Williams v Director-General Department Environment and Conservation and Ors. [2005] NSWLEC 165 | Case summary

JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 By class 4 application filed on 23 March 2005 the Applicant claims declaratory and consequential injunctive belief in relation to the grant by the first Respondent, the Director-General of the Department of Environment and Conservation, of a consent under s 90 of the National Parks and Wildlife Act 1974 and a related permit issued under s 87 of that Act, on 16 March 2005 in relation to Aboriginal objects located within the boundaries of an electricity transmission line proposed from the town of Temora to service the approved Gold Mine at Lake Cowal. 2 By Motion filed the next day the Applicant claimed an urgent order restraining the fourth Respondent, Dr Cane, one of the archaeologists to whom the s 87 permit was jointly issued, from carrying out any activity as set out in par 9 of the originating process, and an order against the second Respondent, Country Energy, restraining it on an interlocutory basis from carrying out work as set forth in par 10 of the originating process. 3 When the claim for interlocutory relief came before me last Friday the parties agreed that in the circumstances of the case, having regard to the nature of the claims made and the Respondents' attitude to those claims (which was to resist all claims and deny all bases of liability) that it would be a more efficient use of resources for the claim to final relief to be heard in lieu of the hearing of the claim to interlocutory relief. On the face of it that proposition was somewhat surprising, but as was explained and agreed by all parties to the litigation it was commonly agreed that the hearing of the claims to final relief should be confined initially to the question of whether any basis of claim challenging the validity of the Consent and the Permit had been substantiated. As I have pointed out all bases for claim have been resisted by all four Respondents, and it was agreed by all parties that in the event of any basis for claim being substantiated, the question of relief both as to its form and as to whether in the Court's exercise of discretion any relief should be granted, would be dealt with on a subsequent occasion. It was that position, mutually adopted by all parties, which led to the unusual circumstance of it being commonly agreed that the final hearing could be accommodated within a shorter compass of time (estimated as a one day hearing) than would otherwise be the case if the claim for interlocutory relief were entertained. 4 I interpose that although the claim to interlocutory relief had given about one weeks' notice of the claim coming on for hearing, the Respondents against whom interlocutory relief was claimed (that is Country Energy and Dr Cane) had indicated to me last Friday that they would need time to file material relevant to the question of balance of convenience. And it would be that material and the hearing of the matter going to the balance of convenience which led the parties to the agreed position that the claim to interlocutory relief should not be pursued, but instead the final hearing should be fixed at the earliest opportunity. In the result, the hearing was accommodated the next sitting day of the Court on Monday of this week, and to that end the parties agreed on Friday, when the matter was before me, as to the content of the full ambit of the evidence to be relied upon at the final hearing. Principally the evidence was comprised of documentary materials which had been assembled by the parties (which run into several spring back binders) together with some affidavit evidence filed on behalf of the Applicant, both by himself and by two consultant archaeologists advising him (Mr David Johnston and Mr William Shawcross). 5 The case was heard yesterday and the evidence adduced was confined to the materials that had been identified when the matter was before me last Friday. Because of the time strictures it was agreed that the evidence would be admitted subject to relevance with each of the Respondents contending that some of the documentary material in evidence was not relevant, and in particular material post dating the date upon which the s 87 permit and s 90 consent under attack were issued, namely 16 March 2005. 6 I should also interpose that in order to preserve the status quo pending the final hearing and the decision on the final hearing, I accepted last Friday undertakings proffered on behalf of the second Respondent, Country Energy, preserving the situation until 5pm yesterday, and on completion of the hearing yesterday (which concluded at about 5.20 pm) the undertakings (three in number proffered by Country Energy last Friday) were extended until 5pm today. 7 I have said sufficient to indicate that with the massive amount of documentary material to be considered in the light of the multiple claims made, that I have had only a small amount of time to come to judgment. However, the urgent circumstances and the legitimate exigencies of the case, require judgment at the promptest time. And it is for this reason that I am delivering orally reasons for my judgment and what I say in relation to my reasons for judgment will, if necessary, be amplified in my published reasons for judgment which will be made available after today. 