Lester v Ashton Coal Mining Operations Pty Ltd and Anor

Land and Environment Court (NSW)|2011-08-18|Before: Sheahan J, Advocacy Network J

ton Coal Mining Operations Pty Ltd [2011] NSWLEC 155 Williams v Homestake Australia Limited and Ors [2002] NSWLEC 155; (2002) 122 LGERA 319 Category: Procedural and other rulings Parties: Robert Lester (Applicant) Ashton Coal Mining (sic) Operations Pty Ltd (First Respondent) Chief Executive of the Office of Environment and Heritage (Second Respondent) Representation: Mr A Oshlack (Applicant) Mr S Lloyd SC (18.8.11) /Mr A Galasso SC (27.9.11) with Ms V Brigden, Barrister (First Respondent) Dr S Pritchard, Barrister (Second Respondent) Mr A Oshlack C/o Indigenous Justice Advocacy Network (Applicant) McCullough Robertson Lawyers (First Respondent) Office of Environment and Heritage (Second Respondent) File Number(s): 40628 of 2011

Introduction 1Among a range of interlocutory relief being sought by the Applicant is an order for access to various areas of land, covered and/or affected by the First Respondent Ashton's coal mining operation (ML1533) in the Camberwell area of the Upper Hunter near Singleton. (The correct name of the miner is Ashton Coal Operations Pty Ltd). 2The various interlocutory matters, including the disputed question of access, were incompletely argued before me on 18 August 2011, but access was the only one argued when that interlocutory hearing resumed on 27 September 2011. 3Ashton's project has been the subject also of much argument in other proceedings in this court in recent times. I will shortly refer to relevant Class 1 proceedings, and I note that further Class 4 proceedings (matter No.40840 of 2011) were commenced on 15 September 2011, against Ashton and the Minister for Planning. 4It has the benefit of a determination as state significant and integrated development, and the relevant much-modified " consent " includes (as condition 3.33 ) the following provision for access ( Exhibit BW-A to the affidavit of Brian Gregory Wesley of 17 August 2011, at page 18 - with emphasis added): "The Applicant shall provide the local Aboriginal community with the opportunity to recover artefacts as approved by the s 90 permits , and arrangement access to Aboriginal heritage on the site upon receipt of a request ." 5The reference to " s 90 permits " is a reference to permits granted under Division 2 of Part 6 of the National Parks and Wildlife Act 1974 (' NPW Ac t'). 6The subject land is freehold, and, before being purchased by Ashton, it had been intensively used for farming activities. It appears that mining operations commenced in 2005, and have caused some subsidence. Both the present applicant, Mr Lester, and his friend, Mr Scott Franks, are respected indigenous citizens with, the court accepts, genuine concerns about the Ashton project and its possible impacts on items of Aboriginal cultural heritage. It is not denied by Ashton (T 18.8.11, p51, LL6-8) " that there are Aboriginal objects on land that has subsided but there's nothing in the Act which precludes that and that's in fact as we understand it quite commonplace ".

The question of access 7In its written submissions filed in this matter on 11 August, the Applicant asserted, among other breaches alleged against Ashton, that it breached condition 3.33 in its response to the Applicant's extra-curial request(s) for access. The submissions continued: 33. The First Respondent's refusal to allow access is in direct conflict with the intent of the condition. The Applicant had great concerns about the reported damage to archaeological sites on the mine site after receiving a report from the Heritage Officer of the Wonnarua LALC. He had a legitimate right and purpose to access the site for themselves. 34. The Applicant pleads for the Court to grant an access order in the interest of justice so that a proper inspection of the reported damage could be undertaken. The Second Respondent who have statuary (sic) authority for the protection of Aboriginal Cultural Heritage sites have tefused (sic) to provide any information whatsoever from their own inspection which may allay the serious concerns of the Applicant of the reported damage. 8Although not clearly articulated on behalf of the Applicant, it is common ground that the court finds its power to make an order for access in Rule 23.8 of the Uniform Civil Procedure Rules 2005 which provides as follows: Inspection of property (cf SCR Part 25, rule 8; DCR Part 23, rule 9; LCR Part 20, rule 8) (1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following: (a) the inspection of any property, (b) the taking of samples of any property, (c) the making of any observation of any property, (d) the trying of any experiment on or with any property, (e) the observation of any process. (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property. (3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made. (4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Ev i dence Act 1995. (5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection). (6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not. 9It is clear from the chapeau to this rule that the access order must be sought and made for what was referred to in argument as " a legitimate forensic purpose " (T 27.9.11, p7, LL40-44), and it also appears to be common ground that the exclusion provided by sub paragraph (4) of the Rule is not relevant to the present case (T 27.9.11, p6, LL36-37). 10In determining the question of access, it is necessary to have regard to some of the complex history of and background to the relevant litigation, much of which can be gleaned from reading the various judgments in the related Class 1 proceedings (Matter 10335 of 2011 Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water ), namely (1) the initial judgment of the Commissioners numbered [2011] NSWLEC 1162, (2) my judgment on the question of joining Mr Franks as a party to those proceedings being judgment known as (No.2) [2011] NSWLEC 116, and (3) the Commissioners' substantive judgment (No.3) [2011] NSWLEC 1249. Regard should also be had to Craig J's judgment of 29 August in the present matter [2011] NSWLEC 155.

