WILLIAMS v DIRECTOR GENERAL OF THE NATIONAL PARKS & WILDLIFE SERVICE & ORS

Court of Appeal (NSW)|2002-06-06|Before: Sheller JA, Giles JA, Bignold J, Adam P

CITATION : WILLIAMS v DIRECTOR GENERAL OF THE NATIONAL PARKS & WILDLIFE SERVICE & ORS [2002] NSWCA 176 FILE NUMBER(S) : CA 40455/02 HEARING DATE(S) : 6 June 2002 JUDGMENT DATE : 14 June 2002

Neville Williams - Appellant Director General of the National Parks & Wildlife Service - First Respondent PARTIES : Barrick Gold of Australia Limited - Second Respondent Homestake Australia Limited - Third Respondent Colin Pardoe - Fourth Respondent JUDGMENT OF : Sheller JA; Giles JA

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40171/02 FILE NUMBER(S) : LOWER COURT Bignold J JUDICIAL OFFICER :

A Oshlack (by leave) - Appellant COUNSEL : M Fraser - First Respondent N J Williams SC - Second, Third, Fourth Respondents N/A - Appellant SOLICITORS : Solicitor for National Parks & Wildlife Service - First Respondent Blake Dawson Waldron - Second, Third, Fourth Respondents CATCHWORDS : PRACTICE AND PROCEDURE - application for leave to appeal the refusal to grant interlocutory relief - exercise caution in allowing leave from interlocutory applications - Class 4 application, Land and Environment Court - permit to remove Aboriginal relics - National Parks and Wildlife Act 1974, s87 LEGISLATION CITED : National Parks and Wildlife Act 1974 Mining Act 1992 CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 DECISION : Application for leave to appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40455/02 L & E 40171/02

WILLIAMS v DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE & ORS The claimant is an Aboriginal of the Wiradjuri people and a Traditional Custodian and chairperson of the Mooka Traditional Owners Council. He sought leave to appeal from a decision given by Bignold J on 3 June 2002. His Honour had refused to grant interlocutory relief in a Class 4 application in which the claimant sought a declaration that the decision of the first opponent to issue a consent to excavate, collect and store Aboriginal relics on Lot 23, Lot 24 and the Lake Cowal Wildlife Management Area was void and should be set aside. The first opponent had issued a permit pursuant to s87 of the National Parks and Wildlife Act 1974 (NP & W Act). The claimant also sought to restrain the second and third opponents from carrying out any exploration work which relied on the consent.

At first instance, in order to determine whether interlocutory relief should be granted, his Honour applied the principles stated in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148. According to his Honour, the damage the claimant argued he would suffer if the interlocutory injunction were not granted was the fact that the relics would be physically collected from the land, on or in which they were presently located in situ. However, his Honour noted that this 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 was granted pursuant to law.

The trial Judge balanced the claimant's concerns with the prejudice suffered by the second and third opponents if an injunction were granted. The exploration program had already been delayed by 60 days and the employees, geologists and field technicians associated with the project had thereby suffered financial hardship. The second respondent was also liable to the Drilling Contractor for $7,500 a week for the period of the injunction.

An appellate court should exercise particular caution in reviewing matters of practice and procedure such as the refusal of an interlocutory order for an injunction; see Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated & Anor (1981) 148 CLR 170.

The trial Judge appropriately treated the claimant's case as one raising a serious question for ultimate determination. His Honour did not err in identifying the principles by which he should approach the interlocutory application before him; as per Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148.

His Honour was right to acknowledge that s87 of the NP & W Act enables the Director General to issue a permit which allows a relic that is the property of the Crown to be disturbed or moved on any land.

The trial Judge's approach to the consideration of the detriments claimed in order to determine the balance of convenience does not disclose an error with regard to the approach or resolution of this question.

