Williams v Director General National Parks and Wildlife Service

[2003] NSWLEC 251

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Land and Environment Court

of New South Wales

CITATION:

Williams v Director General National Parks and Wildlife Service & Ors. [2003] NSWLEC 251

PARTIES:

APPLICANT:
Williams

RESPONDENTS:
Director General National Parks and Wildlife Service & Ors.

FILE NUMBER(S):

(4)0171 of 2002

CORAM:

Bignold J

KEY ISSUES:

Practice and Procedure :- discharge of permanent injunction pursuant to leave to apply in the event of s 87 Permit being obtained.

LEGISLATION CITED:

National Parks and Wildlife Act 1974, s 87

CASES CITED:

DATES OF HEARING:

28/05/02, 31/05/02

EX TEMPORE
JUDGMENT DATE :

05/31/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, Agent
SOLICITORS
N/A

FIRST RESPONDENT
Mr M Fraser, Barrister
2ND AND 4TH RESPONDENTS
Mr N J Williams SC
THIRD RESPONDENT
Mr C Ireland, Solicitor

SOLICITORS
FIRST RESPONDENT
Solicitor National Parks and Wildlife Service
2ND-4TH RESPONDENTS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND

Matter No. 0171 of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

31 May 2002

NEVILLE WILLIAMS

Applicant

v

DIRECTOR GENERAL NATIONAL PARKS AND WILDLIFE SERVICE

First Respondent

BARRICK GOLD OF AUSTRALIA LIMITED ACN 008 143 137

Second Respondent

HOMESTAKE AUSTRALIA LIMITED ACN 007 857 598

Third Respondent

COLIN PARDOE

Fourth Respondent

JUDGMENT

Bignold J:

1. I propose to take advantage of the weekend to consider this matter and I will give my judgment on the claim for interlocutory judgment at 2 pm on Monday of next week (that is 3 June 2002).

2. I indicated earlier that I would deal at the end of the claim for interlocutory injunction based upon the challenge to the validity of the s 87 permit with the matter that I heard earlier in the week, being the first and second Respondents’ claims to the discharge of the permanent injunction that was granted on 17 May 2002 by consent. Whereas it would be logical to give my judgment in that matter at the same time that I give my reserved judgment I understand from what you put to me yesterday, Mr Brennan (and also consistently with what I said early in the week concerning what I would do in terms of timing of my adjudications) that you would prefer me to deal with it now. I shall deal with it now but the orders that I make will be operative from 2pm on Monday of next week and you will see the connection in just a moment.

3. The matter before me in proceedings 40010 of 2002 concerns the Notice of Motion filed by the second and third Respondents on 23 May 2002 for the discharge of the Order No 1 made by the Court on 17 May 2002. That order was to restrain the first and second Respondents from carrying out activity on Lot 23 Deposited Plan 753097 and on the adjoining game reserve that involves the movement on or across the land of vehicles and machinery used for the purpose of conducting exploratory drilling of the land.

4. The orders made by consent on 17 May 2002 were the result of the final hearing of the case that occurred before me on 1, 2 and 3 May 2002 when the first and second Respondents conceded that permanent injunctions in terms of the interlocutory injunction that had been granted by me on 22 March of this year should be granted.

5. The orders ultimately made for permanent injunction were made by consent. Order No 2, which reflected the decision when granting the interlocutory injunction, was to grant leave to the first and second Respondents to move the Court on two days’ notice for the discharge or partial discharge of the injunction in the event of their obtaining a permit pursuant to s 87 of the National Parks and Wildlife Act1974 which would authorise their archaeologist to collect relics from areas of the land which the first and second Respondents proposed to use for exploratory drilling and/or the passage of vehicles and machinery used in conducting exploratory drilling.

6. The Notice of Motion was filed on 23 May coinciding with the day upon which a s 87 permit was granted by the Director General, National Parks and Wildlife Service, to an application made by Dr Pardoe for a permit pursuant to s 87 made on behalf of the second and third Respondents.

7. That was an application to carry out collection and excavation of land described in the application as Lot 23 aforesaid and Lot 24 in the same deposited plan, and the game reserve. The permit conferred authority to Dr Pardoe “to collect artefacts as required and undertake test pit excavations of selected areas”.

8. The permit was granted subject to a number of conditions including a number of special conditions (Conditions 2, 3, 4, 5 and 6) which contained a detailed regime for the inspection of the property in conjunction with an Aboriginal community representative for the purpose of identifying all surface relics together with an authorisation to carry out excavations of defined dimensions for the same purpose of discovering whether there were subsurface relics in positions adjoining the proposed exploratory drilling holes.

9. In the course of argument earlier in the week, I inquired of the first and second Respondents as to whether they were willing to proffer undertakings not only compatible with, but augmenting the regime contained in the special conditions of the s 87 permit, and in due course the first and second Respondents proffered three undertakings to the Court which I shall in a moment recite.

10. The matter was not dealt with finally on Tuesday of this week because of the emergence on that very day of a fresh claim made by the same Applicant, Mr Williams, challenging the validity of the s 87 permit. With the concurrence of all Respondents the hearing of the claim to interim injunction based upon the asserted invalidity of the s 87 permit was expedited and came before me yesterday and the hearing of it has continued throughout yesterday and been completed this afternoon.

11. It is obvious that the claim to interlocutory relief based upon the asserted invalidity of the s 87 permit, if successful, would lead to the grant of an injunction. At the conclusion of the hearing of that matter a little earlier this afternoon, I indicated that I would reserve my decision until 2 o’clock on Monday next. It would of course be appropriate that the discharge of the present injunction as sought in the Notice of Motion coincide with the decision in that reserved matter.

12. I am satisfied that the injunction should be discharged as sought, subject to the acceptance and on the undertakings proffered by the first and second Respondents. As I have said, those undertakings considerably augment the obligations cast upon Dr Pardoe in undertaking the work authorised by the s 87 permit and they are in these terms:

The first and second Respondents undertake to:

1. Serve the Applicant with a copy of the confirmation notice lodged with the third Respondent pursuant to special condition 15 of the s 87 permit.

2. Allow the Applicant and Mr David Johnston, that is his archaeologist, to inspect in company with an archaeologist nominated by the first and second Respondent the areas cleared of relics pursuant to the s 87 permit within seven days of the service of notice referred to in undertaking (1) with the Applicant providing the first and second Respondents with 48 hours notice in writing of his proposed inspection.

3. Not to carry out exploratory drilling on any part of Lots 23, 24 or the game reserve without receiving written notice from Dr Pardoe or his delegate Dr Kaminga that any such land has been cleared of relics in accordance with the s 87 permit granted by the third Respondent on 23 May 2002.

13. In accepting that undertaking, I am of the opinion that the basis for the discharge of the permanent injunction granted by consent on 17 May 2002 (in point of fact rendering permanent the interlocutory injunction granted upon the same terms on 22 March 2002) is justified.

14. Accordingly I order the discharge of the injunction granted in Order No 1 of Court’s orders made on 17 May 2002 upon the undertakings earlier recited of the first and second Respondents (which the Court accepts) noting that such discharge shall take place on and from 2 pm on Monday 3 June 2002.

15. It goes without saying, as I have earlier adverted to, that if the Applicant is successful in the claim to interlocutory injunction based upon the asserted invalidity of the s 87 permit (for which judgment is now reserved to that same time) that the effect would be the discharge of the present injunction only to be replaced by a different one.