Donnelly v Capricornia Prospecting Pty Limited

[1999] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION:

Donnelly & Anor V Capricornia Prospecting Pty Limited & Ors [1999] NSWLEC 20

PARTIES

Applicants
Andrew Donnelly & David Mundine

First Respondent
Capricornia Prospecting Pty Limited

Second Respondent
Ross Mining NL

Third Respondent
Timbarra Gold Mines Pty Limited

Fourth Respondent
Tenterfield Shire Council

Fifth Respondent
The Water Administration Ministerial Corporation

NUMBER:

40243 of 1998

CORAM:

Cowdroy AJ

KEY ISSUES:

:- injunction - application to restrain pumping to mining operations based upon danger to threatened species - injunctive relief claimed having tenuous connection with principal relief - absence of prima facie case

LEGISLATION CITED:

injunction - application to restrain pumping to mining operations based upon danger to threatened species - injunctive relief claimed having tenuous connection with principal relief - absence of prima facie case

DATES OF HEARING:

02/05/1999; 02/08/1999; 02/09/1999; 02/10/1999

DATE OF JUDGMENT DELIVERY:

02/15/1999

LEGAL REPRESENTATIVES:

Applicants
Mr A Oshlack agent
N/A

First, Second & Third Respondents
Mr C R Ireland solicitor
Blake Dawson & Waldron

Fourth Respondent
Mr J B Maston barrister
Taylor Kelso

Fifth Respondent
Mr D Armstrong solicitor
Department of Land and Water Conservation

JUDGMENT:


The Application for Relief

1. By Notice of Motion filed 5 February 1999 Andrew Donnelly & David Mundine (“the Applicants”) seek interlocutory orders as set out in the Application Class 4 which was filed on 23 December 1998. Such application seeks declarations that development consents for a proposed pump and pipeline located on Lot 37 DP 751528, Parish of Maclean, County of Clive granted to Capricornia Prospecting Pty Limited (“the First Respondent”) by Tenterfield Shire Council (“the Fourth Respondent”) is null and void and a declaration that water permit granted under the Water Act 1912 to the First Respondent to pump water from Nelson Creek granted by The Water Administration Ministerial Corporation (“the Fifth Respondent”) is also null and void and of no effect. Consequential orders are sought.

2. On 5 February 1999 the Notice of Motion came before the Court and a hearing has taken place on 8, 9 & 10 February 1999. The Applicants claim for urgent relief was based upon an affidavit provided by Dr Michael Mahony sworn 5 February 1999. In such affidavit Dr Mahony, a senior lecturer and specialist fauna consultant testified as to the existence of a threatened species namely the Peppered Frog which was located by a post graduate student from the Southern Cross University on 24 December 1998. A sample of such frog, as identified by Dr Mahony, was located in a section of Nelson Creek on the Timbarra Plateau, in close proximity to mining operations which are being conducted by the First, Second and Third Respondents.

3. The application for interlocutory relief is predicated upon the assertion that the pumping of water by the First Respondent from Nelson Creek would endanger the Peppered Frog. Dr Mahony deposed:-

“19. In my opinion the removal of water from a stream which is known to support populations of at least two threatened frogs (the Glandular Frog and Peppered Frog) should be subject to a thorough impact assessment. ...”

and at paragraph 20 he deposed:-

“20. The discovery of a population of the Peppered Frog on Nelsons Creek compounds the potential impact on threatened species. It is necessary that the potential impact on this frog can be assessed fully prior to any continuation of water removal from the stream.”

4. The relief sought in the Application filed 23 December 1998 does not relate to the alleged threatened species. The Court is asked to infer that any removal of water from Nelson Creek will endanger such species. There is no evidence before the Court of the volume of water in the creek, nor of the extent of the actual removal of water therefrom. There is no evidence before the Court that Dr Mahony has ever visited Nelson Creek. There is evidence that the pump which is used to draw water from Nelson Creek is located approximately 500 metres downstream of the site of the Peppered Frog colony. There is no evidence that Dr Mahony is aware of this fact. There is no evidence before the Court that any actual pumping of water from such location could endanger the frog, other than the assertion of Dr Mahony. The Court is asked to assume that because the Peppered Frog has been found to exist beside Nelson Creek the removal of water by pumping must, of necessity, endanger the species, and that for this reason urgent injunctive relief is warranted.