The Court, on an application for leave to appeal from an order refusing to grant interlocutory relief, should not be influenced in determining whether leave be granted by the changed circumstance that the final hearing dates for the substantive proceedings have been allotted. To do so would be going beyond the function of the Court on a leave application which, in this case, was entirely concerned with whether an error of principle or resulting substantial injustice had flowed from the trial Judge's decision.

National Parks and Wildlife Act 1974 Mining Act 1992

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 ORDER

Application for leave to appeal dismissed with costs .

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40455/02 L & E 40171/02

Friday, 14 June 2002 WILLIAMS v DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE & ORS Judgment 1 THE COURT:

The claimant, Neville Williams, is an Aboriginal of the Wiradjuri people and a Traditional Custodian and chairperson of the Mooka Traditional Owners Council. Mr Williams seeks leave to appeal from a decision given by Bignold J on 3 June 2002. Before his Honour was a claim for interlocutory relief in a Class 4 application (40171/02) filed on 28 May 2002 in which Mr Williams claimed a declaration that the decision of the first opponent, the Director General of National Parks and Wildlife Service, (the Director General) to issue a consent to excavate, collect and store relics on land known as Lots 23 and 24 in Deposited Plan 753097 and the Lake Cowal Wildlife Management Area (the game reserve) was void and should be set aside. Mr Williams also sought to restrain the second opponent, Barrick Gold Australia Limited (Barrick) (formerly Barrick Corporation), and the third opponent, Homestake Australia Limited (Homestake), from carrying out any work which relied on the consent. On 3 June 2002 Bignold J refused to grant interlocutory relief.

