Williams v Homestake Australia Ltd - [2002] NSWLEC 5

Reported Decision: 119 LGERA 55

Land and Environment Court

of New South Wales

CITATION: Williams v Homestake Australia Ltd and Ors [2002] NSWLEC 5

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

FILE NUMBER(S): 40010 of 2002

CORAM: Bignold J

KEY ISSUES: Interlocutory Relief :- Interlocutory injunction-carrying out of activity pursuant to an Exploration Licence granted under Mining Act 1992-whether activity involves a threatened breach of NP&W Act-balance of convenience.

LEGISLATION CITED: National Parks and Wildlife Act 1974, s 90

CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148;
Forestry Commission v Corkill (1991) 73 LGRA 247;
Ross v State Rail Authority of New South Wales (1987) 70 LGERA 91

DATES OF HEARING: 23-24 January 2002

EX TEMPORE
JUDGMENT DATE :
01/24/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr a Oshlack, Agent
SOLICITORS
N/A
1ST AND 2ND RESPONDENTS:
Mr M Brennan Solicitor
THIRD RESPONDENT
Ms E Glancy, Solicitor
SOLICITORS
1ST AND 2RD RESPONDENT
Blake Dawson Waldron
THIRD RESPONDENT
National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND

Matter No. 40010 of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

24 January 2002

NEVILLE WILLIAMS

Applicant

HOMESTAKE AUSTRALIA LIMITED ACN 007 857

First Respondent

BARRICK CORPORATION

Second Respondent

THE DIRECTOR-GENERAL NATIONAL PARKS AND WILDLIFE SERVICE

Third Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By class 4 application filed 22 January 2002, the Applicant (who is an Aboriginal of the Wiradjuri people and a Traditional Custodian and the chairperson of the Mooka Traditional Owners Council) seeks declaratory and injunctive relief in respect of the carrying out of activity pursuant to an Exploration Licence No 2865 granted under the Mining Act 1992 on land known as lot 23 Deposited Plan 753097 at Lake Cowal (the subject land) in breach or threatened breach of the National Parks and Wildlife Act 1974, s 90 (NP&W Act) which prescribes an offence of “knowingly destroying, defacing or damaging a relic or Aboriginal place without first obtaining the consent of the Director General”.

2. By his class 4 application, the Applicant who claimed interlocutory relief by way of an order restraining the first and second Respondents “from carrying out further activity on the land which causes any disturbance to soil, the movement of any stone or rock and the clearing of vegetation pursuant to the said Exploration Licence unless it holds a valid consent under s 90 of the National Parks and Wildlife Act 1974”.

3. This judgment concerns the Applicant’s claim to interlocutory relief which was heard yesterday and earlier today. The interlocutory relief was opposed by the first Respondent (which appeared at the hearing, as did the third Respondent (to assist the Court) but the second Respondent, a foreign corporation, did not appear).
B. THE LEGAL FOUNDATION FOR THE APPLICANT’S CLAIM

4. The Applicant’s claim to interlocutory relief is founded upon the NP&W Act, s 176A(1) which provides as follows:

Any person may bring proceedings in the Land and Environment Court…

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 5
Decision Date: 01/24/2002

CaseChat Overview and Summary

In the case of Williams v Homestake Australia Ltd, the applicant, Neville Williams, sought an interlocutory injunction to restrain the respondents, Homestake Australia Limited and others, from carrying out exploratory activities on land at Lake Cowal, which he claimed would result in damage to relics in breach of the National Parks and Wildlife Act 1974. The primary issue before the court was whether an interlocutory injunction should be granted to prevent the respondents from carrying out their proposed activities on the basis that it would likely result in the destruction, defacement or damage of relics or Aboriginal places. The court considered the strength of the applicant's case, the risk of irreparable damage if the injunction were not granted, and the balance of convenience in granting the injunction. The court found that the applicant had not established a strong case for an apprehended breach of the Act and that the balance of convenience favoured the respondents, who had implemented measures to avoid damaging relics. Consequently, the court dismissed the applicant's claim for interlocutory relief.

Orders