Williams v Pardoe and Ors

[2003] NSWLEC 150

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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

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. 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).

5. At the conclusion of the hearing I reserved my decision noting that I did not consider it an appropriate case to grant any interim relief pending delivery of my reserved decision.

6. For the reasons that hereafter appear, I have concluded that the Applicant has failed to make out a case justifying the grant of any interlocutory relief.
B. BACKGROUND TO PRESENT PROCEEDINGS

7. The Applicant’s present claims arise out of action taken by the first to third Respondents at Lake Cowal between 23 and 29 May 2003 in purported reliance upon the s 87 Permit (Exhibit 1).

8. The validity of that Permit and the related s 90 Consent (No 1467) had been the subject of earlier proceedings (No 40964 of 2002) which the Applicant had commenced in this Court on 28 November 2002. In those proceedings, the Court by consent of all parties, urgently heard the Applicant’s claim to interlocutory relief on 29 November 2002 and on 3 December 2002 I granted interlocutory relief including the suspension of the operation of the s 87 Permit and the s 90 Consent (Order 1) and an interlocutory injunction restraining the second and third Respondents from carrying out activities in reliance upon the Permit and the Consent (Order 2). My reasons for granting the interlocutory relief were published on 5 December 2002—see Williams v Director General of National Parks and Wildlife Service and Ors. (2002) NSWLEC 235.

9. Those interlocutory orders remained in force until 19 May 2003 when I delivered judgment in the proceedings after the final hearing which had concluded on 20 March 2003. In my reasons for judgment I held that the Applicant’s challenge to the validity of the s 87 Permit and s 90 Consent had failed on every ground that had been advanced in support of the challenge and accordingly dismissed the proceedings: see Williams v Director General of National Parks and Wildlife Service (2003) NSWLEC 121.

10. Immediately following the dissolution of the interlocutory relief granted in those earlier proceedings the Solicitors for the first, second and third Respondents delivered to the Applicant on 20 May 2003 a letter which advised him in the following terms:

Permit 1468 requires the Mooka Traditional Owners Council to be notified of the proposed inspection of an area of land and to be invited to send a representative to observe and where appropriate participate in recording and collection works.

You are hereby notified that an archaeological inspection and collection works programme will be carried out pursuant to special conditions 6 and 10 of Permit 1468, commencing at 8:00am on Friday 23 May 2003. It is currently anticipated that this programme will continue for 6-7 days. The programme includes:

· The inspection of a number of areas of land for the purpose of identifying surface Aboriginal objects; and

· The collection of a representative sample of such objects, the recording of their position by GPS and the notation of their material type and size characteristics.

A representative of the Mooka Traditional Owners Council is invited to observe and where appropriate participate in the recording and collection works programme.

If a representative of the Mooka Traditional Owners Council wishes to observe and participate in the recording and collection works, the person should telephone Bill Shallvey of Barrick on [phone] as soon as possible to confirm his or her attendance and be at the Cowal Gold Project site office at 8:00 am on Friday 23 May 2003 to commence the works.

11. The Applicant in response to that notice and invitation arrived at the Lake Cowal Mine Site at 3 pm on Friday 23 May 2003 and made arrangements with the Mine Manager to attend the site inspection due to commence at 8 am the following morning ie Saturday 24 May 2003 and during the site inspection conducted on Saturday 24 May 2003, an incident occurred which ended in the Applicant leaving the site about one hour after the inspection had begun and before it was completed without the Applicant’s participation. Several affidavits sworn by a number of persons (including the Applicant) who participated in, or who observed what had occurred during the site inspection on 24 May 2003 were read at the hearing and the deponents were cross-examined.

12. Before considering the evidence adduced at the hearing, I interpose the following summary of the exchange of communications between the parties occurring immediately prior to the commencement of the proceedings, for whatever light it casts upon the basis for the Applicant’s claims and upon the basis for the first to third Respondents’ resistance of those claims. Collectively considered that correspondence indicates that the present proceedings are entirely based upon what occurred at the inspection on 24 May 2003.