Application 40010/02 2 The Class 4 application (40171/02) followed an earlier Class 4 application (40010/02) which Mr Williams began on 22 January 2002 against Homestake, Barrick and the Director General as respondents. In those proceedings Mr Williams claimed to restrain Homestake and Barrick from carrying out further activity on Lot 23 which caused any disturbance to soil, the movement of any stone or rock or the clearing of vegetation pursuant to an exploration licence 2865 granted under the Mining Act 1992 unless they held a valid consent under s90 of the National Parks and Wildlife Act 1974 (the NP & W Act). Mr Williams claimed interlocutory relief, which on 24 January 2002 Bignold J initially refused. 3 By s90 of the NP & W Act it is an offence to knowingly destroy, deface or damage a relic or Aboriginal place without first obtaining the consent of the Director General. According to s5(1) of the NP & W Act "Aboriginal place" means any place declared to be an Aboriginal place under s84 and "relic" means 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. 4 In his reasons for judgment of 24 January 2002 Bignold J found that on 5 October 2001 the Department of Mineral Resources (DMR) registered the transfer from North Gold (WA) Limited to Homestake of the former's interests in a number of exploration licences including exploration licence 2865. Exploration licence 2865 had been renewed until 1 June 2003, and had been granted subject to several conditions including condition 39 whereby the licence holder must not knowingly destroy, deface or damage any Aboriginal place or relic within the licence area except in accordance with an authority issued under the NP & W Act. 5 In 1998 or 1999 the Minister had granted development consent for the Lake Cowal gold project. The development application had been supported by an environmental impact statement which contained an overview of archaeological information. The overview contained a summary of five earlier reports dealing with different aspects of the Aboriginal culture and heritage of Lake Cowal and referred to surveys which had revealed more than twenty archaeological sites within the proposed mining lease area which comprised twenty square kilometres. Of those only two, P1 and P2, were located on the subject land which contained the proposed mine pit area. P1 was described as the pit area and contained a continuous scatter of artefacts. P2 was described as a scarred tree (red gum) on the southwest margin of the proposed mining pit. 6 Throughout the processes of the various archaeological surveys there had been consultation with the Aboriginal community (the Local and Regional Aboriginal Land Councils) including their participation in fieldwork, inspections and suggested management options. The ultimately recommended management approach was agreed to by representatives of the Local, Regional and the State Aboriginal Land Councils. 7 Amongst the material Bignold J referred to was a letter from the National Parks and Wildlife Service (NP & WS) Aboriginal Heritage Officer of 18 January 2002 stating that the work in the Lake Cowal area could proceed. NP & WS acknowledged Homestake's efforts to maintain an open line of communication with the Aboriginal communities and its discussion of mining operations and conditions of approval with the Aboriginal community representatives. 8 Bignold J observed that the court had been informed that Homestake would be liable to pay its drilling contractor a penalty at the rate of $18,000 per day for disruptions caused to the drilling program. 9 In determining whether interlocutory relief should be granted his Honour applied the principles stated in the judgment of Mason ACJ in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 153-4. His Honour considered whether there was a serious question to be tried, whether the applicant would suffer irreparable damage unless the injunction was granted and whether the balance of convenience favoured the granting or withholding of the injunction. 10 Bignold J observed, when dealing with irreparable damage, that "if damage to relics happened to be occasioned by [Homestake's] proposed exploratory activities on the subject land, the result would be contrary to the public interest as well as being contrary to [Mr Williams'] emotional, psychological and cultural interests". However, his Honour ultimately evaluated the applicant's case as not a strong case, indeed not even a prima facie case. He concluded the balance of convenience clearly favoured Homestake and declined to grant the interlocutory relief Mr Williams claimed. 11 On 4 March 2002 the court directed that there be a joint inspection of the land for the parties' respective archaeologists to identify the nature and location of "relics" within the meaning of the NP & W Act. The final hearing was fixed for 1, 2 and 3 May 2002. 12 On 14 March 2002 after the joint inspection, Mr Williams filed a notice of motion claiming an interlocutory injunction to restrain Homestake and Barrick from carrying out any activity pursuant to exploration licence 2865 "which activity would disturb the environment, including the movement of vehicles and disturbing the ground surface" and to require them to remove any drilling rig and machinery from the land described in the amended Class 4 application 40010/02. 