Williams v Barrick Australia and Ors

Section 90 (as relevantly in force) in subsection (1) provides as follows: (1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both (or 200 penalty units in the case of a corporation).

Subsection (2) and (3) provide as follows: (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. (3) A person whose application for consent is refused, or who is dissatisfied with any condition or restriction subject to which the consent is given, may appeal to the Minister.

In refusing the Applicant's claim to interlocutory injunction I expressed the following conclusions at paragraphs 75 to 78 of my judgment of 24 January 2002 (see [2002] NSWLEC 5): 75. For all the foregoing reasons, the Applicant's claim to interlocutory relief must be refused. In refusing the claim, I should note that I have placed considerable importance on the Arrangement of Protocol (Exhibit E1) between the first Respondent and the NPWS. 76. I am confident that adherence to this Arrangement or Protocol will provide an adequate assurance (i) that the first Respondent will be well placed to fulfil its obligations under the provisos and conditions of Exploration Licence 2865; (ii) that the third Respondent will likewise be considerably assisted in the discharge of its statutory obligations under Part 6 of the NP&W Act in respect of the protection of relics and (ii) that there will be no breach of the NP&W Act, s 90. 77. I would, of course, emphasise that the dismissal of the Applicant's claim to interlocutory relief does not preclude him from seeking further relief if circumstances are to change or if he can establish a stronger case of actual or apprehended breach of the NP&W Act, s 90. 78. My findings on the evidence adduced in the present case mean that the first Respondent's proposed exploration activities do not pose such a risk to the relics located on the subject land that may otherwise have justified the grant of interim relief for the purpose of preserving the subject matter of the litigation, until the adjudication upon the final hearing.

Soon thereafter the Applicant amended the class 4 proceeding to extend the relief originally claimed to include, in addition to Lot 23, "Lots 24 and 25 Deposited Plan 753097, Lot 2 Deposited Plan 580301 Travelling Stock Route 17085 and Game Reserve R62750".

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.

Thereafter on the final hearing the interlocutory injunction was, by consent, converted into a permanent injunction as they related to Lot 23 and the Game Reserve. In my judgment delivered on 3 May 2002 (see [2002] NSWLEC 68) I adjourned the hearing of the Applicant's claim to relief in respect of lands (other than lot 23 and the Game Reserve) and I directed the parties to bring in short minutes for the final disposal of the proceedings.

On 17 May 2002 I made final orders which included the following: 1. The First and Second Respondents be restrained from carrying out activity on Lot 23 DP 753097 or the adjoining Game Reserve ("the Land") that involves the movement on or across the Land of vehicles and machinery used for the purposes of conducting exploratory drilling of the Land. 2. Grant leave to the First and Second Respondents to move the Court on 2 days' notice for the discharge or partial discharge of the injunction in the event of: (a) their obtaining: any permit pursuant to section 87 of the National Parks and Wildlife Act ("the Act") which would authorise their archaeologist to collect relics from areas of the Land which the First and Second Respondents propose to use for exploratory drilling and/or the passage of vehicles and machinery used in conducting exploratory drilling; or any consent granted pursuant to section 90 of the Act which authorises the collection or destruction of relics on the Land; or (b) their satisfying the Court, after appropriate archaeological survey and report, that the exploratory mining activities may be resumed on the Land without contravening section 90 of the Act.

By Notice of Motion filed on 23 May 2002 the Mining Companies claimed the discharge of the permanent injunction granted on 17 May 2002 on the ground that Permit 1361 had been issued pursuant to s 87 of the NP&W Act. The Applicant in opposing the discharge of the permanent injunction immediately commenced separate class 4 proceedings (No. 40171 of 2001) challenging the validity of Permit No. 1361 and claiming an interlocutory injunction restraining the Mining Companies from acting in reliance upon that Permit.

