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

v

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 4 application it is sufficient to note the following points of similarity and points of difference—

(i) both allege the commission by the first, second and third Respondents of breaches of provisions of the NP&W Act relating to the protection of aboriginal objects including the conditions of Permit No 1468 granted pursuant to s 87 of that Act for the discovery and collection of aboriginal objects;

(ii) both seek prohibitory injunctions restraining the first, second and third Respondents from carrying out activity or works authorised by Permit 1468;

(iii) additional claims are made by the further amended class 4 application in respect of (a) the continuing validity of Permit 1468; (b) the validity of amendments made to Permit 1468; (c) the validity of a further s 87 Permit No 1681 apparently granted on 28 July 2003; and (d) the validity of a consent (No 1680) apparently granted under s 90 of the Act on 28 July 2003.

5. The first, second and third Respondents oppose leave being granted to the Applicant to amend his claims by including the additional claims in respect of matters occurring after the commencement of the proceedings. The fourth Respondent neither opposes nor consents to the amended claims which include serious allegations made against him in his official capacity.
B. THE FIRST TO THIRD RESPONDENTS’ GROUNDS FOR OPPOSING THE GRANTING OF LEAVE TO THE AMENDED CLAIMS

6. The first to third Respondents oppose the grant of leave on the following grounds—

(a) the amendment seeks to add multiple additional causes of action arising after the commencement of these proceedings;

(b) the prejudice caused to the Second and Third Respondents (Barrick) should the further amendments be allowed;

(c) no arguable cause of action is proposed in some of the amendments;

(d) the efficient administration of justice; and

(e) the interests of justice.

7. I shall separately consider each of these grounds.

Ground (a): Absence of power to allow amendments in respect of new causes of action arising after the commencement of the proceedings

8. As earlier noted, not all of the amended claims are made in respect of matters occurring after the proceedings were commenced. However, undoubtedly, the amended claims include significant claims in respect of matters arising after the proceedings were commenced, in particular, the claims made in respect of Permit 1681 and Consent 1680 both apparently issued on 28 July 2003.

9. The comprehensive argument advanced on behalf of the first to third Respondents was reduced to writing and should be set forth in its entirety.

4. In the absence of a specific provision in the court Rules such as Part 20 Rule 1(3A) of the Supreme Court Rules the common law principle is that a general power of amendment does not allow amendment after the commencement of proceedings to include cause of action which arose after that date of commencement: Baldry v Jackson [1976] 2NSWLR 415. See also Wiggin v. Edwards (1973) ALJR 497.

5. In Baldry v Jackson the Court of Appeal (Samuels JA with whom Glass JA and Moffitt P agreed) declined to interpret the then Part 15 Rule 16 of the Supreme Court Rules, which provided as follows:

The party may plead any matter notwithstanding that the matter has arisen after the commencement of the proceedings.
as abolishing the common law rule that the cause of action must be complete at the time of issuing process or the commencement of proceedings and a later amendment could not add causes of action arising after this time [1976]NSWLR 416 at 417G, 418B, 419E.
6. Part 20 Rule 1(3A) of the Supreme Court Rules expressly displaces this rule and provides as follows:
An order may be made, or leave may be granted under sub-rule 1 notwithstanding that the effect of the amendment is, or would be to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of the commencement of the proceedings, so far as concerns that cause of action, shall, subject to Rule 4 be the date on which the amendment is made.
7. The rule in Baldry v Jackson and Wiggin v Edwards is not abrogated by the LEC Rules. There is no equivalent to Part 20 Rule 1(3A).

8. A general power of amendment occurs in the LEC Rules is in Part 10 Rule 1:

10.1 Orders for Amendment
(1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms that any document riled in the proceedings be amended in any manner as the Court sees fit.

(2) All such amendments shall be made as to lead to the determination of the real questions raised by or otherwise depending on the proceedings, or the correction of any defect or error in any proceedings, or the avoidance of a multiplicity of proceedings.

9. Part 10 Rule 2 which relates to amendments after the expiry of the period of limitation does not purport to alter the rule that an amendment shall not be granted to pleadings to add causes of action after the commencement of the proceedings. Part 10 Rule 2 provides relevantly as follows:
(1) If a relevant period of limitation expires after the filing of an application and after that expiry a notice of motion is filed with the Court for an order to amend the application under the Rule the Court may nevertheless make the order, unless it would be contrary to any law (other than these Rules) to do so.

…

(5) If an applicant in an application, claims any relief on a cause of action arising out of any fact, the Court may make an order making an amendment having the effect or adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.

