Donnelly v Delta Gold Pty Ltd
[2000] NSWLEC 145
•07/07/2000
Land and Environment Court
of New South Wales
CITATION: Donnelly and Anor v Delta Gold Pty Ltd and Ors [2000] NSWLEC 145 PARTIES: APPLICANT:
RESPONDENT:
Donnelly
Delta Gold Pty Ltd and Ors.FILE NUMBER(S): 40098 of 2000 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Interim injunction continued until expedited trial of challenge to validity of variation of licence. LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 58(6) CASES CITED: DATES OF HEARING: 06/07/00 DATE OF JUDGMENT:
07/07/2000LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack (Agent)
SOLICITORS:
N/A1st to 4th RESPONDENTS:
Mr Craig QC
SOLICITORS:
Phillips Fox5th RESONDENT:
Mr C J Leggat, Barrister
SOLICITORS:
Solicitor for Environment Protection Authority
JUDGMENT:
IN THE LAND AND Matter No . 40098 of 2000
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 7 July 2000
A. DONNELLY
Applicant
v
DELTA GOLD PTY LTD
First Respondent
ROSS MINING N.L.
Second Respondent
CAPRICORNIA PROSPECTING PTY LTD
Third Respondent
TIMBARRA GOLD MINES PTY LTD
Fourth Respondent
ENVIRONMENT PROTECTION AUTHORITY
Fifth Respondent
JUDGMENT
Bignold J:
1. On 30 June 2000, the Applicant commenced class 4 proceedings challenging the validity of the decision of the EPA to vary an environment protection licence issued under the Protection of the Environment Operations Act 1997. The legal basis for such challenge is the alleged breach by the EPA of s 58(6) of the Protection of the Environment Operations Act 1997 which provides as follows:
(6) If:
(a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and
(b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979,
- the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.
2. The claimed relief includes declarations and injunctions (both prohibitory and mandatory).
3. The class 4 proceedings also claimed interlocutory relief against all Respondents. That claim came before the Court later in the day upon which the proceedings were commenced. On that occasion, all Respondents appeared (having been given up to two days’ notice of the Applicant’s intention to seek interlocutory relief from the Court).
4. At the hearing of the Applicant’s claims to interlocutory relief, the Respondents indicated that the relief claimed in the proceedings (both interlocutory and final) would be contested. However, the Respondents’ opposition to the claimed interlocutory relief was not supported by any evidentiary materials because of the limited opportunity to prepare their cases.
5. The Applicant’s case was founded on affidavits filed by the Applicant—one by the Applicant himself and the other by Mr Oshlack who in the proceedings appears as agent for the Applicant.
6. It is to be noted that the Applicant’s evidence had also been hurriedly collected because the Applicant had only learned of the fact that the fourth Respondent had begun spray irrigating activity a few days earlier pursuant to the variation of the environment protection licence (which variation had only been granted by the EPA on 23 June 2000 and which had only come into effect on 27 June 2000).
7. The Applicant is the authorised representative of the Traditional Custodians of the land and waters, the subject of the pending Wahlabul/Bandjalung Native Title Claim. That claim includes the land, the subject of Mining Lease 1386 which is the land, the subject of the present proceedings.
8. On the hearing of the Applicant’s claim to interlocutory injunction on 30 June 2000, Counsel for the EPA informed the Court that the EPA, in granting the variation of licence, had not invited and considered public submissions. This was because it held the view that it was not bound to so in terms of the Protection of the Environment Operations Act, s 58(6). Counsel for the EPA also informed the Court that the proposed variation had not been subject of any environmental assessment or public consultation under the Environmental Planning and Assessment Act 1979.
9. My decision announced at the conclusion of the hearing was to adjourn the claim for interlocutory relief for further hearing on 6 July 2000 to enable the parties to present further evidence.
10. In the meanwhile, I granted an interim injunction restraining the 1 - 4 Respondents from acting in reliance upon the licence variation until the claim to interlocutory relief had been determined.
11. Upon resumption of that hearing yesterday, the Court has received additional evidence from the Applicant and the Respondents. In the result, the Court with the parties’ concurrence, has expedited the hearing of the claims to final relief. That hearing has been fixed for the week commencing 24 July 2000 ie two weeks distant. (Appropriate directions have been given as set forth in the Annexure hereto.)
