Williams v Barrick Australia and Ors

Williams v Barrick Australia and Ors - [2004] NSWLEC 306 - NSWLEC 2004 case summary — Zoe

[8]

By further Notice of Motion filed 4 March 2002 the Applicant again sought an interlocutory injunction against the Mining Companies. On 22 March 2002, after a contested hearing, I granted an interlocutory injunction restraining the Mining Companies from carrying out operations on "Lot 23 and the adjoining Game Reserve" that involved the movement on or across those lands of vehicles and machinery used for the purpose of conducting exploratory drilling. My reasons for so concluding were stated in my judgment: see [2002] NSWLEC 43. They included the following: 34. Based upon my acceptance of Mr Johnston's evidence, I am satisfied that there is such a strong degree of reasonable probability of damage being caused to relics by the continuing exploratory activities undertaken on the lands, to almost border on inevitability (such as was conceded to be the case in Forestry Commission v Corkill (1991) 73 LGRA 247) which I referred to by way of contrasting illustration in my earlier judgment. 35. Based upon the evidence now adduced by the Applicant in support of its present claim, my present citation of Corkill is no longer by way of contrasting illustration, but by way of comparative illustration. 36. The fact that the first Respondent has now initiated action seeking the necessary permit and consent under the NP&W Act (ss 87 and 90) appears to be a clear recognition by the first and second Respondents that such action is now necessary in the light of what I infer to be a significant change in the level of knowledge on their part of the presence of relics on the land. 37. I have of course considered the potential financial detriment to the first and second Respondents if the injunction is granted as deposed to by Mr Shallvey. 38. Although the Applicant has offered the usual undertaking as to damages (he did not do so, when making his initial claim to interlocutory injunction) he is a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that may be incurred pursuant to the undertaking. 39. Despite this fact, I have concluded that on balance, it is just and reasonable to grant the injunction because the risk of damage to relics if the exploratory activities continue is so great, that that factor tilts the balance in favour of the grant of the injunction until the final hearing on 1 - 3 May 2002. 40. Accordingly, I propose to grant the restraining order sought (but not the mandatory order claimed). However, I would note that the continuance of the injunction would not be required in the event of the first and second Respondents obtaining requisite permits and/or consent under the NP&W Act. 41. There should also be afforded to the first and second Respondents the opportunity to satisfy the Court that there are measures available for the resumption of exploratory activities without posing any risk of damage to the relics on the land. 42. To that end, liberty to apply to vary or discharge the injunctions must be reserved to the first and second Respondents so that the injunction granted will not have any operation beyond that which is necessary to restrain any apprehended contravention of the NP&W Act, s 90.

[16]

On 6 September 2002 I published reasons dismissing the Applicant's challenge to the validity of Permit No. 1361 - see [2002] NSWLEC 154. Of particular relevance to the present proceedings are the following passages at paragraphs 132 to 138 of that judgment in answer to the Applicant's argument that the s 87 Permit was an impermissible de facto s 90 Consent: 132. Here, the Applicant claims that the clear purpose of the obtaining of the Permit was to enable the resumption of exploratory mining activity provided that the injunction granted by the Court was discharged and that this is a purpose that is foreign to, and cannot be effectuated by, the issue of a permit granted under s 87 . The Applicant claims that such a purpose can only be effectuated by a consent granted pursuant to the NP&W Act, s 90 to "destroy or damage relics" and that in truth the Permit is tantamount to a s 90 consent, and on that account, is invalid. 133. The Respondents meet these arguments by directing attention to what the NP&W Act declares to be the purpose of a permit issued under s 87, namely to sanction the doing of an act or thing specified in s 86(a), (b), (c), or (e), the doing of which, except in accordance with an enabling permit, is declared by s 86 to be an offence against the Act. 134. The Respondents submit that the activities sanctioned by the Permit are activities falling within the scope of s 86(a) and (b) and accordingly the Permit in so authorising those activities to be done, does not exceed its lawful bounds and is clearly within the power conferred by s 87 read in conjunction with s 86. They submit that if the doing of the things authorised to be done by the Permit lead to the lawful resumption of the exploratory mining activity, and indeed even if that goal be the ultimate purpose of the issue of the Permit, those consequences are irrelevant to the validity of the Permit to the extent that it authorises acts specified in the different paragraphs of s 86. 135. In my judgment, the Respondents' submissions on this point are correct. The fact that an ultimate purpose or consequence of the issue of the Permit may be the resumption of exploratory mining on the lands comprising the application area, does not infect the validity of the Permit to the extent that it authorises the doing of the matters or things specified in s 86(a), (b), (c), (d), or (e). 136. Nor does that ultimate consequence have the effect of somehow translating the Permit into a s 90 consent to destroy or damage relics. A permit under s 87 and a consent under s 90 are entirely different creatures. 137. Nothing in Permit authorises the destruction or damage of relics, no doubt for the very good reason that none of the acts specified in s 86(a), (b), (c), (d) or (e) involves the "knowing destruction of, or damage to, relics". In context, the "movement" or "collection" of relics cannot constitute the "destruction" of or "damage to" those relics. 138. If relics are "knowingly destroyed, defaced or damaged", either in the process of carrying out the acts permitted by the Permit or in the process, if it emerges, of the intended resumption of exploratory mining activities, then s 90 no doubt will operate in respect of such acts, as will the NP&W Act, s 176A in respect of such acts, actual or anticipatory.