13 Mr Williams claimed that the joint inspection had revealed the presence of relics on the principal vehicular access on the land. He relied on three affidavits of an archaeologist, Mr Johnston. Dr Colin Pardoe, an archaeologist retained by Homestake, expressed the opinion that the relocation of relics by the NP & WS authorised archaeologist was clearly the best management solution to achieve the protection for relics on the vehicle tracks and that there was no archaeological or cultural dis-benefit associated with such a relocation exercise having regard to the fact that the relics were not in situ or the original places - the places they were in were merely their current resting places. Mr Shallvey gave evidence that depending upon whether the injunction was deemed to be a force majeure event under the contract with the drilling contractor either Homestake was obliged to continue to pay the drilling contractor during the period of injunction at the rate of $18,000 per day or, if the drilling contractor was not entitled to any payment from Homestake during the period of the injunction, the drilling contractor would have to bear the cost of approximately twenty-five to thirty employees at the Lake Cowal gold project. Barrick had ten geologists and field technicians employed at the project as casuals. Those people all worked on the drilling program. If an injunction was granted restraining the carrying out of exploration activity the consequence would either be that Barrick continue to employ them at a rate of $2,300 per day plus superannuation, payroll tax, etc or terminate the employment of the ten people. 14 In his reasons for judgment of 22 March 2002 Bignold J observed that this was the third occasion that interlocutory relief had been claimed. The first was the subject of the judgment given on 24 January 2002. The second followed an inspection of the lands by Mr Williams accompanied by Mr Johnston, on 21 February 2002. Ultimately that application was not pursued after Mr Williams agreed with the suggestion made by Homestake that the court should expedite the final hearing of the Class 4 proceedings. 15 Bignold J said that unlike Mr Williams' first claim the evidence in support of the later claim was significantly strong. In addition, it appeared that an intended protocol his Honour had suggested, under which prior notice would be given of each successive round of exploratory drillings including the pathway of travel for the drilling rigs to enable NP & WS to be satisfied that there was no risk of damage to relics on the land, had not yet been implemented. Bignold J said that the strength of Mr Williams' case of threatened breach of s90 of the NP & W Act founded upon the three affidavits of Mr Johnston was established and not seriously questioned in the evidence adduced by Homestake and Barrick. In considering the potential financial detriment to these respondents if the injunction was granted his Honour observed that although Mr Williams had offered the usual undertaking as to damages he was a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that might be incurred pursuant to the undertaking. His Honour ordered that until further order Homestake and Barrick be restrained from carrying out activity on Lot 23 or the adjoining game reserve that involved the movement on or across those lands of vehicles and machinery used for the purposes of conducting exploratory drilling of the land. Leave was granted to them to move the court on two days' notice for a discharge of the interlocutory injunction in the event of their obtaining any permit pursuant to s87 of the NP & W Act or any consent granted pursuant to s90 of that Act which would enable the movement on and across the lands of the said vehicles and drilling rigs and machinery without involving any risk of contravention of ss86 and 90. 16 On 1 May 2002, at the beginning of the final hearing of the Class 4 proceedings 40010/02, Mr Oshlack, an agent acting for Mr Williams, observed that the matters could not proceed. Homestake and Barrick were prepared to submit to a permanent injunction in regard to their activities on Lot 23 and the adjoining game reserve. Mr Williams applied for an adjournment of his claims for relief against Homestake and Barrick in respect of Lots 24, 25 and Lot 2. Bignold J granted the adjournment and directed the parties to bring in short minutes within fourteen days for the final disposal, by consent, of the proceedings so far as they related to Lot 23 and the game reserve and gave leave to restore the proceedings for the purpose of finally disposing of that part of them. 17 On 17 May 2002 Bignold J made final orders relating to Lot 23 and the game reserve restraining the movement of vehicles and machinery used for the purposes of conducting exploratory drilling of the land across the land. Homestake and Barrick were granted leave to move the court on two days' notice for a discharge or partial discharge of the injunction in the event of their obtaining relevantly any permit granted pursuant to s87 which would authorise their archaeologist to collect relics from the areas of the land which they proposed to use for exploratory drilling and/or the passage of vehicles and machinery used in conducting exploratory drilling. 18 On 23 May 2002 the Director General granted a permit (consent 1361). On 28 May 2002 Bignold J granted a partial discharge of the injunction of 17 May 2002 to exempt from the scope of it the carrying out of activities pursuant to the s87 permit.

