Williams v Pardoe - [2004] NSWLEC 71

Land and Environment Court

of New South Wales

CITATION: Williams v. Pardoe and Ors [2004] NSWLEC 71

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Pardoe and Ors.

FILE NUMBER(S): 40626 of 2003

CORAM: Bignold J

KEY ISSUES: Practice and Procedure :- leave to amend class 4 application

LEGISLATION CITED: Land and Environment Court Act 1979, s 68(1)
Land and Environment Court Rules, Pt 10

CASES CITED: ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286;
Baldry v Jackson [1976] 2NSWLR 415;
Fernance v Nominal Defendant (1989) 17NSWLR 710;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Servcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281;
Wigan v. Edwards (1973) ALJR 497;
Williams v Pardoe and Ors (2003) NSWLEC 150;
Williams v Pardoe and Ors (2003) NSWLEC 363

DATES OF HEARING:

DATE OF JUDGMENT: 03/05/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, Agent
SOLICITORS
N/A
1ST TO 3RD RESPONDENTS:
Mr N Williams SC
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND Matter No

. . 40626 of 2003

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

5 March 2004

NEVILLE WILLIAMS

Applicant

COLIN PARDOE

First Respondent

BARRICK AUSTRALIA LIMITED

Second Respondent

BARRICK GOLD OF AUSTRALIA

Third Respondent

DIRECTOR-GENERAL OF NATIONAL PARKS AND WILDLIFE SERVICE

Fourth Respondent

JUDGMENT

A. INTRODUCTION

1. The Applicant has sought the leave of the Court to amend his class 4 application claiming declaratory and injunctive relief under the National Parks and Wildlife Act 1974 (NP&W Act), against the Respondents by making additional claims against the same Respondents, some of which claims are in respect of matters that have apparently occurred after the present proceedings were commenced on 29 May 2003.

2. The present proceedings in their original form alleged breaches by the first to third Respondents of the NP&W Act in respect of Aboriginal objects and in particular alleged breaches of specific conditions imposed on a permit issued under the NP&W Act, s 87 (Permit 1468). The Applicant’s claim to interlocutory relief in those original proceedings failed—see Williams v Pardoe and Ors (2003) NSWLEC 150. No hearing dates have been allocated for the proceedings. This state of affairs is principally explained by reason of the fact that the first to third Respondents, on 4 September 2003 filed a Notice of Motion seeking an order that the Applicant provide security for costs. That Motion was contested at the interlocutory hearing on 28 October 2003. The Motion was dismissed on 23 December 2003—see Williams v Pardoe and Ors (2003) NSWLEC 363.

3. On 11 February 2004, the Applicant filed in the Court Registry a document styled “Further Amended Application Class 4” (a copy of which is annexed hereto and marked “A”).

4. For purposes of comparison, a copy of the original class 4 application is annexed hereto and marked “B”. Without seeking to be an exhaustive comparison of the contents of the original class 4 application and the further amended class…

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.

Continue reading Williams v Pardoe

Details

AGLC: Williams v Pardoe [2004] NSWLEC 71
Case: [2004] NSWLEC 71
Decision Date: 03/05/2004

CaseChat Overview and Summary

Williams v Pardoe involved a dispute between the Applicant, Neville Williams, and the Respondents, Pardoe, Barrick Australia Limited, and Barrick Gold of Australia, concerning alleged breaches of the National Parks and Wildlife Act 1974 (NP&W Act). The Applicant sought leave to amend his class 4 application to include additional claims against the Respondents, some of which related to events that occurred after the proceedings were commenced. The first to third Respondents opposed the grant of leave on the grounds of prejudice, lack of arguable cause of action, and the efficient administration of justice. The Court considered the arguments of the parties and concluded that the Land and Environment Court Act 1979, s 68(1) conferred upon the Court the requisite power to allow the Applicant to amend his claims. The Court also held that the granting of leave to the Applicant's amended claims would not cause relevant prejudice to the second and third Respondents and that it would be in the interests of justice to grant the leave. Accordingly, leave was granted for the Applicant to prosecute his amended claims against the Respondents. The proceedings were stood over for directions and any other interlocutory application prior to being set down for hearing.

Orders