Cousins v Transport for NSW

The heritage values of the Old Bridge

1. Prior to 2016, the Old Bridge had been listed on the State Heritage Register as an item of State Heritage significance. In that year, however, the (then) Minister responsible for the Heritage Act (Heritage Act 1977) approved, pursuant to s 38 of that Act, the Old Bridge's removal from the Register. It is not necessary to set out the terms of that provision. The reasons for that removal are not in the evidence before me.
2. In these interlocutory proceedings, however, annexed to the affidavit of Mr Lloyd Smith dated 15 October 2020, is a document which provides an explanation, in some detail, of the heritage values of the Old Bridge. It is unnecessary for the purposes of this interlocutory decision to set out any of that detail. It is sufficient to note, for contextual purposes, that the evidence before me from this document, and from the affidavit of Mr Walker, that the Old Bridge has cultural values relating to its association with the Light Horse Brigade in World War I and to the cultural values of Aboriginal people living in the Tabulam region.
3. Of more significance for the purposes of statutory construction in these proceedings, it is to be observed that the Old Bridge is also listed as an item of local heritage in Sch 5 of the Kyogle Local Environment Plan 2012 (the LEP).

The proceedings

1. On Friday 16 October 2020, Mr John Cousins, a resident of the Tabulam district, commenced Class 4 proceedings seeking a declaration that TfNSW's proposed activities to demolish the bridge would be in breach of s 139 of the Heritage Act because TfNSW had not applied for and been granted a permit pursuant to s 139(2) of that Act. Together with the Summons commencing the Class 4 proceedings, a Notice of Motion was filed on behalf of Mr Cousins seeking an interlocutory injunction to restrain TfNSW from commencing demolition of the Old Bridge until final determination of the substantive matters pressed in the Summons.

The interlocutory hearing.

1. The hearing took place on 19 and 20 October 2020. It was held, as a consequence of the COVID-19 pandemic, using Microsoft Teams software, without the necessity for any physical attendance in the courtroom. This hearing was conducted in accordance with the Court's COVID-19 Pandemic Arrangements Policy. As one witness (Mr Cousins) was not able to connect using Microsoft Teams, his oral evidence was taken by telephone.
2. The interlocutory hearing before me commenced on 19 October 2020 and continued on 20 October 2020, with me reserving my decision mid-afternoon on that day. I indicated that I would deliver this decision at 8.30 am the following morning. TfNSW gave an undertaking that it would not commence demolition prior to 9.30 am the following day in order to permit retention of the status quo with respect to the Old Bridge until after I was able to deliver this decision on whether or not to issue an injunction continuing the status quo until after final determination of the matters raised in the Summons.
3. Mrs J Walker, barrister, represented Mr Cousins for the purposes of the interlocutory hearing, whilst Mr R Lancaster SC represented TfNSW.

The role of the Heritage Council

1. Although the Summons commencing these Class 4 proceedings nominated the Heritage Council of New South Wales as the Second Respondent, no Notice of Appearance has been filed on behalf of that body and it has not taken part in these interlocutory proceedings.