8 The claim to declaratory relief, as I say is based upon a number of discrete grounds, encompassing both administrative law challenges of administrative decisions, together with discrete legal arguments on the question of the validity of the grant of the permit and the grant of the consent, those arguments turning upon particular features, presently to be mentioned, of the National Parks and Wildlife Act 1974 and the Regulation made thereunder. These grounds are fully set out in the Amended Points of Claim which were filed in Court yesterday (a copy of which is annexed hereto and marked "A") which I propose to now consider and determine seriatim. B. THE APPLICANT'S CLAIMS OF INVALIDITY OF THE PERMIT AND THE CONSENT Ground 1: The Director-General's power to determine the s 90 application had expired 9 The first basis of claim that the consent is invalid (as set forth in par 4 of the Amended Points of Claim) is based upon the provisions of cl 89 of the Regulation made under the Act, taken with the provisions of s 90, subs 7(b) of the Act. Briefly stated the claim is that the Regulation relevantly prescribes a period of sixty days from the date upon which an application was made for the decision by the Director-General to be made where the failure of decision within such time gives rise to a deemed refusal of the application and a right of appeal to the Minister. The Applicant's claim in this respect is that by the time the consent was granted on 16 March 2005 the 60 day period from the date upon which the application had been made had already lapsed. The fact of the passage of time from the making of the application is not in dispute. I interpose that the application was reactivated by request made to the Director-General by Country Energy on 8 December 2004 in respect of applications for s 90 consent and s 87 permit that had previously been determined by the Director-General by the grant of each, but which in turn had been declared invalid by Lloyd J in earlier litigation between the same parties, in his judgment of 5 November 2004 (Williams v County Energy [2004] NSWLEC 613). It was following that judgment that the second Respondent reactivated the applications which had given rise to the grant of the earlier permit and consent, and it is obvious that the 60 day period had expired well before the date upon which the consent and the permit were granted on 16 March 2005. 10 Section 90 of the Act is in the following terms: Destruction etc of Aboriginal objects or Aboriginal places (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, an Aboriginal object 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). (1A) Subsection (1) does not apply with respect to an Aboriginal object that is dealt with in accordance with Aboriginal tradition pursuant to section 85A. (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. (4) The Minister: (a) may refuse to grant the appeal, or (b) may grant the appeal wholly or in part, and may give such directions in the matter as seem proper. (5) The decision of the Minister on the appeal is final and is binding on the Director-General and the appellant, and shall be carried into effect accordingly. (6) Where the regulations prescribe: (a) the manner in which an appeal is to be made under this section - the appeal shall be made in that manner, or (b) the period within which an appeal is to be made under this section - the appeal shall be made within that period. (7) Where the Director-General fails to grant an application (other than an application for approval in respect of integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 ) for consent, the application shall, for the purposes of this section, be deemed to be refused upon the expiration of: (a) subject to paragraph (b) - 7 days after the application was received by the Director-General, or (b) where the regulations prescribe some other period - that other period. 11 Clause 89 of the Regulation provides as follows: 89 Appeal period (1) For the purposes of section 90(7)(b) of the Act, an application for consent under section 90(1) is taken to be refused (unless the consent is earlier granted or refused) on the expiration of the period of 60 days after the date on which the application was received by the Director-General. (2) For the purposes of section 90 or 135 of the Act, the period within which an appeal is to be made is 28 days after the date of the refusal, cancellation or attaching of the condition or restriction against which the appeal is brought. 12 In my judgment the Applicant's argument must be rejected because it involves a misconstruction of the true effect of s 90 of the Act. As was pointed out in the argument advanced on behalf of all Respondents it is clear that the provisions of s 90 providing a right of appeal to the Minister against the decision of the Director-General on an application under s 90 (including an application not determined within the prescribed period - which is that period as supplied by cl 89 of the Regulation, namely 60 days) is conferred for the benefit of the Applicant for the consent, and is to be construed facultatively and purposively. So construed, it does not constitute a limitation on the power of the Director-General to determine an application for consent at any time before an appeal is lodged (including at any time after the expiration of the sixty days prescribed by cl 89 of the Regulation). In other words, the provision enables an appeal to be brought in default of decision by the Director-General within the prescribed 60 day period but it does not compel the making of such an appeal, far less does it render the appeal an automatic reflex on the expiry of the prescribed period in default of decision. 