13. Before commencing the present proceedings, the Applicant via his agent Mr Oshlack engaged in facsimile correspondence with the first to third Respondents’ Solicitors, concerning the Applicant’s complaints about aspects of the inspection process at the Lake Cowal Mine Site in which he had participated on 24 May 2003. Those complaints were to the following effect—

(i) at the commencement of the inspection he had not been given any map identifying the locations to be inspected;

(ii) Dr Pardoe had proceeded to lead the inspection team at such a pace as to make it difficult for the two young (teenage) Wiradjuri field assistants and himself to locate, identify, record and collect artefacts;

(iii) It was culturally inappropriate for the young Wiradjuris to be touching the artefacts—their participation in the inspection was not authorised under the Permit Guidelines and they could not have been representing the Wiradjuri Council of Elders; and

(iv) Dr Pardoe had treated the Applicant, as a Traditional Owner, in an aggressive and disrespectful manner.

14. The Applicant’s Agent advised that unless the following requirements were fulfilled, he would commence proceedings in this Court without further notice “to restrain the breaches and any further collection” (Exhibit E/2):—.

1. receive a written apology from Dr Pardoe for his inappropriate behaviour;

2. undertakings from the company that the Mooka Traditional Owners will be properly notified of all future collections;

3. that Mr Williams can continue with the current collection pursuant to the permit;

4. that at all future collections, he will not be harassed by Dr Pardoe;

5. in future no more teenagers be employed in the collection.

15. On 27 May 2003, the Applicant’s Agent sent by facsimile transmission to the Solicitors for the first to third Respondents a copy of a proposed class 4 application (in the form of proceedings that were subsequently commenced in this Court) with advice that unless a satisfactory reply to the earlier letter of demand be received by the next day the proceedings would be filed in this Court on 29 May 2003.

16. By facsimile transmission dated 28 May 2003 the Solicitors for the first to third Respondents responded to the Applicant’s letter of demand by (i) disputing the Applicant’s account of what had occurred at the inspection held on 24 May 2003 and by providing the first to third Respondents’ account of what had happened; (ii) advising that no apology would be forthcoming from Dr Pardoe, (iii) advising that the Applicant was properly notified of the inspection processes undertaken between 23 to 29 May 2003 and that the Applicant was at liberty to be involved in the collection activities but that his entitlement under Special Condition 6 of the s 87 Permit No 1468 did not extent to “berating, intimidating and harassing members of Barrick’s workforce” and that to that end it was desirable that a protocol be established for the Applicant’s ongoing involvement in the collection process; (iv) advising that Dr Pardoe’s conduct towards the Applicant at the inspection on 24 May 2003 had not involved any harassment of him; and (v) that the Wiradjuri persons assisting in the collection activity were persons sourced through the Wiradjuri Condobolin Native Title Claim Group.

17. On the same day that the current proceedings were commenced, the Solicitors for the first to third Respondents sent to the Applicant’s Agent by facsimile transmission a copy of a written Protocol “for facilitating effective participation of Mooka Traditional Owners Council in Archaeological Works Under Permit 1468” (Exhibit L/2).

18. Further light on the basis for the Applicant’s claims is provided by the content of his facsimile transmission to the Director-General sent on 29 May 2003 in the following terms:

I am writing this letter as a matter of urgency. On the 19th of May, 2003 The Land and Environment Court dismissed my Application to invalidate the permit and discharged the injunction.

On the 20th of May 2002, I was handed a letter from the solicitors of the mining company notifying me pursuant to the permit that a collection was to take place. The Notice invited me to attend and observe the process.

Enclosed is an affidavit I have sworn testifying to the facts of what occurred at the collection.

His Honour in the Court was critical I have not written to you sooner. I have sort (sic) a further declaration from the Federal Minister, I am also making applications in the Federal Court for an injunction to stop the current work being carried out by Pardoe.

I have lost most of my confidence that you have any sense of duty to protect Aboriginal Heritage, when it comes to Lake Cowal. You have made decisions based on lies and falsehoods. You have allowed Aboriginal People like Mr Ardler to act like a Native Police to attack our culture.