The Applicant's claim to interlocutory injunction was heard immediately following the completion of the hearing of the Mining Companies' Motion seeking the discharge of the permanent injunction, at the conclusion of which I ordered on 29 May 2002 that there be excepted from the permanent injunction the following: except for activity carried out by Dr Pardoe and his associates in implementation of the permit granted on 23 May 2002 pursuant to s 87 of the National Parks and Wildlife Act 1974

On 31 May 2002 at the conclusion of the hearing of the Applicant's claim to interlocutory injunction I ordered that the permanent injunction be discharged on and from 2.00pm 3 June 2002 upon the Court accepting the following undertakings from the Mining Companies: 1. To serve the Applicant with a copy of the confirmation notice lodged with the Third Respondent pursuant to Special Condition 15 of the s 87 permit issued by the Third Respondent on 23 May 2002; 2. To allow the Applicant and Mr David Johnston to inspect, in company with an archaeologist nominated by the first and second Respondent, the areas cleared of relics pursuant to the s 87 permit within 7 days of the service of the notice referred to in (1) above, with the Applicant providing the first and second Respondents with 48 hours notice in writing of his proposed inspection. 3. To not carry out exploratory drilling on any part of Lots 23, 24 or the Game Reserve without first receiving written notice from Dr Pardoe or his delegate Dr Kamminga that any such land has been cleared of relics in accordance with the s 87 permit granted by the Third Respondent on 23 May 2002.

The reason for the Court inviting the Mining Companies to proffer those undertakings and for the Court's acceptance of the undertakings was to ensure that the protective regime for the collection and safe custody of relics was fully implemented before exploratory drilling was resumed and to give the Applicant the opportunity by inspection of the site with his archaeologists to ensure that the regime was efficacious.

Concurrently with the discharge of the permanent injunction I dismissed the Applicant's claim to interlocutory injunction based upon his challenge to the validity of Permit No. 1361 - see [2002] NSWLEC 91. (The Court of Appeal on 14 June 2002 refused leave to appeal against my decision to refuse an interlocutory injunction - see [2002] NSWCA 176.)

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.

It is clear from these passages (and especially paragraph 138) that the Court was recognising the possibility that the protective regime proposed by the s 87 Permit might not eliminate the risk of damage within the ambit of the offence created by s 90 being caused to relics upon the resumption of exploratory drilling operations after the requisite archaeological clearance certificate had been issued.

The hearing of the Applicant's present claim in proceedings No. 40010 of 2002 commenced on 25 November 2002.

But at the outset of the hearing Counsel for the Director-General informed the Court that on the preceding Saturday (23 November 2002) a further s 87 Permit (No. 1463) had been issued to Dr Pardoe and Dr Kamminga, and a s 90 Consent (No. 1464) had been issued to the Mining Companies. Counsel for the other Respondents thereupon submitted that the issue of the s 87 Permit (No. 1463) and the s 90 Consent (No. 1464) 'fundamentally destroyed the Applicant's case" especially having regard to the combined contents of those authorisations which both applied to the whole of the proposed Mining Lease Area in comparison with the limited geography to which Permit No. 1361 applied (namely Lots 23, 24 and the Game Reserve encompassing the location of the proposed open cut pit).

The timing of the issue of these authorisations was obviously disruptive to the hearing of the Applicant's claims but the possibility of those authorisations being issued was well understood by all parties to the litigation. Indeed the Applicant had vigorously opposed the issue of the authorisations.

This submission was met by the Applicant's predictable response that he now wished to challenge the validity of the s 87 Permit and the s 90 Consent but that he nonetheless wished to proceed with his present claims which were based upon allegations that breaches of the NP&W Act had already been committed by the Mining Companies and Dr Pardoe, which were not cured by the later authorisations.

It was at this stage of the hearing that the Applicant filed separate class 4 proceedings (No. 40948 of 2002) claiming similar declaratory and injunctive relief against the Mining Companies and Dr Pardoe as claimed in the further amended class 4 application filed in proceedings No. 40010 of 2002 and claiming additional relief against the Director-General namely an order that the Director-General prosecute the Mining Companies for breaches of s 90 of the NP&W Act (paragraph 9) and an order that the Director-General revoke s 87 Permit No. 1361. (Significantly both claims against the Director-General (which to be sustainable would have encountered obvious fundamental legal difficulties) were abandoned in the amended class 4 application that was filed on 27 November 2002).

On 27 November 2002 in the course of the hearing leave was granted to the Applicant to file an amended class 4 application (in proceedings No. 40948 of 2002) and a further amended (4th) class 4 application (in proceeding No. 40010 of 2002).

