Donnelly & v Ross Mining & Ors [2001] NSWCA 229 (27 June 2001)

Last Updated: 12 July 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Donnelly & Anor v Ross Mining & Ors [2001] NSWCA 229

FILE NUMBER(S):

40783/98

HEARING DATE(S): 27 June 2001

JUDGMENT DATE: 27/06/2001

PARTIES:

Andrew Donnelly and David Mundine

v

Ross Mining NL & Ors

JUDGMENT OF: Handley JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40164A/98

LOWER COURT JUDICIAL OFFICER: Lloyd J

COUNSEL:

N/a

SOLICITORS:

Appellants - Mr A Oshlack, Representative, Malara Native Title Claimants

1, 2 and 5 Respondents - Ms J Hughes, Solicitor, Phillips Fox

CATCHWORDS:

APPEAL - COSTS - NO QUESTION OF PRINCIPLE

LEGISLATION CITED:

Environmental Planning and Assessment Act

DECISION:

Motion 11/5/00 is dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40783/98

LEC 40164A/98

HANDLEY JA

27 June 2001

ANDREW DONNELLY and DAVID MUNDINE v ROSS MINING NL & ORS

JUDGMENT

1 HIS HONOUR: The proceedings in this Court arose from a decision of Lloyd J on 25 September 1998 in the Land and Environment Court. The Judge refused to grant further interlocutory relief to the claimants against the opponents, Ross Mining NL and another company, arising out of mining and road construction work being undertaken by them in connection with a new gold mine near Tenterfield.

2 Undertakings had been given by the opponents to the Land and Environment Court on 3 September 1998, which are recorded in an order of that Court which has become Ex C in these proceedings. The nature of those undertakings does not appear from the order. They are obviously in another document but they related, relevantly for present purposes, to the protection of Aboriginal relics on the access road and mine site reported by Mr Long, described in the order as "Laing", in May 1995, together with the rock formation on a ridge.

3 The dismissal by Lloyd J of the claim for further relief did not disturb the undertakings which had been accepted by Bignold J on 3 September.

4 On 9th October the claimants filed an application for leave to appeal from the decision of Lloyd J. They also filed a notice of motion on 12 October seeking interlocutory relief which came before Sheppard AJA on 15 October 1998. After a hearing of some length the Judge required the companies to give an undertaking to this Court relating to work on the access road. This is dated 15 October and was initialled by the Judge on 16 October and is part of the Court file. The undertaking by the companies was that:

"1. ... by their employees and agents they will not clear any additional vegetation or stockpile any additional logs on land, external to ML1386, which is more than 100 metres distant from the new Timbarra Road (between the Bruxner Highway and the western boundary of ML1386) as approved in a development consent and Part 5 approval granted by the Third Respondent on 20th March 1998;".

5 The undertakings were given until 26th October when the application for leave to appeal came before Priestley JA and myself.

6 The effect of the undertaking, as I understand it, was that work would not be done outside a strip 200 metres wide, 100 metres on either side of the new Timbarra Road. It is not clear that there was any threat to do work outside such a strip and I have not been referred to any evidence which suggests that work was ever done outside that strip.

7 The high point of the evidence in this respect before Lloyd J appears to be the affidavit of Burri Jerome of 9 September 1998 in which, in paragraph 11, he refers to a clear track running about 50-70 metres from the road into an area of 2-3 hectares of newly cleared bush where there were huge piles of unburnt trees.

8 The matter was fully argued before Priestley JA and myself and we declined at that stage to grant leave to appeal. The claimant's application for further interlocutory relief was adjourned to the following day and was then heard by myself sitting alone. The companies gave a further undertaking to the Court, which was signed by me and dated 27 October, that:

"1. ... by their employees and agents they will not in relation to the Eastern Sectors of the Timbarra Road from the Timbarra Homestead to ML 1386, clear any additional land or establish any additional log dumps beyond the 20 metre wide designated road easement assessed in the Report dated February 1998 by Greenloaning Biostudies and ERM Mitchell McCotter titled `Timbarra Gold Mine Proposed Access Road Flora and Fauna Impact Assessment' other than drainage and erosion controls referred to at page 2.7 of the February 1998 Report".