The related Class 1 proceedings 11The Class 1 proceedings concerned the deemed refusal of an application which Ashton had made to the Second Respondent for an Aboriginal Heritage Impact Permit ('AHIP'). 12Both Lester and Franks gave evidence in the Class 1 proceedings. Mr Franks subsequently made two applications to be joined as a party to those proceedings, and judgments Nos. 1 and 2 dealt with his status and involvement. 13In judgment No.2, I declined to order a stay of the Class 1 proceedings, and I also declined to order the joinder of Mr Franks as a party, but I ordered a limited reopening of the hearing to enable Mr Franks to place before the Commissioners further material, including that which he had placed before me, which had come to his knowledge only after he had given evidence before them. 14The parties to the Class 1 proceedings (the two respondents to the present Class 4 proceedings) agreed upon the form of an appropriate AHIP, and the hearing continued on the basis that it dealt with the making of the consent orders the parties jointly sought. 15The interlocutory relief sought in the present proceedings on 18 August included a stay of the Class 1 proceedings. The respondents to these proceedings submitted that this court lacks jurisdiction to order in Class 4 a stay of a Class 1 matter, and it was clearly acknowledged on 18 August that there was some risk that, if the interlocutory hearing did not conclude on 18 August 2011, the Class 1 proceedings might be determined before either the question of jurisdiction, and/or the merits of the application for a stay (if jurisdiction were found), could be resolved. 16The risk was exacerbated by the way Mr Oshlack conducted the hearing on 18 August, and the Commissioners gave judgment No.3 concluding the Class 1 matter on 25 August, just after the court had fixed 27 September as the date for resumption of the Class 4 interlocutory hearing. Final orders were made in the Class 1 matter, granting the AHIP, on 26 August. 17The Applicant's attempt to obtain some stay of the Class 1 proceedings, and later of the orders made in them, culminated in Craig J's judgment of 29 August 2011 in the present matter, refusing a separate interlocutory application for such a stay. 18The AHIP granted by the Commissioners in their orders of 26 August includes a number of Operational Conditions, two of which were referred to during argument on the present application for access, namely: 11. Where there will be ground disturbance from the proposed works in the Potential Pleistocene Sediment areas within Potential Archaeological Deposit 37-3-0496 identified in the map at Attachment 1 in yellow shading, the area must be investigated in accordance with the methodology specified in Attachment 2 to this AHIP. 12. Movement of Aboriginal objects may be carried out in Potential Pleistocene Sediment areas within Potential Archaeological Deposit 37-3-0496 identified in the map at Attachment 1 in yellow shading, only upon completion of any investigations required by condition 11 and where the other conditions of this AHIP are complied with including condition 9 and condition 13.