On 28 November 2002 during the continuing hearing the Applicant filed separate class 4 proceedings (No. 40964 of 2002) challenging the validity of the s 87 Permit (No. 1463) and the s 90 Consent (No. 1464). With the leave of the Court and with the consent of all Respondents the claim in those proceedings for an interlocutory injunction restraining the Mining Companies and Drs Pardoe and Kamminga from acting on the authority of that Permit and that Consent was made returnable for hearing on Friday 29 November 2002 and by consent of all the parties to the Applicant's part heard claims, the hearing of those claims was adjourned to a future date (commonly expected to be a date after the Applicant's challenge to the validity of the s 87 Permit (No. 1468) and the s 90 Consent (No. 1467) had been determined on both an interlocutory and final basis). The Permit and the Consent which were originally issued on 23 November 2002 were each reissued on 27 November 2002 - hence their new numbers (No. 1468 and No. 1467) respectively.

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.

Following the final hearing of the Applicant's challenge to the validity of the s 87 Permit and the s 90 Consent which was concluded on 20 March 2003 I dismissed the application and dissolved the interlocutory relief in my reserved judgment published on 19 May 2003 - see [2003] NSWLEC 121 reported in 127 LGERA 354.

A few weeks before I had delivered that reserved judgment the hearing of the adjourned present proceedings was resumed and was completed on 7 May 2003.

On 29 May 2003 the Applicant commenced separate class 4 proceedings (No. 40626 of 2003) claiming declaratory and injunctive relief based upon alleged breaches of conditions of the s 87 Permit (No. 1468). After a disputed hearing on the Applicant's claim to an interlocutory injunction I refused the Applicant's claim on 24 June 2003 - see [2003] NSWLEC 150. The final hearing of those proceedings has recently took place and judgment was reserved on 8 June 2004.

Finally I should note that on 29 May 2003 I varied the Mining Companies undertakings given and accepted on 31 May 2002 by substituting for undertaking No. 3 the following: 3. To not carry out exploratory drilling on any part of Lots 23, 24 or the Game Reserve without first receiving written notice from Dr Pardoe or Dr Kamminga: (a) that any such land has been cleared of relics in accordance with the section 87 permit granted by the Third Respondent on 23 May 2002; or (b) pursuant to special condition 16 of the section 87 permit dated 27 November 2002 that the archaeological works authorised for that land have been completed. C. THE CLAIMS AND OUTCOMES IN THE PRESENT PROCEEDINGS

In these related class 4 proceedings, the Applicant alleged breaches of legislation by the Respondents (in respect of the different parcels of lands situate at Lake Cowal as specified in the respective proceedings) as follows: (i) damage had been caused by the Mining Companies' exploratory operations to Aboriginal objects without there being in existence any requisite consent under s 90 of the NP&W Act; (ii) the collection of Aboriginal objects authorised by Permit 1361 had been carried out in breach of the conditions of the permit in as much as some collections had been undertaken by persons other than Dr Pardoe; and (iii) the Mining Companies have constructed on Lot 23 structures comprising a drilling fluids sump and decant system (in the form of a tank farm) without obtaining a requisite consent or approval under the Environmental Planning and Assessment Act 1979 (the EP&A Act).

All three allegations were denied by the Mining Companies and Dr Pardoe. The position in the litigation adopted by the Director-General (against whom no relief was ultimately claimed) was that he was satisfied that the exploratory operations undertaken by the Mining Companies had not caused damage to Aboriginal objects and that the collection of Aboriginal artefacts undertaken pursuant to Permit No. 1361 had not involved any breach of the conditions of that Permit.

In addition to their denial of the Applicant's allegations of breaches of the NP&W Act the Mining Companies and Dr Pardoe submitted that in the exercise of its judicial discretion the Court would withhold all relief claimed. In particular they submitted that the Applicant had not made out any case that would justify the grant of any injunctive relief.

In my reserved judgment dismissing each of the class 4 applications, I held (at par 146) that the Applicant had not "substantiated any of his allegations of breaches of the NP&W Act and the EP&A Act. No relief is therefore obtainable. Had declaratory relief been available, it would have been withheld in the exercise of judicial discretion for the reasons I have earlier stated". D. THE RELEVANT PRINCIPLES FOR THE EXERCISE OF THE STATUTORY DISCRETION ON COSTS IN THE PRESENT CASE

The present case involves the same kind of relationship between (i) the civil enforcement proceedings brought by a citizen pursuant to the open standing provisions of the NP&W Act, s 176A and the EP&A A Act, s 123; and (ii) the exercise of the Court's statutory discretion pursuant to the LEC, s 69(2), as existed in Oshlack v Richmond River Council (1998) 193 CLR 72 (where the proceedings had been brought pursuant to the EP&A Act, s 123).