Application 40171/02 19 Mr Williams filed the new Class 4 application, 40171/02, seeking a declaration that the permit was void and of no effect and consequential injunctions. In proceedings 40010/02, Bignold J made final orders fully discharging the injunction in relation to the carrying out of drilling and exploration activities on Lot 23 and the game reserve with the order to take effect on 3 June 2002. It is against this background that it is appropriate now to turn and consider Bignold J's decision of 3 June 2002 from which Mr Williams seeks leave to appeal. 20 When on 3 June 2002 Bignold J dismissed the claim for urgent interlocutory relief in 40171/02, the application was stood over to 13 June 2002 for directions for final hearing. Homestake and Barrick had offered to consent to an urgent final hearing of the matter on 6 and 7 June 2002. Mr Williams did not accept that offer.

Decision of 3 June 2002 21 Section 87(1) of the NP & W Act enables the Director General upon such terms and conditions as the Director General thinks fit, to issue a permit to do any act or thing referred to in s86(a), (b), (c), (d) or (e). Section 86 provides that a person, other than the Director General or a person authorised by the Director General in that behalf, who "(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering a relic, (b) disturbs or moves on any land a relic that is the property of the Crown, other than a relic that is in the custody or under the control of the Australian Museum Trust,"

except in accordance with the terms and conditions of an unrevoked permit issued to the person under s87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against the Act. Section 83(1)(a) of the NP & W Act provides that subject to the section, a relic that was, immediately before the commencement date, deemed to be the property of the Crown by virtue of s33D of the NP& W Act 1967 shall be, and shall be deemed always to have been, the property of the Crown. Section 33D(1) provided that, subject to the section, a relic that, immediately before the commencement of that Act: "(a) was not the property of the Crown; and (b) was not in the possession of any person, and any relic that was abandoned after that commencement by a person other than the Crown, should be deemed to be, and always to have been, the property of the Crown." 22 Consent 1361 was issued to Dr Pardoe and was described as an authority to collect artefacts as required and undertake test pit excavations of selected areas. The area covered included Lot 23, Lot 24, and the game reserve. 23 In his reasons for judgment of 3 June 2002 Bignold J said that the Class 4 action 40171/02 was filed in response to the notice of motion by Barrick and Homestake in proceedings 40010/02 claiming the discharge of the permanent injunction granted against them in those proceedings. That motion was heard on 28 May 2002 in the knowledge that in the course of the hearing Mr Williams would file his separate Class 4 application challenging the validity of the permit. There was a very close connection between the proceedings. Dr Pardoe was the fourth respondent to the proceedings 40171/02. 24 His Honour noted that he had not been asked finally to adjudicate upon the asserted invalidity of the permit. His Honour said: "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." 25 On 30 May 2002 Mr Williams filed points of claim. His Honour summarised the alleged grounds of invalidity as follows: "(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 [Director General] 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 [Director General] 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 [Director General] took into account irrelevant considerations (namely the views of aborigines who were not Wiradjuri people); (v) in granting the permit, the [Director General] failed to take into account relevant considerations (namely Mr David Johnston's professional archaeological opinions); (vi) in granting the permit, the [Director General] was materially mistaken in proceeding upon the basis that ' comprehensive and unbiased' consideration [sic consultation] with Aboriginal people had taken place (when it had not); (vii) the permit exceeded the legitimate scope and purpose of the NP & W Act , s87 (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 s90 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 , s83 is in contravention of the Commonwealth Racial Discrimination Act 1975." 26 In determining whether interlocutory relief should be granted Bignold J again cited the judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia at 153-4. Under the heading "Serious Question?", Bignold J said: "20 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. 21 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." 27 Coming to irreparable damage Bignold J said: "22 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. 23 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 , s83 and if so, whether it involves any contravention of the Commonwealth Racial Discrimination Act 1975 to the extent that s83 purports to vest in the Crown the property in relics without providing for any compensation in respect of that vesting. 24 In the present case, the [Director General] relies upon s83 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. 25 Without adjudicating upon these matters, I would note the effect of s83 must be taken to have been significantly modified by the enactment in 1996 of the NP & W Act , s85A 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 s85A was not debated in the proceedings. However, ultimately its effect may become relevant in these proceedings." 28 According to his Honour the damage Mr Williams claimed he would suffer if the interlocutory injunction were not granted was the fact that the relics would be physically collected from the land, on or in which they were presently located in situ. He relied upon the affidavit evidence of three Wiradjuri persons who were opposed to the physical collection and removal from their position in situ of the relevant relics and apprehended that spiritual sickness would be caused to the Wiradjuri people if the relics were removed from their positions in situ at Lake Cowal. These were affidavits by · Lois Goolagong, a traditional owner and custodian for Lake Cowal, of 29 May 2002, who deposed: "Our Wiradjuri belief is that if we disturb any artefacts at Lake Cowal, we will get sick." · Ernest William Wighton, a Wiradjuri man aged 79, of 27 May 2002, who deposed: "With respect to the relics out at Lake Cowal I strongly believe that they should not [be] disturbed at all. They have been there for many thousands of years. The Aboriginal heritage at Lake Cowal is very strong. The Wiradjuri people at Condobolin are the right people to have the say about what happens to those relics because it is our country."

