Williams v Director-General National Parks and Wildlife Service and Ors.

Land and Environment Court (NSW)|2002-05-31|Before: Bignold J

The Applicant also claimed interlocutory relief staying the operation of the Permit and restraining the second, third and fourth Respondents from carrying out any activity in reliance upon the Permit.

The class 4 application was filed in response to the Notice of Motion filed by the second and third Respondents on 23 May 2002 in proceedings No 40010 of 2002 claiming the discharge of a permanent injunction granted against them in those proceedings on 17 May 2002 pursuant to leave granted under Order 2 of the Court's Orders made on 17 May 2002 in the event of the second and third Respondent obtaining a permit pursuant to the NP&W Act, s 87.

Because of the urgency to adjudicate upon the Respondent's Motion for the discharge of the injunction, at the conclusion of the hearing on 28 May I announced that I would reserve my decision until the completion of the hearing of the Applicant's claims to interlocutory relief based upon his assertion of the invalidity of the Permit which was anticipated to be completed on 30 May 2002. As it happened, the hearing was not completed until the following day, when the Respondents sought my adjudication on their Motion for the discharge of the permanent injunction, whereupon for the reasons announced in Court I ordered that on the Court's acceptance of certain undertakings proffered by the Respondents that the permanent injunction be discharged as from 2 pm today. In so ordering, I indicated that at the same time I would give my decision on the Applicant's claims to interlocutory relief, expressly recognising the possibility that the discharge of the current injunction could be contemporaneously replaced by the grant of a fresh injunction in the event of the Court upholding the Applicant's present claims to interlocutory relief.

It will be apparent from what I have already said that there is a very close connection between the present proceedings and the earlier proceedings also brought by the Applicant (No 40010 of 2002) and it is first necessary to briefly refer to the history and outcome of those earlier proceedings which provide the immediate content for the present proceedings and their adjudication.

THE APPLICANT'S EARLIER PROCEEDINGS NO. 40010 of 2002

The proceedings which were commenced on 22 January 2002 have been the subject of three principal interlocutory judgments before the making of the Court's orders on 17 May 2002 (A copy of those orders is annexed hereto and marked "A").

Thos interlocutory judgments were to the following effect - (i) judgment of 24 January 2002 dismissing the Applicant's original claim to interlocutory injunction; (ii) judgment of 22 March 2002 upholding the Applicant's further claim to interlocutory injunction; and (iii) judgment of 3 May 2002 directing the parties to bring in short minutes to give effect to the second and third Respondent's consent to the interlocutory injunction granted on 22 March 2002 being made a final injunction, and adjourning the Applicant's claims to relief in respect of lands other than lot 23 and the Game Reserve.

The permanent injunction granted on 17 May 2002 was expressly made subject to the opportunity for the Mining Companies to seek its discharge in the event that they obtained a permit pursuant to the NP&W Act, s 87 or a consent pursuant to that Act s 90.

The anticipation of the making of requisite applications seeking such permit and consent was known when I gave judgment on 22 March 23002 granting the interlocutory injunction when I stated at pars 16 and 17: 16. In pars 31 to 39 , Mr Shallvey deposes to his involvement with Dr Pardoe, in the process of lodging an application under the NP&W Act , s 87 to authorise Dr Pardoe to collect and relocate to a safe place any relics that are identified during the course of the first Respondent complying with the Protocol and which are considered to be potentially impacted by the first Respondent's drilling programme and to the fact that the first Respondent is preparing an application for a consent under the NP&W Act , s 9 0 to apply to the Mining Lease Area and all project infrastructure that is external to the Mining Lease Area . 17 Mr Shallvey anticipated the lodging of the relevant applications under the NP&W Act, within four weeks (in the case of the s 87 application) and by mid May (in the case of the s 90 application).