The present Class 4 proceedings seek an access order 19The present Class 4 proceedings were commenced by the filing of a summons and Points of Claim ('POC') on 19 July 2011, at a time when the First Respondent was refusing to grant site access to the Applicant. 20Both the summons and POC have been amended twice since, but the formulations of the prayer for an access order (in par 7 of the summons and POC 6) have remained constant: Prayer 7 of the summons : 7. An order granting access for the Applicant and his archaeological and mining experts onto the land for the legitimate forensic purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, of the extent of work and consequential impact on Aboriginal sites by the activities of the First Respondent. POC 6: 6. The Applicant seeks an interlocutory order for access to the site for him and his experts to prepare reports in compliance with the UCPR. 21The First Respondent resists the making of the order. Its submissions in response (prepared by Mr S Lloyd SC and filed on 17 August), included the following pars: 99. It is clear that such an order is discretionary, and Ashton contends that the court ought not exercise its discretion to make such an order at this stage of the proceedings. The respondents have not filed points of defence yet, and no directions for preparation of evidence (including expert evidence) have been made. As such, it is unclear how the expert evidence proposed to be adduced by Mr Lester is relevant to an issue in dispute in the proceeding, for the reason that the issues in dispute in the proceeding have not yet been articulated in pleadings. In the circumstances, Ashton submits that it would be premature to grant access to its property. 100. Further, Mr Lester has not identified in the summons the specific parts of Ashton's property to which he seeks access, nor the names of the persons whom he intends to visit the property, nor the dates and times upon which he seeks access. Although rule 23.8 does not specifically require these matters before an order for access may be made, in circumstances where Ashton operates a large coal project upon which work is presently being carried out, such information is necessary in the interest of its business operations and occupational health and safety concerns. 101. Ashton submits that the interlocutory order sought by Mr Lester ought not to be granted at this stage, until such time as pleadings have closed and directions for evidence have been made. 22When pressed, at the resumed interlocutory hearing on 27 September 2011, to put before the court short minutes of the order he was seeking ('SMO'), Mr Oshlack, agent for the Applicant, formulated it as follows:

An access order be granted to the Applicant and Mr Scott Franks and experts for the legitimate forensic purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, of the extent of work and consequential impact on Aboriginal sites by the activities of the First Respondent.
The persons to be granted access are the following: i) An expert archaeologist ii) An expert person in relation to mine engineering and/or geologist/geomorphologist/subsidence specialist iii) Robert Lester (Applicant) and Native Title claimant and traditional owner iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner
The areas to be inspected is contained in the hatched area of the map which is Attachment 1 of the AHIP and include the following Aboriginal sites known as: i) The Oxbow site ii) The Grinding Groove site (also referred to as the Waterhole Site) iii) The Pleistocene site iv) The Fishtrap site.
The inspection will take at least one full day with provision for a second day if required.
The Court make directions for the expert witnesses referred to in paragraph 2 i) and ii) to confer with the Respondents experts and prepare a report in accordance with the relevant provisions of the UCPR.
The names and the cv's of the experts be provided to all parties. 23The Applicant wants to have Mr Franks along during the inspection as his adviser, and, if only one Aboriginal representative is to be allowed, he would defer to Mr Franks's expertise. 24Mr Galasso SC appeared for the First Respondent Ashton when the interlocutory hearing resumed on 27 September 2011, and argued, primarily, that no access order should be made, but that, if the court in its discretion were to make an order: (i) Mr Franks should not be included in the Applicant's party (pars 1 and 2(iv) of SMO); (ii) the areas in paragraph 3 of the SMO should be more specifically defined to comprise only, rather than to " include ", the Aboriginal sites nominated as 3(i), (ii), and (iii), and not (iv); and (iii) proposed order 5 (in the SMO) should be declined as " premature ", with the question of further directions to be addressed once the access question has been resolved. 25In his oral submissions (T 27.9.11, pp 9-14), Mr Galasso presented to the court a detailed critique of the various prayers presently made for substantive relief, in order to refute the submission that an access order as sought in Prayer 7 would serve a legitimate forensic purpose. He submits (T 27.9.11, p35, LL39-41) that the court would be unlikely to grant the declarations sought. Those prayers for substantive relief which remain in the further amended summons dated 27 September are couched in the following terms (with the latest amendments in bold type):
A declaration that the First Respondent breached the conditions of consent of DA 309-11-2001-i by commencing construction and mining without obtaining an Aboriginal Heritage Impact Permit pursuant to s90 of the National Parks and Wildlife Act 1974 from the Second Respondent on land within Mining Lease ML 1533 described as Lot 3 1114623 , Lot 2 1089848 Lot 101 DP 635131; Part Lot 11 DP 261916; Lots 1 & 3 DP 195598; Lot 59 & Part Lot 70 DP 752499; Part Lot 701 DP 828294; Lot 1 DP 745486 and adjoining Crown Road; Part Lot 1243 DP 1007536; Crown Reserve 89555; Travelling Stock Reserve 66768; Part Campberwell Temporary Common, Northern Railway; Glennies Creek Reserve; New England Highway Reserve; Parish of Vane ("The Land")