13 Other arguments were advanced on behalf of the Respondents to the effect that s 90 and the power of the Director-General to issue a consent are not predicated upon the need for, or the existence of, an application at all. This may well be the case, but in any event I am satisfied for the reasons given that when an application is made (as undoubtedly it was in the present case) the 60 day prescribed period does not operate to limit - temporally or otherwise - the power of the Director-General to grant consent. (This absolute proposition may require qualification in a case where the applicant for consent appeals to the Minister against the failure of the Director-General to determine the application within the prescribed period - but that is not the fact on the present case.) For that reason the Applicant's claim must be held to fail. 14 Paragraph 5 of the Amended Points Of Claim allege that the decision to grant the consent was ultra vires but I do not understand that claim to be independent of the matter that I have just ruled upon. It appears to be a restatement of the same claim and it does not appear to have any independent justification or basis and I therefore pass it by. Ground 2: There was no power to amend the reactivated application for the s 87 Permit 15 A separate claim for invalidity as set forth in par 5A of the Amended Points of Claim is to the effect that the s 87 permit was invalid because it had been granted not only to Dr Pardoe (the original Applicant for the permit) but additionally to Dr Cane, another consultant archaeologist, and it was submitted that this fact invalidated the Permit. A number of legal arguments were advanced in resisting this claim, among which was included the argument that neither s 86 nor 87 of the Act made any reference to "an application" seeking a permit in respect of the power conferred upon the Director-General to issue a permit. Again administratively, as is reflected in the facts of the present case, an application for a permit under s 87 is customarily made, and was made in the present case and in its original form the "Applicant" was Dr Pardoe. Whilst the reactivated application was pending, on or about 1 March 2005 (a couple of weeks before the issue of the permit) application was made to include Dr Cane as an Applicant (ie the person to whom the permit would issue, namely what is referred to in the permit as the "permit holder"). The Applicant argued that any such amendment to the reactivated application meant that the original application per se was not being re-determined but it was the reactivated application that had been amended that was re-determined, and that somehow or other the fact that it was now an amended application disqualified it from being a reactivated application. With great respect that argument is misconceived and must be rejected. 16 Even accepting the fact that the Permit was issued in respect of an application made for the Permit, there is no legal impediment to the application (ie the reactivated application) being amended prior to being determined. 17 However and although it was not entirely clear, it may be that the Applicant's argument was intended to challenge the proposition that it was open to the third Respondent to seek the re-determination by the Director-General of his original application for a permit under s 87 in the wake of Lloyd J's decision declaring the earlier permit and the earlier the consent to be invalid. But such a challenge would be bound to fail since it is conventional legal wisdom that where an administrative decision made in respect of an application is declared to be void by a Court for some administrative law defect or deficiency on the part of the decision-maker, it is the decision, and not the application, that is declared void, with the legal consequence that it is open to the applicant thereafter to seek a re-determination of the application by the decision-maker. 18 There is no feature of the present case that would displace this conventional approach to the administrative decision-making process (including a situation where the decision has been declared by a Court to be invalid). Once this proposition is vindicated, there is no bar to that application being amended prior to the re-determination taking place. 19 Accordingly, the attack upon the validity of the s 87 permit founded upon the fact that it was issued to Dr Cane as well as to Dr Pardoe as the relevant permit holders, must fail. Ground 3: The Aboriginal objects were not the property of the Crown 20 In par 6 of the Amended Points of Claim the Applicant seeks a declaration that the Director-General had no authority over the Aboriginal objects, that were the subject of the s 87 permit and s 90 consent, upon the grounds that the objects had never been abandoned, and therefore had not become the property of the Crown. Section 83 of the Act deems to be the property of the Crown, Aboriginal objects in certain circumstances, and that section itself had a predecessor counterpart in the original National Parks and Wildlife Act of 1967, namely s 33D (which was introduced into the Act by an amendment in 1969). Although as Counsel for the Director-General pointed out in his argument it is difficult to see how this particular claim made by the Applicant could further any of the claims made in the present case which are concerned with the validity of the s 87 permit issued, and s 90 consent issued (a point I think that may not have been fully appreciated by the Applicant in making the claims) in my view the claim for relief has not been substantiated since there is nothing in the evidence of the present case to indicate that s 83 of the Act and the counterpart provision in the original National Parks and Wildlife Act of 1967 was not effective to vest in the Crown the Aboriginal objects, that were the subject of the s 87 permit and s 90 consent issued in the present case. That question has itself been the subject of a decision of Bergin J in the Supreme Court in Stocklands (Constructions) Pty Ltd v Carriage (2002) 56 NSWLR 636. That case is an illustration of the application of s 83 and its legislative predecessor, as is an earlier decision of mine involving the present Applicant and the Director-General, and National Parks and Wildlife Service: see Williams v the Director General National Parks and Wildlife Service [2002] NSWLEC 154. I note that in that case, where I held that the relevant "relics" (that term has now been replaced by the term "Aboriginal object" but the definition remains the same) were prima facie covered by s 83(1) and hence were the property of the Crown, I went on to say at par 146: Notwithstanding this effect, s 85A empowers the Director General to dispose of such Crown property by returning the relics to Aboriginal owners entitled to possession, custody or control of the relics in accordance with Aboriginal tradition . 