It was because of the existence of these anticipated applications that I said at pars 40 to 42 of that judgment: 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

Although the Mining Companies, having obtained the Permit on 23 May 2002 have now obtained the discharge of the permanent injunction, they have not yet obtained consent pursuant to the NP&W Act, s 90. Indeed, they have not yet lodged the requisite application for that consent. Accordingly, the obtaining of the s 87 permit does not, of or in itself, sanction the "knowing destruction, defacement or damage" of relics. Rather, the Permit, assuming its validity provides the means for discovering relics and collecting them for safety and protection. A copy of the Permit is annexed hereto and marked "B".

B. THE APPLICANT'S CLAIM TO INTERLOCUTORY RELIEF BASED UPON THE ASSERTED INVALIDITY OF THE PERMIT

The connection between the Applicant's present claim to interlocutory relief and the earlier proceedings is, I think, clearly established. Those proceedings have reached the point where the permanent injunction granted has been discharged because the Mining Companies have obtained the Permit. However, if the Applicant's assertion of invalidity of the Permit is established, the justification for discharging the injunction is wholly lacking and the justification for imposing the injunction is reinstated.

In the present proceedings, I have not been asked to finally adjudicate upon the asserted invalidity of the Permit. Rather, I have to adjudicate upon the asserted invalidity of the Permit in the context of a claim to interlocutory relief. This means that I must determine whether the Applicant's case raises a serious question to be tried, including my evaluation of the strength of the Applicant's case.

The Applicant's case alleging the invalidity of the Permit is based upon the following grounds as asserted in its Points of Claim filed in Court on 30 May 2002 - (i) the Permit was granted by a person other than the person to whom the task had been specifically assigned by the Director General; (ii) in granting the Permit, the first Respondent failed to accord the Applicant procedural fairness (namely in not affording him a fair opportunity to comment upon the proposal); (iii) in granting the Permit, the first Respondent demonstrated bias against the Applicant (namely in the unfavourable manner in which the Applicant's opposition to the grant of the Permit was appreciated and analysed); (iv) in granting the Permit, the first Respondent took into account irrelevant considerations (namely the views of aborigines who were not Wiradjuri people); (v) in granting the Permit, the first Respondent failed to take into account relevant considerations (namely Mr David Johnston's professional archaeological opinions); (vi) in granting the Permit, the first Respondent was materially mistaken in proceeding upon the basis that "comprehensive and unbiased" consideration with aboriginal people had taken place (when it had not). (vii) the Permit exceeded the legitimate scope and purpose of the NP&W Act, s 87 (inasmuch as it is tantamount to authorising the recommencement of exploratory drilling which will damage relics, which activity is only sanctionable by the grant of a consent granted pursuant to s 90 of the Act); (viii) the Permit is flawed by material error inasmuch as it presumes that the relics are the "property of the Crown" when in fact they are not; and (ix) the divesting from Aboriginal peoples' of their cultural heritage comprising relics that is effected by the NP&W Act, s 83 is in contravention of the Commonwealth Racial Discrimination Act 1975.

The bases for the Applicant's assertion that the Permit is invalid have been skilfully propounded in the remarkably abbreviated time that the Applicant has had access to the relevant file of the first Respondent. The bases for claim chiefly reflect the Applicant's appreciation of the effect of the written records of the first Respondent, but have been supplemented by affidavit evidence filed on behalf of the Applicant.

The first Respondent relies upon the same written records of the Service and contends that they do not support the Applicant's case - rather they support the case of the first Respondent that the Permit was validly granted.

The second and third Respondents have also filed affidavit evidence going to the balance of convenience.

The principles governing the exercise of judicial discretion for the granting of interlocutory injunctions are comprehensively discussed in the following passage of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 - 154: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. Recently two members of this Court have held that the plaintiff must establish that there is a serious question to be tried, to use the expression favoured in American Cyanamid v Ethicon Ltd [1975] AC 396 at 407, in preference to the prima facie case test which was adopted in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 525 Gibbs CJ); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284 (Brennan J). In my opinion that is the correct test to be applied at least in the majority of cases - see Mason J, Declarations, Injunctions and Constructive Trusts (1980) 11 University of Queensland Law Journal 121 at 128; but cf Administrative & Clerical Officers' Association v Commonwealth (1979) 53 ALJR 588. However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned. Serious Question?

