Williams v Pardoe and Ors

In the light of the Applicant's declared position, I proceed to determine the first to third Respondents' Notice of Motion.

The first to third Respondents' Notice of Motion is supported by the affidavit of Mark Brennan, Solicitor sworn 18 September 2003. He is a partner in the firm that acts for the first to third Respondents.

Paragraph 6 of his affidavit details 12 legal proceedings brought by the Applicant - principally in this Court but also in the Court of Appeal and the Federal Court - either against the first to third Respondents or in respect of a disputed Native Title claim.

Mr Brennan provides an estimate of some $50,000 being the first to third Respondents' "minimum future legal costs" if the litigation proceeds to a final hearing (which he estimates to require three days).

In respect of the Applicant's claim (vide par 6 of the Amended class 4 application) for a declaration that Permit 1468 "is nugatory and of no effect", Mr Brennan's affidavit refers to the Applicant's similar claim in earlier proceedings (Matter No 40964 of 2002) which claim was rejected in the Court's judgment of 19 May 2003 dismissing the Applicant's proceedings see Williams v The Director General of National Parks and Wildlife Service and Ors (2003) NSWLEC 121.

The Applicant did not file any evidence in rebuttal of Mr Brennan's evidence other than the Applicant's affidavit sworn 6 September 2003 deposing to matters occurring at the Lake Cowal Gold Project site on 12, 13 and 20 August 2003 when the Applicant attended the site. (This evidence is relevant for present purposes only to show that the Applicant has incurred expenses in the litigation in preparation for the final hearing of this case, on the assumption that the Applicant obtains leave to file a further amended class 4 application.)

The first to third Respondents' argument in support of the relief claimed in their Motion was comprehensively developed in written submissions made by their Senior Counsel.

In paras 10 to 15 of the written submissions, there is reference to passages in my judgment of 24 June 2003 dismissing the Applicant's claim to interlocutory injunction and concludes, by way of proferring the opinion that the Applicant's case is weak.

In pars 16 to 35 of the written submissions, it is accepted on behalf of his clients that the Applicant is impecunious and extensive reference is made to the majority judgment in the Court of Appeal's decision in Melville v Craig Nowlan and Associates Pty Ltd (2002) 54 NSWLR 82 "as the leading case in relation to security for costs applications made against impecunious natural persons in the Land and Environment Court".

Reference is also made to the later decision of Talbot J in Carriage v Stockland (Constructions) Pty Ltd (No 2) (2002) NSWLEC 121 involving a similar claim to injunctive relief brought by an Aboriginal Elder in proceedings under the National Parks and Wildlife Act 1974, s176A where his Honour ordered the Applicant to provide security for costs in the sum of $25,000 and ordered that the proceedings be stayed until such security is provided.

In Pars 36 to 37 of the written submissions, it is said that the Applicant's present claims do not raise issues of considerable public importance (such as was held to be the case in Arnold v Queensland (1987) 73 ACR 607 where Wilcox J, on that account, refused to order the plaintiff to provide security for costs). Rather, it is opined that the proceedings "concern the interpretation of the provisions of Permit 1468 and the alleged technical breaches of that Permit".

In pars 38 to 41 of the written submissions, reference is made to the decision of the Court of Appeal in Lall v 53-55 Hall Street Pty Ltd (1978) 1 NSWLR 310 as an illustration of the problems posed by persistent litigants in person who will not let a case decided by a Court rest, but rather incessantly press their claims, often in serial litigation. Invoking the language of the critical observations made by the Court of Appeal of such phenomena, it is submitted that the present proceedings show that the Applicant will not let matters rest but is attempting to keep alive the "past dispute" (which has been resolved by earlier decisions of the Court in the litigation history between the same parties which have upheld the validity of he Permits and Consents granted by the Director-General in respect of Aboriginal objects situate at Lake Cowal).