The interlocutory disputes in this matter 29It was agreed early in the interlocutory hearing on 18 August 2011 that the various matters then before the court would be dealt with in the following order: (1) the question of whether the court had jurisdiction to grant a stay, (2) should a stay of proceedings be imposed on the Class 1? (3) whether the court should grant an interlocutory injunction restraining further longwall mining, (4) the question of access to the mine site, (5) the enforcement or otherwise of a Notice to Produce filed by the Applicant on 5 August, and (6) the Second Respondent's Notice of Motion ('NOM') dated 15 August 2011, seeking that various prayers of the then Amended Summons and various paragraphs of the amended Points of Claim ('APOC'), as they then stood, should be dismissed/struck out, pursuant to the provisions of rules 13.4 and 14.28 of the UCPR. 30Mr Oshlack's failure to prosecute the interlocutory agenda in the order agreed meant that the court completed none of the six items by the end of the interlocutory hearing on 18 August, necessitating its adjournment, part-heard, to 27 September, a very unsatisfactory situation. 31Matters (1) and (2) in the above list have now been rendered nugatory by the decision of the Commissioners on 25 August, the AHIP orders of 26 August, and the judgment of Craig J on 29 August. The access question, item (4), was fully dealt with on 27 September, and is the subject of this judgment. Outstanding questions (3), (5), and (6) will now depend on the attitude taken by the Respondents to the latest amendments of the pleadings, and to the events and evidence which follow any inspection. The challenged notice to produce (for inspection) in (5) may still be pressed even though it was thought to have been superseded by a fresh notice (to produce to the court), dated 23 August, which is also now challenged by the Second Respondent (T 27.9.11, p2, c.f. p48).