Relevant provisions of the Heritage Act

1. I later note (and set out the terms of) s 153(1) of the Heritage Act as the provision which gives Mr Cousins standing to commence these Class 4 proceedings. A number of other provisions of the Heritage Act also require consideration in my assessment of whether or not there is some proper basis to establish that there is a sufficiently arguable case in support of the relief sought in the Summons to engage consideration of whether or not, on the balance of convenience, it is appropriate to restrain TfNSW from commencing the demolition of the Old Bridge until there has been a full hearing addressing the basis of relief sought in that Summons.
2. In this context, it is convenient (although out of sequence in the order of provisions of the Heritage Act requiring consideration) to set out the terms of s 139(1) and (2), as these contain the elements advanced on behalf of Mr Cousins as providing the basis for the relief sought in his Summons. The terms of these provisions are: 139 Excavation permit required in certain circumstances (1) A person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit. (2) A person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit.
3. I have earlier adverted to the fact that the Old Bridge has, in the past, been listed on the register of state significant heritage items but that it has been removed from that register utilising the process set out in s 38 of the Heritage Act. It is unnecessary to set out the terms of that provision for the purposes of my analysis in these interlocutory proceedings.
4. The remaining matters in the Heritage Act requiring consideration are all contained within s 4, the definition provision in the legislation. A number of definitions of specific nominated terms require later consideration. All these nominated definitions are contained in s 4(1). The relevant defined terms are set out below: building includes a part of a building, a structure or a part of a structure. environmental heritage means those places, buildings, works, relics, moveable objects, and precincts, of State or local heritage significance. harm means: (a) in relation to a building or work - demolish, or (b) in relation to a relic or moveable object - damage, despoil, move or alter, or (c) in relation to a place or precinct - damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct. item means a place, building, work, relic, moveable object or precinct. moveable object means a moveable object that is not a relic. relic means any deposit, artefact, object or material evidence that: (a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and (b) is of State or local heritage significance.
5. In addition, s 4(5)(e) also requires consideration. This provision is in the following terms: (e) demolition of a building or work is a reference to the damaging, defacing, destruction, pulling down or removal of that building or work, in whole or in part,

The evidence

1. As a preliminary point, it is to be observed that there were various objections to elements of a number of the affidavits for each party. In some instances, the relevant paragraphs, or part thereof, were not pressed and were, therefore, marked as not read. Only one element of one affidavit (from memory and without the benefit of the transcript) was rejected and elements of the affidavit of one witness for TfNSW (discussed below) were deferred with foundational sources for that material later being identified.
2. Affidavit evidence was provided on behalf of Mr Cousins by: 1. Mr Cousins who had deposed affidavits dated 16 and 19 October 2020. Mr Cousins was required for cross-examination; 2. Mr Graeme Lloyd Smith, the President of the General Sir Harry Chauvel Memorial Foundation and, himself, a retired military officer, deposed two affidavits - these being dated 15 and 19 October 2020. These affidavits had a variety of documentary material annexed to them, documentary material to which it is unnecessary to refer in any detail for the purposes of determining the outcome of these interlocutory proceedings. Mr Lloyd Smith was not required for cross-examination; and 3. Mr Lewis Walker, a member of the Bundjalung peoples. Mr Walker, it is to be inferred, is a resident of the Tabulam district. Mr Walker's affidavit of 16 October 2020 provided evidence of the significance of the Old Bridge to Aboriginal peoples (specifically, members of the Bundjalung Nation). Mr Walker was not required for cross-examination.
3. Affidavit evidence was given on behalf of TfNSW by: 1. Mrs Vicky Sisson, an officer of TfNSW holding the position of Regional Director Northern Region. Ms Sisson's affidavit was dated 20 October 2020. Several elements of her affidavit which were said to be summaries of the heritage and Aboriginal cultural reports that had been prepared for the purposes of obtaining approval for the construction of the New Bridge and the demolition of the Old Bridge were not read. Mr Lancaster, however, at the end of his submissions, provided references in TfNSW's Bundle of Documents to folios which provided the foundation for the elements of her affidavit which were not relied upon. For reasons which will later be obvious, it is unnecessary to traverse any of that material. It will, however, later be necessary to set out an extract from Ms Sisson's affidavit relating to the history of European settlement of the Tabulam region. Her evidence on this point was not subject to objection. Ms Sisson was not required for cross‑examination; and 2. Mr Stuart Webster, an officer of TfNSW holding the position of Director Northern Project Office, Regional Project Delivery, Infrastructure and Place, also deposed an affidavit dated 20 October 2020. Amongst matters dealt with in Mr Webster's affidavit was evidence (at pars 13 to 17) concerning what would be the costs to TfNSW if demolition of the Old Bridge was not permitted to commence on 21 October 2020. Mr Webster was required for cross-examination. He was questioned by Ms Walker as to the basis for, and likely exposure to, additional costs to TfNSW if the commencement of the demolition of the Old Bridge was delayed by the granting of an interim injunction preventing demolition until finalisation of the substantive proceedings. For reasons which will also become obvious, it is unnecessary to make any evaluation concerning the matters arising out of Mr Webster's cross‑examination by Ms Walker or Mr Lancaster's re-examination of him.
4. A large bundle of documents was e-mailed very shortly before the hearing on 20 October 2020 to my Associate on behalf of TfNSW (comprising 568 folios, inclusive of the index). Ms Walker objected to the proposed tender of these documents on the basis that they had also been provided to her, but a short time before the recommencement of the hearing on 20 October 2020 and that she had not been able to examine them.
5. Mr Lancaster agreed that TfNSW would rely solely on those specific pages to which he would make reference. Those pages subsequently were those noted above, as providing a foundational source documentation for the deferred elements of Ms Sisson's affidavit, together with a community update document, dated September 2020 about which Mr Cousins had been questioned. It is to be noted that, with respect to this document, it was Mr Cousins' evidence that he had not seen it.