21 Section 83 of the National Parks and Wildlife Act provides: Certain Aboriginal objects to be Crown property (1) Subject to this section: (a) an Aboriginal object that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of section 33D of the Act of 1967, and (b) an Aboriginal object that is abandoned on or after that day by a person other than the Crown, shall be, and shall be deemed always to have been, the property of the Crown. (2) Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land. (3) No compensation is payable in respect of the vesting of an Aboriginal object by this section or section 33D of the Act of 1967. 22 Section 33D of the 1967 original Act was introduced by an Amending Act (Act No 70 of 1969) and provided as follows: 33D (1) Subject to this section, a relic that immediately before the commencement of this Act -- (a) was not the property of the Crown; and (b) was not in the possession of any person, and any relic that is abandoned after that commencement by a person other than the Crown, shall be deemed to be, and always to have been, the property of the Crown. (2) For the purposes of subsection one of this section, a person shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on land owned or occupied by him. (3) Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land. (4) No compensation shall be payable in respect of the vesting of a relic by this section. 23 The Applicant's argument also appears to have misconceived the nature of the power conferred upon the Director-General both by s 87 and s 90. Those respective powers are conferred upon the Director-General in respect of "Aboriginal objects", a term defined by the Act in a manner that does not depend upon any attribute of ownership or possession. The relevance of an Aboriginal object being "the property of the Crown" does have some application in relation to some of the authorisations that may be granted by a s 87 permit, because s 86 which creates an offence of disturbing or seeking to discover an Aboriginal object which is the property of the Crown, except with a requisite permit, does of course refer to an object which is the property of the Crown. But nothing really turns upon that matter in the present case, and in the case of s 90 the question of who has property in respect of the Aboriginal object is irrelevant to the operation of the provision. 24 In any event for the reasons given the claim to the declaration in these proceedings has not been substantiated and no factual material has been advanced to indicate a displacement of the statutory vesting in the Crown of Aboriginal objects by virtue of 33D of the original National Parks and Wildlife Act 1967. Ground 4: Breach of Statutory Duty 25 In par 9 of the Amended Points of Claim the Applicant claims that the Director-General was charged with the responsibility to protect Aboriginal objects, and that the particular powers conferred by s 87 and s 90 of the Act were overlain or influenced by the express requirements of s 2(A) subs (3) of the Act, requiring the Director-General in carrying out functions under the Act "to give effect to the express objects of the Act". Those objects are expressed in subsection (1) and include the following: (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, (c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation, 26 It was suggested in the Applicant's argument, as I understood it, that the Director-General in carrying out the statutory functions conferred by Pt 6 of the Act dealing with Aboriginal objects and Aboriginal places was bound by the statutory express objects contained in s 2(A), in some fashion which would preclude the issue of the Permit and the issue of the Consent that were issued in the present case. Although not fully articulated in that precise manner, I think that was the thrust of the argument, in support of this particular point of claim. It is an argument which, in my view, must be rejected for substantially the same reasons that I gave in earlier litigation between the same parties when I discussed extensively the interaction and interplay of the express objects of the Act, including the express function conferred by the Act upon the Director-General by s 2(A)(3) of the Act and the Director-General's particular responsibilities under Pt 6 of the Act which responsibilities include the power to issue a permit under s 87 and the power to issue a consent under s 90: see Williams v Director-General National Parks and Wildlife Service (2003) 127LGERA 354. 