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.

The joint majority judgment had earlier noted at 84, in respect of the appellant's submission that the case fell into the category of "public interest litigation": This is a nebulous concept unless given, as the primary judge did in the present case, further content of a "legally normative nature".

Their Honours' reference to what Stein J had done to give content to the epithet "public interest litigation" is a reference to the matters referred to in his Honour's judgment which are summarised in the preceding paragraph of these reasons, being matters which the majority judgments in Oshlack held to be relevant considerations in the exercise of the costs power conferred by the LEC Act, s 69(2).

Since the decision of the High Court in Oshlack, there have been many decisions of this Court on the exercise of the statutory costs power in civil enforcement proceedings (which decisions have invariably cited the decision in Oshlack) where costs have been awarded against the non-successful litigant, even where it has been held that the proceedings have a "public interest" element in them. The course of decisions in the Federal Court of Australia since the decision in Oshlack has been to similar effect as is reflected in the joint judgment of Black CJ and French J in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 which includes a detailed discussion of the question of costs in public interest litigation. The joint judgment at 237 states: That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs.

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.

I would respectfully adopt those 10 principles in exercising the statutory discretion in the present case. E. THE COMPETING ARGUMENTS

The Respondents submitted that their case for making the costs orders sought against the Applicant was "overwhelming" in the light of my judgment dismissing both class 4 applications and the reasons for judgment which included the following findings - (a) there was an obvious absence of any justification for the grant of any injunctive relief even if the applicant were to substantiate his allegations of relevant breaches of s 90 and the utility of declaratory relief was at least seriously questionable ( par 45 of reasons for judgment); (b) the Applicant's case as formulated in relation to s 90 was factually and legally inadequate, omitting the all-important element of knowledge which was essential to the contravention alleged (pars 63, 79 and 85 of reasons for judgment); (c) the Applicant's case in relation to breaches of the EP&A Act was unsupported by any evidence adduced in the Applicant's case and was firmly rebutted by evidence led in the Respondents' case, but was nevertheless pressed by the Applicant (pars 62, 136 to 143 of reasons for judgment); and (d) the Applicant's case in relation to breach of the terms of permit 1361 was not substantiated, but would, if correct, at least indicate that the proceedings have not been properly constituted (pars 135 and 121 of reasons for judgment);

Additionally, the Respondents submitted that there was no basis for departing from the usual rule or practice that a successful party in class 4 proceedings is normally entitled to his costs. In support of this submission, the Respondents asserted -

(i) the proceedings were not properly characterised as "public interest litigation";

(ii) the proceedings did not involve the elucidation of any new law which would be of assistance in the future administration of the law;

(iii) the Applicant had persisted with a weak and unmeritorious case; and

(iv) there was nothing in the Respondents' conduct in, or relation to, the litigation which would disentitle them from their costs.

The Applicant's competing argument is based upon his unselfish motivation in prosecuting the litigation and the public interest elements of the litigation.

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.

The attachments "A" and "B" to the Applicant's affidavit are affidavits affirmed by Mrs Rosie Newman and Mrs Joyce Newman who depose to their age and status among Wiradjuri persons in Condobolin, theirs and their parents and grand-parents' connection with the Lake Cowal area, their lack of authorisation for the registered Native Title Claim made by Mrs Flo Grant and others and their opposition to the Lake Cowal Gold Mine Project.

Whereas the Respondents concede that the Applicant "as an Aboriginal person has a concern for the Aboriginal objects in question" they submit that this fact does not justify the characterisation of the present proceedings as "public interest litigation".

Moreover, the Respondents submit that there is no evidence that the Applicant represents the relevant Condobolin Wiradjuri community in bringing the litigation. In this respect, they rely upon the fact that the registered Native Title Claim in respect of lands at Lake Cowal is in the name of the Wiradjuri people where the Applicants are Mrs Flo Grant and others and the fact that the present Applicant and other persons have made a rival claim under the Native Title Act but their claim has not been registered. They also rely upon the fact that the registered Native Title Claimant has, pursuant to the "right to negotiate" procedures of the Native Title Act, entered into an agreement with Barrick Australia Ltd in respect of the promotion and protection of Wiradjuri cultural heritage, which agreement includes the Claimant's consent to (a) the grant of the Mining Lease for the Lake Cowal Gold Mine; and (b) implementation of the Section 87 Permits and s 90 Consent granted by the Director-General in respect of the Lake Cowal Gold Mine Site. (It is to be noted that the public announcement of this agreement was made on 22 May 2003 and therefore occurred a few weeks after the conclusion of the hearing of the present proceedings, and at a time when judgment was reserved).

