Williams v Homestake Australia Limited & Ors.

Soon after the commencement of the final hearing the first and second Respondents maintained their willingness to agree to the consent orders, which was evidently an acceptable outcome to the Applicant, save for his desire to keep alive his claim (to similar relief as that conceded by the first and second Respondents in respect of lot 23 and the Game Reserve) in respect of the other lands, namely lots 24, 25 and lot 2.

Thereupon, the Applicant applied for an adjournment of his claims to relief against the first and second Respondents in respect of these other lands.

This application which has been strongly resisted by the first and second Respondents thereafter occupied the full amount of time allocated for the trial (ie the past three days).

The Applicant has founded his application for adjournment upon the dictates of justice, but in the course of presenting his case, he has majored on what he believes has been the frustration caused to him and his advisors by the first and second Respondent's conduct allegedly ranging from non-cooperation to positive interference with his attempts to carry out further archaeological investigation of the site, particularly since he obtained on 10 April 2002 Orders from Cowdroy J directing the joint inspection of the lands by archaeologists retained by the parties. A copy of those Orders is annexed hereto and marked "C".

I have received a considerable body of evidence as to what happened at the site following the obtaining of those Orders on 10 April 2002. That evidence reveals that the Applicant and his archaeologist attended the site on the very day that the orders were obtained from Cowdroy J, and thereafter they returned to the site on 16 April 2002.

For whatever reasons, the Applicant and his advisors were unable to undertake their desired inspection of the site on those two occasions, or any other occasion.

Whereas I accept the bona fides of Applicant's belief that he has been frustrated by the first and second Respondents in his endeavours to complete the desired archaeological investigation, I am not satisfied that the failures of these missions can be blamed on the conduct of the first and second Respondents.

Rather, the evidence indicates that regrettable misunderstandings on the part of the Applicant and regrettable breakdowns in communications between the parties and their advisors, are the true and immediate cause of the failures of the Applicant's attempts to complete his archaeological investigations of the site.

However, I do not accept the first and second Respondent's criticism that the Applicant has contrived that outcome or that his credit as a witness of fact should be impugned or should be otherwise doubted.

On the available evidence, I find that there are reasons why the Applicant and his advisors were not able to undertake or to complete their archaeological investigations on the two occasions that they attended the site following the grant of the Orders by Cowdroy J on 10 April 2002, but that those reasons do not involve blameworthiness on the part of the parties or their advisors, save for the very human condition of failure of relevant communication between them, made the more difficult in the context of current litigation between them.

Accordingly, the application for adjournment cannot be supported on the asserted basis that the first and second Respondents have wilfully or deliberately frustrated the Applicant in his attempts to complete his archaeological investigations of the site.

This finding, however does not conclude the matter because the Court's judicial discretion in respect of the grant or refusal of an adjournment application (including one made, as in this present case, at the trial hearing) is principally exercisable by reference to the dictates of doing justice between the parties: se Cohen v McWilliam (1995) 38 NSWLR 46 and Queensland v J R Holdings Pty Ltd (1997) 189 CLR 146.

Although other considerations are relevant to the exercise of the relevant judicial discretion (eg the efficacy of the management of the Court's resources) the dictates of doing justice between the parties remains the paramount consideration: J R Holdings Pty Ltd at 155.

In this respect, there is the very real prospect that the refusal of the adjournment application will very seriously prejudice the Applicant in his claims to additional relief which is of the same character as that which he has obtained by way of interlocutory injunction, now enhanced by the first and second Respondent's consent to suffering similar relief by way of permanent injunction. Not only is the relief of the same character, but it relates to the same exploratory mining enterprise being conducted of the first and second Respondent pursuant to the Exploratory Licence it holds in respect of lands at Lake Cowall.

Conversely, the first and second Respondent are likely to suffer prejudice if the adjournment application is granted because having agreed to settle the case so far as concerns lot 23 and the Game Reserve, the outstanding claim in respect of lots 24 and 25 and lot 2 will remain hanging over their heads.

However, since the first and second Respondent's application for permit pursuant to the National Parks and Wildlife Act, s 87 also relates to lot 24 (as well as lot 23 and the Game Reserve) and that application remains undetermined, the potential prejudice of the Applicant's outstanding claim hanging over the first and second Respondent's heads may not turn out to be great eg in the event of the permit application being granted there would appear to be little likelihood of the Applicant persisting with his claim, which is fundamentally, if not exclusively, based upon the provisions of the National Parks and Wildlife Act, Pt 6 protecting aboriginal relics.

Having weighed these competing prejudices, I have concluded that the prejudice likely to be suffered by the Applicant if the adjournment application is refused is greater than the prejudice likely to be suffered by the first and second Respondent if the adjournment application is granted. In other words, doing justice between the parties favours the grant of the adjournment application.

