[2001] HCA 63
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Mekhail v Hana
In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Source
Original judgment source is linked above.
Catchwords
[2001] HCA 63
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57Mekhail v HanaIn the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Judgment (8 paragraphs)
[1]
Judgment
Before the Court is a notice of motion filed 28 February 2019 seeking urgent interlocutory relief.
On 7 January 2019, Michael Ryan ('applicant') commenced proceedings initially against the Joint Regional Planning Panel ('first respondent'), Lismore City Council ('second respondent'), and Winten (No 12) Pty Ltd ('third respondent') seeking declaratory and injunctive relief in relation to development consent granted by the Northern Regional Planning Panel on 17 October 2018 ('the consent'). The consent relates to development comprising the sub-division of land at North Lismore to create 390 residential allotments, a local centre allotment, open space, and areas for environmental management.
In his further amended summons filed 28 February 2019, which adds W A Sexton ('fourth respondent') and Glorbill Pty Ltd ('fifth respondent'), the applicant seeks the following relief - a declaration that the consent is invalid and therefore void and of no effect; a declaration that a civil construction certificate granted by the second respondent on 12 February 2019 is void and invalid; a declaration that the third, fourth and fifth respondents have breached ss 136 and/or 139 of the Heritage Act 1977 (NSW) or alternatively s 90 of the National Parks and Wildlife Act 1974 (NSW); an order restraining the second, third, fourth and fifth respondents jointly and severally from undertaking any activity which relies upon the authority of the consent.
By notice of motion filed 28 February 2019, the applicant seeks an urgent interlocutory injunction restraining the second, third, fourth and fifth respondents from undertaking activity which "relies upon the authority of" the consent.
The motion for interlocutory relief proceeded before me yesterday. The applicant was represented by Ms Saw of counsel and the third respondent was represented by Mr Clay of senior counsel. Each of the first, second, fourth and fifth respondents have entered a submitting appearance.
Although the grounds identified in the further amended summons included claims in relation to threatened species (raising State Environmental Planning Policy No 44 - Koala Habitat Protection and Microbats); Aboriginal cultural heritage; and matters regarding the precise land to which the consent relates, the only matter the subject of evidence and submissions and the only basis upon which interlocutory injunctive relief is sought relates to Aboriginal cultural heritage.
The primary contention in relation to Aboriginal cultural heritage, pleaded at par 8 of the further amended summons, is that the first respondent, in reaching its decision to grant the consent, relied upon a report styled the "North Lismore Plateau Aboriginal Cultural Heritage Assessment August 2018" in circumstances where the applicant alleges that the preparation of that report either failed to comply with the "Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales 2010" ('Code of Practice') or failed to regard the accepted methodology for undertaking such assessments contained in the "Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010" ('Consultation Requirements'). Each of the Code of Practice and Consultation Requirements is published by the Department of Environment, Climate Change and Water NSW.
This discrete claim, under the heading "Aboriginal Cultural Heritage", is particularised in the further amended summons as follows - that the applicant had a legitimate expectation that he would be consulted in accordance with the Code of Practice and/or Consultation Requirements; that the second to fifth respondents separately acted in bad faith by their conduct in undertaking the consultation process; that the applicant had been denied both natural justice and procedural fairness; that the second respondent in coordinating the consultation process on behalf of the third, fourth and fifth respondents, failed to comply with the Consultation Requirements by not providing copies of the draft or final Cultural Heritage Assessment to the applicant or any other Aboriginal representative; that the third, fourth and fifth respondents failed to comply with the Code of Practice in that a site inspection survey undertaken by the consultant to the second, third, fourth and fifth respondents was conducted without the presence of the applicant or any other Aboriginal representative; and that no cultural heritage assessment or survey was undertaken on the development footprint including any subsurface analysis.
The further amended summons raises claims regarding "Destruction of Inferred Grave" and "Culturally Significant Stone Walls" (this pleading relates to breaches of s 139 of the Heritage Act 1977 (NSW) or s 90 of the National Parks and Wildlife Act 1974 (NSW)), however these aspects were subsumed in the hearing before me in the submissions made in relation to the conduct leading to the assessment referred to above.