and · Beryl Hutchings, a Wiradjuri woman aged 57, of 27 May 2002, who deposed: "I believe it is up to us to protect our river and ourselves. I and most Condobolin people know as a matter of fact that if we or anyone moves or takes away the things that the old people left behind at Lake Cowal it will bring sickness upon us. I know that the old peoples' magic is very strong and it is particularly strong at Lake Cowal." 29 Bignold J remarked that Mr Williams was concerned that the relics would be damaged or destroyed if exploratory mining activity was resumed, even assuming full compliance with the terms and conditions imposed "upon the permit". However, his Honour said that it was important to recognise the limited nature and scope of the rights granted by the permit. In particular the permit did not sanction the destruction or damage to relics which was only sanctionable by a consent granted under s90(2) of the NP & W Act. A permit under s87 is quite different from a consent under s90 in terms of what each authorises to be done in respect of relics. 30 Bignold J continued: "31 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 , s87 may authorise the physical movement of a relic (whether or not the relic is the property of the Crown): vide s86. 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: 6. 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. 32 Moreover, it must also be noted that the NP & W Act, s85A may feature in the ultimate disposal of the collected relics to Aboriginal owners. 33 Additionally, it should be that the NP & W Act, s88 and s89 also provide for the custody and preservation of relics in places otherwise than their being located in or on land, in situ. 34 I have referred to these provisions of the Act, not for the purpose of demonstrating that ' relics ' …. 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 '. 35 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. 36 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." 31 Bignold J came next to consider the balance of convenience. He identified four matters as relevant which he put in the form of the following questions: "(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?" 32 There had been no delay in bringing the case and an undertaking as to damages had been proffered, although Mr Williams did not appear to be in a position to satisfy any liability for damages incurred pursuant to the undertaking. 33 In dealing with the question of competing prejudices likely to be suffered by the parties Bignold J again referred to Mr Williams' prejudice, the spiritual malaise likely to be visited on the Wiradjuri peoples if the relics were physically collected and removed from their positions in situ and potential damage to the public interest if the relics were collected pursuant to the permit and the permit was ultimately adjudged to be invalid. His Honour said this 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 was granted pursuant to law and the fact that what the permit authorised was the discovery and collection of the relics for their preservation and safe keeping. Bignold J continued: "40 The prejudice apt to be suffered by [Barrick] and [Homestake] 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 [Barrick] and [Homestake] 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, [Barrick] and [Homestake's] Manager Groups Supply and Contracting and Project Manager for the Lake Cowal Gold Mine." 34 In his affidavit of 23 May 2002, Mr Bennetts said: "5 The drilling program has been delayed for a total of 60 days since it was halted in accordance with the Court's orders on 22 March 2002. The exploration program feasibility phase and development program of Homestake and Barrick at Lake Cowal has been permanently and irreparably delayed by this 60 day period. This 60 day delay has resulted in the rescheduling of significant mine development activities and significant inconvenience to Homestake and Barrick. … 7 If the final injunction granted by the Court on 17 May 2002 in Order 1 of Annexure 'A' is not discharged pursuant to Order 2(a)(i), Homestake and Barrick and their drilling contractor Boart Longyear Pty Limited ('the Drilling Contractor') will continue on a daily basis to suffer financial prejudice. The Drilling Contractor is contracted to provide exploration drilling services to Homestake at Lake Cowal pursuant to a contract dated 11 October 2001. About 10 employees of Barrick may also suffer the personal hardship associated with the termination of their employment. I set out the reasons for this below. 