Williams v Homestake Australia Ltd and Ors

Land and Environment Court (NSW)|2002-03-21|Before: Bignold J

The Applicant strenuously opposes the first Respondent's application (in its original form and its alternatively propounded form) claiming it as a wholesale circumvention of the provisions of the NP&W Act, Pt 6.

In my judgment, it is not appropriate to grant the relief claimed in the first Respondent's Notice of Motion because it is essentially inimical to the due processes of the NP&W Act. Certainly, in a case where there were simply no other alternative action to avoid the risk of damage to relics, it may be appropriate for the Court to exercise the power available under Pt 28 r 2 of the Supreme Court Rules for the preservation of property.

The problem that accordingly emerges is truly one of timing. The first Respondent is preparing necessary applications for the requisite permit and consent under the NP&W Act but anticipates that those applications cannot be completed for at least the next four weeks. The problem arises because the first and second Respondents wish to continue their exploratory activities pending the lodging of the necessary applications.

There are, no doubt good commercial reasons informing the decisions and actions of the first and second Respondent but they cannot, of themselves, dictate or mandate a solution which not only is "outside" the due processes prescribed by the NP&W Act, Pt 6, but in truth, at best simply ignore, and at worst intentionally violate, those processes.

This then, brings me ultimately to adjudicate upon the Applicant's present claim to interlocutory relief.

Unlike its first claim where the evidence of threatened breach of the NP&W Act, s 90 was found to be significantly wanting ,the evidence in support of the present claim is significantly strong.

A further significant difference between the original claim and the present claim is that it now appears that the Protocol between the first Respondent and the third Respondent (upon which I placed considerable reliance in withholding interlocutory relief of the first hearing) has not yet been implemented because vital decisions were taken on behalf of the third Respondent in granting a clearance to the first Respondent before the Protocol was adopted. I am here referring to the fact deposed to in Mr Shallvey's affidavit that the six east/west drilling rig pathways shown on the annexed plan were cleared by the third Respondent. They involve a total length of more than two kilometres, and in respect of one small section of only one of those pathways situate near the junction with the north/south access road, the joint inspection revealed the presence thereon of some 14 relics. The position with respect to the east/west pathways that were not inspected by the inspection team must now be considered to be much in doubt, notwithstanding the clearance granted by the third Respondent in January 2002.

In my earlier judgment, I noted the relevant principles upon which the Court exercises its judicial discretion for the granting of interlocutory injunctions (see at pars 45 to 50). The relevant principles require consideration of three questions - (i) Is there a serious question to be tried? (ii) Will the Applicant suffer irreparable damage unless the injunction is granted; and (iii) Does the balance of convenience favour the granting or withholding of the injunction?

My consideration of these questions on the present hearing has satisfied me that there is a serious question to be tried, the Applicant will suffer irreparable damage if the injunction is not granted and the balance of convenience favours the grant of injunction.

The strength of the Applicant's case of threatened breach of the NP&W Act, s 90 founded principally upon the three affidavits of Mr Johnston, is in my view established and it is not seriously questioned in the evidence adduced by the first and second Respondents.

Based upon my acceptance of Mr Johnston's evidence, I am satisfied that there is such a strong degree of reasonable probability of damage being caused to relics by the continuing exploratory activities undertaken on the lands, to almost borders on inevitability (such as was conceded to be the case in Forestry Commission v Corkill (1991) 73 LGRA 247) which I referred to by way of contrasting illustration in my earlier judgment.

Based upon the evidence now adduced by the Applicant in support of its present claim, my present citation of Corkill is no longer by way of contrasting illustration, but by way of comparative illustration.

The fact that the first Respondent has now initiated action seeking the necessary permit and consent under the NP&W Act (ss 87 and 90) appears to be a clear recognition by the first and second Respondents that such action is now necessary in the light of what I infer to be a significant change in the level of knowledge on their part of the presence of relics on the land.

I have of course considered the potential financial detriment to the first and second Respondents if the injunction is granted as deposed to by Mr Shallvey.

Although the Applicant has offered the usual undertaking as to damages (he did not do so, when making his initial claim to interlocutory injunction) he is a pensioner with no real financial wherewithal which would enable him to satisfy any liability for damages that may be incurred pursuant to the undertaking.

Despite this fact, I have concluded that on balance, it is just and reasonable to grant the injunction because the risk of damage to relics if the exploratory activities continue is so great, that that factor tilts the balance in favour of the grant of the injunction until the final hearing on 1 - 3 May 2002.

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.

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.

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.

Accordingly, for all the foregoing reasons, I make the following orders -

Until further order, the first and second Respondents be restrained from carrying out activity on lot 23 Deposited Plan 753097 or the adjoining Game Reserve that involves the movement on or across those lands of vehicles and machinery used for the purposes of conducting exploratory drilling of the lands

Grant leave to the first and second Respondents to move the Court on two days' notice for the discharge of the interlocutory injunction in the event of

their obtaining any permit granted pursuant to s 87 of the National Parks and Wildlife Act or of any consent granted pursuant to s 90 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 ss 86 and 90 of the National Parks and Wildlife Act; or

their satisfying the Court, after appropriate archaeological survey and report, that the exploratory mining activities may be resumed on the said lands, without posing any risk of contravention of s 90 of the National Parks and Wildlife Act.

The first Respondent's Notice of Motion filed 18 March 2000 (including the alternatively propounded claims to relief) is dismissed.

Order 1 is suspended until Noon 23 March 2002 to enable the completion of any current work shift employed at the site undertaking drilling activity and thereafter is further suspended until Noon 25 March 2002 to enable any removal of vehicles, drilling plant and machinery from the land.

Liberty to apply on two hours' notice for the purpose of seeking any further suspension of Order 1 in the nature of the suspensions granted by Order 6.

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 Homestake Australia Ltd and Ors [2002] NSWLEC 43 APPLICANT: Williams PARTIES : RESPONDENTS Homestake Australia Limited and Ors. FILE NUMBER(S) : 40010 of 2002 CORAM: Bignold J KEY ISSUES: Interlocutory Relief :- apprehended breach of s 90 of National Parks and Wildlife Act - damage to relics - Balance of Convenience LEGISLATION CITED: National Parks and Wildlife Act 1974 Supreme Court Rules pt 28 r 2 CASES CITED: Forestry Commission v Corkill (1991) 73 LGRA 247 DATES OF HEARING: 20-21 March 2002 DATE OF JUDGMENT: 03/22/2002

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