In support of his application for interlocutory relief, the applicant relies upon the following evidence:
1. Affidavit of Michael Ryan sworn 27 February 2019;
2. Affidavit of Michael Ryan sworn 4 March 2019;
3. Affidavit of Al Oshlack sworn 27 February 2019;
4. Bundle of documents comprising:
1. Development Application dated August 2017;
2. Flora and Fauna Assessment, prepared by Peter Parker Environmental Consultants Pty Ltd, dated 24 July 2018;
3. North Lismore Plateau Cultural Heritage Assessment, prepared by Everick Heritage Consultants, dated August 2017 ('Cultural Heritage Assessment 2017');
4. North Lismore Plateau Cultural Heritage Management Plan, prepared by Everick Heritage Consultants, dated January 2017 ('Cultural Heritage Management Plan 2017');
5. North Lismore Plateau Residential Development, Cultural Heritage Assessment, prepared by Everick Heritage Consultants, dated August 2018 ('Cultural Heritage Assessment 2018');
6. Development Assessment Report, prepared by the second respondent, dated September 2018 ('Development Assessment Report 2018'); and
7. Notice to Applicant of Determination - Approval, dated 17 October 2018;
1. Consultation Requirements; and
2. Code of Practice.
The applicant's evidence may be summarised as follows:
1. He is a Widjabal person within the Bundjalung Nation; Chair of the Bundjalung Elders' Council; Director of the Bundjalung Tribal Society; and lead applicant in the Widjabal/Wiyabal Native Title Claim. He gives evidence of the importance of areas within the Bundjalung Nation and deposes that his Elders have taught him about matters concerning the North Lismore Plateau, the area related to the development ('Plateau'). He has read extensively from the historical record. He states that it is his role and duty within the Aboriginal community to do all in his power to protect the cultural heritage particularly the Sacred Buninj Dreaming Site;
2. Since 2012, he has participated as a member of the Representative Aboriginal Party ('RAP'), a select group which was set up to consult with the second respondent and the proponent of the proposed development; and
3. He has been dissatisfied with the conduct of the consultation and in particular he deposes that other members of the RAP were ignorant of the Plateau; that the coordination of the RAP was undertaken by unqualified persons; that his concerns, expressed over a seven year period, were not dealt with appropriately; and that the RAP process was controlled by an unqualified consultant (in the sense that meetings were chaired, agendas formulated, and minutes prepared, in circumstances where the applicant's own consultants were not able to attend), with the consequence that "the proponent and his consultants" overrode matters that he raised. He further deposes that from 2016 onwards the RAP meetings consisted of only three to four members and he says that he was the only one with knowledge of the Plateau.
Without meaning disrespect to the extent of the applicant's evidence, his concerns, as detailed in his affidavits, may be summarised as follows:
1. The Aboriginal parties were deceived in that they were under the impression that the consultation was being conducted in accordance with the Code of Practice and the Consultation Requirements;
2. The Cultural Heritage Assessment 2018 (which was exhibited with the development application and was the document before the first respondent when it reached its decision) was prepared (and an earlier draft put on exhibition) before the applicant had an opportunity to read and make submissions which he says would otherwise have been included in the final report;
3. The Cultural Heritage Assessment 2018 failed to comply with the guidelines when, first, it recommended that certain stone walls were not of Aboriginal origin; second, it relied upon an archaeological survey in which no Aboriginal person took part; third, there was no recommendation for monitoring the clearing for Aboriginal objects; and fourth, it failed to deal appropriately with matters concerning the destruction of a gravesite;
4. In summary, the applicant says that the areas to be impacted by the development have been inadequately surveyed and assessed and that the development as approved will cause irreparable damage to the "significant site" and because there is no ongoing monitoring requirement, there will be little protection for subsurface Aboriginal artefacts; and
5. The applicant also notes that there seemed to be a lack of an appropriate survey undertaken in that certain "proposed test pit" locations detailed in an earlier archaeological report appear not to have been undertaken where works are to be carried out.
The evidence relied upon by the third respondent consists of an affidavit of Christina Renner sworn 4 March 2019 which provides details of the proposed development (including significant background material), the nature of the work to be undertaken pursuant to the construction certificate in relation to an area styled "Precinct 1" and the contractual circumstances of the third respondent regarding the progression of the development.