But with the urging of the Judge I request you investigate the unprofessional conduct, the disrespectful attitude and disregard to Wiradjuri Law by Pardoe.

To me the permit and consent you issued is little better than organised vandalism of our sacred sites.

At least Pardoe and Barrick could do their destruction with a little diligence.

I will not stand by and watch Wiradjuri Young people being illegally abused and exploited.

Specific breaches I observed include:

Work being carried out without being notified.

No collection of representative samples

Unprofessional conduct by permit holder eg his inability to identify, describe and record Aboriginal Objects. No video or photographs were taken. History being destroyed without record. This is cultural genocide within The Wiradjuri Nation.

Bias negative attitude to the artefacts: The blades I found were of great interest and not only culturally but archaeologically I have learned from Wilfred Shawcross and David Johnson. Yet pardoe is shooing me like I am a child.

Discrimination: no respect for Traditional Owners, use of teenage labour, superior attitude,

I am asking you to act with utmost urgency and stop the current permit collection until a proper scientific and culturally appropriate method is a t least employed.

As I have stated I have little confidence you will do the right lawful and moral thing for cultural heritage at Lake Cowal I do not wish to resort to the Courts but I have little choice, as you have failed to fulfil your proper duty to care for our sacred heritage.

19. The Solicitor for the Director-General who appeared at the hearing and obtained leave to file a submitting appearance was asked whether the Director-General had received and considered that facsimile transmission. He informed the Court that the Director-General had considered the Applicant’s facsimile transmission and was satisfied that no case had been made out justifying any intervention or enforcement action by the Service and that it was expected that the Applicant would be so informed by the Director General in the course of the next week.

C. THE EVIDENCE

20. The Applicant’s evidence comprises his affidavit sworn 28 May 2003 deposing to his travelling to Lake Cowal on 23 May 2003 in response to the notice he had received from the first to third Respondents’ Solicitors and to his participation in the inspection conducted on 24 May 2003. (On the preceding day, he had arrived too late to participate in the inspection process).

21. There are two other affidavits, one sworn by Timothy Atkinson on 2 May 2003 and one sworn by Mrs Kathleen Towney on 2 May 2003. The former had worked at the Mine Site for some months in 2002 engaged in the process of identifying and collecting artefacts pursuant to an earlier s 87 permit that had been granted in May 2002. He has not worked at the Mine Site this year. Mrs Towney’s affidavit deposes to the experiences of her grandson, Mr Neil Towney, who also had worked at the Mine Site during 2002 engaged in the discovery and collection of artefacts under the earlier s 87 permit. He too has not worked at the Mine Site this year and his grandmother expresses her concern and opinion that psychiatric and emotional stresses recently suffered by her grandson may have had some connection with his working at the Mine Site in 2002.

22. The other evidence was documentary materials including the s 87 Permit (Exhibit 1) and the “Research Design and Study Plan” (Exhibit 5) which had formed part of the first Respondent’s application for the s 87 Permit and which is incorporated by reference into the s 87 Permit in the following manner—

(i) it governs the extent of the authorisation granted by the s 87 Permit—Thus, the s 87 Permit provides:

AUTHORITY is hereby given for the person/s named above to:

· disturb or excavate any land, or cause any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object within the meaning of that term in section 5(1) of the National and Wildlife Act 1974 (NSW) (Aboriginal object); and

· to disturb or move on ay land an Aboriginal object that is the property of the Crown,

in the course of undertaking research, excavation, salvage, collection and storage/curation of Aboriginal objects as described in the Research Design and Study Plan for the Barrick Australia Limited Coal Gold Project which was Attachment 5 to the application for this permit dated 15 August 2002 (the Application ), as modified by the special and specific conditions contained in this permit ; and
(ii) it controls the manner in which the authorised works are to be carried out by virtue of Special Condition 2 which states:
2. All work shall be carried out in accordance with the Research Design and Study Plan that is Attachment 5 to the Application (the Research Design and Study Plan ) as modified by the Special and Specific conditions applying to the permit.