Introduction

1. There are three preliminary issues to which I should turn, and dispose of, before addressing the first of the substantive issues requiring attention. The first of those issues is Mr Cousins' standing to bring these proceedings; the second is the issue of the giving of the "usual undertaking as to damages and costs"; and the third issue is whether Mr Cousins has delayed in the commencement of these proceedings in circumstances where that delay might be fatal to any entitlement to the granting of interim relief.

Standing

1. The Heritage Act, in s 153(1), provides what is known as an open standing provision which permits persons such as Mr Cousins to seek to remedy or restrain a breach of that Act. The provision is in the following terms: (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been infringed by or as a consequence of that breach.
2. This provision provides a proper basis for Mr Cousins to have commenced these proceedings.
3. It is to be noted that the Court's powers to intervene are contained in s 154 of the Heritage Act. It is not necessary to reproduce this provision.

The usual undertaking

1. Ms Walker, on behalf of Mr Cousins, gave the usual undertaking as to damages and costs - thus removing this as a potential impediment to the granting of any interlocutory restraint on TfNSW to prevent the demolition of the Old Bridge pending final determination of Mr Cousins' proceedings.

Delay

1. Ms Sisson's affidavit set out, at pars 11 to 31, the steps which had been taken since mid-2011 to bring to the attention of the Tabulam district community the possibility and subsequent development of a proposal to construct the New Bridge and the concomitant intention to demolish the Old Bridge. It is unnecessary, for the purposes of this decision, to set out that material as a detailed chronology.
2. Mr Lancaster cross-examined Mr Cousins as to his awareness of these two aspects as forming part of the proposed New Bridge process. Mr Cousins acknowledged that he had been aware, since 2016, of the stated intention of TfNSW to demolish the Old Bridge as a consequence of completion and coming into operation of the New Bridge. However, it was also his evidence that he did not believe (or take seriously) the element of the proposal that the demolition of the Old Bridge would take place, because he considered that the heritage values of the Old Bridge were such that such demolition would never actually be permitted to take place.
3. Mr Lancaster submitted that Mr Cousins had unreasonably not taken any steps at any time prior to the commencement of these proceedings in light of the state of Mr Cousins knowledge of TfNSW's intention to demolish the Old Bridge and that he had only done so at the last moment, as it were, thus meaning that the delay meant that, at the very least, no interim relief should be granted.
4. In his affidavit of 19 October 2020, Mr Cousins dealt, by inference, with the issue of when he became aware of the potential imminence of the proposed demolition of the Old Bridge. At pars 3 to 5 of his affidavit, he said: 3 On 1 September, 2020 I went down to the Historical Bridge site and saw that the TfNSW contractors had built a rock wall by placing an extensive amount of loose blue metal mixed with plastic trash fill across the river bed alongside and against the pylons, almost damning the flow of the Clarence River. 4 I then went to the rock wall and measured it as 85 metres long x 15 metres wide and by estimate 2 metres below the surface and 1 metre above, approximately 6000 tonne of material. 5 I learned from the contractors that this rock was to be used for placing the cranes to remove the bridge structure and run trucks on during the bridge demolition.
5. I am satisfied, for present purposes, that 1 September 2020 is an appropriate starting time for me to conclude when Mr Cousins had sufficient relevant knowledge of the imminence and certainty of the proposed demolition of the Old Bridge.
6. Whilst there is no explanation of the reasons why these Class 4 proceedings were commenced on 16 October 2020 (some 46 days after Mr Cousins had appropriate awareness of the proposed demolition of the Old Bridge), I do not consider that this delay is to be regarded as sufficient to disentitle him from having me giving proper consideration to whether or not the issues raised on his behalf provide a basis for interim relief.