10. The specific restriction in Part 10 Rule 2(5) of the power for leave to be granted under that rule by adding a new cause of action to cases where the new cause of action arises out of the same facts suggests that no such power exists here, where the new causes of action relate to different instruments, and different land: i.e not substantially the same facts.

11. In the alternative on this point. It is submitted that Part 10 Rule 2(5) would necessarily be read subject to the general principle of Baldry v Jackson and is as only referring to a cause of action which was in existence at the date of commencement of the proceedings.

12. The new causes of action sought to be included in the Further Amended Class 4 Application are:

11. a declaration that National Parks & Wildlife Act 1974 section 90 consent 1680 issued by the Fourth Respondent to the Second Respondent on 28 July 2003 is void and of no effect.

12. A declaration that National Parks & Wildlife Act 1974 section 87 consent 1681 issued by the Fourth Respondent to the Second Respondent on 28 July 2003 is void and of no effect.

13. These new causes of action relate to permits granted on 28 July 2003 some months after the commencement of these proceedings on 29 May 2003, some two months earlier.

14. It is submitted that these additional causes of action cannot now be added to the Further Amended Class 4 Application without infringing the rule in Baldry v Jackson which is a general principle of law constraining the power of the Court to grant amendments to pleadings, or at least a general principle invariably respected by the courts in exercising the power to amend pleadings.

15. Section 68(1) of the Land and Environment Court Act 1979 does not manifest an intention to or provide for the abrogation of the Rule in Baldry v Jackson. Section 68(1) provides as follows:

68. Amendments and irregularities
(1) In any proceedings before the Court, the court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opi8nion of the Court, are necessary in the interests of justice.
16. In particular, the general power of amendment in section 68(1) must be interpreted by the Court as the general power of amendment in the Supreme Court Rules (as it then was) considered in Baldry v Jackson prior to the insertion of Part 20 Rule 1(3A) as not abrogating the common law principle that an amendment post the commencement of proceedings not be allowed to add a cause of action arising after that date of commencement.

17. The rule in Baldry v Jackson was applied by Hodgson J of the Supreme Court in Servcorp v Abgarus (1995) 38 NSWLR 281. This was decided prior to the insertion of Part 20 Rule 1(3A) in the Supreme Court Rules. Hodgson J acknowledged that he was bound by Baldry v Jackson. It is submitted that equally this Court is bound by the authority of Baldry v Jackson to refuse the amendment sought here in relation to paragraphs 11 and 12 of the Further Amended Class 4 Application.

18. In Starray v. Sydney CC (2001) 112 LGERA 438 the Court was concerned with an application to amend a Notice of Motion seeking to clarify or modify a claim to reopen a Commissioner’s decision by expressly drafting the relief sought, which was acknowledged by the Court to remain the same but expressed in more precise language (443 at 27). The Court expressly applied the relation back doctrine (444 at 29-30).

10. The argument advanced on behalf of the first to third Respondent is founded upon the decision in Baldry which in turn is founded upon the relevant provisions of the Supreme Court Rules raised by that case, in particular Part 15 (Pleading) and Part 20 (Amendment).

11. It should at once be noted that neither of these Parts of the Supreme Court Rules has been adopted by the Rules of this Court, and this fact necessarily undermines the argument advanced by the first to third Respondents.

12. Rather, the relevant statutory sources of power to allow amendments to proceedings are found in the Land and Environment Court Act 1979, s 68(1) (LEC Act) and Part 10 of the Rules of Court.

13. Significantly, there is no counterpart in the Supreme Court Act 1970 to the LEC Act, s 68(1). Part 10 of the Rules of Court contain in abbreviated fashion, some of the provisions of Part 20 of the Supreme Court Rules. In this latter respect, the argument of the first to third Respondents fastens upon the fact that Part 10 Rule 1 of the Rules of this Court, does not contain any counterpart to Rule 1(3A) of Part 20 of the Supreme Court Rules, which sub-rule was made on 24 November 1995 immediately following the decision of Hodgson J (as he then was) in Servcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281 where his Honour had invited reconsideration by an appropriate court of the decision in Baldry for the several reasons articulated by his Honour at pp 283 and 284, which if I may respectfully say so, were indeed cogent and persuasive.

14. If the sole statutory source of this Court’s power were confined to Part 10 of the Rules of Court, the argument advanced on behalf of the first to third Respondents would, I think, have been irresistible cf the commentary at p 2452 (par 20.1.4) of Ritchie’s Supreme Court Practice.