27 In my judgment the Applicant has not made good his claim that by issuing the s 87 permit and s 90 consent in the present case the Director-General has exceeded the powers conferred upon her by those respective sections, by dint of the operation of s 2(A)(3) of the Act. Ground 5: Disappointment of Legitimate Expectation 28 In par 13 of the Amended Points of Claim the Applicant asserts the existence of a legitimate expectation on the part of the Applicant that he would be consulted on cultural issues in relation to the issuing of the consent. And although unstated in the pleading it was argued that that legitimate expectation had not been fulfilled in the present case. 29 In my judgment the Applicant has not substantiated this claim. The undisputed evidence indicates that prior to the reactivation of the applications which had been rendered undetermined in law by Lloyd J's decision, Country Energy had extended the opportunity to the Applicant to be involved in a survey and inspection activity of the area affected by the proposed transmission line and the subject of the applications for permit and consent. The evidence satisfies me that that opportunity afforded a reasonable opportunity to the Applicant and his colleague, Mr Powell, to carry out physical inspections over a period of ten days. There is no doubt that the Applicant was later to protest that the ten day inspection undertaken by himself and his colleague, Mr Powell, in the presence of two archaeologists retained by Country Energy, was insufficient. The evidence indicates that in that ten day inspection process a distance of some 23 km out of the overall linear dimension of 105 km of the transmission line easement was encompassed. The evidence also indicates that the Applicant wished to be accompanied by his own consultant archaeologist, and wished Country Energy to pay the consultant's fees (an estimate of which was submitted in the order of $20,000). This request for payment was refused by Country Energy. Notwithstanding the disappointment by the Applicant in not having available to him his own consultant archaeologist (presumably he did not participate because he was not to be paid by Country Energy) and notwithstanding the disappointment expressed by the Applicant to the Director-General in his several written representations made in respect of the reactivated applications, that he desired to physically inspect the whole of the transmission line for its entire length of 105 km, and its breadth of 200 m, and notwithstanding the genuinely held belief by the Applicant that inspection of the full extent of the overall easement area may reveal the presence of Aboriginal objects not otherwise identified in Dr Pardoe's original survey (a view shared by Mr Shawcross, another archaeologist whose affidavit filed in the separate part heard proceedings in this Court was considered by the Director-General's delegate in re-determining the applications for the permit and the consent), I am of the opinion that the legitimate expectation that the Applicant would be given an opportunity to be consulted in the cultural heritage issues, was reasonably fulfilled in the arrangements and opportunities that had been made available to him and that had been availed of by him both in respect of conducting the inspections and of making written representations to the Director-General. 30 In addition to participation in those inspections the Applicant was to make at least three substantial written submissions to the Director-General in which he fully expressed his opposition to the grant of the reactivated applications on several grounds including the ground that he believed that Dr Pardoe's original archaeological survey was inadequate, and that the additional survey undertaken by himself and Mr Powell in the presence of the two consultant archaeologists retained by Country Energy, should be extended to include an on foot inspection of the entire easement area for its full length of 105 km. I am satisfied that this opportunity to make representations also reasonably fulfilled whatever legitimate expectation to be consulted and involved in the processing of the applications that the Applicant could reasonably entertain. Accordingly I am satisfied that there has been no substantiation of the claim that the legitimate expectations of the Applicant have been disappointed in the processing of the reactivated applications, including the culmination of the process resulting in the issue of the Permit and the Consent by the Director-General on 16 March 2005. Ground 6: Denial of Natural Justice 31 A related claim is made in par 15 of the Amended Points of Claim which asserts a denial of natural justice by the decision of the Director-General to issue the s 90 Consent. A number of particulars are relied upon in support of this claim, including the refrain (and I do not employ that term in any dismissive sense) that the whole of the easement area had not been properly surveyed in respect of Aboriginal objects that may be located therein. 32 Another particular concerns the alleged breach of statutory duty on the part of the Director-General including the claim often previously encountered in earlier litigation that the decision to issue the Consent was "racially discriminatory". Yet another particular in support of the claim of denial in natural justice was that in granting the Consent the Director-General was "perverting the course of justice" by circumventing the investigation of the alleged breaches of the Act by allowing the destruction of evidence and the preventing of the processes of law to be completed into that investigation. 33 These are serious allegations which have not been substantiated by the Applicant in this hearing. The claim to denial of natural justice as formulated and argued is inter-related with the claim of disappointment of legitimate expectation. In my judgment this claim has not been substantiated. I am satisfied that the Applicant was accorded a reasonable opportunity to participate in the processing of the reactivated applications and that he availed himself of that opportunity by writing at least three detailed written submissions which were augmented by the delivery to the decision-maker of the affidavit sworn by Mr Shawcross in proceedings part heard before Cowdroy J, involving apparently a claim that Country Energy and/or others have involved themselves in conduct in relation to the proposed electricity transmission line that constitutes a breach of s 90 of the National Parks and Wildlife Act. 34 In my judgment, the documentary evidence indicates that all of these written submissions