Donnelly v Ross Mining Nl
[2001] NSWLEC 178
•08/23/2001
Land and Environment Court
of New South Wales
CITATION: Donnelly & Anor v Ross Mining NL & Ors [2001] NSWLEC 178 PARTIES: APPLICANT
RESPONDENT
Donnelly & Anor
Ross Mining NL & OrsFILE NUMBER(S): 40164 of 1998 CORAM: Cowdroy J KEY ISSUES: Contempt :- whether alleged deception in making of consent order could constitute interference with administration of justice - whether alleged breach of order LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6, r 1
Supreme Court Rules 1970 Pt 55CASES CITED: Attorney General v Newspaper Publishing PLC & Ors [1987] 3 All ER 276;
Attorney General v Times Newspapers Limited [1974] AC 273;
Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98;
Johnson v Grant (1923) SC 789;
Witham v Holloway (1995) 183 CLR 525DATES OF HEARING: 12/2/01, 13/2/01, 14/2/01, 19/4/01, 20/4/01, 5/8/01, 6/8/01 DATE OF JUDGMENT:
08/23/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (Agent)SOLICITORS
n/aFIRST & SECOND RESPONDENT
SOLICITORS
Mr S Stanton (Barrister)
Phillips Fox
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40164 of 1998
CORAM: Cowdroy J
DECISION DATE: 23/8/01
v
Ross Mining NL
The charge
1. In these proceedings Andrew Donnelly and David Mundine (“the applicants”) claim that Ross Mining NL and Capricornia Prospecting Pty Ltd (“the respondents”) are guilty of contempt of Court. The amended statement of charge filed on 28 August 2000 states:-
1. On the 3rd September 1998, the Court ordered, until further order, upon the undertakings of the First and Second Respondents in relation to: protection of the relics in the report of Mr Long dated May 1998 together with the rock formation along the ridge from the stone formation in a southerly direction to Bold Top Mountain.
2. The First and Second Respondents committed contempt in giving the undertaking to the Court knowing in fact that certain relics to be protected were already violated and that the undertaking could not be achieved.
3. The First and Second Respondents in contravention of the undertaking set out in 1 above allowed one or all of the relics 1, 5&6 in the Long Report to be destroyed by fire subsequent to September 3rd 1998.
2. These proceedings were filed pursuant to Pt 55 of the Supreme Court Rules 1970 as adopted in this Court by Pt 6 r 1 of the Land and Environment Court Rules 1996. The respondents have pleaded not guilty to the charges and subject to the tender of one document have elected not to call evidence.
Facts
3. In approximately 1997 the respondents began to develop a mine known as the Timbarra Gold Project (“the mine”) in northern New South Wales. For this purpose it was necessary to clear an access road to the mine site which was located approximately 29 km from the Bruxner Highway in the Tenterfield area.
4. By letter dated 22 August 1997 Mr Mundine, the second named applicant, raised a concerns with the manager of the northern zone of National Parks and Wildlife Service (“NPWS”) that the proposed development would impact upon heritage sites and native archaeological relics, especially ‘scarred trees’. A ‘scarred tree’ or ‘scar tree’ is one which show scars caused by removal of bark or wood for the purpose of making artefacts. Mr Donnelly claimed that he, his family and other custodians had traditional and continual rights that could be exercised over the area and that they had not been consulted in relation to the mine. Mr Donnelly proposed that the Millerah (Timbarra) Plateau be nominated as an ‘Aboriginal place’ pursuant to s 84 of the National Parks and Wildlife Act 1974.
5. In a letter to the NPWS, Mr Donnelly wrote, ‘the whole plateau is held to us as sacred. I propose that this nomination include that area comprised of a radius of 8 kilometres from a summit of Bold Top Mountain’.