15. However, the principal source of power vested in this Court is the LEC Act, s 68(1) and I am quite unable to accept the first to third Respondent’s argument that the scope of that statutory power should be interpreted to be no greater than the scope of the power that is conferred by Part 10, r 1.

16. The question as to whether this Court is vested with the requisite power is of course to be resolved by the process of statutory interpretation of the relevant sources of available power. Even if it be accepted that the decision in Baldry is directly applicable to expound the scope of the amendment power conferred upon the Court by Part 10 Rule 1 of the Rules of Court so that that power is not sufficient to allow amendments making additional claims based upon facts arising after the commencement of the proceedings, that outcome does not dictate the outcome of the proper interpretation of the LEC Act, s 68(1). This is because (i) s 68(1) is a substantive provision of the Act and is not subject to any rule of Court; and (ii) the text of s 68(1) is not the same as the text of Part 10 Rule 1.

17. As a substantive provision of the LEC Act, especially in the context of ss 22 and 23, the power of amendment conferred by s 68(1) should in my opinion, be interpreted purposively and beneficially according to the relevant statutory language (“amendments to be made which in the opinion of the Court, are necessary in the interest of justice”) which plainly confers a wide power.

18. As Gibbs J (as he then was) pointed out in Wigan at 592/593:

The principle that an amendment cannot be made which will introduce a new cause of action which arose after the commencement of the proceedings is purely one of procedure and can be varied or abolished by statute.

19. Having regard to (i) the nature of the specialist jurisdiction vested in this Court (vide ss 17 to 21 of the LEC Act) which is not readily assimilated to the concept of “causes of action” and (ii) the absence of any procedural requirement in the settled practice and procedure of this Court of the type referred to by Gibbs J in Wigan, I am of the opinion that the proper interpretation of s 68(1) is one that gives full effect to the language of the section, without inherent limitations based upon procedural requirements, thereby promoting its obvious purpose in the context of the LEC Act, and in particular s 22 which provides as follows:

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

20. I note that in Sevcorp, Hodgson J, after referring to ss 23 and 63 of the Supreme Court Act (to which ss 22 and 23 of the LEC Act are counterparts for this Court) said at 284:

Those sections could certainly be read as permitting, and indeed encouraging, the resolution of all issues between the parties arising up to the date of hearing (where that can be done fairly as between the parties), notwithstanding the Eshelby rule.

21. What his Honour there said is, in my opinion, equally applicable to the proper construction of the LEC Act, s 68(1) and provides a sound basis for adopting an available interpretation, untrammelled by any procedural requirements in this Court comparable to those derived from the common law system of pleading and causes of action and pleading amendments, pertaining to ordinary courts of justice (such as were relevant to the decision in Baldry).

22. In the present case, I would hold that the power of amendment is available to allow amendments to the Applicant’s claims if it is necessary in the interest of justice so to allow. In general, the interests of justice will require that a party who seeks to amend be permitted to do so to enable the real questions in dispute between the parties to be tried. However, the Court retains the discretion to determine in any particular case, whether the amendment is necessary, and hence justified, in the interests of justice.

23. The exercise of the Court’s discretion to allow amendments is governed by relevant principles, including of course, considerations of fairness to the Respondents and of the efficient administration of justice.

24. Since these and other matters are raised by the first to third Respondents’ arguments founded on discretionary factors, I can defer further consideration of those maters.

25. However, there is one further matter to note and that is the question of when any amendment that may be allowed in the exercise of the Court’s discretion will take effect. Again, the argument of the first to third Respondents relies upon the decision Baldry where Samuels JA said at 419:

But an amendment, duly made, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends; Sneade v. Wotherton Barytes and Lead Mining Co. Ltd [1904] 1 K.B. 295 and Warner v. Sampson [2050] 1 Q.B. 297. There is nothing in the rules to displace this principle, and Pt. 20, and, in particular r. 4(4) and (5), is entirely consistent with it.

It seems to me, therefore, impossible to permit an amendment to this statement of claim which would have the effect of introducing into it a cause of action based upon facts which had not arisen when the statement of claim was filed. The situation becomes even more curious when one considers that these new facts would be wholly in substitution for the facts already pleaded which do not, of course, disclose any cause of action. I cannot see how a plaintiff can commence proceed9ngs by a statement of claim dated 5th November, 1975 (and that date would remain after amendment) which pleads facts which did not occur until the 1st December, 1975: there is nothing in r. 16 to authorize such a course.

