Williams v Pardoe and Ors - [2003] NSWLEC 150

Land and Environment Court

of New South Wales

CITATION: Williams v Pardoe & Ors [2003] NSWLEC 150

PARTIES:
APPLICANT:
Williams
RESPONDENTS:
Pardoe & Ors

FILE NUMBER(S): 40626 of 2003

CORAM: Bignold J

KEY ISSUES: Injunctions and Declarations :- Interlocutory injunction:-Alleged Breaches of Conditions of Permit to discover and collect Aboriginal objects

LEGISLATION CITED: National Parks and Wildlife Act 1974, ss 87, 90 and 176A

CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 ;
Williams v Director General of National Parks and Wildlife Service and Ors. (2002) NSWLEC 235;
Williams v Director General of National Parks and Wildlife Service (2003) NSWLEC 121

DATES OF HEARING: 06/06/2003

DATE OF JUDGMENT:
06/24/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr Alan Oshlack (Agent)
SOLICITORS
N/A
FIRST RESPONDENT:
Mr M Brennan, Solicitor
2nd AND 3rd RESPONDENTS:
Mr N Williams SC
SOLICITORS
FIRST RESPONDENT
Blake Dawson Waldron
2nd AND 3rd RESPONDENTS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 40626 of 2003

Coram : Bignold J

24 June 2003

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. By class 4 application filed 29 May 2003, the Applicant claims declaratory and injunctive relief against the first, second and third Respondents in respect of a Permit No 1468 granted by the fourth Respondent pursuant to the National Parks and Wildlife Act 1974, s 87 for the discovery, disturbance and movement of Aboriginal objects situate on land comprising the area the subject of Mining Lease Application 45 at Lake Cowal (the s 87 Permit).

2. In the same application, the Applicant claimed urgent interlocutory relief in respect of the claims made in paragraphs 3 and 4 of the application which are in the following terms:

3. An order restraining the First Respondent from carrying out any activity by way of identifying, locating, collecting and signing clearances which seeks reliance on the authority given in The Permit.

4. An order that the Second and Third Respondents their employees, contractors and agents be restrained from carrying out any activity which disturbs the soil and vegetation including the movement of any heavy or tracked vehicle over land containing the Aboriginal Sites described in paragraphs 6, 9 and 10 of Permit 1468.

3. These particular claims are not free standing claims but essentially derive from the Applicant’s claim in paragraph 1 of the application that the first Respondent has breached Conditions 6, 9 and 10 of the s 87 Permit.

4. The claim to interlocutory relief was heard on 6 June 2003 having been set down for hearing by consent of the parties on 2 June 2003 subject to the strict directions I gave on that occasion to facilitate that hearing. The claim was opposed by the first, second and third Respondents (the fourth Respondent had filed a submitting appearance and did not participate at the hearing).

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 [2003] NSWLEC 150
Case: [2003] NSWLEC 150
Decision Date: 24/6/2003

CaseChat Overview and Summary

The case of Williams v Pardoe and Ors was heard by Bignold J in the Land and Environment Court of New South Wales. The applicant, Williams, sought declaratory and injunctive relief against the respondents in relation to a permit granted for the discovery and collection of Aboriginal objects. The key issues in the case were whether there were breaches of the conditions of the permit and whether interlocutory relief should be granted. The court examined the evidence and submissions from both parties to determine if the applicant had made out a prima facie case and if the balance of convenience favoured granting interlocutory relief. The court concluded that the applicant had not made out a prima facie case and that the balance of convenience favoured the respondents, thus declining to grant any interlocutory relief. The court's decision was based on the highly technical nature of the alleged breaches and the lack of irreparable harm to the applicant if relief was not granted. The court reserved the question of costs and ordered that the exhibits (except for Exhibit 1) be returned.

Orders