23. Included in the Applicant’s documentary evidence are the following three documents produced by the first to third Respondents pursuant to Notices to Produce—

(i) certificate provided by Dr Pardoe to the third Respondent pursuant to Special Condition 16 of the s 87 Permit certifying the completion of specified archaeological works authorised by the s 87 Permit to be undertaken (Exhibit 5);

(ii) computer print out list of lithic items collected in the course of the overall inspection/collection process undertaken by Dr Pardoe and assistants between 23 and 29 May 2003 (Exhibit 6); and

(iii) Dr Pardoe’s preliminary “spatial and technological analysis of lithic items” that were collected between 23 to 29 May 2003 (Exhibit 7).

24. In order to appreciate the effect of the document comprising Exhibit 5 it is necessary to note that Special Condition 16 of the s 87 Permit provides as follows:

When the archaeological works authorised by this permit for a particular area have been completed, a permit holder will certify that fact in writing to Barrick Australia Limited. Such certification may be given before the examination and classification of collected items pursuant to Special Condition 12. A copy of that certification shall be provided to the Director-General.

25. It appears that the document comprising Exhibit 7 is a preliminary version of the final report that is required to be provided to the Service by Special Condition 15 of the s 87 Permit which provides as follows:

The holder/s of the permit shall furnish the National Parks and Wildlife Service with a final report detailing the result of investigations within 9 months of the completion of the excavations and field investigations. Said report will be expected to address matters relating to the spatial distribution of sites, technological and chronological considerations, and inferences of land use histories related to palaeo-environments. A separate plain English report shall also be produced for the Aboriginal community within the same time frame.

26. The evidence adduced by the first to third Respondents included the following—

(i) Dr Pardoe’s affidavit affirmed 5 June 2003;

(ii) the affidavit affirmed 5 June 2003 of Mr Kevin Read, the Co-ordinator of the Condobolin Bila Community Employment Project; and

(iii) the affidavit sworn 5 June 2003 of Mr Harry Browne employee of a Security Company engaged to provide security services at the Lake Cowal Mine Site.

27. Before discussing the scope and content of the evidence, it is important to note at the outset that the case ultimately presented by the Applicant for interlocutory relief was not founded to any significant extent (if at all) on his allegation of what had occurred during the site inspection he had attended on 24 May 2003. Rather, it was principally founded upon Dr Pardoe’s evidence concerning the inspection/collection process he had supervised during 23-29 May 2003.

28. I infer that this very significant change of tack in the Applicant’s case reflected his appraisal of Dr Pardoe’s evidence and its corroboration by the evidence of Mr Browne, which offered a very plausible competing interpretation of the events occurring at the site inspection conducted on 24 May 2003 to the version deposed to by the Applicant.

29. In these circumstances, it is sufficient if I merely note, according to the Applicant’s own evidence of the events of 24 May 2003, that (i) he felt the inspection party was moving too quickly under Dr Pardoe’s instructions and leadership and (ii) he spoke to the two young Wiradjuri persons (aged 17 or 19 years and 15 or 16 years respectively) who were assisting Dr Pardoe in the inspection and collection process informing them that what they were doing was “culturally inappropriate” and that “it was against Wiradjuri law for anyone to collect the artefacts and that they were meant to be left where they were in and on the land where they had been left by their ancestors”. As a result of Dr Pardoe protesting to the Applicant that he was intimidating the Wiradjuri young people (“Barrick Workers”) and unsuccessfully calling upon him to desist, Dr Pardoe called upon the security guard to accompany the Applicant back to the compound. The Applicant did not return to the compound and later during the day he left Lake Cowal. This evidence, in my judgment, provides no evidentiary basis to support the Applicant’s claim that Dr Pardoe had conducted the collection process in a manner that involved breaches of conditions 6, 9 and 10 of the s 87 Permit.