or representations made by the Applicant were properly considered by the decision-maker in the processes undertaken by the Department leading to the grant of the s 90 consent and the issue of the s 87 permit. It is true that the decision-maker decided to issue the permit and the consent notwithstanding the Applicant's vigorous opposition to that result, but the evidence satisfies me that the decision-maker gave "proper, genuine and realistic consideration upon the merits" (see Weal v Bathurst City Council (2000) 111 LGERA 181 at 185) to the Applicant's submissions. Indeed, the terms of the permit and consent that were ultimately granted reflected favourably to the Applicant some of the representations made, in that they contain limitations which are not to be found in the original permit and consent that Lloyd J declared to be invalid. It is true that ultimately the full force of the Applicant's unremitting opposition to the issue of the permit and the consent did not prevail with the decision-maker, but the question as to whether or not the decision-maker should issue the permit and the consent was ultimately a question for the decision-maker in the exercise of the statutory powers conferred upon the Director-General. And in coming to those relevant decisions, I am satisfied that the decision-maker had full regard to the views expressed by the Applicant, even though those views did not ultimately prevail (although the terms and conditions of the consent and permit in places responded favourably to comments that had been made by the Applicant). 35 For all those reasons I am satisfied that the Applicant has not substantiated his claim or any of the particulars of his claim that he was denied natural justice in the process leading to the issue of the permit and the grant of the consent. Ground 7: Failure to Consider Relevant Matters 36 In par 14 of the Amended Points of Claim the Applicant alleges that the Director-General failed to give genuine consideration to relevant matters. Particulars are given which include that the Applicant was denied procedural fairness because he was only able to inspect one fifth of the overall easement area. The decision-maker was entirely alive to the fact that the whole of the easement area, 105 kilometres long by 200 metres wide, had not been inspected, either by the Applicant or by anyone else who had undertaken survey work, and accepted as appropriate the survey methodology of a representative survey. The decision-maker was fully aware of the Applicant's view that the entire easement area should be physically inspected by foot, but rejected that demand and/or thesis, as the decision-maker was entitled to do so, in my judgment, being satisfied with the representative sampling methodology that had been employed by Dr Pardoe. 37 The second particular was that the survey work undertaken by the Applicant had identified some 400 Aboriginal objects and a number of scarred trees over and above the identification by Dr Pardoe's survey of some 131 objects, and one scarred tree. It was suggested that this fact alone indicated that the decision-maker had failed to consider a relevant matter, but the documentary evidence makes it very clear that not only was the decision-maker fully aware of the results of the original Dr Pardoe's survey (including its survey methodology, which the decision-maker found to be acceptable and in accordance with conventional archaeological practice and wisdom) but he was also fully aware of the results of the survey work undertaken by the Applicant with his colleague, by virtue of the submission of the report of the outcome of that activity that had been prepared by Emeritus Professor Allen, one of the consultant archaeologists retained by Country Energy. That Report fully accounted for all finds (both as to their nature and location) made in the course of the inspections conducted by the Applicant, immediately prior to the reactivation of the applications, and contained Professor Allen's professional opinion as to whether those field results, in any way eroded or diminished the archaeological survey undertaken by Dr Pardoe. The decision-maker came to the conclusion that the professional views expressed by Emeritus Professor Allen supported both the results and the methodology that had been employed by Dr Pardoe. In those circumstances the claim that the decision-maker failed to properly consider that matter is contrary to the clear evidence. A related particular is in particular 3, which again goes to the question of the factual adequacy of Dr Pardoe's report, and for the reasons given in relation to particular 2, this particular has not been substantiated. It is clear (as it was clear to the decision-maker) that the Applicant was and remains, highly critical of Dr Pardoe's survey. He had given, in one of his written submissions, an analysis of his critique of Dr Pardoe's survey. In these circumstances it is simply not open to the Applicant to assert that the decision-maker failed to consider that matter. 