Williams v Homestake Australia Ltd - [2002] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION: Williams v Homestake Australia Ltd and Ors [2002] NSWLEC 43

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

FILE NUMBER(S): 40010 of 2002

CORAM: Bignold J

KEY ISSUES: Interlocutory Relief :- apprehended breach of s 90 of National Parks and Wildlife Act - damage to relics - Balance of Convenience

LEGISLATION CITED: National Parks and Wildlife Act 1974
Supreme Court Rules pt 28 r 2

CASES CITED: Forestry Commission v Corkill (1991) 73 LGRA 247

DATES OF HEARING: 20-21 March 2002

DATE OF JUDGMENT:
03/22/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
FIRST RESPONDENT:
Mr M Brennan, Solicitor
SECOND RESPONDENT:
Mr C Ireland, Solicitor
THIRD RESPONDENT:
Mr Gibbons, Solicitor
SOLICITORS
FIRST RESPONDENT:
Blake Dawson Waldron
SECOND RESPONDENT
Blake Dawson Waldron
THIRD RESPONDENT
Solicitor National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND

Matter No. 40010 of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

22 March 2002

N. WILLIAMS

Applicant

HOMESTAKE AUSTRALIA LIMITED

First Respondent

BARRICK CORPORATION

Second Respondent

THE DIRECTOR GENERAL OF THE NATIONAL PARKS AND WILDLIFE SERVICE

Third Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By Notice of Motion filed on 14 March 2002, the Applicant claims an interlocutory injunction to restrain the first and second Respondents from carrying out any activity pursuant to an Exploration Licence No 2865 granted under the Mining Act 1992 “which activity would disturb the environment, including the movement of vehicles and disturbing the ground surface” and to require the first and second Respondents to remove any drilling rig and machinery from the land described in par 1 of the further amended application in class 4 of the Court’s jurisdiction filed on 4 March 2002.

2. This is the third occasion that the Applicant has claimed interlocutory relief in the brief history of this litigation. The first occasion was when the present class 4 proceedings were commenced on 22 January 2002. That first claim which was heard on 23 and 24 January 2002 was dismissed on 24 January 2002 for the reasons published on that occasion. For convenience, I refer to that judgment for an understanding of the background facts that are relevant to the present application for interlocutory injunction.

3. In those reasons, I expressed the following conclusions at pars 75 to 78:

75 For all the foregoing reasons, the Applicant’s claim to interlocutory relief must be refused. In refusing the claim, I should note that I have placed considerable importance on the Arrangement of Protocol (Exhibit E1) between the first Respondent and the NPWS.

76. I am confident that adherence to this Arrangement or Protocol will provide an adequate assurance (i) that the first Respondent will be well placed to fulfil its obligations under the provisos and conditions of Exploration Licence 2865; (ii) that the third Respondent will likewise be considerably assisted in the discharge of its statutory obligations under Part 6 of the NP&W Act in respect of the protection of relics…

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 43
Decision Date: 03/22/2002

CaseChat Overview and Summary

Williams v Homestake Australia Ltd was a case in the Land and Environment Court of New South Wales where Williams, the applicant, sought an interlocutory injunction to restrain Homestake Australia Limited and others from carrying out any activity that would disturb the environment, including the movement of vehicles and disturbing the ground surface. The dispute arose due to concerns that the respondents' activities would damage relics on the land. The court was required to decide whether there was a serious question to be tried, whether the applicant would suffer irreparable damage if the injunction was not granted, and whether the balance of convenience favoured the granting of the injunction. Bignold J considered the evidence provided by both parties and concluded that there was a strong case of threatened breach of the National Parks and Wildlife Act 1974, s 90. The court found that the balance of convenience favoured the grant of the injunction due to the high risk of damage to relics if the exploratory activities continued. Consequently, the court granted the restraining order sought by the applicant but not the mandatory order. The court also provided the respondents with the opportunity to demonstrate that there were measures in place to resume exploratory activities without posing any risk of damage to the relics on the land.

In summary, the Land and Environment Court of New South Wales granted the applicant an interlocutory injunction to restrain the respondents from carrying out activities that could disturb the environment and damage relics on the land. The court considered the evidence and concluded that the balance of convenience favoured the granting of the injunction due to the high risk of damage to relics if the exploratory activities continued. The court also provided the respondents with the opportunity to demonstrate that there were measures in place to resume exploratory activities without posing any risk of damage to the relics on the land.

Orders