26. However, even in the context of Part 20 of the Supreme Court Rules before Rule 4(5A) was introduced in October 1989 following the decision of the Court of Appeal in Fernance v Nominal Defendant (1989) 17NSWLR 710, it had been held by Rodgers J in ANZ Banking Group Ltd v Larcos (1987) 13 NSWLR 286 that the power of amendment included the power to specify a date from which the amendment took effect different from the date upon which the proceedings were commenced.

27. In my opinion, s 68(1) confers upon the Court sufficiently wide powers (“upon such terms as the Court thinks fit”) to specify a different date upon which the amendments are to take effect, so as to displace the “relation back” doctrine that was applied in Baldry.

28. Accordingly, in the present case, it would be appropriate to specify as the date upon which the amendments, if allowed, are to take effect, the date upon which leave is granted.

29. For all the foregoing reasons, I hold that the LEC Act, s 68(1) confers upon the Court the requisite power to allow the Applicant to amend his claims.

Ground (b): Prejudice to the second and third Respondents

30. Here the second and third Respondents allege that considerable prejudice will be caused to them if the Court were to allow the amendments because (i) they have already commenced activity in reliance upon the authorisations provided by the s 87 Permits and the s 90 consent; and (ii) the Applicant’s delay in claiming invalidity of the Permit 1680 and Consent 1681 since he apparently first became aware of the fact that they had both been issued on 28 July 2003 meant that the second and third Respondents were deprived of the opportunity to overcome by appropriate action any invalidity in respect of the issue of the s 87 Permit and the s 90 Consent before the expiry on 25 March 2004 of the development consent granted by the Minister in 1999 for the establishment of the Lake Cowal Gold Mine.

31. The argument advanced by the second and third Respondents is based upon two fundamental premises—

(i) the statutory lapsing provisions of the Environmental Planning and Assessment Act 1979, (EP&A Act) s 95; and
(ii) a line of judicial authority commencing with the decision of the Court of Appeal in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 to the effect that the statutory lapsing provisions were not avoided by the carrying out of works which were not authorised by the relevant development consent or which were undertaken in breach of any relevant conditions of that consent.

32. The Applicant’s answers to these claims of prejudice being caused to the second and third Respondents are (i) that the delay in the prosecution of the case following the Applicant’s failure to obtain an interlocutory injunction was caused by the first to third Respondents seeking an order for security for costs; and (ii) that the vulnerability to statutory lapsing of the development consent granted for Lake Cowal Gold Mine is mitigated by the enactment of s 95B of the EP&A Act by Act No 60 of 2003 which commenced on 1 December 2003.

33. Section 95B provides as follows:

(1) This section applies to a development consent for State significant development that:
(a) is not subject to a condition under section 80 (5), and

(b) is to lapse 5 years after the date from which it operates (the lapsing period).

(2) The applicant or any other person entitled to act on a development consent to which this section applies may apply to the consent authority for one or more extensions of the lapsing period of up to 3 years in total. The application must be made within 12 months before the lapsing period (or the period as previously extended under this section) lapses.
Note. The Minister is the consent authority for State significant development.
(3) The application must be made in accordance with the regulations.

(4) The consent authority may grant an extension if satisfied that the applicant has shown:

(a) that the development consent may lapse because there is, has been or may be, delay in physically commencing building, engineering or construction work, or use, of all or part of the land to which the consent applies that arises from or is related to one or more relevant legal proceedings, and

(b) that there is otherwise good cause.

(5) An extension may be for a period commensurate with the period of the delay but must not be made so as to cause the period before the development consent lapses to be longer than 8 years after the date from which the consent operates.

(6) There is no appeal against the determination of an application under this section.

(7) An extension under this section commences to run from the later of the following:

(a) the date on which the consent would have lapsed but for the extension,

(b) the date on which the consent authority grants the extension.

(8) If an application for an extension is made in accordance with this section but the consent authority does not determine the application before the development consent lapses, the development consent concerned does not lapse but ceases to be effective until the date on which the applicant is notified of the determination.

(9) In this section:

ineffective legal proceeding means a legal proceeding under this Act or any other law of this State or the Commonwealth (whether written or unwritten) that:

(a) has been instituted but not determined, or

(b) has been determined without the court or tribunal granting the relief (whether in whole or in part) sought by the person who instituted the proceeding or by the court or tribunal concerned dismissing the proceeding.

relevant legal proceeding, in relation to land to which a development consent applies, means an ineffective legal proceeding:

(a) in which relief was sought with respect to work to be carried out on, use of or any other activity on the land or any claim or right in respect of a native title right or interest in the land, and

(b) that was commenced, whether before or after the commencement of this section, by a person other than the applicant or any other person entitled to act on the consent.

