Williams v Director General National Parks and Wildlife Services
[2003] NSWLEC 252
•06/05/2002
>
Land and Environment Court
of New South Wales
CITATION: Williams v Director General National Parks and Wildlife Services and Ors. [2003] NSWLEC 252 PARTIES: APPLICANT:
RESPONDENTS:
Williams
Director General National Parks and Wildlife Services and Ors.FILE NUMBER(S): (4)0171 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- LEGISLATION CITED: CASES CITED: Fay v Roads and Traffic Authority of New South Wales (1990) 20NSWLR 665 DATES OF HEARING: 05/06/2002 EX TEMPORE
JUDGMENT DATE :
06/05/2002LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack, Agent
SOLICITORS
N/AFIRST RESPONDENT:
SOLICITORS
Mr M Fraser, Barrister
2ND & 4TH RESPONDENTS
Mr N J Williams SC
3RD RESPONDENT
Mr C Ireland, Solicitor
FIRST RESPONDENT
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
5 June 2002
N. WILLIAMS
Applicant
v
DIRECTOR GENERAL NATIONAL PARKS AND WILDLIFE SERVICE
First Respondent
BARRICK GOLD AUSTRALIA LTD ACN 008 143 137
Second Respondent
HOMESTAKE AUSTRALIA LTD ACN 007 857 598
Third Respondent
COLIN PARDOE
Fourth Respondent
JUDGMENT
Bignold J:
1. This is a Motion filed earlier today which has been made returnable before me at noon seeking an interlocutory injunction against the second, third and fourth Respondents, restraining them from carrying out activity in reliance upon a permit granted under the National Parks and Wildlife Act 1974, s 87.
2. The Motion is supported by an affidavit sworn by Mr Oshlack, the authorised agent for the Applicant in the proceedings, which informs the Court that yesterday the Applicant filed a Summons for leave to appeal to the Court of Appeal against my decision handed down on Monday of this week refusing interim relief in the proceedings.
3. The Deponent goes on to say, that the Registrar declined to file or perhaps to list, the Applicant’s Motion seeking an interlocutory injunction until an application for such an interim injunction had been made in the Trial Court.
4. In the course of arguing the matter today, I raised the legitimacy of the view apparently represented to the Applicant by an officer in the Registry of the Court of Appeal. I did so, having regard to the judgment of the President to the Court of Appeal, Justice Kirby in the decision of Fay v Roads and Traffic Authority of New South Wales (1990) 20NSWLR 665, where his Honour provides a detailed analysis of the general powers of the Court of Appeal to grant an interlocutory injunction, designed to protect the subject matter of a pending appeal. In particular, I was directing attention to his Honour’s discussion of the impact upon the existence or non-existence of such a power of the specific provisions contained in the Land and Environment Court Act 1979 ss 59 and 60 dealing with this Court’s and the Court of Appeal’s power to order a stay in proceedings where there has been an appeal filed in that Court against a decision of this Court.
5. However, for present purposes, I am content to proceed upon the assumption that this Court does have the power (concurrent with the Court of Appeal’s power) to issue an interim injunction to preserve the status quo and the property in a pending application for leave to appeal to the Court of Appeal. Accordingly, I proceed upon the assumption that such a power is equally available to me, the Trial Court, as it would be to the Court of Appeal, and I do not further discuss or debate the correctness of the view apparently given to the Applicant yesterday by an officer of the Court of Appeal Registry.
6. The application is made in proceedings which were commenced last week by the Applicant asserting the invalidity of the permit granted pursuant to s 87 of the National Parks and Wildlife Act 1974 by the Director General of National Parks and Wildlife Service on 23 May of this year to enable the selective excavation for the purpose of discovering relics and the collection, as required, of relics on land forming part of the mining tenement to the Lake Cowal Gold Mine project.
7. The present application bears considerable similarity to the applications that were made without notice on Monday of this week, when at 2 o’clock I announced my decision refusing the Applicant’s claims to interlocutory relief in the present proceedings. (Reasons for judgment were made available in typescript to the parties later on in that day).
8. Immediately following the announcement of my decision, refusing the Applicant’s claims to interlocutory relief, the Applicant moved the Court for a stay of the order, discharging the permanent injunction in the related proceedings number 40010 of 2002, upon the grounds that the Applicant then intended to seek leave of the Court of Appeal to appeal against my decision refusing the interlocutory relief. That permanent injunction was discharged by order made last Friday. The permanent injunction that was so discharged had been granted by consent on 17 May 2002 in proceedings 40010 of 2002, upon my accepting the undertakings proffered by the first and second Respondents (the mining companies) in those proceedings effective from 2 o’clock on Monday of this week.