The basis for consideration of an interlocutory injunction

1. The principles governing consideration of whether or not to grant an interlocutory injunction were helpfully and succinctly summarised by Biscoe J in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 - these being the principles which I adopt for present purposes. It is not necessary to set them out in full.
2. For the purposes of considering whether or not I might issue an interlocutory order restraining TfNSW from commencing demolition of the Old Bridge, it is necessary that I consider, first, if the basis advanced on behalf of Mr Cousins as providing a statutory foundation for substantive intervention (as pleaded in the Summons commencing these Class 4 proceedings) provides a sufficiently arguable case to warrant contemplation of such interim intervention.
3. It is to be noted that, in this context, in the ordinary course of events, such a process does not require me to conclude that there is a real prospect of success for Mr Cousins when the matter goes to trial, merely that there is sufficient basis for the claim advanced on his behalf that it potentially warrants preservation of the status quo pending final determination of the matters pleaded.
4. If I am satisfied that this is the position, it is then necessary for me to turn to consideration of whether or not, on the balance of convenience, the benefit of restraining TfNSW in these circumstances outweighs the reasonably expected costs to TfNSW if the demolition of the Old Bridge is restrained pending final hearing.
5. The first step in this process, therefore, is to examine the bases from within the provisions of the Heritage Act said, on behalf of Mr Cousins, to provide a proper basis for intervention to restrain the demolition of the Old Bridge on a substantive basis.
6. Given the time pressure necessarily arising in delivering this decision on an overnight basis and absent a transcript, the analysis which follows is less fulsome than might otherwise have been the position.

The case advanced on behalf of Mr Cousins

1. Ms Walker outlined to me that basis upon which Mr Cousins asserts that there will be a breach of s 139(2) of the Heritage Act if the demolition of the Old Bridge proceeds in circumstances where no permit has been sought and obtained by TfNSW to allow it to disturb or excavate soil as part of the demolition works to be carried out by contractors on its behalf.
2. The necessity for having such a permit, Ms Walker submitted, arose because the Old Bridge was an "object" properly falling within the definition of "relic" in s 4(1) of the Heritage Act.
3. The demolition activities necessary to effect completion of the removal of the Old Bridge to the extent proposed necessitated excavation, at least to some extent, with this necessity for excavation being established by par 8 of Mr Webster's affidavit and by the demolition plans which had been annexed to that affidavit.
4. It was Ms Walker's submission that the scope of the concept of "object" in the definition of "relic", in a proper understanding of the context in which it was used in the statute, was broad and was to be interpreted as if the word "building" was to be encompassed within it for the purposes of s 139.
5. On this basis, she proposed, the necessity for excavation during any stage of the demolition process triggered the need to obtain such a permit and, absent such a permit, there would be a breach of the Heritage Act warranting restraint. The imminence of the commencement of demolition thus also warranted preservation of the status quo pending the substantive hearing of Mr Cousins' case.

