Williams v Homestake Australia Limited - [2002] NSWLEC 155

Reported Decision: 122 LGERA 319

Land and Environment Court

of New South Wales

CITATION: Williams v Homestake Australia Limited and Ors. [2002] NSWLEC 155

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Homestake Australia Limited and Ors.

FILE NUMBER(S): 40010 of 2002

CORAM: Bignold J

KEY ISSUES: Practice and Procedure :- Order for inspection of property and relics.

LEGISLATION CITED: Supreme Court Rules Part 25 Rule 8
National Parks and Wildlife Act 1974 ss 85 and 87

CASES CITED:

DATES OF HEARING: 14 August 2002

DATE OF JUDGMENT:
09/11/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, Agent
SOLICITORS
N/A
RESPONDENTS:
1st Respondent Mr M Brennan, Solicitor
2nd Respondent Mr C Ireland, Solicitor
SOLICITORS
1st Respondent Blake Dawson Waldron
2nd Respondent Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND

Matter No. 40010 of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

11 September 20002

NEVILLE WILLIAMS

Applicant

HOMESTAKE AUSTRALIA LIMITED ACN 007 857 598

First Respondent

BARRICK GOLD OF AUSTRALIA LIMITED ACN 007 143 137

Second Respondent

DIRECTOR-GENERAL NATIONAL PARKS AND WILDLIFE SERVICE

Third Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By Notice of Motion filed 6 August 2002, the Applicant seeks an order setting aside an interlocutory order made by the Court on 12 July 2002 for inspection of property and a substitute order permitting inspection of property by the Applicant and others including the Applicant’s consulting archaeologist.

2. The full extent of the relief claimed is resisted by the first and second Respondents who suggest that it is appropriate that a further order for inspection be made along the lines of the order made by the Court on 12 July 2002. To that end, they prepared a draft order (Exhibit D/1).

3. However, the Applicant’s claim is not satisfied by the type of order made on 12 July 2002. He seeks, in particular, the right to inspect relics that have been collected by the first and second Respondents’ Consultant Archaeologist, Dr Pardoe, pursuant to the permit issued to him on 23 May 2002 by the third Respondent under the National Parks and Wildlife Act 1974, s 87 (NP&W Act). Although the draft order proffered by the first and second Respondents includes inspection of the collected relics significant restrictions on that right are imposed which are unacceptable to the Applicant.

4. After hearing the competing cases on the Motion on 14 August 2002, I reserved my decision intending that it be given when I delivered judgment in related but separate proceedings (No 40171 of 2002) brought by the Applicant challenging the validity of the Permit issued pursuant to the NP&W Act. Last Friday, 6 September 2002, I delivered judgment dismissing the Applicant’s challenge to the validity of the s 87 Permit: see (2002) NSWLEC 154.

5. The ultimate submission advanced by the first and second Respondents in resisting the Applicant’s Notice of Motion was that this Court had no power to make the order for inspection of property as sought in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 155
Decision Date: 09/11/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Applicant, Neville Williams, sought an order for the inspection of property and relics collected from the lands in question, which were subject to exploratory mining activities by the Respondents, Homestake Australia Limited and Barrick Gold of Australia Limited. The Applicant argued that the inspection was necessary to determine the impact of the mining activities on Aboriginal relics protected under the National Parks and Wildlife Act 1974. The Respondents opposed the claim, suggesting that the inspection order should be limited and subject to certain restrictions proposed by the Wiradjuri Council of Elders. The Court had to decide whether it had the power to order an inspection of the property and relics and whether such an inspection served a legitimate forensic purpose in the adjudication of the outstanding claims.

The Court found that it had the statutory power under Part 25 Rule 8 of the Supreme Court Rules and the power to enforce the Undertakings proffered by the Respondents to order an inspection of the property. The Court also determined that the inspection of the collected relics served a legitimate forensic purpose as it would be relevant to the Applicant's claims regarding the existence, nature, scale, and location of relics on or under the land. The inspection would also ensure the Respondents' compliance with the Undertaking regarding the clearance of relics in accordance with the Permit issued under the National Parks and Wildlife Act.

Accordingly, the Court made an order permitting the Applicant and his consulting archaeologist(s) to inspect the property, including the collected relics, subject to certain terms and conditions. The inspection was to be conducted jointly with representatives of the Respondents and their consultant archaeologists, and an authorized representative of the Wiradjuri Council of Elders could also attend. The Applicant and his archaeologist(s) were required to attend a safety induction program and wear safety clothing provided by the Respondents during the inspection. The Respondents were to provide a professionally recorded video of the inspection and a copy to the Applicant. The inspection was to be complete and final to enable the Applicant to decide whether to pursue any outstanding claims in the proceedings.

Orders