6. Correspondence ensued between the NPWS and solicitors retained by the applicants. Archaeologists reports were obtained by the applicants, the respondents and NPWS each of which gave conflicting opinions relating to the significance of the various trees, claimed to be scar trees, located on the mine site and upon the site of the proposed access road. Ms Davies, an expert retained by the applicants, was of the opinion that the trees were relics with significance for the aboriginal people of the region. In a letter dated 14 April 1998 NPWS reported to solicitors then acting for the applicants that Mr John Appleton, consultant archaeologist for the first respondent, expressed the opinion, ‘that none of the scarred trees appeared to have been made by the Aboriginal people, contrary to Davies’ earlier conclusion’.
7. On 4 June 1998 Mr Alan Oshlack who represents a group entitled The Malera Native Title Applicants and also the applicants in these proceedings was provided with a report by Mr Andrew Long (“the Long report”), an independent archaeologist with expertise in scarred tree assessment. The Long report concluded that several trees the subject of possible clearing could be scar trees or ‘relics’. As no agreement could be reached between the applicants and the respondents concerning the preservation of any relics, the applicants instituted injunctive proceedings in this Court. The applicant had sought an ex parte injunction on 21 August 1998. Such application was unsuccessful.
8. On 3 September 1998 the proceedings came before Bignold J for interlocutory relief. Mr Clifford Robert Ireland, a solicitor in the employment of Blake Dawson Waldron, represented the respondents. During the hearing an undertaking (“the undertaking”) was offered by the respondents that they would not further disturb the potential relics included the Long report. Prior to the undertaking being given the transcript records discussion between Bignold J and Mr Ireland concerning the operation of the undertaking as follows:-
IRELAND: Could the word “further” be inserted before “disturb”, your Honour?
HIS HONOUR: Is there some suggestion that they have been disturbed already?
IRELAND: No, your Honour, but we’re dealing with an undertaking in futuro so it would be --
The tape recording of Mr Ireland’s response records his answer to such question as follows:-
I do not know Your Honour, but we’re dealing with an undertaking in futuro so it would be …
Accordingly the transcript of the tape misrepresents Mr Ireland’s answer.
9. The actual order made by His Honour (“the order”) recorded by the transcript is as follows:-
And in relation to the undertaking proffered on behalf of the first and second respondents without admissions I accept that undertaking which is to the effect not to further disturb or interfere with any of the relics identified in Mr Long’s report dated May 1998 or the rock formation following the ridge southerly to Bold Top Mountain from the identified stone formation pending the determination of the applicant’s claim for interlocutory injunction for further order of the Court and having accepted those undertakings I adjourn or stand over the applicant’s claim for interlocutory injunction to a date to be fixed.
10. Bignold J was concerned to ensure that the respondents were aware that the order would operate from the time of receipt of notification. His Honour said:-
You’ll be able to let your client know as soon as the Court is over today that the Court has accepted that undertaking and it speaks from now. It speaks, I’m sorry, from the reasonable lapse of time between when I adjourn the Court and you telephone your client to tell them what I’ve accepted.
11. Although not directly relevant another discrepancy should be noted. The terms of the order signed by the Registrar make no reference to the words ‘not to further disturb or interfere with any other relics identified in Mr Long’s report’ and do not accord with the terms of His Honour’s order. The relevant portion of the order records the undertaking of the respondents simply as:-
b) protection of the relics in the report of Mr Lang [sic] dated May 1998 together with the rock formation along the ridge from the stone formation in a southerly direction to Bold Top Mountain;
The Registrar’s order therefore represents an inaccurate and incomplete summary of the order as formulated by Bignold J.
12. When providing the undertaking Mr Ireland was unaware that three trees (“the subject trees”) comprising some of the relics identified by Mr Long as possible scar trees had been cut down during June and August 1998 and that two had been burnt in log dumps. Nor was he aware that the third tree had been placed in a log dump. Such tree was later burnt during a bushfire in October 1998.