The third respondent's evidence includes the determination and statement of reasons of the first respondent; a transcript of the meeting of the first respondent on 17 October 2018 (at which time detailed submissions were made by the applicant and his agent, Mr Oshlack and others); the resolution of the first respondent; the conditions of consent imposed; the detailed submissions made in response to the exhibition of the development application; the Cultural Heritage Assessment 2018; the construction certificate of 12 February 2019 for bulk earthworks relating to Precinct 1; the construction certificate plan with identifying features overlaid; and the indicative construction methodology and costing program for Precinct 1's bulk earthworks.
[2]
Applicable legal principles
The principles governing the grant of interlocutory relief are well-known. The applicant must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of the interlocutory injunction and that the balance of convenience favours the grant of an interlocutory injunction.
These principles have been stated on many occasions: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19]; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [170]; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44], Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 ('Tegra') at [6], and Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4].
[3]
Serious question to be tried
In considering the requirements in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 for a "prima facie" case test, the following was stated in Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths) ('Equity Doctrines and Remedies') at [21-350]: "the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief were granted."
Put another way, the applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65].
For reasons which I shall give below, after some close consideration, I consider that there is a serious question to be tried. The concern I had related to whether, on the material before me, the applicant's case could be considered speculative. I do not consider it speculative, but I have concerns regarding the relative strength of the applicant's case which I consider below under 'balance of convenience'. I have only considered the evidence presently before me and note that I have been informed that the applicant intends to call further, possibly expert, evidence at the final hearing.
[4]
Balance of convenience
In relation to balance of convenience, the principles are well-settled. Recently, in Iseek Communications Pty Ltd v Jones [2017] NSWSC 251, Emmett AJA stated, at [46]:
The factors that should be taken into account in determining where the balance of convenience lies are the prima facie strength of [the applicant's] case, whether the potential damage that [the applicant] is likely to suffer if an order is not made outweighs the potential damage that [the respondents] are likely to suffer if an order is made and whether [the applicant's] undertaking as to damages is adequate.
Then it becomes a matter of seeing if, in all the circumstances of the case, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 ('Mekhail') at [34]. See also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63, and Beese v Woodhouse [1970] 1 WLR 586.
In relation to balance of convenience, and specifically in relation to relative strength of the applicant's case, in Tegra, Preston CJ of LEC stated at [41]:
The court may consider the relative strength of each party's case: Hubbard v Vosper [1972] 2 QB 84 at 96. Courts in Australia have taken the view that the relative strength of each party's case should be considered along with all the other factors in evaluating the balance of convenience: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536; Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156 at 161-163; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 326, 333; Optus Networks Pty Ltd v Stonnington City Council [1996] 2 VR 209 at 213; Botany Municipal Council and Ors v Minister of State for Transport and Regional Development and Ors (1996) 90 LGERA 81 at 86; Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 93 LGRA 436 at 438, 447 and Williams v Homestake Australia Ltd (2002) 119 LGERA 55 at 66 [54], 68 [65] and 69 [73].
The role of relative strength of the case in the consideration of balance of convenience has been considered on a number of occasions since that decision. For example, see Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 at [53] and [76].
More recently, in a number of cases including SAI Global Property Division Pty Ltd (ACN 089 586 872) v Jones & Ors [2018] NSWSC 438 at [105]-[106], Slattery J applied the following principles enunciated by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 ('Kolback') at 535-536 regarding what must be established to obtain an interlocutory injunction (some citations omitted):
...Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled…Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application…
…
Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559…
[5]
Consideration
I have read the background material, in particular, the Cultural Heritage Assessment 2017; the Cultural Heritage Management Plan 2017; the Cultural Heritage Assessment 2018; the Development Assessment Report 2018; the submissions in response to the exhibition of the development application; and the determination of the first respondent (including the transcript of the meeting of 17 October 2018). I have read these documents with reference to the Code of Practice and the Consultation Requirements in relation to the specific concerns raised by the applicant in his affidavits (and in submissions made by Ms Saw on his behalf).
Having considered the evidence, I now consider the submissions made by Ms Saw, who provided both oral and written submissions, and the applicant's concerns summarised above. Without recording all matters, I note the gravamen of the submissions and my consideration thereof.