8 Since the making of Order 1 of Annexure 'A' on 22 March 2002, Homestake has negotiated an arrangement with its drilling contractor Boart Longyear Pty Limited (the 'Drilling Contractor'), the owner of the drilling rigs now being stored on Lot 24. This arrangement regulates the liability of Homestake for having to pay the Drilling Contractor for the period of the injunction. 9 Under this arrangement, Homestake now pays the Drilling Contractor $7,500 a week. Since the granting of the interlocutory injunction on 22 March 2002, Homestake has paid the Drilling Contractor approximately $42,000 under this arrangement. This weekly fee is less than the $18,000 per day fee that was payable to the Drilling Contractor under the contract with Homestake prior to the grant of the interlocutory injunction due to the negotiated demobilisation of the Drilling Contractor's employees from the site. 10 The Drilling Contractor had approximately 20 to 25 employees on site as at 22 March 2002. Since the granting of the interlocutory injunction on 22 March 2002, these employees have not been employed on the site with a number being transferred to other sites and others left the employment of the Drilling Contractor. On 22 May 2002, I spoke to Bob Graham, General Manager of the Contract Milling Division of the Drilling Contractor who stated words to the following effect: 'Of the 20 to 25 employees that had been employed at the site as at 22 March 2002, 2 person left the employment of Boart Longyear, 5 went on unpaid leave and the remainder were reallocated to other projects. If the injunction was not discharged to allow the recommencement of the Lake Cowal drilling program on or about 31 May 2002, then the remainder of these 20 to 25 persons will be laid off. Of these employees that will be laid off, 9 are married and have dependants.' …. 12 Barrick has 10 geologists and field technicians employed on the site as casuals. These people worked on Homestake's drilling program until it was halted by the interlocutory injunction on 22 March 2002. Since 22 March 2002, these people have remained in the employment of Barrick and have been engaged in the work of checking and cataloguing drill cores. 13 If the drilling program had not been halted on 22 March 2002, these persons would have been fully engaged on that program. The work on which they have been engaged since the drilling program was halted has been created by Homestake as a 'stop gap' alternative to the termination of these persons' employment and is not essential to the completion of the drilling program. 14 However, even this non essential work of checking and cataloguing drill cores will be fully completed on or about 31 May 2002, and no more work will be available for these people unless drilling on Lot 23 and the Game Reserve recommences at that time. 15 In my capacity as a Project Manager for Barrick, it would be my recommendation that Barrick begin terminating the employment of these people should it not be clear to me by 31 May 2002 that the injunction in Order 1 of Annexure 'A' is not likely to be discharged by the Court by no later than 7 June 2002 to allow drilling to recommence on Lot 23 and the Game Reserve." 35 Bignold J concluded his judgment as follows: "41 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. 42 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. 43 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. Its 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 , s87. It is not , nor does it purport to be, an authorisation for the destruction of relics such as may be granted under s90 of the Act. On the contrary, it is an authorisation for the discovery, collection and protection of relics. 44 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."