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.

Having regard to the relevant content of the Applicant's affidavit I do not think that his position and motivation in the litigation can be simply assimilated to the description given to the applicant in the Kennedy case.

I would regard as a more apt analysis of the Applicant's position and motivation in the present proceedings what recently fell from the members of the Full Court of the Federal Court of Australia in Williams v The Minister for Environment and Heritage [2004] FCAFC 58 in proceedings brought by the present Applicant in the Federal Court pursuant to s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 in respect of the Federal Minister's decision not to make a declaration, as had been sought by the Applicant, pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 9.

In that case, Gray J (with whom Tamberlin J agreed) described the Applicant in the following passages: The appellant, Neville Williams, is an Aboriginal person. He is of the Wiradjuri people, whose traditional country in New South Wales includes Lake Cowal. He endeavours to perform the role of a custodian of the traditional values of that country, and particularly of ancient artefacts lying on or below the surface of the land at or in the vicinity of Lake Cowal. …… …….The appellant is concerned about the disturbance to and destruction or damage of Aboriginal artefacts on or below the surface of the subject land as a consequence of those works, and of possible future works by Barrick. He has made a number of attempts, by various legal proceedings, to prevent Barrick from carrying out works on the subject land, and to attempt to preserve the Aboriginal artefacts on the subject land in the condition they are in and in the places where they lie.

Gray J determined the outstanding question of costs of the appeal brought against the trial judge's decision not to grant an interim injunction against the Mining Companies pending the Minister's redetermination of the application for a declaration under the Federal Act, s 9 in the following passages: In the present case, it cannot be said that the appellant has brought this appeal entirely without self-interest. He seeks to vindicate his own stance as a custodian of his traditional country. At the very least, if he were to succeed in stopping Barrick from conducting works on the subject land, he would undoubtedly derive substantial peace of mind. The absence of the prospect of monetary gain is not to be equated with the presence of a motive confined to altruism. Further, although there is undoubtedly a significant public interest in the preservation of Aboriginal artefacts from damage or destruction, and from removal, s 9 of the ATSIHP Act does not provide for and certainly does not encourage, any member of the public to bring a proceeding, as did the legislation considered in Oshlack . Section 9 of the ATSIHP Act confines standing to seek a declaration to Aboriginal people. The basis of the legislation is that Aboriginal people are likely to have a desire to protect something to which they have some attachment, and should be able to make application for its protection. For these reasons, I am of the view that the present case does not fall within the principles discussed in Oshlack. The normal rule, that costs follow the event, should be applied. The appellant should be ordered to pay Barrick's costs of the appeal.

Lander J expressed similar views concerning the Applicant's interest in the litigation in the following passages: The appellant is an Aboriginal man who is a member of the Wiradjuri people and Chairman of the Mooka traditional Owners Council which is an incorporated association that claims to represent the interests of the Wiradjuri people resident near Lake Cowal. On 17 October 2002 the appellant applied to the Minister to make a declaration under s 9 of the Act in relation to land at Lake Cowal. The area in respect of which he sought a declaration is the subject of a mining lease to the second respondent. The appellant claims that the land is of particular significance to Aboriginals in accordance with Aboriginal tradition. Aboriginal tradition is defined in s 3 of the Act: Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships…. The appellant supported his application with reports from archaeologists and numerous statements of Aboriginal people, a number of his own affidavits and a very large body of general evidence. He was motivated to bring the application to protect Aboriginal artefacts and the wider aspects of Aboriginal culture.

Lander J determined the question of the costs of the appeal in the following passages: The appellant, as I have already said, is an Aboriginal man who brought his application to the Minister for the purpose of protecting Aboriginal artefacts on the land at Lake Cowal, and to protect his Aboriginal culture. There was no suggestion that his motivations are not for the very best of reasons. It is undoubtedly important to the appellant that his culture and his way of life is protected. That was his motivation for the application for judicial review and for continuing this appeal, even in light of its futility. The second respondent's application for costs on an indemnity basis should be refused. On the other hand the respondent has succeeded on the appeal. The appeal was futile. The respondent should not be denied an order for costs because of the appellant's public interest motivation. I think justice would be done between the parties by an order that the appellant pay the second respondent's costs of the appeal on a party and party basis.