Denial of access? 32During the afternoon of the hearing on 18 August 2011 there was much argument and some evidence concerning complaints having been made to the Second Respondent about possible breaches of the law by Ashton in respect of Aboriginal items, and the company's decision to decline requests for Aboriginal interests to have access to the land until official investigation of those complaints was complete. 33Ashton's Brian Wesley deposed (in his affidavit read on that day, pars 53-55) as follows, regarding questions of access: 53 On 11 July 2011, ACOL received a request from Mr Lester for access to the site referred to as the Grinding Groove site GG1 (i.e. the waterhole site). 54 On 14 July 2011, ACOL wrote to Mr Lester regarding his request for access advising that it was considering his request. 55 On 20 July 2011, ACOL wrote to Mr Lester regarding his request for access. Annexed hereto and marked ' BF-07 ' (sic - BW-07) is a copy of the letter to Mr Lester. 34The letter in the relevant annexure to Mr Wesley's affidavit says as follows: Dear Mr Lester Request for site visit - Ashton Coal Project We refer to your email dated 11 July 2011 and your request for access to that part of the Ashton Coal Project referred to in Dr Dan Witter's 2002 report as grinding groove site GG1. We advise that Ashton Coal Operations Pty Ltd (ACOL) has determined that at this time it does not consider it appropriate to allow access to the GG1 site. The reasons for this include the current legal proceedings in the National Native Title Tribunal (NF11/1) and in the Land and Environment Court (case no. 10335/2011). We also note that the site is the subject of an investigation by the Office of Environment and Heritage. When the above matters have been resolved or when ACOL considers it appropriate, ACOL proposes to provide access to the site for all Registered Aboriginal Parties through a coordinated consultation process. 35Mr Oshlack cross-examined Mr Wesley on 18 August regarding the access question, and the following exchange occurred (T 18.8.11, p 83, L 28 - p 84 L11, with emphasis added): Q. Why is it inappropriate to allow access as per the conditions of consent for Mr Lester or Mr Franks and/or Mr Franks to inspect the sites that they to inspect the areas that they believe may have been damaged? A. We haven't denied access for time. We've we need to be the complaints that were made have been duly investigated by OEH and they are the logical people to be doing that. And subsequent to those inspections, or investigation, we would allow both those individuals and we also find it very important that we involve all our Aboriginal representatives, and not just a couple of individuals . Q. So the reason that you're denying access is because of this ongoing investigation? A. It's appropriate for the investigation to be completed and following that, then all Aboriginal registered parties will be informed of the results of that investigation . Q. Yes but this is to do with them accessing. You're saying when the investigation is finished, you will allow access to the sites? A. Yes I believe so. Q. When you say, "I believe so" - A. I believe it will, yes. It will have to be accessed at that point in time, but that's certainly our intention at this point in time. Q. Do you know why you are being investigated? A. No. Q. Not at all? No one's - A. Not we haven't been told the as far as to the best of my knowledge we haven't been informed of the nature of the complaints . Q. How many days of investigations can you tell us has been undertaken on the mine site since the complaints were made? A. I haven't' personally been involved. I'd certainly I'm not exactly sure to be honest. It's at least two, maybe more. I can't I don't specifically know. 36The parties acknowledged that the departmental investigation of activities on the subject site, carried out prior the grant of the AHIP on 26 August, was still proceeding as at the further hearing on 27 September (T 27.9.11, p8, L50). The site investigation now includes the Department of Planning ( Exhibit L 5, T 27.9.11, p22, LL22-24, and p34, L37- p35, L5). Neither the Minister for Planning, nor his Department, is involved in the present proceedings, but the Minister is a respondent to the other Class 4 matter recently commenced by Mr Lester. 