The first matter put on behalf of the applicant is that, when looking at the material before the Court, there is no doubt that the area the subject of the consent, particularly Precinct 1 and Precinct 2 comprises land which is culturally and environmentally significant. The applicant contends that there is culturally significant land within Precinct 1 that has not been properly identified due to a lack of proper assessment of the Precinct 1 area.
The second matter raised is that the "proposed test pit locations" which are referred to in a plan annexed to the applicant's affidavit sworn 4 March 2019, appear to be from an earlier report of Remnant Archaeology styled "An Aboriginal Archaeological Technical Report - North Lismore Plateau..." ('Remnant Archaeology Report'), (which although referred to in the applicant's affidavits, was not otherwise in evidence) and seem to be outside the Precinct 1 area where work is to be commenced.
I accept that the Plateau is an area of significance to the traditional owners and that the applicant, as a member of the RAP, has brought these proceedings not only in his private capacity, but, as I have indicated earlier, as an authorised representative of the Widjabal people within the Bundjalung Nation. I am also aware of his position as chair of the Bundjalung Elders' Council, the reasons behind the creation of that council, and that he is also a director of the Bundjalung Tribal Society.
Based on my consideration of the material, there is no doubt that the land is of significance, and that is not a matter that would be contested either before me or before this Court when this matter proceeds for final hearing. However, the Remnant Archaeology Report was referenced in the Cultural Heritage Assessment 2018 (which reviewed a number of previous archaeological assessments) which, inter alia, acknowledged that the archaeology test pitting program (which included 39 locations) was not within the anticipated boundaries of the project. That is, it was known that those pit sites were not in the project area and the conclusions reached were in the light of that knowledge.
The essential question is whether or not the material before me leads me to the view that it is properly and compellingly arguable that the assessment which has been undertaken by the consent authority and others has in fact properly addressed the matters which are otherwise of concern.
There is no evidence of any other members of the RAP confirming that they were not members or did not participate in meetings and attendances in the preparation of the assessment reports. Be that as it may, the material to which I was referred and have read, particularly in the annexures thereto, does indicate that there were originally 13 registered Aboriginal parties who were consulted and, at least involved in various consultations. Their names are listed in the cultural heritage assessment reports and annexures which include a summary of consultations with the Registered Aboriginal Shareholders and contain details and minutes of all meetings recording those RAP members present, the submissions made and the conduct of the meetings. Whilst I accept that the document, on its face, does indicate that these participants were appropriately qualified, I also note that the applicant says that those persons were either not present at relevant times and/or had no proper knowledge of the Plateau.
Further, it is submitted on behalf of the applicant that the evidence relied upon by the third respondent in the affidavit of Ms Renner is not direct evidence of an authorised officer of the third respondent, which raises an issue relevant to the weight to which I should give that material. However, there was no request for Ms Renner to be cross‑examined in relation to that material, and, given that this interlocutory hearing has been brought on urgently by the applicant, and that the third respondent has provided detailed background material for the interlocutory hearing, including the provision of instructions sworn by Ms Renner to have been received from the third respondent, I do not consider that her evidence should be given little weight. However, more importantly, I have considered material that was before the first respondent including the assessment reports, particularly in relation to Aboriginal cultural heritage, and Council's Development Assessment Report.
In relation to those matters, I am of the view that whilst it is properly arguable that the applicant's concerns raise a serious question, I am not convinced that the applicant's case is particularly strong. Be that as it may, I am conscious and accept that the applicant is concerned that irreparable damage may be caused by the commencement of the work pursuant to the construction certificate, particularly in relation to the three matters specifically raised by Ms Saw being, first, that no monitoring is otherwise provided, as was recommended in some of the reports; second, that there are concerns regarding the inferred grave; and third, there are concerns regarding the stone walls.
The lack of ongoing monitoring (as recommended by the consultants) is a matter which the Court will consider at final hearing. Whether or not it is a matter of significant concern in terms of the legitimacy of the assessment reports (and therefore the consent) that certain recommendations that may have been made in the reports were not adopted, must await final hearing. However, there are conditions of consent (in particular conditions 7, 52 and 59) which consider protection of Aboriginal objects and provide procedures and protocols in relation to "unexpected Aboriginal object finds" that go some way to addressing the concern as to the lack of monitoring.