9 The undertaking given to Sheppard AJA was continued in relation to the western sector of the Timbarra Road which, as I recall, was not being worked on any further at that stage. There was also an adjustment to the undertaking given to Sheppard AJA, details of which need not be included in these reasons.

10 Ultimately this Court dismissed the summons for leave to appeal and reserved the question of costs.

11 The only evidence in this Court directed to the nature of the work being done on the access road and the area or areas in which that work was being done was that contained in an affidavit by Burri Jerome of 12 October, which exhibited a video taken from the air the previous day which has never been before the Court. I have not seen it and it is not available at the moment in this Court.

12 In August 2000 the proceedings in the Land and Environment Court, which had continued, following this Court's refusal of leave to appeal on 26 October 1998, were resolved by undertakings and orders made by consent and without admissions which are recorded in Exs A and B in these proceedings.

13 The companies undertook to re-vegetate areas which had been cleared at either side of the access road and in the log dumps, to permit certain memorial plaques to be erected in relation to Aboriginal relics and not to carry out any further work on the access road or in the mining site which would disturb relics identified in the May 1995 Long report, or would involve interference with a number of scarred trees, an engraving, or a sacred site registered as a natural mythological site.

14 Because these orders were made without admissions I am unable to conclude that they reflected, or were in any sense the result of, the proceedings brought by the claimants in this Court.

15 There is nothing before the Court which would establish that those orders would not have been obtained by consent and without admissions even if no proceedings had ever been instituted in this Court.

16 Lloyd J had considered and rejected a case that the companies were continuing stockpiling, earthmoving and burning on land outside the road reserve contrary to the Environmental Planning and Assessment Act based on the terms and conditions of the relevant development consent.

17 He was not satisfied that there was any evidence of a breach of the Act in those respects and, as I have said, the only evidence that I have been referred to today, which is said to prove that the companies were doing work outside the twenty metre strip, is that in the affidavit of Mr Burri Jerome of 9 September, which was not directed to that issue at all.

18 The applicants in the Land and Enviornment Court established that work was being done on access tracks and timber dumps and clearing for timber dumps outside the twenty metre strip, but Lloyd J was not persuaded that this was in breach of the development consent.

19 No additional evidence was ever provided to this Court on that issue and I have not been referred to any evidence which shows that the Judge's decision in that respect was wrong.

20 Sheppard AJA's concerns reflected in his reasons of 15 October 1998 were directed firstly to a possible construction of the development consent which would have allowed work to be carried out over a strip one km wide, and secondly to that part of Lloyd J's reasons where Sheppard AJA thought that the Judge may have decided that the applicants would not succeed at the trial on the archaeological issues because the companies had evidence from two experts and the applicants had evidence from only one.

21 Neither of those concerns were directed to the question of work being done outside the twenty metre strip which was not authorised by the development consent.

22 For those reasons I have reached the conclusion that the undertakings given in this Court to Sheppard AJA on 15 October, as amended on 26 October, and the additional undertaking given to this Court on 27 October, do not reflect such success in the proceedings in this Court as would entitle the claimants to an order for costs.

23 This Court did not grant leave to appeal from Lloyd J. There was an interim refusal of leave on 26 October by Priestley JA and myself and in the end the summons for leave to appeal was dismissed.

24 The interlocutory relief in the form of the consent undertakings which the claimants received as a result of the proceedings before Sheppard AJA were merely reasonable interim accommodations prior to the hearing of 26 October before the Full Court. The later undertakings were intended to confer some further protection on the claimants until the proceedings in the Land and Environment Court could be heard on a final basis. In my judgment the interlocutory undertakings do not constitute such success in this Court as would carry an order for costs. I propose, therefore, to make no order as to the costs of the proceedings in the Court of Appeal.

25 The motion of 11th May 2000 is dismissed with costs. I make no order as to the other costs of the proceedings in the Court of Appeal.

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LAST UPDATED: 11/07/2001