30. Dr Pardoe’s affidavit (affirmed 5 June 2003) deposes to a number of matters, including the following (I omit reference to its content concerning the events of 24 May 2003 in view of what I have said on this matter by confining myself to the Applicant’s own evidence)—

(i) the inspection process commenced on Friday 23 May 2003 by himself and four Wiradjuri workers who had been made available to the first to third Respondents via the Community Development Employment Program administered at Condobolin, (pars 14 to 18 inclusive);

(ii) the inspection process undertaken on Saturday 24 May 2003 by himself and two Wiradjuri workers and initially participated in by the Applicant until he was asked by Dr Pardoe to quit the inspection party (pars 19 to 43 inclusive); and

(iii) the manner in which Dr Pardoe had implemented the works that had been undertaken pursuant to the s 87 Permit at the Lake Cowal Mining Site during the period 23 to 29 May 2003 (pars 44 to 55 inclusive)

31. Included in the paragraphs of the affidavit deposing to the manner in which Dr Pardoe had implemented the works pursuant to the s 87 Permit during 23 to 29 May 2003, Dr Pardoe explains that he adopted a “conservative approach” of collecting all observed Aboriginal objects despite the fact that special condition 6 of the s 87 Permit only required “a representative sample….from each site”

32. Dr Pardoe considered his “conservative” methodology to represent “best practice” which he also applied in the course of his inspection of lands situate to the east of the road through the Travelling Stock Route.

33. The areas of the Mine Site inspected during the inspection/collection process undertaken between 23 to 29 May are shown by hatching on the plan attached to the certificate issued by Dr Pardoe pursuant to special Condition 16 of the s 87 Permit, a copy of which plan is annexed hereto and marked “A”. It is also to be noted that a total of 1094 lithic items (potentially “Aboriginal objects”) were collected during this process (Exhibit 7).

34. At the hearing the Applicant seised upon paragraph 51 of Dr Pardoe’s affidavit as “establishing a breach of Special Condition 6 of the s 87 Permit”.

35. Special Condition 6 is in the following terms:

6. Salvage works at sites LC1, LC2, LC3, LC4, P1, A, F, G, I, J, K, L, M and N, defined in Attachment S of the Application and situated on the land described in Schedule B of Consent # 1467 shall be completed in the following manner:

· A permit holder and/or his instructed delegates shall inspect the land in these site locations and identify surface Aboriginal objects. The Wiradjuri Council of Elders, West Wyalong Local Aboriginal Land Council and Mooka Traditional Owners council (hereafter the Aboriginal community) shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in recording and collection works.

· A representative sample of Aboriginal objects from each site shall be taken. Their position shall be recorded by a GPS and material type and size characteristics shall be noted. They shall then be dealt with in accordance with the procedures outlines in Special Condition 12.

· The collected Aboriginal objects shall be replaced in a location as close as possible to their original location at a time when the works within the specific area do not pose a future threat to them. Replacement will be supervised by a permit holder and/or his instructed delegates. The Aboriginal community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in replacement works.

· Remaining Aboriginal objects shall be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities.

· The Land, Environment and Wiradjuri Heritage Officer shall undertake routine monitoring following replacement as a threat abatement measure. Should this officer identify a likely threat, the officer shall be empowered to halt proceedings. Barrick Australia Limited shall immediately upon notification, investigate the matter, and should the threat be verified, take necessary action to remove or mitigate the threat.

36. It will be seen that Special Condition 6 expressly refers to Special Condition 12 which is in the following terms:

12. All Aboriginal objects subject to salvage and collection shall have their position recorded with a GPS and material type and size characteristics shall be noted. Sufficient data will be taken from each Aboriginal object to enable a technological analysis to be undertaken for report purposes provided always that numbers are large enough for meaningful analysis. This information shall form the basis of a master inventory which must be maintained at all times. After collected items have been closely examined and classified by a permit holder and/or his instructed delegates who must be qualified archaeologists, each collected item that has been classified as an Aboriginal object shall be separately bagged and labelled duplicating the above information and placed in a separate, clearly labelled box detailing the specific area of collection.