I think that the separate judgments of Gray J and Lander J convey a perceptible difference in degree in their respective evaluations of the Applicant's motivation. In the present case I would evaluate the Applicant's motivation in the proceedings in a similar manner to Lander J's evaluation.

Whereas what I have said concerning the Applicant's position and motivation in the proceedings has some relevance to, and impact upon, the characterisation of the proceedings as public interest litigation (see Donnelly v Delta Gold Pty Ltd [2002] NSWLEC 44), I do not think that the public interest element of the proceedings is nearly so evident as it was in the original proceeding. This impression is strongly reinforced by a consideration of the overall litigation history that I have earlier expounded. In the original proceeding, the Applicant's case was that the Mining Companies exploratory drilling operations being undertaken at Lake Cowal without any authorisation under Part 6 of the NP&W Act were likely to result in damage being caused to Aboriginal objects situate at the approved Lake Cowal Gold Mine Site and hence, to involve a breach or threatened breach of that Act. By way of contrast, as the litigation history reveals, the present proceedings were launched and prosecuted at a time after the dissolution of the permanent injunction restraining those exploratory drilling operations following the grant of the first s 87 Permit which sanctioned the archaeological discovery, collection and safe keeping of Aboriginal objects and following the dismissal of the Applicant's class 4 application challenging the validity of that Permit. Moreover, they were prosecuted in the face of the Director-General's view that there had been no breach of the NP&W Act and of the grant by the Director-General of the further s 87 Permit and related s 90 consent which applied to the whole of the Mining Lease Area.

It is against the foregoing background facts that the Applicant's several claims made against the Respondents in the proceedings are required to be evaluated. The first claim was that Aboriginal objects had been damaged despite the regime instituted by the first granted s 87 Permit in the sense that that regime had failed to discover and collect and take into safe custody all Aboriginal objects before exploratory drilling operations were resumed in respect of each of the cleared areas. In respect of this claim it is difficult to recognise anything more than a possibly vestigial public interest element, in view of the fact that when the claim was prosecuted, all of the archaeological works sanctioned by the Permit had been completed and accordingly, there was simply no prospect or capacity for influencing future conduct by Mining Companies or of remedying any damage to Aboriginal objects that may have been already caused. (Of course, in the result, the claim totally failed).

The second claim asserted a breach of the conditions of the s 87 Permit inasmuch as persons other than Dr Pardoe, the consultant archaeologist to whom the Permit had been granted, were involved in the Aboriginal objects collection process. This claim was based upon a very literalistic reading of the relevant conditions of the Permit which was not a reading that was supported by the Director-General. This fact must, I think, be given significant weight in evaluating the public interest element of the claim because the relevant conditions had been imposed upon by the grant of the Permit by the Director-General in whom the NP&W Act imposes the overall responsibility for the protection of Aboriginal objects (vide s 85).

This, of course, is not to suggest that where the issue is properly raised in legal proceedings (such as occurred in the present proceedings), the Court would defer to the opinion of the Director-General, in undertaking its constitutional task of construing legislation and delegated legislation (including the grant of statutory permits and licences etc). But it does present obvious and considerable difficulty for the Applicant to reasonably assert that his claim was advancing the public interest when the vindication of the claim depended upon a construction of the conditions of Permit which was not supported by the Director-General who had imposed the conditions in granting the Permit. But even if this difficulty were put aside the fact that the Applicant's claim was prosecuted at a time when all of the archaeological works authorised by the Permit had been completed means that the Applicant's claim was limited to a concluded action which was incapable of being reversed or otherwise reddressed. Seen in this light, the asserted public interest element in the claim has not been demonstrated (not even vestigially).

The third claim made by the Applicant alleging a breach of the EP&A Act, although brought pursuant to the open-standing provided by s 123 of that Act was found to be a baseless claim insofar as the Applicant had asserted that the construction actually had caused damage to Aboriginal objects - see pars 136 to 138 of my judgment.

Moreover, to the extent that the claim asserted a breach of the EP&A Act (without causing any damage to Aboriginal objects) it too was found to be baseless claim in view of the operation of the Mining Act 1992, s 381 - see pars 139 to 143 of my judgment.