The position advanced on behalf of TfNSW

1. Mr Lancaster submitted that the Old Bridge did not fall within the concept of "object" as that word was used in the definition of "relic" in s 4(1) of the Heritage Act. He advanced a number of reasons why he proposed that that conclusion was the necessary and proper outcome of an analysis of the relevant provisions. He submitted that any of these, if established as correct, precluded the invocation of s 139 of the Heritage Act.
2. Such preclusion was necessarily fatal to Mr Cousins' position, he submitted - thus dooming it to dismissal.
3. For present purposes, he submitted that these impediments meant that the first threshold test for interlocutory relief - a reasonably arguable case - was not made out even at the low hurdle that this test raised. These bases he advanced were: 1. Although it was conceded that the listing of the Old Bridge as an item of local heritage in the LEP satisfied the second limb of the definition of "relic", the first limb (requiring that the Old Bridge "relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement") was, on the basis of the uncontested factual evidence before me, incapable of satisfaction; and 2. Requiring the reading of the word "object" in the definition of "relic" as being a term encompassing a structure such as the Old Bridge required the reading into the definition of expansionary words not presently encompassed by an ordinary reading - this being impermissible in this context and contrary to authority; and 3. Such excavation as was proposed to be encompassed in the demolition of the Old Bridge was not excavation attracting the necessity for a permit pursuant to s 139 of the Heritage Act. This position only required consideration, in his submission, in the event that I concluded that the first two bases of objection upon which TfNSW relied were not accepted.

The first limb of the definition of "relic"

1. Mr Lancaster had submitted that this limb of the definition of "relic" meant that a "relic" necessarily was confined, inter alia, to objects of a European cultural nature associated with the early years of the foundation of the colony of New South Wales. This, he submitted, was consistent by analogy with the finding of Barrett J in Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited [2005] NSWSC 1285 at [92] to [100].
2. In this context, I should observe that Ms Walker had submitted in reply that, first, this determination was to be distinguished from present circumstances because it related to a wharf in Sydney Harbour (that harbour being the foundation location of the colony) and was therefore confined to those facts and circumstances, but that, if I did not accept that basis for not paying regard to that decision, it was incorrectly decided and should not be followed.
3. It is, I am satisfied, unnecessary for me to determine whether or not the decision of Barrett J was clearly wrong in that conclusion or was confined in the fashion proposed by Ms Walker.
4. This conclusion arises because, making the assumption that the test in the first limb of the definition of "relic" is not temporally or geographically limited to the early foundation of the colony, I am satisfied that the Old Bridge, as a matter of fact, is still incapable of being shoehorned within this element of the definition.
5. I have reached that conclusion, assuming, for present purposes, that the test is ambulatory and thus capable of encompassing consideration of developments at Tabulam and the timeframe when such developments took place. On this basis, the uncontested evidence in the affidavit of Ms Sisson, at pars 56 to 61, was in the following terms: 56. The following information is based on documents provided to me by Denis Gojak, Senior Heritage Specialist at TfNSW. 57. Settlement in the Tabulam area began in the 1840s. At the time, grazing and limited agriculture were practiced in the area. The 'A Geographical Dictionary or Gazetteer of the Australian Colonies: Their Physical and Political Geography: Together with a Brief Notice of All the Capitals, Principal Towns, and Villages' by William Henry Wells published in 1848. In this book, W.H. Wells identified Tabulan [sic] as the squattage of major pastoralist Charles Windeyer. 58. A township was laid out and initial town lot purchases appearing to date from the early 1860s. The first of these town lots were sold in May 1860. The Maitland Mercury and Hunter River General Advertiser dated 17 May 1860 notes the sale of lots. 59. Tabulam was proclaimed a town under the Lands Act on 20 March 1885. As noted in the NSW Government Gazette dated 20 March 1885. A map dating from the mid-1880s which does not show Tabulam Bridge can be found at NSW Land Registry Map 573014 Pastoral Run 166, 2nd edition. 60. Tabulam Bridge was constructed between 1900 and 1903. The construction was completed using day-labour under the direction of the engineer, Mr. D. W. Armstrong. On completion in early 1903 the total length of the main bridge was 974 feet and the height of the concrete piers was 60 feet above the river bed. Completion was noted in the Sydney Mail and New South Wales Advertiser on 4 March 1903. 61. By 1908, after the construction of Tabulam Bridge, census documents indicate that the total number of European residents in Tabulam was 284.
6. In this context, Ms Walker proposed, in her reply submissions, that I should accept that the process of European settlement in the Tabulam region had been one of an organic nature and of progressive occupation capable of satisfying the provision even though that settlement may have taken place over a considerable period of time. I am unable to accept such an expansive interpretation.
7. As I noted at the commencement of this decision, the Old Bridge was constructed over a period in the very early years of the 20th century. As a matter of fact, I am not satisfied that there is any proper basis upon which it could be asserted that construction taking place at that time (being some 40 to 60 years after the commencement of European colonial settlement of the Tabulam region) could reasonably be regarded as even falling within the ambulatory and permissive scope of the first limb of the definition of "relic" which I have adopted for the purposes of this consideration.
8. On that basis alone, there is no proper statutory foundation upon which it would be open to conclude that the requirements of s 139 of the Heritage Act were engaged in a fashion that would require TfNSW to seek and obtain a permit pursuant to s 139(1) prior to demolition of the Old Bridge.
9. This, in itself, is a proper basis upon which to conclude that there is no sufficiently arguable case warranting the interim relief sought.