[25]

On 3 December 2003 after a contested hearing I granted the Applicant interlocutory relief including an interlocutory injunction restraining the Mining Companies from carrying out activities in reliance upon the s 87 permit (No. 1468) and the s 90 Consent (No. 1467) - for the abbreviated reasons given on that day - see [2002] NSWLEC 231 and for the amplified reasons given on 6 December 2002 - see [2002] NSWLEC 235 which included the following conclusions: 101. Having regard to my aforesaid findings, I have concluded that a case has been made out for the Court in the exercise of its discretion to grant some form of interlocutory relief pending the final hearing of the Applicant's challenge to the validity of the s 87 Permit and the s 90 Consent issued on behalf of the Director-General by his authorised agent Mr Korn, the Director Western on 27 November 2002 in respect of Aboriginal objects situate on lands comprising the Lake Cowal Gold Mine Project. However, the relief to be granted provides a structured opportunity for the second and third Respondents to complete their exploratory drilling for the Project provided that the requirements of the earlier s 87 Permit (No 1361) issued on 23 May 2002 are complied with and in the case of the proposed exploratory activity on the Travelling Stock Route as it adjoins the Game Reserve as if the conditions of that Permit were expressed to also apply to that Travelling Stock Route. 102. Such form of relief will maintain in my judgment, until final hearing, a fair balance in the competing interests of the Applicant to protect Aboriginal relics from being damaged defaced or destroyed and of the second and third Respondents to complete their nearly completed exploratory drilling activity in order for them to complete their project feasibility. However, pending the final hearing of the Applicant's challenge to the validity of the s 87 Permit and s 90 consent, the operation of both Permit and Consent should be suspended. Unless this relief is granted, irreparable harm may be caused to the Applicant's interests in the event that no interim relief be granted but his challenge to the validity of the s 87 Permit and s 90 Consent were to be ultimately successful. Conversely, unless the relief is tempered to provide the second and third Respondents with the opportunity to complete their exploratory activities as a necessary prelude to their completing their project feasibility study, they will be likely to suffer considerable detriment if more drastic interim relief were granted and the Applicant's challenge to the validity of the s 87 Permit and s 90 Consent were ultimately to fail.

[35]

In that case, a majority of the High Court, reversing the decision of the Court of Appeal and upholding the decision of the trial judge (Stein J when a judge of this Court) held that the following considerations (which Stein J had taken into account) were relevant to the exercise of the statutory costs power conferred upon this Court by the LEC Act, s 69(2) - (i) characterising the nature of the litigation as being concerned with public rights rather than private rights; (ii) finding that the applicant's pursuit of the litigation was motivated by his desire to ensure obedience to environmental law….with nothing to gain from the litigation "other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna"; (iii) the fact that there was a significant number of members of the public sharing the applicant's concern in the litigation; and (iv) the fact that the basis for challenge was arguable and had led to a judicial decision resolving significant issues in the interpretation of new laws protecting endangered fauna: see at p 91 in the joint judgment of Gaudron and Gummow JJ and at pp 123 and 124 per Kirby J who there said: The Council argued that the costs discretion had miscarried because of the reference to an indeterminate class of public interest litigation. It was submitted that this concept introduced a nebulous consideration of a social, economic or political kind. It was unhelpful as a criterion authorising departure from the ordinary compensatory principle. I agree that it is difficult to define with precision what is meant by public interest litigation. Stein J acknowledged this. However, the series of cases to which his Honour referred illustrates, clearly enough, that in this country, as well as in England (225), New Zealand (226), Canada (227) and elsewhere (228) a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have occasionally been described as incidental to the proper exercise of public administration (229). Upon that basis it has been considered that they ought not to be wholly a burden on the particular litigant. (225) Donald Campbell & Co v Pollak [1927] AC 732 at 811-812. (226) Ratepayers and Residents Action Association Inc v Auckland city Council [1986] (227) Mahar v Rogers Cablesystems Ltd (1995) 25 OR (3d) 690 at 703-704; Reese v Alberta [1993] 1 WWR 450. (228) /Southeast Alaska Conservation council Inc v State of Alaska (1983) 665 P 2d 544 at 553-554. (229) R v Archbishop of Canterbury [1902] 2 KB 503 at 572; Latoudis v Casey (1990) 170 CLR 534 at 550, citing Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92.

