applicant submits that the fresh consents were sought for house construction which comprised a fundamentally different activity to the subdivision work permitted under the original consents, and did not represent continuing work. The applicant says he was under no obligation to provide the Paton report because the applicant did not know that the fresh consents would allow house construction.
Findings relating to the claim against Stockland
45 The applicant's claim against Stockland is based upon its claim that Aboriginal objects had been discovered on lot 224, such that as a result Stockland was required by condition 30 of its development consent to cease work. The applicant submits that Stockland failed to call evidence from the workmen who excavated lot 224, and submits that they might have given evidence concerning the procedures taken to comply with condition 30 when making the excavation.
46 No evidence exists that in the course of construction of the dwelling on lot 224, Stockland either uncovered Aboriginal objects, or discovered Aboriginal objects and knowingly caused their destruction. The applicant's claims against Stockland that Aboriginal objects must have been found on lot 224 is unsupported. There is no evidence to justify such assertion. Further, no condition was imposed on Stockland either by the development consent or by the original consents which required Stockland to have an archaeologist present on site during excavations.
47 The affidavit of Paul Hedge sworn 9 August 2004 establishes that the Aboriginal objects described by the applicant and Mr Paton in their affidavits were located on lot 207 on the Sandon Point subdivision. However lot 207 is not the subject of any claim in these proceedings.
48 Mr Hedge testified that no report was made to any contractor or agent nor employee for Stockland of the uncovering Aboriginal objects. Mr Hedge testified that Stockland proceeded with the development of lot 224 using a salvage methodology prepared by consultants which had been submitted with the application for the original consents. He said that the methodology was implemented and that according to the consultant's report salvage had been completed. He said that there was no evidence of any objects found on lot 224 when lot 224 was excavated in the period September 2003 and October 2003. In the absence of any submission that his evidence was untruthful, the Court accepts the evidence of Mr Hedge.
49 The applicant has submitted that the doctrine of "wilful blindness" applies, namely that the Court should infer that Stockland deliberately omitted to search for Aboriginal objects on lot 224. The court finds that the applicant's claims concerning the possibility that Aboriginal objects may have been found are purely speculative. Such claims are based on the innuendo that Stockland did not act with integrity and deliberately concealed the presence of Aboriginal objects from both the Director-General and from the council. In the absence of evidence to the contrary, and the absence of any cross-examination of Mr Hedge as agent for Stockland suggesting that he was untruthful, the Court could not draw such inference. Further, such finding could not be made in the absence of evidence that on the balance of probabilities such objects existed on the land: see Pereria v Director of Public Prosecutions (1989) 63 ALJR 1; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at p 700.
50 It follows that there is no proven breach of condition 30 of the development consent, nor is there any proven breach of the original consent. Accordingly the applicant's claims relating to breaches by Stockland of the original consents and of the development consents cannot be sustained.