37During the resumed hearing on 27 September the following documentary evidence relevant to the question of access was tendered. 38Exhibit A1 is a letter from Ashton to Mr Lester dated 12 September 2011 in the following terms: Dear Mr Lester Request for site visit - Ashton Coal Project We refer to our letter of 20 July 2011, Ashton Coal Operations Pty Ltd ( ACOL ) is now able to offer you the opportunity to access GG1 at the Bowmans Creek waterhole site. In accordance with recommendations from the Office of Environment and Heritage and ACOL's occupational health and safety requirements - access to the waterhole GG1 site must be supervised and managed by ACOL. The opportunity to visit the waterhole GG1 site has also been offered to the Ashton Coal Project's registered Aboriginal parties from Tuesday 13 September 2011. ACOL is also able to provide access to you for the waterhole site from Tuesday 13 September 2011, or at a later date by arrangement. Please let me know by 20 September 2011 if you are able accept this invitation. 39Exhibit A2 is a letter from the solicitors for Ashton to Mr Oshlack dated 20 September, urging a review of the Applicant's prayers for relief in the light of the orders of 26 August and the decision of Craig J. In respect of Prayer 7 the letter said: " Prayer 7 should fall away. By email dated 12 September 2011, our client invited the applicant to make an appointment to access the site ". The letter urged that Prayers 3, 7, 8 and 9 in the amended summons not go forward, and invited Mr Oshlack to seek leave from the court to further amend, deleting Prayers 3, 6, 7, 8 and 9, and foreshadowed a NOM to have them dismissed (along with a strike-out of the corresponding paragraphs of the APOC, including paragraphs 3, 5, 15, 16, 17 and 17A.) 40Only Prayer 9 and POC 16 to 17A are now not pressed. In the Applicant's amendments of 27 September, alterations were made to the other contentious prayers and to the POC, and additional prayers and POC were added. The Applicant no longer seeks any relief in respect of the Class 1 proceedings. (Relevant further detail will be presented later in this judgment). 41Mr Galasso noted that the contents of Exhibits A1 and A2 constituted a variation of the position taken by Mr Wesley, in his oral evidence on 18 August, in respect of access. He also noted that the access for heritage related purposes, provided for in condition 3.33 ([4] above), and envisaged by Exhibit A1 ([38] above), should be contrasted with any access granted by the court pursuant to Rule 23.8 (T 27.9.11, p6). 42Exhibit L5 contains an email exchange between Mr Franks and Diane Crosdale, Manager, Planning and Aboriginal Heritage Section, Environment Protection and Regulation, of the Second Respondent, on Monday 26 September. 43The email from Franks to Crosdale on 26 September said: Diane, Can you please confirm that you will be issuing a STOP WORK ORDER on the Ashton Ahip, as it is quite clear that sites have been now be destroyed with in this AHIP area and non compliance has occurred with the conditions of the Ahip. Could you also advise why you have stated that your department is not responsible for the investigation, and the Dop is when your department control and manage AHIP requirements. Could you also advise why your department supported an AHIP that was overlapping someone else land that Ashton Coal do not own or control. At what stage did your department Ashton coal and the Land owner site down and discuss this Ahip. Could you please also explain why the Ahip Holder AHSTON Coal and your department did not advise the other property owners of the Ahip and their obligation. Regards, Scott Franks 44Ms Crosdale replied: Scott, Thank you for your email below. I refer to our conversation this morning. As I advised this morning, the matter is under investigation and the Department of Planning and Infrastructure is the lead agency in consultation with Office of Environment. Kylie Seretis of Department of Planning and Infrastructure is the contact in this regard (phone 9228 6510). All parties are entitled to natural justice. As decisions are made you will be advised. Regards Diane Crosdale