Although the absence of specifically qualified persons remains a concern to the applicant, again, this is a matter that will be ventilated at the final hearing.
In relation to the inferred grave and the stone walls, I am comfortably satisfied from the material before me that the works that are presently to be undertaken are not in areas where these discrete sites are likely to be affected. Further, there is significant consideration in the various reports in relation to both the stone walls and the inferred grave, including details of various investigations undertaken by members of the police and others. Again, these are matters for consideration at final hearing but are not, on the evidence before me, persuasive or determinative in relation to interlocutory relief.
Also, my attention has been drawn by the applicant to material in the cultural assessment reports which acknowledge that the proposed development may damage matters of significant cultural heritage. However, the reports state that any likely damage is to be appropriately ameliorated based upon the recommendations contained in the reports.
Further, whether those recommendations are appropriate, or whether they are based upon the earlier properly conducted assessments, attendances and considerations, are matters that will be determined in due course. However, I am not convinced that there is a significantly strong argument that should prevent the works proceeding pursuant to the construction certificate.
I have been informed by Ms Saw that the applicant is prepared to provide an undertaking as to damages. Mr Clay, senior counsel for the third respondent, submits that the Court would have some concern in relation to such an undertaking absent any further evidence. In any event, I note that the applicant is prepared to provide an undertaking as to damages.
As noted earlier, properly understood, the applicant's real concern is not so much that he has been deprived of the opportunity of putting forward his concerns and those of the parties he represents, but that the consideration given to his concerns, and the manner in which they have been ventilated is not to his satisfaction, and, on his view, material has been prepared not in accordance with accepted protocols and guidelines. The way in which those concerns were dealt with is a matter to be considered at the hearing. As noted above, I accept that the applicant has been actively involved for many years, and the background material is replete with references to his various considered responses, submissions and objections. Indeed, various reports repeatedly record his involvement. The question of whether other members of the RAP were present or otherwise at various times (and their qualifications), and the relevance thereof, will be determined in due course.
The essential question is the manner in which the material was before the first respondent, being the panel, and indeed how that material was considered. To some extent, for the purpose of this application, I accept the submission of Mr Clay that the real concern is that the applicant's submissions have not been given the weight which he would otherwise expect or demand.
I am conscious that the Court does not undertake a preliminary trial, or give or withhold interlocutory relief on a forecast of the ultimate result of the case, and, on matters presently before me, I am of the view that it is not appropriate to grant the interlocutory relief sought. That being said, I accept the evidence of the applicant that he has been concerned about and directly involved in the processes leading to the granting of the consent for some years, he has been involved on his own behalf and on behalf of various organisations which he represents, and that his concerns are genuine and understandable. However, given the presence of the background material and the detail therein, and taking into account the nature of the works that are to be conducted in the first 10 to 12 weeks which are detailed in the construction staging plan in Tab 10 to Exhibit 1, and the works program for Precinct 1 to which I have referred in paragraph [14], if the matter proceeds to a timely hearing, and I am informed that the applicant can have all his evidence marshalled in the next eight or so weeks, this will balance the legitimate interest of all parties. That is, I consider that not granting the interlocutory relief and providing directions for a relatively expeditious hearing is a course that is "...best calculated to achieve justice between the parties" (as per McLelland J in Kolback at 535). Thus, although I do not grant the relief sought, I consider it appropriate that the matter be set down for hearing if a timetable for preparation can be agreed.
In the circumstances, and noting that the parties are continuing discussions in relation to an appropriate timetable with the expectation the matter will proceed to a relatively expeditious hearing, I make orders dismissing the motion for interlocutory relief and reserving costs.
[6]
Orders
The orders of the Court are:
1. Applicant's notice of motion for interlocutory relief is dismissed.
2. Costs reserved.
3. Matter to be relisted before me on Friday 8 March 2019 for directions.
[7]
Short additional note:
It is noted that the parties will have discussions with the intention of reaching agreement regarding short minutes of order.
[8]
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 March 2019