In pars 42 to 49 of the written submissions, there is a discussion of the nebulous concept of "public interest litigation" by reference to the decided cases (most notably by the High Court's decision in Oshlack v Richmond River Council (1998) 193 CLR 72) before opinion is expressed that the present proceedings should not be relevantly characterised as "public interest litigation" and submitting that even if it be so characterised, that fact would not justify refusal of the first to third Respondents' application for security of costs for twofold reasons - (i) the proceedings do not involve the judicial elucidation of untested or unclear legislation; and (ii) the Applicant's prospects of success on the final hearing are not strong.

In pars 50 to 55 of the written submissions, consideration is given to the question of delay involved in the application for security for costs by noting that the proceedings were commenced on 29 May 2003, the Applicant's claim for an urgent interlocutory injunction was heard on 6 June 2003 and dismissed in the Court's reasons for judgment handed down on 24 June 2003.

It was following the filing on 2 September 2003 of the Applicant's amended class 4 application and points of claim that the first to third Respondents' application for security for costs was filed on 4 September 2003.

It is submitted that there has been no relevant delay but if the Court were to hold to the contrary, it is submitted, that there has been no consequent prejudice caused to the Applicant.

Finally, in pars 56 to 63 of the written submissions, it is submitted that the claim made in par 6 of the Applicant's amended class 4 application has already been determined by this Court's earlier decision (in proceedings 40964 of 2002 (see (2003) NSWLEC 121) and that the Applicant is estopped from making the same claim made in the present proceedings by virtue of the doctrine of issue estoppel or alternatively, by the extended concept of res judicata recognised by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Mr Oshlack's competing submissions on behalf of the Applicant were that the position of the Applicant in the present proceedings cannot be simply equated to the position of the applicant in the Melville case - rather, the litigation history had shown that the Applicant was the only person willing to take action in defence of the Aboriginal objects situate at Lake Cowal including within the ranks of the relevant Aboriginal community which has been shown to be clearly divided on the issues raised by the Lake Cowal Gold Mine Project and on the issues of Native Title. The Applicant had demonstrated throughout the litigation history a special and personal sense of responsibility for the cultural and archaeological significance for Aboriginal peoples of Lake Cowal and to require him to provide security for the costs of the first to third Respondents would stifle the litigation in view of the starkly contrasting financial positions of the Applicant, as an impecunious litigant in person and the second and third Respondents as Australian Corporate representatives of one of the world's largest Gold Mining Companies.

It was submitted on behalf of the Applicant that his claims of breaches of the relevant Permit granted under s 87 of the National Parks and Wildlife Act were serious claims which the Applicant was entitled to prosecute especially in the light of what the Applicant believes to be the default on the part of the Director-General of National Parks and Wildlife (who has filed a submitting appearance in the proceedings) in enforcement of the conditions of the s 87 Permit.

Finally, it was submitted that the Applicant's present claim that the relevant Permit was nugatory and of no effect was not an attempt by the Applicant to re-litigate an issue which had been determined against him by the Court's decision in the earlier proceedings, but was a claim that the Permit had been rendered nugatory by virtue of the breaches of the conditions of the Permit by the first to third Respondents as alleged by the Applicant in the present proceedings.

According to his amended class 4 application, the Applicant claims declarations (i) that the first Respondent (Dr Pardoe) has breached specified conditions of the s 87 Permit; and (ii) that the first to third Respondents have breached ss 87 and 90 of the National Parks and Wildlife Act; and (ii) that Permit 1468 is nugatory and of no effect and claims consequential injunctive relief (both prohibitory and mandatory).

The amended class 4 application alleges breaches of the National Parks and Wildlife Act more extensively than did the original class 4 application (which provides the background to the hearing of the Applicant's claims to interlocutory injunctive relief which was refused)

Accordingly, there is no complete overlap between the currently alleged breaches of the conditions of the Permit and the prevailing allegations when I determined the Applicant's claim to interlocutory relief.

Moreover, there was no extant claim when I declined to grant interlocutory relief that the relevant Permit had become nugatory by virtue of the alleged breaches of the Conditions of the Permit.

Those differences between the Applicant's original and current claims made against the first to third Respondents are obviously important and inevitably mean that my assessment of the strength of the Applicant's claims contained in my earlier judgment is not entirely apposite in the sense that it does not cover all aspects of the present claims made by the Applicant.