Although all Respondents have submitted that the Applicant's case does not raise a serious question for ultimate trial, I do not accept the full force and effect of that submission.

However in so holding, I acknowledge the appropriateness of considering the strength of the Applicant's case when I come to consider the balance of convenience.

In the present case, it appears that the Applicant is asserting some form of ownership or control over the relics in his claimed capacity as Native Title claimant and Traditional Owner.

As I have earlier noted the Applicant's claims have put in issue the question of whether the relics are "property of the Crown" as that expression is used in the NP&W Act, s 83 and if so, whether it involves any contravention of the Commonwealth Racial Discrimination Act 1975 to the extent that s 83 purports to vest in the Crown the property in relics without providing for any compensation in respect of that vesting.

In the present case, the first Respondent relies upon s 83 and the other Respondents have submitted that the question whether the relics the subject of the proceedings are the property of the Crown is not relevant.

Without adjudicating upon these matters, I would note the effect of s 83 must be taken to have been significantly modified by the enactment in 1996 of the NP&W Act, s 85A which enables the Director General to return relics (being the property of the Crown) to Aboriginal owner or owners "entitled to, and willing to accept possession, custody and control of relics in accordance with Aboriginal tradition". The effect of s 85A was not debated in the proceedings. However, ultimately its effect may become relevant in these proceedings.

The damage the Applicants claims he will suffer unless the interlocutory injunction is granted is the fact that the relics will be physically collected from the land, on or in, which they are presently located in situ.

In this respect, he relies upon the affidavit evidence of three Wiradjuri persons who are opposed to the physical collection and removal from their position in situ of the relevant relics and who apprehend that spiritual sickness will be caused to the Wiradjuri people if the relics are removed from their positions in situ at Lake Cowal.

Additionally, the Applicant is concerned that relics will be damaged or destroyed if exploratory mining activity is resumed, even assuming full compliance with the terms and conditions imposed upon the Permit.

In evaluating these claims of the Applicant, it is important, I think, to recognise the limited nature and scope of the rights granted by the Permit. In particular, it is obvious that the Permit does not sanction the destruction or damage to relics, which is only sanctionable by a consent granted permit to the NP&W Act, s 90 (which has not yet been sought).

Although the Applicant's challenge to the validity of the Permit includes the ground that it is a de facto or disguised s 90 consent, it is obvious from the express terms of Part 6 of the NP&W Act, that a permit under s 87 is quite different from a consent under s 90 in terms of what each authorises to be done in respect of relics.

Concerning the Applicant's claim that a spiritual malaise will be visited upon Wiradjuri people if the relics are not left in situ, it is, I think, relevant to note that a valid permit granted pursuant to the NP&W Act, s 87 may authorise the physical movement of a relic (whether or not the relic is the property of the Crown): vide s 86. Moreover, it should also be noted that special condition 6 of the Permit makes the following provision concerning the immediate whereabouts and safe-keeping of collected relics:
All collected relics shall be retained in the Homestake Lake Cowal Gold Project Compound in a small 1500 x 1500 x 2100 waterproof, and lockable garden type shed. Keys shall be held by the Cowal Gold Project Site Coordinator and access shall be limited to Aboriginal Community representatives and Consultant Archaeologists and for audit purposes, NPWS staff. Note that these are temporary facilities and a more permanent on site Keeping Place may be required in the future.

Moreover, it must also be noted that the NP&W Act, s 85A may feature in the ultimate disposal of the collected relics to Aboriginal owners.

Additionally, it should be that the NP&W Act, s 88 and s 89 also provide for the custody and preservation of relics in places otherwise than their being located in or on land, in situ.

I have referred to these provisions of the Act, not for the purpose of demonstrating that "relics" (defined by the Act as meaning…. "any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains") are invariably, if not inherently, moveable property, or for the purpose of suggesting that the in situ location of relics is not an important feature of the concept of "relic".