In so concluding, I am aware that the Applicant has intimated that he is disposed to proceed with his claim, even if the adjournment application were refused, but it is apparent that in so proceeding he will be obviously disadvantaged by not having the opportunity to call evidence of the archaeological significance of the other lands, including the presence thereon of relics and the vulnerability of these relics to damage if exploratory activities are undertaken on that land.

I am also conscious of the fact that the exploratory activities have been focussed on lot 23 and the Game Reserve, being the site of the proposed mining pit containing the ore deposits, and that only a small part of the identified pit extends beyond the boundaries of lot 23 and the Game Reserve.

However, the evidence satisfies me that at least lot 24 may contain relics which are apt to be damaged if exploratory mining activities are undertaken on lot 24 in similar fashion to the situation with respect to the relics that are located on lot 23 and the Game Reserve, which situation justified the grant of the interlocutory injunction granted on 22 March 2002 and the granting of the permanent injunction by dint of the sufferance of the first and second Respondents at the final hearing.

I have also taken into account the fact that when the final hearing of the proceedings was fixed on 4 March 2002, directions were given by consent for the filing of evidence including a direction that the Applicant file its evidence by 21 March 2002 and that by that time the Applicant had not filed evidence relating to activities being undertaken by the first and second Respondents on the other lands (beyond lot 23 and the Game Reserve). However, I have taken into account the fact that the Applicant is not legally represented in the proceedings and there remained the opportunity for him to seek leave to rely upon any evidence that had not been filed in accordance with the directions that may have been discoverable if the inspection of the property ordered by the Court on 10 April 2002 had been successfully carried out. This is more particularly so once it is appreciated that the fixing of the final hearing dates had occurred before the Applicant had claimed urgent relief prior to the final hearing, which claim was successful when I granted the interim injunction on 22 March 2002. Any default by the Applicant needs to be appreciated in the light of the history of the course of interlocutory proceedings that occurred after 4 March 2002. I also have taken into account the fact that the Applicant's claim to interim relief was made in respect of all relevant lands, although the interim injunction I granted was confined to lot 23 and the Game Reserve, which was the geographic focus of the first and second Respondent's exploratory mining activities. It was following the grant of the interim injunction that the first and second Respondents caused machinery and plant to be removed to the adjoining lot 24, where it currently is located that the focus of attention has inevitably turned to that land.

For all the foregoing reasons, the Applicant's adjournment application is granted.

As a consequence of my decision granting an adjournment of the Applicant's claim to additional relief in respect of the first and second Respondent's activities on lands described in par 1 of the Applicant's amended class 4 application (other than lot 23 and the Game Reserve) the parties are now invited to bring in within the next 14 days short minutes to give effect to the disposal of the case so far as concerns lot 23 and the Game Reserve. This direction is given on the basis that the parties have at least in principle settled the case so far as concerns lot 23 and the Game Reserve and that the grant of the adjournment application, being limited to the Applicant's claims to additional relief in respect of the other lands, can be treated as a discrete matter which does not affect the parties' settlement of the case so far as it concerns lot 23 and the Game Reserve.

On this basis, I would expect the short minutes to reflect, as appropriate, the content of the draft consent orders prepared by the first and second Respondents, as annexed to this judgment.

As I understood the Applicant's position in respect of these consent orders, his principal demur is to the inclusion of Order 2(b) granting leave to the first and second Respondent to move the Court for the discharge (partial or total) of the injunction in the event of their satisfying the Court, "after appropriate archaeological survey report, that the exploratory mining activities may be resumed upon the land without contravening the National Parks and Wildlife Act 1974, s 90".

The basis for this demur was outlined in Mr Oshlack's address, namely that it had the potential to undo the very outcome that was achieved by the consent orders or alternatively that the first and second Respondents should have presented their case for such an outcome at the final hearing of these proceedings, rather than being afforded the opportunity at some time in the future to effectively reopen the case.

These are powerful arguments. However, I think that the opportunity sought by the first and second Respondents is not an unreasonable one and does not infringe the principle of finality in litigation or undermine the integrity of the final orders to be made. However, if the parties cannot agree on this point, the question will need to be resolved by adjudication following any further argument that the parties may wish to advance.

1. The Applicant's application to adjourn the hearing of his claim to relief in respect of land referred to in par 1 of his amended class 4 application filed 4 March 2002 (other than lot 23 and the Game Reserve) is granted. Liberty to apply on three days' Notice.

2. The parties are directed to bring in short minutes within 14 days for the final disposal, by consent, of the proceedings as they relate to lot 23 and the Game Reserve.

3. In the event of consent orders not being filed as contemplated by Order 2, liberty is granted on 3 days' notice to restore the proceedings for the purpose of finally disposing with the proceeding so far as it concerns lot 23 and the Game Reserve.

I HEREBY CERTIFY THAT THE PRECEDING 34 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

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