The charges
a) Provision of the undertaking [par (2) of the amended statement of charge]
13. The applicants submit that the respondents are guilty of deception or negligence amounting to contempt of court because they did not inform Mr Ireland before the undertaking was given that two of the subject trees had already been cut down and burnt when he gave the undertaking.
14. Mark Bernard Nolan who had been employed as the environmental officer at Ross Mining NL was called by the applicants. In May 1998 Mr Nolan with the assistance of John Appleton had flagged certain trees including the subject trees at the mine site and on the proposed access road as potential relics.
15. Mr Nolan testified that there had been discussion concerning the removal of such trees with the environmental co-ordinator for Ross Mining NL, namely Matthew Orr prior to their removal. Mr Orr relied upon the report of Mr Appleton which concluded that such trees were not scar trees and as a result, the subject trees were cleared.
16. Mr Nolan confirmed that one of the subject trees at the mine site was cleared and burnt in June 1998. One of the two trees on the access road was cut down and burnt during August 1998 and the remaining tree was cut down in August 1998 and placed in a log dump. It was later consumed by a bushfire.
17. Mr Nolan said that he was advised by telephone on 3 September 1998 of the undertaking offered to Bignold J on that date.
18. The applicants bear the onus of proving that there has been deliberate conduct which undermines the Court proceedings or which constitutes a breach of the undertaking and that such breach was otherwise than casual, accidental or unintentional: see Australasian Meat Industry Employees’ Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 113.
19. The nature of this charge is novel since it is not alleged that there has been a breach of the order. Instead, it is the events leading up to the making of the order which are claimed to constitute a contempt of Court. In this context, the Court is requested to treat the conduct relied upon as deliberate interference with the administration of justice. In Attorney General v Times Newspapers Limited [1974] AC 273 at 307, Lord Diplock succinctly stated the elements of contempt when he said:-
Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes.
20. There is no doubt that Mr Nolan and Mr Orr knew on 3 September 1998 that three of the scar trees had been cut down prior to that date. There is however no evidence that they were consulted prior to the undertaking being given. No evidence therefore exists from which the conclusion could be drawn that any deception occurred. There is no evidence that Mr Nolan or Mr Orr, or any other person in the employ of the respondents was asked whether the subject trees had been removed prior to the undertaking being offered to the Court.
21. Further, there is no evidence that the respondents engaged in any deliberate deception by concealing from Mr Ireland the fact that the subject trees had already been destroyed. The evidence establishes that on 3 September 1998 Mr Oshlack had repeatedly made allegations to Mr Ireland that certain relics had been destroyed. Mr Ireland did not know whether any disturbance had already occurred to the subject trees and was concerned to emphasise that the undertaking be confined to a restraint in respect of any future disturbance. It was for this very reason that Mr Ireland had sought the inclusion of the words ‘further disturb’ in the undertaking as a matter of precaution.
22. In fact, the applicants knew of the destruction of the subject trees when the undertaking was given. A letter of the NPWS dated 5 August 1998 to the first respondent records the applicants’ dissatisfaction with Mr Long’s independent assessment and relevantly states:-
They have learnt of the destruction of some of these trees and have requested NPWS begin prosecution against Ross Mining under section 90 of the Act. This matter has been referred to our legal branch for assessment.Following the site meeting on Tuesday 7 July 1998, I subsequently met with David Mundine, Robert Cowora and Al Oshlack on Friday 10 July 1998. They have indicated that they are not satisified with the report prepared by Mr Andrew Long and his independent assessment of the scarred trees as of Aboriginal significance.
23. The applicants’ purpose in instituting the injunctive proceedings could therefore only have been to restrain the further destruction of relics. Mr Oshlack was present when Bignold J asked whether there was any suggestion that some of the relics had been destroyed. The parties and Bignold J were aware that the undertaking offered was not to operate retrospectively. Accordingly any alleged failure by the respondents to inform Mr Ireland of the past events was irrelevant to any issue before the Court on 3 September 1998. There is thus no basis for the assertion that the administration of justice has thereby been ‘challenged’: see Johnson v Grant (1923) SC 789 at 790 per Lord Clyde P; see also Attorney General v Newspaper Publishing PLC & Ors [1987] 3 All ER 276 at 294 per Lord Donaldson MR.