12. The fact that the claims to final relief will be urgently heard leaves outstanding the question whether the interim injunction should be continued until the final hearing as sought by the Applicant or should be dissolved as sought by all the Respondents.
13. The evidence going to the balance of convenience has satisfied me that if the interim injunction is maintained until decision in the final proceedings, the 1 - 4 Respondents will be denied the opportunity to spray irrigate in accordance with the licence variation and that such denial will involve some risk of environmental detriment by virtue of the stormwater detention dam having less spare capacity at the critical time of the commencement of the wet season (ie the forthcoming summer period) than would be the case if spray irrigation were permitted to be undertaken in the period from now to the final hearing of the case in two weeks’ time.
14. The 1 - 4 Respondents’ estimate that something in the order of 6,000 m3 of contaminated water stored in the stormwater dam could be spray irrigated in the period of one month. I accept that the denial of the opportunity to spray irrigate up to that volume of contaminated water will involve some environmental risk during the next wet season (ie the summer of 2000/2001).
15. However, I do not think that the risk can reasonably be assessed or quantified as being so serious or as being so irredeemable as to require the decision that spray irrigation must be allowed to occur in the very short period of time before the fixed hearing. (No such risk is posed during the short period until determination of the final hearing.)
16. The question of risk can be better appreciated by asking the question—what if the Applicant were to be wholly successful at the final hearing and the Court were to grant the injunction claimed. Such a decision would obviously have far more profound consequences for the maximising of the spare storage capacity in the stormwater dam before the onset at the wet season this summer, than would the likely consequences of continuing the injunction up to the trial date.
17. What has to be weighed against the foregoing detriment is the consequences to the Applicant of not continuing the interim injunction until the trial, in the event that the Applicant is successful at the trial.
18. I readily accept that the detriment thus suffered is not likely to be irreparable, but nonetheless, it would mean, again assuming the Applicant’s total success on the final hearing, that there has been unauthorised spray irrigation of the contaminated water with some risk (according to the Applicant’s experts) to the environment.
19. I do not stay to attempt to quantify that risk. It is, I think, sufficient to say that in view of the very short time involved before the final hearing in these proceedings, I consider that the continuation of the interim injunction until trial will cause less detriment to the Respondents than that likely to be caused to the Applicant if the interim injunction is not so continued.
20. I accept the Respondent’s submission that the belated offer by the Applicant of the usual undertaking as to damages cannot be regarded as providing any real protection to the Respondents because of the known lack of financial means of the Applicant. However, on the other hand, it is not easy to contemplate what damages might be incurred by the Respondents, by virtue of the continuation of the interim injunction during the period of the next three weeks.
21. Because the final hearing is fixed so close to the present time, it is preferable that I not say anything about the strengths or weaknesses of the Applicant’s case. Normally, of course, that is a matter that features weightily in the overall evaluation of the balance of convenience, especially in a case such as the present, where the claim is based upon an alleged breach of the public law (where that public law is itself the authority for the conduct sought to be restrained).
22. However, the conventional considerations for the grant of interlocutory injunction in my judgment are realistically modified by the fact of the fixed final hearing in two weeks’ time. That fact considerably narrows the Court’s task of determining which party the balance of convenience favours.
23. In all the circumstances, I consider it more appropriate that the interim injunction continue up to the final hearing and I so order.
ANNEXURE
Directions given on 6 July 2000 in respect of the trial hearing
1 Applicant to file and serve affidavits upon which he seeks to rely by 4.00 pm on Thursday 13 July 2000.
2. Respondents to file and serve affidavits upon which they seek to rely by 4.00 pm on Tuesday 18 July 2000.
3. Applicant to file and serve affidavit’s in reply by 4.00 pm on Thursday 20 July 2000.
4. Matter listed for hearing for week commencing on Monday 24 July 2000.
5. Applicant to file and serve Amended Points of Claim by Thursday 13 July 2000.
6. Respondents to file and serve Points of Defence by Tuesday 18 July 2000.
0
0
1