5. The High Court of Australia in State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 has established the tests to be applied when a Court is asked to grant an interlocutory injunction. The first of such tests requires an examination of whether, upon the evidence adduced before the Court, there is a serious question to be tried. The second test is whether, assuming the first to be satisfied, the balance of convenience requires the grant of such relief. In relation to the last issue, the question of prejudice to the parties is a relevant factor. Such tests have been re-stated by the High Court of Australia: see Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 at 153. In the latter case, Mason CJ stated the tests in slightly different terms. The learned Chief Justice observed that an Applicant for injunctive relief had to establish, inter alia, the existence of a prima facie case and was also required to show that he would suffer irreparable injury for which damages would not be adequate compensation if injunctive relief was not granted.

6. The Application Class 4 seeks declarations concerning the validity of the licence and permits referred to, and consequential orders. The claim for injunctive relief which is now made does not relate to those issues. Mr Oshlack, who appeared as agent with the authority of the Applicants was, during the course of the hearing, asked how the claim of injunctive relief related to the issues in the Application. In response he submitted that the operations involved in the mining activities conducted pursuant to the challenged licence and permit could lead to a reduction in the water levels in Nelson Creek and in consequence lead to the extinction of the threatened species. Such explanation demonstrates that the relief claimed in the injunctive proceedings does not relate directly to the relief claimed in the Application. Points of Claim have not been filed which might have demonstrated the association between the relief claimed in the Application compared to the urgent relief now sought. When this was brought to the attention of Mr Oshlack, he explained that the Applicants in effect sought a restraint upon further pumping from Nelson Creek in view of the alleged threat to endangered species. So considered the link between the relief claimed in the principal proceedings compared to that sought in the Notice of Motion is tenuous

7. It was argued that the fauna studies which have been prepared to date are inadequate as demonstrated by Dr Mahony’s affidavit. Such an issue is one for the principal proceedings, and not for interlocutory relief. Accepting, for the present purposes, that the Peppered Frog is an endangered species and that it has been located at Nelson Creek, the Court must consider the principal relief and ask whether interim relief of the kind in question is now required. Upon the evidence, no such conclusion can be drawn. The evidence does not establish that the volume of water presently being pumped from Nelson Creek will inevitably endanger the species. Accordingly, whilst a prima facie case has been established that the Peppered Frog has been located at Nelson Creek, and that it is an endangered species, a prima facie case has not been established that urgent injunctive relief is essential. The Motion must therefore be dismissed.

Costs

8. The First, Second and Third Respondents have sought an order that costs on an indemnity basis be awarded against the Applicants. The remaining Respondents seek an order that the Applicants pay their costs. Authorities concerning an award on indemnity costs have consistently held that such an award should be granted in circumstances in which the proceedings were manifestly hopeless or in circumstances in which it was demonstrable that the proceedings were devoid of merit (see Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397). It is not possible to say that the present application satisfies such tests. Accordingly the application for indemnity costs is refused.

9. Mr Oshlack for the Applicants has submitted that in the event that the Court declines the relief claimed, costs should abide the result of the principal proceedings.

10. The Motion before this Court raises an issue which will almost certainly be the subject of further consideration when the Application is heard. To this extent it is related to the principal proceedings. For this reason it is appropriate that the Court should not make an order for costs at this stage other than that the costs of this Motion be costs in the proceedings.

11. Accordingly the Court orders:-

i. The Notice of Motion dated 5 February 1999 be dismissed.

ii. The costs of this Motion be costs of the proceedings.

iii. The exhibits be returned.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

ASSOCIATE