38 The fourth particular is in the same vein going to the suggested inadequacy of Dr Pardoe's report. Particular 5 is that the Director-General failed to give proper regard to the fact that the Department was investigating breaches (or alleged breaches I think I should say) of s 86 and s 90 of the Act by Country Energy and/or its agents. These are matters that had been brought to the attention of the Department by the Applicant, and are the subject of the separate proceedings (Matter No 40113 of 2005) that are part heard before Cowdroy J. The briefing note which served as the prelude to the decision by the decision-maker to issue the permit and the consent expressly discusses this matter and indicates that the question of alleged breaches was then currently under investigation by the Department and that the investigations had not at that stage been completed. (This was the position at the date of the hearing of the present proceedings.) It went on to say that there was no reason to delay the determination of the pending applications, and if the permit and consent were to be issued, it would always be open to the Director-General to withdraw the permit (presumably, although unstated, on the basis of matters coming to light as a result of the then unconcluded investigation). Since this matter is relied upon in support of the assertion that the decision to issue the permit and consent were "manifestly unreasonable" I will leave my consideration of this particular matter until I determine that further claim. It is sufficient here to note that the documentary evidence indicates that the decision-maker was entirely alive to the import, impact and currency of the alleged breaches, and the unconcluded investigation into them being undertaken by the Department, and hence it cannot be said that this matter was not considered. Moreover, it was open to the decision-maker (subject to what I have to say about the claim that the decision was manifestly unreasonable) to conclude that the fact of the unconcluded investigation did not constitute a reason to delay the determination of the pending reactivated applications. 39 The sixth ground was that the decision-maker failed to give due regard to the facts and circumstances of Lloyd J's decision, and to the fact that there was an appeal against his decision pending in the Court of Appeal and that the hearing of that appeal had been expedited. This is a matter that is reflected in one of the written submissions made by the Applicant to the Director-General, the thrust of which was "why issue a fresh permit and consent when the appeal against Lloyd J's decision might succeed" in which event the original permit and consent may be restored. This manner of logic may have some layman's appeal, but with respect it does not indicate that the Director-General failed to give due regard to those matters. The fact was that at the time of redetermination, the original applications giving rise to the original permit and consent declared by Lloyd J to be invalid, had been reactivated and there was no legal restraint upon the decision-maker not to make a redetermination simply by virtue of the fact that an appeal against the trial judge's decision was pending and the hearing of the appeal was to be expedited. There is no suggestion that the grant of the permit and consent on 16 March 2005 in any way pre-empted or destroyed the utility of the pending appeal to the Court of Appeal. Again, the matter was raised in one of the Applicant's letters to the Director-General and I am satisfied that that matter too was taken into account. The weight of that matter (which of course is ultimately for the decision-maker) I must observe in passing could only be featherweight in the re-determination. 40 The seventh ground or particular for this allegation was the failure to properly consider Mr Shawcross's affidavit which had revealed serious inadequacies so it is said in the content of Dr Pardoe's original survey. The briefing paper that went to the Director-General's delegate, who issued the permit and the consent on 16 March refers to Mr Shawcross's affidavit filed in the proceedings part heard before Cowdroy J, and in my judgment the decision-maker has according to the documentary evidence, considered Mr Shawcross's affidavit. Again, the weight to be given to it, and the matters raised by it, are in my view matters for the decision-maker. For example, there is nothing in Mr Shawcross' affidavit which suggests that the preponderating weight of archaeological expert opinion, lay against the issue of the permit and the consent because of inadequacy in the survey. Indeed, the decision-maker was of the contrary view and this was a view that legitimately fell within the ambit of the discretionary judgment that he was called upon to exercise. 41 The final particular in support of the ground that relevant matters were not considered by the Director-General's delegate in issuing the permit and the consent is that the delegate failed to consider, and I quote from the particular, "that Professor Allen did not participate in the location of the Aboriginal objects, nor was the Applicant informed that Professor Allen was to write a report to support the redetermination of the consent and for his conclusions to be used as an opinion of the veracity of the Pardoe report". The particular goes on to suggest that the Director-General's delegate had failed to consider the lack of assistance alleged by the Applicant to have been forthcoming from Professor Allen and the other consultant archaeologist (Mr Slack) engaged by Country Energy during the inspections. These matters in my view barely enter the frame of potentially relevant material for consideration, but in any event they were the subject of criticism by the Applicant in at least one, if not more, of his comprehensive written submissions to the Director-General (which included a critique of Professor Allen's report). Accordingly the documentary evidence indicates that the Director-General's delegate was aware of the Applicant's views and criticisms of Professor Allen and of his report, and that these matters too were considered by the Director-General's delegate in coming to the decision. In my view no error of administrative law has been demonstrated by dint of the fact that the decision-maker found in Professor Allen's report, professional archaeological opinion which corroborated Dr Pardoe's original survey. 