37. Paragraph 51 of Dr Pardoe’s affidavit states the following—

Yesterday when preparing my affidavit I recognised an issue about the operation of special condition 6 which had not previously registered with me. It is the requirement contained in the third paragraph fro the material type and size characteristics of Aboriginal objects to be noted. There is an identical requirement In the first sentence of special condition 12. The practice Dr Kamminga and I followed in implementing permit 1361 dated 23 May 2002 was to bag lithic items in the field and record their GPS location but defer documenting material type and size characteristics until the analysis stage which also involves and expert determination as to whether a collected lithic item is in fact an Aboriginal object. If special condition 6 requires material type and size characteristics to be recorded in the field rather than during the analysis stage, that is an inappropriate and unreasonable requirement. It is inappropriate because the recording of this data is only germane once an item has been identified as an Aboriginal object. The bagging of items and the GPS recording of them ensures that the analysis and identification of material type and size characteristics can be performed later in time without any attendant disadvantage. If an archaeologist had to record material type and size characteristics in the field it would disrupt the inspection and collection phase and would result in inactivity for the Wiradjuri assistants and other parties. It is more accurately and reliably done on a workbench with the assistance, where required, of binocular microscopy If the recording of material type and size characteristics is deferred to the analysis stage it has the benefit of permitting me and Dr Kamminga to train the Wiradjuri assistants to weigh and measure objects and maintain database entries whilst I or Dr Kamminga are making the determinations as to the material type and as to whether particular lithic items are Aboriginal objects. Because it is unclear to me whether I am permitted or not permitted to defer recording material type and size characteristics until the analysis stage, I will correspond with the National Parks and Wildlife Service today requesting that the operation of the Permit be clarified by deleting the reference to material type and size characteristics from special condition 6.

38. By letter dated 5 June 2003, the Solicitors for the first to third Respondents wrote to the Director-General of National Parks and Wildlife seeking to clarify the perceived ambiguity with Special Condition 6 in the following terms:

When special and specific condition 6 of the Permit is read and having regard to special and specific condition 12, on one view it might be taken to require the recording of the material type and size characteristics at the time of collection. This view, if adopted, would be inconsistent with the archaeological collection activities that have been carried out to date with the knowledge and support of the National Parks and Wildlife Service. That is, upon collection the material is bagged, its GPS location recorded and later analysed under good light and with scientific instrumentations such as scales and magnification equipment.

Accordingly, we request that special and specific condition 6 be amended so as to remove this ambiguity by deleting the words and material type and size characteristics shall be noted.

(At the time of the hearing, no response had been received from the Director-General).

D. ADJUDICATON ON THE APPLICANT’S CLAIM TO INTERLOCUTORY RELIEF

39. The principles governing the exercise of judicial discretion for the granting of interlocutory injunctions are comprehensively discussed in the following passage of Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 – 154:

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

Recently two members of this Court have held that the plaintiff must establish that there is a serious question to be tried, to use the expression favoured in American Cyanamid v Ethicon Ltd [1975] AC 396 at 407, in preference to the prima facie case test which was adopted in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 525 Gibbs CJ); Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284 (Brennan J). In my opinion that is the correct test to be applied at least in the majority of cases — see Mason J, Declarations, Injunctions and Constructive Trusts (1980) 11 University of Queensland Law Journal 121 at 128; but cf Administrative & Clerical Officers’ Association v Commonwealth (1979) 53 ALJR 588. However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. The degree of likelihood of success in the action is a factor that is related to the balance of convenience in a way shortly to be mentioned.

40. These principles involve consideration of the following three questions—

(i) Is there a serious question to be tried?

(ii) Will the Applicant suffer inseparable damage unless the injunction is granted?

(iii) Does the balance of convenience favour the granting or withholding of the injunction?
(i.) Serious Question to be Tried

41. As I have earlier noted, the Applicant’s fundamental legal claim in these proceedings is that the first Respondent has breached Special Conditions 6, 9, and 10 of the s 87 Permit in the inspection/collection process that commenced on 23 May 2003 (and continued to 29 May 2003).