The relevant principles to apply 45The application of UCPR 23.8 is dealt with in Ritchie's practice at pages 7173-7174. The learned author notes that the rule permits orders to be made, in the light of the relevant issues, to facilitate the proper determination of the proceedings, and is primarily directed to the situation where issues have been joined on the pleadings. Powers of inspection are potentially available in connection with preliminary discovery 46The learned author notes that the power " should be exercised with caution when third party rights may be involved. The inconvenience that will be occasioned to any third party is important when considering whether an order should be made and, if so, upon what terms ". In this respect it is to be noted that some of the land to which the Applicant would appear to seek access in this matter may not be owned by or used by the First Respondent to these proceedings. 47The principles to be applied in considering whether to make an order under the rule are similar to applications for discovery before pleadings, the inspection must be necessary to enable the party to frame its pleadings. In a key comment, Ritchie notes (at 7174) that " an order may be made if the court is satisfied that the purpose of the application is to enable the party to formulate its cause of action properly (as distinct from an attempt to find out whether any cause of action is available) ".

Consideration 48The Applicant frames his request for access in terms of enabling the proper formulation of his POC and any particulars to be provided, while the First Respondent resists the order on the basis that it is designed to enable a " fishing expedition " in search of a cause of action. 49In response to Mr Galasso's argument that an inspection/access order should not be made because s 86 of the NPW Act should be enforced, and its breach dealt with, by criminal proceedings (T 27.9.11, pp7-8), Mr Oshlack argued (T 27.9.11, pp15-17) that his reformulated prayers for relief (in Class 4 proceedings on the civil side of the court's jurisdiction) are perfectly legitimate, even if the facts found may have relevance to civil relief as well as criminal proceedings. (Contrast s 191 and s 193 of the NPW Act, and see Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395, per Young JA, especially at [139]. See also Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145, at [68] per Pepper J, and Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1). 50Mr Oshlack referred to a number of cases in which orders for access had been granted in somewhat similar premises, where a criminal prosecution might be a possible outcome of any finding of breach. He says that the damage to heritage items in the subject area is on-going, that it is serious, and that the court's intervention is urgent. Without access he cannot accurately particularise the claims which underpin the breach he has alleged (T 27.9.11, p20, LL27-41). 51Mr Galasso submitted that the breadth of the order sought in the SMO breached the principles laid out in Ritchie. He also relied on the involvement of the Department of Planning in the continuing site investigation as further grounds for arguing that it is premature to permit the Applicant to conduct an inspection, particularly as the access order sought appeared to involve land owned and/or worked by another miner (T 27.9.11, p37, LL5-15). 52I have concluded that the Applicant's claims for relief, whatever their merit or ultimate fate, cannot possibly be dealt with appropriately by the court without their being accurately and properly pleaded and particularised. They concern items alleged to be of heritage significance and, despite the concession in Exhibit A1 , the areas, the items, and the alleged damage done must be the subject of adequate scrutiny by all parties. 53The interests of justice dictate that the court's discretion should be exercised in favour of the Applicant, and that an order for access ought to be made pursuant to UCPR 23.8. Williams v Homestake Australia Limited and Ors [2002] NSWLEC 155; (2002) 122 LGERA 319. 54I accept the expertise of Mr Franks in such matters, and I consider that it is reasonable for Mr Lester to have his support on the inspection. I am content to make Orders 1 and 2 of the SMO, generally in the form in which they were presented. 55In respect of proposed Order 3, I accept Ashton's submission that it should be restricted to specific " Aboriginal sites " and I will amend it accordingly. Despite the conjecture during argument regarding " the Pleistocene site " (item (iii)), its inclusion in any inspection I might order was not ultimately opposed. 56It is unfortunate that the parties were not able to agree precisely upon a definition of " the Fishtrap site " (item (iv) in SMO 3), but I waited for the full transcript for 27 September 2011 before settling this judgment, and I consider that, absent agreement being reached, the relevant site should be defined by those closely concerned with its Aboriginal significance. I consider that it has been adequately identified by Mr Oshlack during his oral submissions (T 27.9.11, p42, LL41-48, p43, LL19-37, p43, L45-p44, L3, p44, LL10-19, and p47, LL23-27, but see also Mr Galasso at p47, LL3-11 and Mr Oshlack's response at LL27-47). 57I am generally happy to make SMO 4 and SMO 6, but not SMO 5 with regard to expert witnesses conferring. I agree that such a direction is premature. I am also happy to add the two orders proposed by the Second Respondent ([27] above). 58Once the inspection has been held it will be necessary for the court to have before it in the Respondents' response to the Further Amended Summons and the FAPOC, both of which may require some textual corrections, and for the court to make directions for the further conduct of the matter. 59Mr Oshlack indicated that there would be still further documents sought (by notices and subpoenas) in view of the amendments he had made to his pleadings, and he also foreshadowed the prospect that the Applicant would administer interrogatories (T 27.9.11, p27). Some dispute about these procedures can be expected, and the Respondents may also revive their applications for dismissal and/or strike out. 60In conclusion I must express my apprehension about the burden of costs flowing from the duplication of litigation concerning the Ashton project. Joinder of Mr Franks in the Class 1 proceedings was argued twice, a possible stay of those proceedings was argued three times, there are now two separate Class 4 matters before the court, and the question of access determined in this judgment has occupied the court's time on three separate days. The costs of those three hearings will be formally reserved.

Orders 61In accordance with the reasoning above, the court makes the following orders:

Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for the purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, regarding the extent of work and consequential impact on Aboriginal sites within the area of ML 1533 by the activities of the First Respondent.
The persons to be granted access in accordance with Order 1 are the following: i) Robert Lester (Applicant) and Native Title claimant and traditional owner ii) An expert archaeologist iii) An expert in mine engineering, and/or a geologist/geomorphologist/subsidence specialist iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner
The areas of ML 1533 to be inspected are the Aboriginal sites known as, and referred to in these proceedings, as: i) The Oxbow site ii) The Grinding Groove site (also referred to as the Waterhole Site) iii) The Pleistocene site iv) The Fishtrap site.
It is envisaged in the making of these orders that the inspection will take at least one full day, with provision for a second day if required, and the Office of Environment and Heritage is to be notified by the First Respondent of the date and time of the inspection.
Officers of the Office of Environment and Heritage and any experts retained by the Office of Environment and Heritage are granted access to attend any such inspection, and have permission to record discussions during any such inspection.
The names and curricula vitae of the experts attending the inspection are to be provided to all parties.
Within 7 to 21 days of the completion of the inspection any of the parties may approach the Registrar to include the matter in the List Judge's list at the earliest opportunity, with a view to the making of further directions, including as to the disposition of any outstanding or further interlocutory applications.
Costs of 5 August, 18 August, and 27 September 2011 are reserved.
The exhibits are to remain in the court file for the present. 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: 13 October 2011

(2009) 167 LGERA 395

(2002) 122 LGERA 319

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