Rather, I have referred to the provisions of the Act as expressly recognising the capability in law of some relics existing separately from their in situ land environment.

However, all this having been said, it remains the fact that the Applicant and certain Wiradjuri people have expressed their concern of the adverse spiritual consequences of the physical removal of the relics from the land, which evidence I accept, for the purposes of adjudicating the Applicant's claims to interlocutory relief.

The following matters are relevant to the balance of convenience -

(a) Has there been any delay in bringing forward the claim to interlocutory relief?

(b) Has the Applicant provided the usual undertaking as to damages?

(c) What prejudice will the Applicant suffer if the injunction is refused and conversely what prejudice will the Respondents suffer if the injunction is granted?; and

(d) What are the comparative strengths and weaknesses of the parties' respective cases?

There has been no delay in this case, and although the Applicant has proffered the usual undertaking as to damages, 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.

Concerning the question of the competing prejudices likely to be suffered by the parties - by the Applicant if the injunction is refused and by the second and third Respondents if the injunction is granted, I have already referred to the Applicant's prejudice (ie the spiritual malaise likely to be visited on the Wiradjuri peoples if the relics are physically collected and removed from their positions in situ). There is also the potential damage to the public interest if it happens that relics are collected pursuant to the Permit and that Permit is ultimately adjudged to be invalid. This latter aspect of damage to the public interest, however, must be tempered by the fact that what happens to the relics is the result of what is permitted by compliance with the terms of the Permit which on its face is granted pursuant to law, and the fact that what the Permit authorises is the discovery and collection of the relics for their preservation and safe keeping.

The prejudice apt to be suffered by the second and third Respondents is extensive financial detriment suffered not only by themselves and their employees but by their drilling contractor and its employees. The contractor and its employees have not operated at the site since the interlocutory injunction was granted on 22 March 2002. The extent of the financial disadvantage to the second and third Respondents and to persons related to them in the context of the undertaking of the exploratory mining activities is detailed in the evidence (affidavit and oral) of Mr Bennetts, the second and third Respondents' Manager Groups Supply and Contracting and Project Manager for the Lake Cowal Gold Mine.

This brings me finally to my evaluation of the competing cases advanced by, and available to the parties, on the question of the asserted invalidity of the Permit.

As the respective cases have been argued, I have formed the opinion that whereas the Applicant has advanced an arguable case, that case judged from the current perspective of the hearing of a claim to interlocutory injunction where there has been full informal discovery of the first Respondent's documents is not a self-evidently strong case.

As earlier noted, the grant of the Permit has had an obvious impact upon the outcome in the earlier proceeding. That impact was expressly contemplated by the final orders made in those proceedings. Likewise, its existence is significant in the present case, even though it has been brought under serious challenge by the Applicant. It's significance lies in the fact that it purports to be a public authorisation of the activities covered by the Permit. On its face, the Permit appears to be a valid exercise of the power vested in the Director General by the NP&W Act, s 87. It is not, nor does it purport to be, an authorisation for the destruction of relics such as may be granted under s 90 of the Act. On the contrary, it is an authorisation for the discovery, collection and protection of relics.

Having regard to all the foregoing considerations and in the exercise of the judicial discretion, I have concluded that justice requires in this case that I decline the interlocutory injunctions claimed by the Applicant.

For all the foregoing reasons, I order that the Applicant's claims to interlocutory relief be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Williams v Director-General National Parks and Wildlife Service and Ors. [2002] NSWLEC 91 APPLICANT: Williams PARTIES : RESPONDENTS: Director-General National Parks and Wildlife Service and Ors. FILE NUMBER(S) : 0171 of 2002 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- Interim Injunction-whether Permit under s 87 invalid-balance of convenience. Commonwealth Racial Discrimination Act 1975 LEGISLATION CITED: National Parks and Wildlife Act 1974, s 87 National Parks and Wildlife Act, s 90 CASES CITED: DATES OF HEARING: 28, 30 and 31 May 2002 DATE OF JUDGMENT: 06/03/2002

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