42. Special Condition 6 has already been recited. Special Conditions 9 and 10 are in the following terms:
9. Additional works on the Back Plain (as that term is described in the Research Design and Study Plan) – Areas outside of the sites on the Back Plain that are identified in the Application shall be inspected to identify, where possible, other concentrations of surface Aboriginal objects within the permit Area. The Aboriginal Community shall be notified of the programme and a representative/s shall be invited to observe and where appropriate participate in inspection and recording works.
· Where concentrations of Aboriginal objects are encountered, artefact densities in those concentrations shall be measured across areas of approximately 10m x 10 m. Their position shall be recorded by a GPS and the concentrations of Aboriginal objects shall be individually measured and described to provide supplementary detail for subsequent spatial and technological analysis.
· The Aboriginal objects shall be left where found to be collected with the soil during soil stripping operations and temporarily stored in soil stockpiles before being replaced during rehabilitation activities.
10. Additional works generally – where the Research Design and Study Plan provides for the inspection of land and the collection of Aboriginal objects other than as referred to in Special Conditions 6, 7, 8 and 9, such inspection and collection shall be carried out in accordance with the procedure contained in Special Condition 6. Where the Research Design and Study Plan provides for the collection of Aboriginal objects located during the monitoring of works being carried out by Barrick Australia Limited, the collection shall be carried out in accordance with the second, third, fourth and fifth dot points of Special Condition 6.

43. The legal basis for that claim is founded upon the National Parks and Wildlife Act 1974, s 86 which provide as follows:

86. Offences relating to Aboriginal objects

A person, other than the Director-General or a person authorised by the Director-General in that behalf, who:

(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object,

(b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust,

(c) takes possession of an Aboriginal object that is in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area,

(d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or

(e) erects or maintains, in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, a building or structure for the safe custody, storage or exhibition of any Aboriginal object,

except in accordance with the terms and conditions of an unrevoked permit issued to the person under section 87, being terms and conditions having force and effect at the time the act or thing to which the permit relates is done, is guilty of an offence against this Act.

44. The offence creating s 86 is supplemented by the civil enforcement provision contained in s 176A(1) whereby any person may bring proceedings in this Court “for an order to remedy or restrain a breach of this Act”.

45. Accordingly, it would follow that if the first to third Respondents are in breach of the Conditions of the s 87 Permit as alleged, the Applicant’s claim would raise a serious question to be tried inasmuch as the discovery and collection work would not have been undertaken in accordance with the s 87 Permit. But the question is whether the Applicant “has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”: per Mason ACJ in Castlemaine Tooheys.

46. This requires an examination of the evidence adduced at the hearing, although it is not necessary or appropriate at this interlocutory stage of the proceedings that I make final factual findings on the basis of that evidence.

47. According to the evidence adduced at the hearing, the only possible breaches of the Special Conditions of the s 87 Permit revealed by that evidence are as follows—

(i) the possibility that Special Condition 6 has been breached in as much as the collected Aboriginal objects were not, at the time of collection, noted as to their “material type and size characteristics”; and

(ii) the possibility that Special Condition 2 has been breached in as much as contrary to the terms of the “Research Design and Study Plan” collected Aboriginal objects were not “separately bagged and labelled”, but the bagging and labelling was undertaken upon the basis that where more than one object was discovered in a location for which a GPS reading was made, all of the objects so located, were included in the one bag and label.

48. However, before it could be concluded that those two types of possible breach of the Special Conditions of the s 87 Permit had been committed, the Court would have to conclude in respect of the possible breach of Special Condition 6 that properly construed (particularly in the context of the express reference to Special Condition 12), Special Condition 6 required the notations as to “material type and size characteristics” to be made at the time, and at the points of collection, and similarly in respect of Special Condition 2, it would be necessary to conclude that the particular requirement for “separate bagging and labelling” made by the Research Design and Study Plan applied according to their terms which had not been modified by any of the Special Conditions imposed on the s 87 Permit. These are real, as opposed to theoretical considerations, and it is sufficient to note here that the two special conditions in question, raise difficulties of construction in the context of the effect of all of the conditions subject to which the s 87 Permit was granted.