Is the Old Bridge an "object" for the purposes of the Heritage Act?

1. The starting point for interpretation, in circumstances such as these, must necessarily be the oft-cited passage, at [69] to [71], of the plurality of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355; [1998] HCA 28. The passage is in the following terms (footnotes omitted): 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
2. On the other hand, on some occasions flexibility in interpretation may be permitted by the notional importation of additional words to reach a correct understanding of a statutory provision. In Taylor v The Owners of Strata Plan 11564 and Others [2014] HCA 9; 253 CLR 531 (Taylor), the plurality (French CJ and Crennan and Bell JJ) explained, at [37]: Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation.
3. Further, as was observed by Gibbs J in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, at [6]: However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
4. The position advanced by Ms Walker, here, was that the word "object" in the definition of "relic" should be read in an expansive fashion by notionally including, parenthetically, the words "including a building" after that word in the first portion of that definition.
5. The position advanced in response to this proposition by Mr Lancaster was that such an interpretation was entirely inconsistent with, and contrary to, the structural framework (my words) established by other definitions in this provision. He instanced the fact that, in the definition of "environmental heritage", "buildings" and "relics" were separately nominated.
6. Similarly, the definition of "harm" provided, in (a) of that definition, what that concept meant with respect to a "building" but, in a differing fashion, that definition set out a separate adverse impact as constituting "harm" for the purposes of a "relic".
7. Similarly, the definition of "item", a definition in the disjunctive rather than the conjunctive (as is also the case with the definition of "harm"), clearly implies that "buildings" and "relics" are in the alternative, and that the former is not appropriate to be regarded as being subsumed within the latter.
8. In addition, s 4(5)(e) of the Heritage Act is an expansionary provision setting out the scope of what is to be understood to be encompassed by the concept of demolition of a "building" - concepts distinctly different from "disturb or excavate" as used in s 139 in that Act.
9. I am satisfied that there would be much necessary artificiality and resultant definitional dysfunction if the word "building" was to be read as being encompassed by the word "object" in the definition of "relic". Despite the mildly permissive nature of that which the High Court proposed in Taylor, as discussed above, the approach contended for by Ms Walker in this regard could not be regarded as falling within that permissible exception to the general propositions on interpretation also earlier set out.
10. This determination also leads to the inevitable alternative conclusion that there is no definitional foundation in the term "relic" to consider that Mr Cousins has any reasonably arguable case that the proposed demolition of the Old Bridge requires a permit pursuant to s 139 of the Heritage Act.

