Reported Decision:
141 LGERA 426
63 NSWLR 699
Court of Appeal
CITATION: Country Energy v Williams; Williams v Director-General National Parks and Wildlife [2005] NSWCA 318
HEARING DATE(S): 22-24 August 2005
JUDGMENT DATE:
15 September 2005JUDGMENT OF: Spigelman CJ at 1; Giles JA at 2; Basten JA at 10
DECISION: In Country Energy v Williams; 1. Appeal allowed; 2. Set aside that declaration and orders made by the Land and Environment Court on 5 November 2004 and in lieu thereof order that the Application be dismissed; 3. First respondent pay the appellant's costs and have a certificate under the Suitors Fund Act if otherwise qualified; In Williams v Director-General National Parks and Wildlife; 1. Appeal dismissed; 2. Appellant pay the second, third and fourth respondents' costs.
CATCHWORDS: ADMINISTRATIVE LAW - consent under 90 of the National Parks and Wildlife Act 1974 - permit under s87 of that Act - validity of permit and consent to disturb and relocate Aboriginal objects - validity of permit and consent to destroy Aboriginal objects, the existence of which is not yet known - whether procedural fairness accorded to interested party in relation to survey and assessment of Aboriginal significance of proposed development site - whether there was a legitimate expectation that interested party would be included in survey - whether interested party given an adequate opportunity to assess the significance of any Aboriginal objects
LEGISLATION CITED: National Parks and Wildlife Act 1974
National Parks and Wildlife Act 1967 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Protection of the Environment Administration Act 1991 (NSW)
World Heritage Properties Conservation Act 1983 (Cth)
Archaeological and Aboriginal Relics Preservation Act 1972 (Vic)
Aboriginal Land Rights Act 1983 (NSW)
Native Title Act 1993 (Cth)CASES CITED: The Queen v Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13
Histollo Pty Ltd v Director-General of National Parks and Wildlife (1998) 45 NSWLR 661
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Coulton v Holcombe (1986) 162 CLR 1
Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153
Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28
The Queen v Toohey; Ex parte Northern Land Council (1980-81) 151 CLR 170
Onus v Alcoa of Australia Ltd (1982) 149 CLR 27
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
FAI Insurances Ltd v Winneke (1982) 151 CLR 432
Minister for Immigration and Ethnic Affairs v Teoh (1994-95) 183 CLR 273
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 334
Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33PARTIES: Country Energy (Appellant)
Neville Williams (First Respondent)
Director-General of National Parks and…
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- AGLC
- Country Energy v Williams [2005] NSWCA 318
- Case
- [2005] NSWCA 318
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several key legal issues. These included whether the permits and consents granted by the Director-General of the National Parks and Wildlife Service were valid, particularly in relation to the destruction of Aboriginal objects whose existence was unknown at the time of assessment. Furthermore, the court had to consider whether procedural fairness had been afforded to Mr. Williams and the Aboriginal community, specifically whether they had a legitimate expectation of being included in the survey and assessment process for the development site and whether they were given an adequate opportunity to assess the significance of any Aboriginal objects found.
The Court of Appeal found that the Director-General had erred in granting consent for the destruction of Aboriginal objects that were not yet known to exist. The court held that the statutory scheme contemplated the assessment of known objects, and extending consent to unknown objects went beyond the scope of the legislation. Regarding procedural fairness, the court determined that while Mr. Williams had an interest in the matter, there was no established legitimate expectation that he would be involved in the survey process itself. However, the court also considered whether he had been given an adequate opportunity to assess the significance of any objects that were identified. Ultimately, the court allowed Country Energy's appeal, setting aside the Land and Environment Court's declaration and orders, and dismissing Mr. Williams' application. The court also made separate orders in a related appeal concerning Mr. Williams and the Director-General.
Orders
Orders of the court
In Country Energy v Williams; 1. Appeal allowed; 2. Set aside that declaration and orders made by the Land and Environment Court on 5 November 2004 and in lieu thereof order that the Application be dismissed; 3. First respondent pay the appellant's costs and have a certificate under the Suitors Fund Act if otherwise qualified; In Williams v Director-General National Parks and Wildlife; 1. Appeal dismissed; 2. Appellant pay the second, third and fourth respondents' costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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