49. Moreover, even if the Court were ultimately to resolve those questions of construction of the relevant Special Conditions of the s 87 Permit, in the manner most favourable to the Applicant’s case, the Court would have to determine the Respondents’ cogent submission that such breaches would properly and fairly be regarded as being only of a highly technical nature that would not warrant, in the exercise of the Court’s discretion, the grant of any relief. In particular, the Respondents have submitted that even if such technical breaches were ultimately held to have been established, they would not justify the grant of a prohibitory injunction to restrain the first to third Respondents from acting in pursuance of the s 87 Permit. Far less would such an ultimate finding justify the conclusion that work undertaken by the first to third Respondents in reliance upon the s 87 Permit involved any breach of the NP&W Act, ss 87 and 90 by any of the Respondents, as is asserted in par 2 of the Applicant’s class 4 application.

50. In my necessarily confined evaluation of the evidence and of the rival submissions that may arise from the evidence I have concluded that it is more probable that the Court would ultimately in the exercise of its discretion decline to grant any relief because of the highly technical nature of the two possible breaches of the Special Conditions of the Permit that the evidence discloses, even assuming that those relevant breaches are ultimately held to be established.
(ii.) Irreparable Harm

51. What I have just said about the probable outcome at the final hearing if the current evidence remains the same, carries the inevitable implication that I am satisfied that the Applicant will not suffer irreparable harm if pending the final hearing, no interlocutory injunction is granted restraining the first to third Respondent from carrying out works authorised by the s 87 Permit.
(iii.) Balance of Convenience

52. In my opinion, given my earlier evaluations of (i) the nature and strength of the case made out by the Applicant and (ii) the question of irreparable harm, the balance of convenience favours the Respondents inasmuch as they should not be restrained from acting in reliance of the s 87 Permit, in circumstances where they have already suffered the detriment of the operation of that Permit having been suspended almost immediately after it had been granted, by virtue of the interlocutory relief I granted the Applicant on 3 December 2003 in his earlier proceedings challenging the validity of the authorisation made by that Permit, and where that challenge was ultimately held to have failed, and where the s 87 Permit is available to the Respondents.

53. In respect of the balance of convenience, the Respondents rely upon the two affidavits of Mr Roger Bennetts, the Group Commercial Manager of the third Respondent sworn in the earlier proceedings which depose to the great financial risks confronting the second and third Respondents from delays in implementing the Development Consent granted by the Minister in 1999 for the Lake Cowal Gold Mine, especially caused by the spate of litigation brought against them by the Applicant in this Court and in the Federal Court throughout the past 18 months.

54. Although my judgment delivered on 5 December 2002 in the earlier proceedings granting interlocutory relief found that the second and third Respondents were themselves responsible for the significant elements of delay in undertaking their exploratory activities at Lake Cowal by virtue of their delays in seeking the requisite s 87 Permit and s 90 Consent, now that these requisite approvals have been obtained from the Director General and have ultimately survived the Applicant’s legal challenge to their validity (albeit in circumstances where the grant of interlocutory relief had stayed action in reliance upon those approvals for more than five months) the position is now radically changed by virtue of the existence of the s 87 Permit, but also by virtue of the related s 90 Consent which grants consent for the destruction of Aboriginal objects in specific areas which have been the subject of the issue of a certificate in accordance with Special Condition 16 of the s 87 Permit (such as has now occurred by virtue of Dr Pardoe’s certificate dated 29 May 2003).

55. It is also relevant to my consideration of the balance of convenience that no undertaking as to damages has been proffered. Even if the Applicant had proffered the usual undertaking, the plain facts are that he is a pensioner without legal representation in the proceedings and without the requisite financial wherewithal to enable him to meaningfully satisfy any liability for damages that may be incurred pursuant to the undertaking.

56. For the reasons given, I am of the firm opinion that the balance of convenience heavily weighs against the granting of any interlocutory relief.
E. CONCLUSIONS AND ORDERS

57. For all the foregoing reasons, and in the exercise of my discretion, I am of the firm opinion, that it is in the interests of justice that no interlocutory relief be granted.

58. Accordingly, I make the following orders:

1. Application for interlocutory relief is refused.

2. Question of costs is reserved.

3. Exhibits (except for Exhibit 1) be returned.