REASONS FOR JUDGMENT
1 This is a motion by the applicants for an order restraining until judgment the second respondent from further excavating the upstream and downstream ends of the McArthur River diversion channel so as to effect a connection between the upstream and downstream ends of the diversion channel and the existing McArthur River, or from blocking or further interfering with the existing course of the McArthur River. As I have indicated to the parties, judgment will be delivered by 13 June 2008, so that the effective period of the injunctive order would be relatively short.
2 As judgment is reserved in this matter, it is inappropriate to say too much about the circumstances of the proceeding or the prospects of success of one or other of the parties in relation to it. The proceeding, in general terms, challenges the lawfulness of the approval by which the second respondent came to be permitted to convert the McArthur River Mine into an open cut mine, but, more particularly, to do that work associated with that development which involved diversion of the McArthur River. The issues are quite extensive and involve complex questions arising under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). For the reason which I have mentioned, I will say little about them.
3 The starting point for any injunctive order is to establish the existence of a serious question to be tried. The second respondent acknowledges that such a question exists. It is, of course, inappropriate for me to comment further as to the strength or otherwise of the applicants' case. The present application arises from the fact that the second respondent has apparently undertaken much of the work preparatory to opening up the diversion channel of the McArthur River and is in the final stages of that work. It proposes to proceed with that work so that, potentially, the opening of the diversion channel will occur within the next few weeks. In those circumstances, it is understandable that the applicants should have sought the order which they now seek.
4 As I have said, the second respondent accepts that there is a serious question to be tried. The issue as to whether there is what is sometimes called an irreparable harm to be suffered if the order is not sought pending the hearing and determination of the proceeding is a little complex. The applicants say that, by opening the diversion channel, it will cause environmental damage, in particular, damage to the environment and maintenance of the freshwater sawfish habitat, and that such damage will not be able to be undone or may not be able to be undone.
5 That assertion, if the diversion channel was to remain open, would be capable of being relatively easily sustained, at least at an interlocutory level. But the second respondent has undertaken to the Court that, in the event that the Court gives judgment and makes any order in favour of the applicants, the second respondent will, at its own expense, take such steps and do such things as the Court considers appropriate to secure the restoration and remediation of the natural course of the McArthur River to its physical state as at today's date. That is, as I understand it, the second respondent will close the diversion and do such work as is necessary to make sure the McArthur River resumes its natural course.
6 The evidence shows also, and I think it is common ground, that that process, the work which is proposed to be taken, or may be taken, by the second respondent in the next few weeks, and then the restoration of it, if that becomes necessary, to its natural course would be undertaken during the dry season, when the McArthur River either does not run or, as the evidence presently shows, is running only slightly relative to its wet season water flow.
7 Subject to being in a position to accept that undertaking, in my view, the undertaking is sufficient to conclude that no irreparable harm will be suffered by a temporary opening of the diversion channel for some weeks during the dry season.
8 Senior counsel for the applicants has argued that the Court should not accept that undertaking. He has cogently submitted that the Court should not do so because it would not have power, in the event that the proceeding is successful on the part of the applicants, to make an order in terms similar to the undertaking, or in terms which would achieve the effect of the undertaking. It may be debatable whether s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) would permit the making of such an order. It is also clear that the Court, in granting final relief, is not empowered to make such an order, or indeed to grant final relief unless it has found a contravention. That is clearly supported by Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1980) 148 CLR 150; Johns v Australian Securities Commission (1992) 178 CLR 408.
9 However, in my view, the acceptance of an undertaking, as relevant to assessing the existence of irreparable harm, or as relevant to the balance of convenience on an interlocutory application, is a different matter. Although the occasion of a final determination in the applicants' favour is the occasion which would activate the obligation referred to in the undertaking, the undertaking nevertheless would be enforceable by the Court.
10 Senior counsel for the applicants also argued with some force, and I accept, that the undertaking is very general and that it would involve some supervision to identify its proper implementation if it is required to be enforced. That is obviously so. It is given in the context of this application, having come on rather quickly, but it is also given in the context of two detailed affidavits by the solicitor for the second respondent identifying the work which is to be undertaken or planned to be undertaken by the second respondent in the next little while. Ultimately, the purpose of the undertaking, in a practical sense, is simply to close off the diversion channel in such a way as to enable the McArthur River to restore to its natural flow, as it will do then during the wet season later this year.
11 I am prepared to accept the undertaking as relevant to whether I should make the injunctive order which is presently sought.
12 On that basis, as I have said, I do not think the evidence supports a finding of irreparable damage which may be suffered if the injunction is granted. I have considered the material to which I have been referred. As I have said, a permanent diversion of the McArthur River channel may lead to, and at an interlocutory level would probably support a finding of, irreparable damage. But the evidence indicates that the risk, in particular to the fresh water sawfish and its habitats, is a risk which is not associated particularly with the dry period, when the McArthur River in some years does not run, and in this year is running, at least to the present time, at a relatively low flow compared to its wet season flow.
13 I turn then to consider other factors as to whether the injunction should be granted. There is some debate as to whether the finding that no irreparable harm would be suffered is sufficient to dispose of the application, but I think there is sufficient authority to say that it is merely one of the factors which should be borne in mind when considering whether or not to grant the injunctive relief. Much has been said as to whether the injunction should be granted in the absence of an undertaking as to damages proffered by the applicants or by the Northern Land Council, which, on the evidence, is funding the applicants, and understandably so, and which may have greater resources available to support an undertaking.
14 I accept that the applicants have not proffered an undertaking as to damages, and I accept that that is a significant factor going to the balance of convenience. Its absence, in my view, is not a decisive factor, but it weighs heavily in determining whether the injunctive relief should be granted.
15 The relative damage or inconvenience to the parties I have discussed to some degree. It is, of course, impossible to make any firm finding as to whether a temporary opening of the diversion channel at this time of the year, and for a relatively short time (assuming the applicants succeed in the action) would cause damage to the habitat or environment of the freshwater sawfish or to its breeding or other sustainability. There is clear evidence that the work program which has been undertaken by the second respondent, in accordance with the approvals which it presently has, will involve a substantial expense if it is injuncted from continuing that work at the present time and in the immediate future. I do not have the material available to quantify that expense, other than to say that it is substantial.
16 I also take into account that it has, as I have said, undertaken, in the event that the applicant's claim succeeds, to restore the natural flow of the McArthur River at its own expense and in such manner as the Court considers appropriate. To the extent to which there is a risk of damage to the interests which the applicants are seeking to protect, that risk is thereby minimised.
17 There are no other factors which counsel has brought to my attention of particular significance in exercising my discretion as to whether or not to make the order. In particular, I note that the applicants have acted very promptly upon becoming aware of the stage of the work being undertaken by the second respondent in an endeavour to protect what they regard as the necessary position to preserve their rights. However, as I have said, I do not think, on the evidence, that the absence of an injunction at this stage would render nugatory the benefit of the proceedings which they have brought. Far from it. On balance, I have come to the view that at present it is not appropriate to make the injunctive order which is sought, and I decline to do so.
18 I will make no order on the motion, except to reserve the costs of the motion to the occasion when judgment will be delivered.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.