Will the proposed excavation fall within s 139(1) of the Heritage Act?

1. The third contingent proposition advanced by Mr Lancaster was that the nature of the excavation dealt with at par 8 of Mr Webster's affidavit, and in the element of the plans annexed to it (noting that, as discussed in par 10 of that affidavit, portion of the proposed demolition shown on the plans was no longer intended to take place), could not fall within the ambit of matters covered by s 139 of the Heritage Act. However, some excavation will necessarily occur if the demolition of the Old Bridge takes place.
2. It was Mr Lancaster's submission that the nature of the excavation proposed, at the location proposed (being at the batter of an embankment), could not reasonably be expected to lead to a "relic" being "discovered, exposed, moved, damaged or destroyed" in a fashion engaging the requirement for a permit pursuant to s 139 of the Heritage Act.
3. As earlier noted, this position was advanced as a fall-back one against the possibility that neither of the more substantive bases of objection pressed by him were sustained by me.
4. As I have explained above, each of the primary bases advanced by Mr Lancaster as to why there is no reasonably arguable case available to Mr Cousins have been established. It is thus unnecessary to determine whether or not this contingent submission has validity.

Conclusion

1. An injunction of the nature here sought can only issue, relevantly, to prevent a legal wrong (Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 per Gaudron J at [60]). For the reasons set out above, there is here no legal wrong, even at the low threshold of a reasonably arguable case, potentially to be established as a breach of s 139 of the Heritage Act. On this basis, the application for an interim injunction must be rejected.

Costs

1. In Class 4 proceedings (including in interlocutory elements of such proceedings as is here the case), costs ordinarily follow the event (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and r 42.1 of the Uniform Civil Procedure Rules 2005). In these proceedings, "the event" (Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]) is the failure to establish, on behalf of Mr Cousins, any basis upon which I could conclude that there was a reasonably arguable case upon which it would be appropriate to grant the interim injunction sought.
2. However, no submissions were made to me during the course of the interlocutory hearing as to what might be the appropriate costs order to be made, depending on its outcome.
3. In these circumstances, it is not appropriate to apply, automatically, the default position.
4. However, the conclusion which I have reached is such that I consider it appropriate to make a default costs order in favour of TfNSW, but also to preserve the position that either party may seek to be heard to propose some alternative costs order.
5. Therefore, the orders will provide that, unless a party notifies my Associate by 4.30 pm on Friday 23 October 2020 that that party wishes to be heard to propose some alternative costs order, Mr Cousins is to pay TfNSW's costs of these interlocutory proceedings.

Orders

1. The orders of the Court are: 1. The application for an interlocutory injunction to restrain the First Respondent, its servants or agents, from demolishing or causing the demolition of the wooden De Burgh truss bridge across the Clarence River at Tabulam is refused; 2. The Applicant is to pay the First Respondent's costs of these interlocutory proceedings as agreed or assessed unless, by 4.30 pm on Friday 23 October 2020, a party notifies the Associate to Moore J that that party wishes to be heard to propose some alternative costs order or the Applicant discontinues the proceedings with the consent of the First Respondent by 2.00 pm on Thursday 22 October 2020; and 3. The proceedings are set down for further directions before the List Judge on Friday 30 October 2020 unless discontinued prior to that date.

Amendments 21 October 2020 - A proofed version of the judgment is now published pursuant to the Slip Rule on 21 October 2020. 22 October 2020 - Amended 22 October 2020: Pursuant to r 36.15(2) of the Uniform Civil Procedure Rules, [76(2)] amended to add the following words after "alternative costs order" so that (2) reads as follows: The Applicant is to pay the First Respondent's costs of these interlocutory proceedings as agreed or assessed unless, by 4.30 pm on Friday 23 October 2020, a party notifies the Associate to Moore J that that party wishes to be heard to propose some alternative costs order or the Applicant discontinues the proceedings with the consent of the First Respondent by 2.00 pm on Thursday 22 October 2020; and DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2020