The nature and scope of the Applicant's case in support of his allegations of breaches of the conditions appears to have been considerably broadened by virtue of the Applicant's affidavit (filed in Court on 26 September 2003 deposing to events occurring at Lake Cowal on 12, 13 and 20 August 2003).

For all these reasons, my evaluation of the strength of the Applicant's case contained in my judgment refusing to grant interlocutory relief cannot be applied to the further claims of breach now contained in the Applicant's amended class 4 application.

In my opinion, the Applicant's position in the present proceedings is significantly different from that of the Applicant in Melville. It may be accepted that the National Parks and Wildlife Act, s 176A is to similar effect as the Environmental Planning and Assessment Act 1979, s 123 insofar as each provision empowers "any person" to bring proceedings for the civil enforcement of obligations and duties imposed by each of these statutory regimes. But it is clear that the Applicant in the present proceedings is not simply "any person" in the sense explained in Melville. Rather, it is clear that he regards himself as duty bound in Aboriginal customary law to defend the Aboriginal significance (archaeological and cultural) of Lake Cowal. Moreover, and very significantly in the present case, he is given entitlements in terms of the Permit to attend, observe and be involved in the implementation process of the Permit. (I am here referring to the conditions of the Permit made in respect of the "Mooka Traditional Owners Council" of which the Applicant is the Chairperson). It was pursuant to those entitlements that the Applicant attended Lake Cowal and participated in the inspection and collection process on 24 May 2003 which gave rise to his complaints against the first to third Respondents and ultimately to the present proceedings being launched.

For these reasons, it is likely that any requirement made of the Applicant to provide security for costs will stifle the litigation in general and the Applicant's personal and special interest in the litigation in particular.

Moreover, I do think that there has been relevant delay in the making of the application for security for costs in the present proceedings. No such claim was made when the proceedings were filed or when the Applicant's claim to interlocutory injunction was heard. Moreover, throughout the litigation history between the parties that is detailed in Mr Brennan's affidavit, no order for security for costs has been made. Nor indeed, has there been throughout that history any prosecution by the first to third Respondents of such an application in circumstances where it has been known from the beginning of the litigation that the Applicant is an impecunious litigant in person. In this overall sense, the first to third Respondents' present application can be said to be belated and somewhat unexpected, although I can readily appreciate the sentiment that "enough is enough".

Finally, I am of the opinion that there is a strong "public interest" element in the present proceedings. In this respect, I do not equate the Applicants' position to that of the persistent and stubborn plaintiff expounded in the Court of Appeal's decision in Lall.

The present claims do not, in my opinion, demonstrate that the Applicant is incapable of abiding by the results achieved in the litigation.

The conditions imposed upon the grant of the relevant s 87 Permit impose a rigorous regime in defence of the relevant disciplined processes of identifying and collecting Aboriginal objects at Lake Cowal preparatory to the commencement of gold mining operations. In terms of those conditions, the Applicant is expressly given certain entitlements. If he can make out a case that the conditions of the Permit have been breached, it is a matter of public importance that that case be adjudicated upon.

For all the foregoing reasons, I would exercise the discretion conferred upon the Court by refusing the first to third Respondents' application for security for costs.

As emerged with tolerable clarity during the hearing, the Applicant's claim that the Permit is "nugatory" does not represent an attempt to re-litigate an already determined issue between the parties. The Applicant's attack on the validity of the Permit than I held to fail was based upon the processes in the decision-making exercise and the decision itself.

Here, the Applicant's claim is that the Permit has become nugatory because of the manner in which it has been implemented by the first to third Respondents, where the Applicant alleges specific breaches of relevant conditions of the Permit.

This is a sufficient difference in law and in fact between the earlier attack on the validity of the Permit and the present claim, made in respect of it by the Applicant to successfully withstand the first to third Respondents' strike out or stay application.

For all of the foregoing reasons, the first to third Respondents' Notice of Motion must be dismissed in its entirety.

1. The first to third Respondents' Notice of Motion filed 4 September 2003 be dismissed.

3. The parties have leave to obtain from the Registrar a hearing date for the final hearing of the proceedings.

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