Application for leave to appeal 36 An appellate court should exercise particular caution in reviewing matters of practice and procedure such as the refusal of an interlocutory order for an injunction; see Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177. In that case, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177: "Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example on the one hand, Niemann v Electronic Industries Ltd [1978] VR 431 at 440; on the other hand, De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323: '… I am of opinion that, …there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.' See also, Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364 at 365; 28 ALR 191 at 193; Dougherty v Chandler (1946) 46 SR (NSW) 370 at 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration." 37 It was not suggested that Bignold J had erred in identifying the principles by which he should approach the interlocutory application before him. While the language he used appears at times equivocal he treated Mr Williams' case as one raising a serious question for ultimate determination. During the hearing before us, which came on urgently on less than 24 hours' notice, understandably and with due respect to those responsible, the argument tended to be discursive. On Mr Williams' behalf particular attention was directed to the ministerial briefing containing the recommendation upon which the Director Cultural Heritage on behalf of the Director General acted. Amongst other things Mr Oshlack, Mr Williams' agent, who appeared with the leave of the Court and without objection from the opponents, submitted that the briefing demonstrated actual bias. On the other hand the opponents submitted that the reasons for judgment themselves suggested that Mr Williams' case on invalidity was not a strong one. It has not been demonstrated to us that Bignold J erred in proceeding on the basis that there was a serious question raised in the proceedings and ultimately to be tried. 38 Both sides stressed the irreparable damage that would be suffered to one or the other if the injunction had been granted or if it was not now granted. In our opinion, his Honour's approach to this discloses no error. Bignold J was well aware that the spiritual malaise was said to flow from physical collection of the relics and removal from their positions in situ, and so if there was the activity permitted by the permit. His Honour was right to acknowledge appropriately that s87 enables the Director General to issue a permit which allows a relic that is the property of the Crown to be disturbed or moved on any land. It was in response to the assertion of likely damage to relics (see ground (vii) in the points of claim) that his Honour pointed out that s85A allows the Director General to return relics to an Aboriginal owner or Aboriginal owners entitled to and willing to accept possession, custody or control of the relics in accordance with Aboriginal tradition. The earlier proceedings concerned the disturbance of or damage to relics without an appropriate permit or consent. The later proceedings are directed to the validity of a permit granted to allow a named archaeologist, Dr Pardoe, to collect such artefacts. No consent to damage has been sought or granted under s90(2) so that it remains an offence for that nominated person to destroy, deface or damage a collected relic. The later proceedings are directed incidentally to preventing that happening. 39 A consideration of the detriments claimed finally led his Honour to the balance of convenience. On the one hand, the claim that spiritual malaise was likely to be visited on the Wiradjuri peoples if the relics were physically collected and removed from their positions in situ and the public interest in their not being damaged against, on the other hand, the extensive financial detriment suffered not only by Homestake and Barrick and their employees but by their drilling contractor and its employees. As part of the balance of convenience, his Honour assessed the claimant's case as "not a self-evidently strong case". These words are a little unclear, but they did not deny that there was a serious question raised for determination and appropriately sought to attribute weight in the balancing exercise; from the submissions in the application for leave to appeal no reason has been shown to disagree with his Honour's assessment. Although the weight to be placed on either end of the balance was argued, no error was disclosed by his Honour's approach or resolution of this question. That led inevitably to the refusal of the application for interlocutory relief. 40 This is an application for leave to appeal. The Court felt after hearing argument on 6 June which began at 10.15 am and concluded at 4.30 pm that its decision should be reserved and the status quo should be maintained in the sense that the relics be left undisturbed where they were at the time until this Court gave its decision. Counsel for the opponents had no instructions to give any undertaking to the Court, and the Court made an order that Barrick and Homestake be restrained from carrying out any activity which seeks reliance on the operation of consent 1361 until the application for leave to appeal is determined. 41 Our conclusion is that no error of principle by Bignold J has been demonstrated nor has any substantial injustice flowed from his Honour's decision. 42 On 7 June Mr Oshlack informed the Court that the substantive hearing of the proceedings 40171/02 had been fixed for 24 to 27 June 2002 in the Land and Environment Court. The Court was concerned that before the hearing for interlocutory relief began on 28 May 2002 and during the time it continued on 30 and 31 May no apparent consideration was given to fixing a date for the substantive hearing of the proceedings and then weighing the balance of convenience in the context of the interval until the date fixed for the substantive hearing. It was apparent that whatever the parties' views were about an urgent hearing they were not able to agree on an interim regime until that hearing took place, and that Bignold J was not asked to give consideration to a substantive hearing date and take the interval into account in deciding upon interlocutory relief. When the Court learnt on 7 June that a special fixture had been obtained, further submissions were called for. This resulted in substantial submissions being furnished to the Court by the solicitors for Homestake and Barrick. The nub of these submissions was that the listing of the substantive hearing for 24 to 27 June was of no significance in the determination of the application for special leave which should be refused. It was further submitted that the balance of convenience did not favour the grant of interim relief pending the resolution of the judicial review proceedings. One potential problem was that the hearing may not finish within the time allotted. 43 We do not think this Court, on an application for leave to appeal from an order of the Land and Environment Court refusing to grant interlocutory relief, should now be influenced in determining whether leave be granted by the changed circumstance that these dates have been allotted. To do so would be going beyond the function of the Court on a leave application which in this case was entirely concerned with whether an error of principle or resulting substantial injustice had flowed from Bignold J's decision. In our opinion that case has not been made out and leave to appeal should be refused with costs.

Order 44 The application for leave to appeal is dismissed with costs.

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