In these circumstances, it cannot be seriously suggested that the Applicant's claim alleging breach of the EP&A Act either advanced the public interest or involved an element of public interest.

For all of the foregoing reasons, I find that the claims raised and prosecuted by the Applicant in the proceedings cannot fairly or reasonably be characterised as public interest litigation or as involving a public interest element (other than in the vestigial sense that I have earlier recognised).

Having regard to my findings concerning the Applicant's motivation in prosecuting the proceedings and the characterisation of the proceedings (as not being public interest litigation), I am of the opinion that there are no special circumstances in these proceedings that would justify departure from the usual or ordinary rule or practice of the Court that the successful party should receive his costs in class 4 proceedings.

The remaining issue raised by the Applicant is whether there should be set off against the costs order in favour of the Respondents the costs of earlier aspects of the original proceedings (Matter 40010 of 2002) in some of which the Applicant was successful.

Having regard to the detailed overall history of the litigation which clearly reveals that at some stages therein, the Applicant was successful and at other stages he was unsuccessful to a degree where it can fairly be said of those earlier stages in an overall sense that any costs consequences of those variable outcomes would ordinarily cancel out each other, I am of the opinion that there is no justification to reduce the amounts allowable to the Respondents under the proposed costs orders by way of any set-off in favour of the Applicant in respect of stages that occurred earlier in the original proceedings before the commencement of the hearing on 25 November 2002 of the present proceedings. That hearing involved matters that had either been expressly reserved from the final outcome of the original proceeding (No 40010 of 2002) or new matters that had been raised in the related proceeding No 40948 of 2002.

In exercising my discretion to make the costs orders as claimed by the Respondents, I have not given any weight to the vastly disparate economic circumstances of the Applicant on the one hand and the Mining Companies on the other, because as I would understand the scope of the Court's costs discretion, that factor is simply irrelevant. Nor have I given any weight to the related fact that it is almost certain, given the known impecunious condition of the Applicant, that the Respondents will be able to recover any of their costs from him, pursuant to the costs orders that I propose to make. Whereas this fact may logically be relevant to the established object or purpose of a costs order (ie that a successful party should be compensated for the expense incurred in the litigation), I do not understand that factor to have become a recognised relevant consideration in the exercise of the Court's costs discretion (unlike the more recent development in the law of criminal sentencing where the Fines Act 1996, s 6 requires the sentencing Court when fixing the amount of any fine to consider the convicted person's capacity or means to pay the fine).

Finally, I should note the following ad misericordiam submission that was advanced on behalf of the Applicant: It is not in the public interest that a costs order against the Applicant in this litigation be granted as this would only further exacerbate the disadvantageous legal and social situation which Aboriginal people find themselves. If one thing this series of litigation has brought out, it is that Aboriginal people in NSW have virtually been completely stripped and dispossessed without compensation of a large portion of their cultural heritage. The protection of this heritage has been incorporated in a Wildlife Act which is culturally inappropriate and despite the sacrifice made by people such as the Applicant, is completely ineffectual to protect it.

Again, I do not think that anything advanced by this submission can legitimately be taken into consideration in the exercise of the Court's costs discretion.

Whereas the social and economic disadvantages afflicting Aboriginal persons as a class has become in Australia a judicially noticeable fact (see the discussion of the cases cited in Dareton Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120) I do not see any current scope for that fact to be meaningfully recognised or accommodated in the exercise of the costs discretion conferred upon the Court.

Acceptance of the Applicant's argument would be tantamount to conferring upon Aboriginal litigants a general immunity from costs orders. Such an outcome could only be achieved by specific legislative decree, and is far beyond the scope or capacity of any principled judicial development of the law.

Moreover, although the submission is trenchantly critical of the provisions of the NP&W Act for the protection of Aboriginal objects, it must not be forgotten that the Applicant's claims throughout the entire litigation have been exclusively founded upon those provisions. F. ORDERS

For all of the foregoing reasons, I make the following orders: -

1. In proceedings No 40010 of 2002, the Applicant pay the costs of the first, second and fourth Respondents incurred in respect of the hearing which commenced on 25 November 2002 and concluded on 7 May 2003 in the sum agreed, or failing agreement, as assessed.

2. In proceedings No 40948 of 2002 the Applicant pay the costs of the first, second and fourth Respondents in the proceedings in the sum agreed, or failing agreement, as assessed.

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