[39]

However, since the decisions of this Court depend upon their own facts, it is, I think more instructive for present purposes to refer to only one such decision of this Court, namely the decision of Chief Judge Pearlman in Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354 because it helpfully enunciates the following principles relevant to the exercise of the costs discretion conferred by the LEC Act, s 69(2) which the Chief Judge deduced from Oshlack and other authorities - (1) The discretion conferred upon the Court by s 69(2) is wide and unconfined: Oshlack at 180, 205. (2) It is, however, a discretion which must be exercised judicially, that is to say, not arbitrarily and not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation: Oshlack at 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGRA 381 at 384. (3) Nonetheless, principles have been laid down to guide the exercise of such discretion in the interests of consistency of approach: Latoudis v Casey at 541. (4) One such principle is that, ordinarily, costs follow the event; that is, costs are awarded to the successful party as compensation for the costs incurred: Latoudis v Casey at 567; Oshlack at 213. (5) However, the principle that costs follow the event is not a fixed or absolute rule: Oshlack at 186, 213. (6) This Court, in exercise of its discretion under s 69(2), must take into account all relevant factors, which in proceedings which have been brought pursuant to the open standing provision contained in s 123 of the EPA Act, may include factors which have a public interest nature: Oshlack at 187. (7) The consideration of all relevant factors may lead to a finding that special circumstances exist for departing from the general rule that costs follow the event and may lead to a consequent determination that there be no order as to costs (as occurred in Oshlack at first instance: see Oshlack v Richmond River Council (1994) 82 LGERA 236. (8) Public interest factors are not, however, determinative factors; they are merely relevant factors to consider. In other words, factors based on the public interest nature of the litigation do not give the applicant automatic immunity from a costs order: Oshlack at 214. (9) Nor is it necessary that the Court go through a process of characterisation of the litigation as public interest litigation. What is required is for the Court to consider all relevant factors, including factors of a public interest nature: Oshlack at 182. (10) A shopping list approach should also be avoided. The factors which Stein J (as he then was) took into account in Oshlack at first instance should not be elevated to a fixed list, each item of which the Court, in a particular application for costs, merely ticks with approval or rejects with a cross. Such a mechanically rigid approach is not appropriate: Oshlack at 213.

[48]

In respect of his motivation in the litigation, the Applicant's affidavit affirmed 4 February 2004 (upon which he was not cross-examined) deposes to the following facts: 1. I am A Mooka traditional owner of Lake Cowal and have a continuing connection to Lake Cowal. 2. My bloodline back to country is to Wheogga adjacent to Lake Cowal 3. It is my birthright to defend out sacred heartland of Lake Cowal. I have authority to speak for Lake Cowal and I am the spokesperson for the Mooka and Kalara united families' claim over the shared country of Lake Cowal, representing many more than a thousand claimants. Our traditional families are adamant that Lake Cowal is protected for future generations. Our senior family members have refused monies offered when asked to sign papers consenting to the destruction of our sacred heartland. Wiradjuri culture is not for sale. 4. The demand to protect Lake Cowal comes from our most senior and highly respected elders, who know that the applicants of the registered Native Title claim, Flo Grant, Percy Knight, Bonnie Merrit, Valery Daley and Pauline Martin do not have any authority to sign away our Peoples inheritance by birthright, breaching section 66B of the Native Title Act. 5. Attachment A is copy of the affidavit of Mrs Rosie Newman dated 31 January 2004, our most senior elder under Wiradjuri tradition, custom and law. 6. Attachment B is a copy of the affidavit dated 1 February 2004 of Mrs Joyce Newman, the younger sister of Mrs Rosie Newman. 7. I have consistently demanded that our sacred heartland of Lake Cowal and our Kalara [Lachlan] River are protected from the open pit goldmine, which will use over 6000 tonnes of cyanide a year to leach the gold out of the ore, in the floodplain of the Kalara. 8. I, and others in our group, have suffered a very great cost emotionally, psychologically, spiritually and economically to fight for the protection of Lake Cowal for future generations and in the public interest. 9. Throughout the litigation I have stressed the importance to protect our Wiradjuri culture, heritage at Lake Cowal, which includes precious stone artefacts older than the pyramids in Egypt, our sacred site and marked trees.

