CITATION:
Williams v Pardoe and Ors. [2005] NSWLEC 119

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Pardoe and Ors.

FILE NUMBER(S):
40626 of 2003

CORAM:
Bignold J

KEY ISSUES:
Administrative Law :- challenge to validity of Permit and Consent in respect of Aboriginal objects-alleged denial of procedural fairness-alleged breaches of Conditions of Permit-alleged racial discrimination

LEGISLATION CITED:
National Parks and Wildlife Act 1974, s 2A, ss 87, 90
Racial Discrimination Act 1975, ss 9 and 10

CASES CITED:
Beckwith v the Queen (1976) 135 CLR 569;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170;
Port of Melbourne Authority v Anshun Property Ltd (1981) 147 CLR 589;
Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1;
Ryde City Council v Echt (2000) 107 LGERA 317;
Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80;
Tynan v Meharg (1998) 101 LGERA 255;
Williams v Barrick Australia Ltd (2003) 128 LGERA 80;
Williams v Pardoe (2003) NSWLEC 150;
Williams v Director General National Parks and Wildlife Service (2003) LGERA 354;
Williams v Pardoe (2003) NSW LEC 363;
Williams v Pardoe (2004) NSWLEC 71

DATES OF HEARING: 24-31/05/2004, 2,4,8/06/2004

DATE OF JUDGMENT:

03/18/2005

LEGAL REPRESENTATIVES:
APPLICANT:
A Oshlack, Agent
SOLICITORS
N/A
1ST-3RD RESPONDENTS:
Mr N Williams SC
4TH RESPONDENT
Mr A Galasso, Barrister
SOLICITORS:
1ST - 3RD RESPONDENTS
Blake Dawson Waldron
4TH RESPONDENT
Solicitor for National Parks and Wildlife Service

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

18 March 2005

40626 of 2003 WILLIAMS v PARDOE AND ORS.

: HIS HONOUR

1 On 29 May 2003 the Applicant commenced these class 4 proceedings alleging breaches by the first Respondent of specified conditions of a permit issued by the fourth Respondent (the Director-General) pursuant to the National Parks and Wildlife Act s 87 (NP&W Act) and consequential breaches by the second and third Respondents of ss 87 and 90 of that Act. (The alleged breaches are “consequential” in the sense that the NP&W Act, s 86 creates the offence by proscribing certain activities that are undertaken “except in accordance with the terms and conditions of an unrevoked permit”.). The s 87 Permit (No 1468) had been issued on 27 November 2002 in conjunction with a consent pursuant to the NP&W Act, s 90 in respect of Aboriginal objects situate on land at Lake Cowal being the area of some 2,400 hectares that was then the subject of Mining Lease Application 45 (subsequently approved by the grant in June 2003 of Mining Lease 1535 in respect of the approved Lake Cowal Gold Mine).

2 These class 4 proceedings were the last of a series of proceedings brought by the Applicant in this Court since 22 January 2002 against the Respondents in respect…

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 and Ors.

Details

AGLC: Williams v Pardoe and Ors. [2005] NSWLEC 119
Case: [2005] NSWLEC 119
Decision Date: 03/18/2005

CaseChat Overview and Summary

In Williams v Pardoe and Ors, the applicant sought various orders in relation to archaeological works being carried out on land in respect of which a permit and consent had been issued under the National Parks and Wildlife Act 1974 (NSW). The applicant alleged that the permit and consent had been issued in breach of procedural fairness, that the permit had been rendered nugatory, and that the permit and consent had been issued in respect of areas that were not covered by the original applications. The applicant also alleged that the permit holder had breached conditions of the permit, and that the permit holder had racially discriminated against the applicant. The applicant also sought orders in respect of alleged breaches of statutory duty by the Director-General of the National Parks and Wildlife Service. The court found that none of the applicant's claims had been substantiated. The application was dismissed and the question of costs was reserved.

Orders