9. Although there appeared to be some inherent problem in the Applicant’s application that came before me on Monday, claiming the relief (because of the fact that the Motion was filed in the later proceedings brought by the Applicant which were separate from the proceedings in which the permanent injunction had been granted) it being the earlier proceeding that the Applicant’s then claim to relief was made in, the application was nonetheless entertained by me upon the basis that the relief that was being claimed was in respect of the earlier proceedings, and upon the further assumed basis that I had the power to grant that relief. That relief was seeking a stay of the discharge of the permanent injunction.
10. The Applicant claimed that relief upon the basis that he wished to preserve the status quo, pending the making of his then intended application to the Court of Appeal, seeking leave to appeal against my decision refusing the interim injunction. That relief was opposed by the mining companies.
11. In the exercise of my discretion I refused the relief claimed, principally upon the ground that the further stay of the discharge of the permanent injunction would serve no useful purpose because of the fact that I had previously varied the permanent injunction on Tuesday 28 May last week to except from its scope and ambit the carrying out of the excavation and collection activity by Dr Pardoe and his associates authorised by the s 87 permit.
12. I am informed by the Senior Counsel for the mining companies on instructions that Dr Pardoe had on last Thursday commenced carrying out the authorised activity. It is also relevant to note the existence of the undertakings which had been proffered by the mining companies which were to the effect that there would be no resumption of the exploratory mining activities on the site until Dr Pardoe had given the companies written authorisations of clearance that the exploratory activities could be undertaken without endangering relics, which ex hypothesi, had been discovered and collected by Dr Pardoe pursuant to the regime put in place by the conditions and special conditions of the s 87 permit.
13. The present application for an interim injunction is to preserve the status quo, pending the application for leave to appeal to the Court of Appeal. For the reasons that informed my decision, refusing the stay on Monday, the present application in my judgment, in the exercise of discretion must also be refused.
14. In effect, the Court is being asked to reinstate on an interim basis the earlier permanent injunction to prevent Dr Pardoe from operating in reliance upon the s 87 permit which injunction had itself on Tuesday of last week been varied to allow Dr Pardoe to carry out that activity pursuant to the permit in circumstances when the remaining effect of the permanent injunction also had been discharged as from 2 o’clock on Monday of this week.
15. In effect, to grant the relief claimed would be to undermine, not only the variation of the permanent injunction effected by order made on Tuesday of last week, but also the discharge of the remaining operation of the permanent injunction from Monday of this week, by granting an injunction, albeit for the purpose of preserving the status quo, which status quo has inevitably been affected by virtue of the activities undertaken apparently from Thursday of last week by Dr Pardoe and his associates acting in reliance upon the s 87 permit.
16. In my judgment, the status quo necessarily includes that action and that activity undertaken by Dr Pardoe and it also to be recalled that in my reasons for judgment delivered on Monday, refusing the interlocutory relief based upon the asserted invalidity of the s 87 permit, I held that the works authorised by the s 87 permit were not for the destruction of the relics, but were for the purpose of their discovery, collection and safe custody. In my judgment, all that also forms part of the status quo. The application for the further interim relief, pending the outcome of the application for leave to appeal to the Court of Appeal, needs to satisfactorily come to terms with all of those facts and plainly it does not.
17. In declining the present application, which is somewhat different from in the original claim for interlocutory injunction which was refused in my judgment of Monday of this week, most of the reasons that led to that conclusion to refuse that interlocutory injunction also apply to the present application for injunction. I do not need to say any more about the drafted grounds of appeal as contained in the white book filed by the Applicant in the Court of Appeal, other than to say that the grounds for appeal are not self-evidently strong or sound, but that is of course a judgment ultimately for the Court of Appeal and not for myself.
18. However, I simply make that passing observation because the likelihood of the application for leave to appeal and any appeal being successful is a factor to be taken into account on the question of whether an interlocutory injunction should now be granted, having regard to the litigation history that I have earlier outlined. For all those reasons the application for interim injunction is refused.
19. The alternative claim for an urgent order directing the Director General to suspend the operation of the permit, granted under s 87 is in fact, the same application that was moved without notice before me on Monday. For the reasons that I gave in refusing that application on that occasion, which apply equally to the claim resurrected today, that application is also refused.
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