24. Although Mr Ireland said that he would not have given the undertaking had he known of the destruction of the scar trees, this does not alter the legal consequences of the events. The undertaking was expressly intended to operate in the future. Since an injunction does not have retrospective effect, the addition of the word ‘further’ was strictly unnecessary. It did, however, demonstrate that Mr Ireland was exercising great care to ensure that his clients could not be found to be in breach of the order because of any disturbance to relics prior to September 3 1998.
b) Destruction of relics (paragraph 3 of amended statement of claim)
26. The evidence establishes that the remaining scar tree was destroyed in a bushfire on Sunday 4 October 1998. Such bushfire began on an adjoining property to the mine. Mr Scott Carmichael, a fire officer of Tenterfield Rural Fire District testified that an employee of the respondents reported the fire on or about 7 October 1998. On the following day he inspected the site of the bushfire and observed that the fire had burned the ground over ‘a couple of hectares’. He had not been able to determine the source of the fire and because of his concern that other fires might develop he suspended all permits to burn in the area.
27. The respondents submit that the fire which destroyed the alleged relic was suspicious. They rely upon the fact that the fire brigade was not immediately called to extinguish the fire and that no evidence has been led by the respondents to show any steps which were taken to preserve or protect the tree in accordance with the terms of the undertaking. The suggestion is made by the applicants that the fire, if not deliberately lit, was deliberately allowed to consume the tree.
28. No evidence has been led by the applicants to substantiate either assertion. The respondents have tendered a memorandum forwarded to their solicitors concerning the destruction of such tree. Such memorandum was sent on 6 October 1998 being the first working day following the fire since Monday 5 October 1998 was a public holiday. The unchallenged memorandum clearly records the circumstances of the fire as follows:-
Log dump 8 on the Timbarra Road (see attached map) that possibly contained a scarred tree was burnt by a bushfire on Sunday 5/10/98. The bushfire escaped from a controlled burn from a neighbouring property to the northeast.
Fire control of the site was not possible due to the rapid spread of the fire and the resources available.Timbarra Gold Mines or persons under our control or instruction did not burn the fire. The road supervisor was aware that the site was not to be burnt and no fire permit had been obtained from the rural district fire controller pending the outcome of the upcoming court case. A review of environmental effects and a strategy to burn the dump were in place for when the appropriate time came.
Standard of proof
30. The standard of proof required to establish a charge of contempt is proof beyond reasonable doubt: see Witham v Holloway (1995) 183 CLR 525.
31. Although the applicants’ claim that no fire permits had been issued for any burning operations, such allegation is irrelevant to the charges of contempt. The applicants rely upon a description of the fire as being a ‘very hot fire’ and upon meteorological records of the Tenterfield area for 4 October 1998 which record that the weather was fine and later cloudy, to support their suspicions that the fire was deliberately lit or deliberately allowed to destroy the tree. However Mr Carmichael testified that the risk of bushfire was an ever-present hazard.
32. The evidence before the Court does not establish that the respondents were responsible for the fire which destroyed the remaining tree. Similarly there is no evidence that the respondents deliberately failed to take any action which might have resulted in the tree being saved from destruction.
33. Further, the claim that the respondents’ failure to prevent the loss of the tree constitutes a contempt of court does not accord with legal principle. Any breach must be more than ‘casual, accidental or unintentional’: see Australasian Meat Industry Employees’ Union and Ors v Mudginberri Station Proprietary Limited at 113. The evidence adduced does not lead to the conclusion that the respondents deliberately engaged in any act or omission which resulted in a breach of the order.
Orders
34. The Court orders:-
1. The amended statement of charge filed on 28 August 2000 be dismissed.
2. Costs reserved.
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