42 The report of Emeritus Professor Allen contains a detailed journal style entry of each of the ten days of inspection undertaken by the Applicant. What was done, what was found, a comprehensive table of Aboriginal objects discovered, their nature and their location are recorded, and in the latter part of the Report Emeritus Professor Allen goes on to express archaeological opinions concerning the "intensity of artefactual scatter, the distribution of artefactual scatter, the diminished presence of artefacts, the further one was removed from water courses", and an assessment providing his vindication of the survey methodology employed by Dr Pardoe. Significantly it expresses the view (which no doubt was considered by the Director-General's delegate) that in Professor Allen's opinion nothing discovered in the ten day inspection undertaken in the company of the Applicant caused Professor Allen to disagree with any of the content of Dr Pardoe's original survey. In its terms the latter part of Professor Allen's Report of the outcome of the inspection process conducted with the Applicant in November and December of 2004 corroborated the methodology and findings and the recommended mitigative measures that had been proposed in Dr Pardoe's report and research plan. And these were matters which the decision-maker was entitled to take into account and obviously did so. (I interpose that the Applicant was provided with a copy of Professor Allen's Report the day before it was furnished to the client, that is the Applicant had Professor Allen's Report from about the middle of December 2004, and as I have earlier pointed out, his representations to the decision-maker included a critique of Professor Allen's report and of Professor Allen's participation in the inspection activities.) Ground 8: Decision was Manifestly Unreasonable 43 This brings me to the last two bases for claim, including that contained in par 16 of the Amended Points of Claim that the decision to issue the Permit and the Consent was manifestly unreasonable. This claim was made upon the basis of the allegations contained in pars 13, 14 and 15 of the pleading (par 13 being the assertion of disappointment of legitimate expectation, par 14 being the assertion of failure of the decision-maker to take into account relevant matters, and par 15 being the assertion of denial of natural justice). For the reasons that I have given in relation to each of those discrete claims, I am of the opinion that they (either individually or collectively) provide no foundation to support the claim now made in par 16 that the decision of the Director-General's delegate was manifestly unreasonable. 44 Advancing his argument in support of this particular ground, as I have indicated earlier, Mr Oshlack the authorised agent to the Applicant, placed considerable reliance upon that part of the briefing note which indicated that there was no reason by dint of the unconcluded investigation was continuing into the alleged breaches by Country Energy of the National Parks and Wildlife Act at s 90, to delay the redetermination of the reactivated applications. 45 In my judgment the decision to proceed upon that advice does not provide evidence that the decision to issue the permit and the consent pending the completion of the investigation into matters alleged to have occurred in February of this year was a manifestly unreasonable decision. Clearly it was open to the Director-General's delegate to proceed to the redetermination of the reactivated applications while the investigation was continuing into the allegations of breaches (which allegations had been made by the present Applicant, and were the subject of separate unconcluded proceedings in this Court before Cowdroy J). There was no compulsion to conclude the investigations before re-determining the applications, although such a course could have been adopted by the decision-maker. Accordingly this ground does not support the claim. Nor do any of the other matters advanced in reliance upon pars 13, 14, and 15 of the Amended Points of Claim for the reasons that I have already given in holding that each of those claims must fail. Ground 9: Error of Fact 46 The final matter contained in the Amended Points of Claim is a suggestion of "error of fact", and I quote from par 17: In its consideration to redetermine the consent the first Respondent made an error of fact that the Pardoe report survey involved trained people. 47 In my opinion, this claim has not been substantiated either in the evidence or in terms of legal principle. Included in the Applicant's written representations opposing the applications, is the assertion that Dr Pardoe employed untrained personnel in his survey work. As I have held, the decision-maker considered each and every of the several representations made by the Applicant. Moreover, it is simply not established by the evidence (indeed the contrary is the case) that the decision-maker laboured under some misapprehension as to the qualifications (or lack of qualifications) of some of the persons who assisted Dr Pardoe in his survey work. Even if contrary to the evidence, it was open to find that the decision-maker was relevantly in factual error in this respect, it is clear beyond argument that the nature of the suggested error could not have infected at law the validity of the decision to issue the permit and the consent. This is because of the relative insignificance to the decision of the assumed error of fact: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40. C. CONCLUSIONS AND ORDERS 48 For all of the foregoing reasons I hold that the Applicant has not substantiated any of his claims of alleged invalidity of the s 87 Permit and s 90 Consent Accordingly, I order that the application be dismissed.

Williams v Director-General Department Environment and Conservation and Ors.

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Judgment (12 paragraphs)

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Cases Cited (5)

Cited By (1)