[52]

The Respondents relied upon the decision of Talbot J in Kennedy v Director-General of National Parks and Wildlife Service (No 2) (2002) 122 LGERA 84 where the Court ordered the unsuccessful applicant to pay the costs of the second Respondent in class 4 proceedings challenging the validity of a s 90 Consent issued by the Director-General. His Honour's reasoning to that conclusion is expressed in the following extended passage at 87/88: [12] The common ground I deduce from the majority judgments in Oshlack is that, starting from a position which favours costs orders against an unsuccessful party, if the Court finds the nature of the litigation concerns public rather than private rights and there are sufficient special circumstances which are not extraneous to the object of the enactment of s 69 in the context of proceedings commenced under an open standing provision, the discretion to make a costs order may be exercised having regard to those special circumstances. [13] The present proceedings obviously involved the application of public law rather than private law. The main challenge, however, related to whether consents issued by the Director-General of the National Parks and Wildlife Service should be declared void on the ground of the lack of procedural fairness by failing to afford the applicant, as a representative of the Sandon Point Aboriginal Tent Embassy group, an opportunity to inspect artefacts before commenting on their cultural significance and then not taking into account the fact that he had not had the opportunity to inspect the artefacts. The Court was satisfied that the procedure adopted by the decision-maker was reasonable and fair. The challenge, therefore, failed on the basis of the evidence in a conventional way. [14] It was not part of the adjudication to elucidate or determine the meaning of the relevant legislation. There was no significant issue raised beyond the facts found in the particular circumstances of the case. [15] Mr Kennedy was a representative of a group who, as Aboriginal persons, had a particular interest in the artefacts the subjects of the consents. That in itself is not sufficient, in my opinion, to characterise the litigation as public interest litigation or to give rise to sufficient special circumstances to justify a departure from the ordinary practice as to the making of a costs order in favour of a successful party. In so far as Mr Kennedy was acting in a representative capacity, nothing in the joint judgment with Gaudron J in Oshlack suggests that Gummow J intended to revise his views expressed in the judgment of the Federal Court in Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416; 76 LGRA 213 at 218 when he agreed with what Burchett J said in Australian Conservation Foundation v Forestry Commission (Tas) (1988) 76 LGRA 381 at 386 as follows: If a body is set up to pursue causes, which its founders consider to be in the public interest, and which generally may be in the public interest, by means including court proceedings against others, it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs in the event the claims made against them prove unfounded. [16] Moreover, effectively the Court found that Mr Kennedy was the author of his own misfortune. [17] Accordingly, the Court is not satisfied that there are special circumstances in this case that deprive the second respondent of the benefit of a compensatory order in respect of costs.

Parties

Applicant/Plaintiff:

Williams

Respondent/Defendant:

Barrick Australia and Ors

Cases Cited (24)

CITATION : Williams v Barrick Australia and Ors [2004] NSWLEC 306 APPLICANT: Williams PARTIES : RESPONDENTS: Barrick Australia and Ors

FILE NUMBER(S) : 40948; 40010 of 2002 CORAM: Bignold J KEY ISSUES: Costs :- class 4 proceedings alleging breaches of legislation-whether public interest litigation-whether special circumstances justifying departure from ordinary rule of practice that the successful party receive costs. Land and Environment Court Act 1979, s 69 LEGISLATION CITED: National Parks and Wildlife Act 1974, s 176A Environmental Planning and Assessment Act 1979, s 123 Oshlack v Richmond River Council (1998) 193 CLR 72; CASES CITED: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; Save The Showground For Sydney Inc v The Minister for Urban Affairs and Planning (1998) 105 LGERA 354; Williams v The Minister for Environment and Heritage [2004] FCAFC 58 DATES OF HEARING: 04/02/2004 DATE OF JUDGMENT: 06/21/2004

The present costs applications were heard concurrently with two other costs applications made by the same Respondents against the Applicant in other proceedings relating to Aboriginal objects at the approved Lake Cowal Gold Mine Site. For reasons of convenience, I have determined those other claims in separate judgments - see [2004] NSWLEC 307 and [2004] NSWLEC 308 respectively - but by reference to the more comprehensive contents of this judgment in respect of (a) the litigation history and (b) the relevant principles governing the exercise of the costs discretion vested in this Court.

(1998) 193 CLR 72

(2001) 115 FCR 229

(1998) 105 LGERA 354

(2003) 128 LGERA 80

(1990) 170 CLR 534

(1994) 82 LGERA 236

(2002) 122 LGERA 84

(1992) 34 FCR 412

(1995) 89 LGERA 120

[2002] NSWLEC 5

[2002] NSWLEC 43

[2002] NSWLEC 68