34. In my opinion, the second and third Respondents have not substantiated their claim of prejudice. Even if it were the case that the Applicant has delayed making his claims of the invalidity of Permit 1680 and Consent 1681, whereas the fact of that delay may be extremely relevant to any claim to any interlocutory injunctive relief that the Applicant may seek to obtain, it is unlikely to be crucial to any claim to permanent relief if for no other reason than that the hearing of that claim is almost certain to occur after the 25 March 2004 (being apparently the relevant lapsing date for the purposes of the EP&A Act, s 95).

35. However, in any event, it is clear that the effect of s 95 is significantly qualified by the recently enacted s 95B, which prima facie is capable of operating in respect of the Lake Cowal Gold Mine development consent in the light of the history of litigation brought against the second and third Respondents (and their predecessors in title) by the Applicant since January 2002.

36. For the foregoing reasons, I am of the opinion that the granting of leave to the Applicant’s amended claims would not cause relevant prejudice to the second and third Respondents.

Grounds (c) and (d): The efficient administration of justice and the interests of justice

37. The first to third Respondents’ arguments on these grounds tend to repeat the same matters relied upon by the second and third Respondents in support of their claim of prejudice.

38. Here again they direct attention to the serial litigation that they have suffered at the hands of the Applicant for most of 2002 and 2003. They submit that the Applicant should not be permitted to add to his claims in the present proceedings (which represent the last and only outstanding claim made by the Applicant in this Court), particularly given the apparent delay in the Applicant’s claim that the s 87 Permit and s 90 Consent issued by the Director-General on 28 July 2003 are invalid on administrative law grounds, particularly where the relevant delay impinges upon the expiry period for the Lake Cowal Gold Mine development consent.

39. For similar reasons, that led me to conclude that the second and third Respondents had not substantiated their claim of prejudice, I am of the opinion that the first to third Respondents have not substantiated their present claims that it would be contrary to the efficient administration of justice and the interest of justice if the Applicant were to be allowed to proceed on the basis of his amended claims.

40. It is important to note that the sole basis for the Applicant’s claims brought against the Respondents in proceedings in this Court during the past two years has been the provisions of the NP&W Act protecting aboriginal objects.

41. In the earlier proceedings, the Applicant’s claims were founded upon the undisputed fact that the second and third Respondents had not obtained the requisite s 87 Permit and s 90 Consent. The Applicant achieved some measure of success in those proceedings.

42. In later proceedings, the Applicant was unsuccessful in challenging the validity of relevant s 87 Permits and s 90 Consent.

43. In the final phase of the proceedings, the Applicant has alleged breaches of conditions of the relevant s 87 Permit and/or the s 90 Consent.

44. The Applicant now seeks leave to amend his present claim alleging various breaches of Permit 1468 to include claims that a subsequently granted s 87 Permit and s 90 Consent are invalid on various administrative law grounds, including non-consultation with himself as an interested Aboriginal person.

45. It is not disputed that the NP&W Act, s 176A entitles the Applicant to bring the present proceedings which both in their original and amended form seek to restrain and remedy “a breach of the Act”.

46. The Applicant’s amended claims expand his original case but the expansion arises out of basically the same set of facts, namely the activities undertaken by the first to third Respondents of discovering and collecting and selective destroying of aboriginal objects in accordance with requisite s 87 Permits and s 90 Consents issued by the Director-General.

47. If the Applicant has a genuine case that the statutory regime for the issue of s 87 Permits and/or s 90 Consents has been breached prima facie he ought to be permitted to bring and prosecute that case. If such an outcome can be achieved without unfairness or prejudice to the Respondents, then the interest of justice, justify the grant of the requisite leave.
C. CONCLUSIONS AND ORDERS

48. For all the foregoing reasons, leave should be granted for the Applicant to prosecute his amended claims against the Respondents. The leave granted takes effect from the date of the following orders—

1. Pursuant to s 68 of the Land and Environment Court Act 1979, leave is granted to the amendment of the current proceeding so that the Applicant may prosecute his claims set forth in the document styled “Further Amended Application Class 4” filed in the Court Registry on 11 February 2004 and his Amended Points of Claim filed in Court on 26 February 2004.

2. Proceedings stood over to 9.30 Wednesday 10 March 2004 for directions and any other interlocutory application prior to the proceedings being set down for hearing.