Land and Environment Court of New South Wales CITATION: Donnelly and Anor. -V- Ross Mining N/L and Ors. [1999] NSWLEC 141 PARTIES APPLICANTS: Donnelly and Anor. RESPONDENTS: Ross Mining N/L and Ors. NUMBER: 40164 of 1998 CORAM: Bignold J KEY ISSUES: Practice & Procedure :- Order for inspection of properties owned or occupied by non-parties. Application opposed by affected land owners and parties. Exercise of discretion to permit inspection. LEGISLATION CITED: DATES OF HEARING: 04/29/1999 EX TEMPORE JUDGMENT DATE: 04/29/1999 APPLICANTS: Mr A. Oshlack, agent SOLICITORS: N/A 1ST, 2ND, 3RD, AND 5TH RESPONDENTS: LEGAL REPRESENTATIVES: Mr C. Ireland, Solicitor SOLICITORS: Blake Dawson Waldron FOURTH RESPONDENT: Mr J. Gibbons, Barrister SOLICITORS: Solicitor National Parks and Wildlife Service JUDGMENT: IN THE LAND AND Matter No. 40164 of 1998 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 29 April 1999 ANDREW DONNELLY AND DAVID MUNDINE Applicant v. ROSS MINING N/L First Respondent CAPRICORNIA PROSPECTING PTY LTD Second Respondent TENTERFIELD SHIRE COUNCIL Third Respondent THE DIRECTOR OF THE NATIONAL PARKS AND WILDLIFE SERVICE Fourth Respondent TIMBARRA GOLD MINES PTY LTD Fifth Respondent JUDGMENT Bignold J: 1. The matter before the Court today is an application by the Applicants for an order for access to be granted to a professional ecologist, David Milledge, and the professional botanist Annette McKinley to inspect properties adjacent to Timbarra Road in the ownership or occupation of Mr William Petrie and Mr Brett Watson respectively. 2. The Motion as filed sought an order for access and property inspection on 12 and 13 June of this year. The dates 12 and 13 June have been sought to be amended by the Applicants owing to the unavailability of Mr Milledge on the June dates, and in substitution for those dates, the applications seek to amend to substitute the dates, 12 and 13 May 1999. 3. The matter has a history to it inasmuch as on 1 April, 1999 I heard an application brought by the Applicants for the joinder of Mr Petrie in the proceedings, together with an application for an order for access for Mr Milledge to attend the property of Mr Petrie for the purpose of carrying out an inspection of the property in aid of evidence that Mr Milledge was preparing for his clients in these proceedings which involve allegations of breach of planning laws by Ross Mining and related companies. The Tenterfield Shire Council which granted the relevant approval for the roadworks on Timbarra Road is a party as is the Director General of the National Parks and Wildlife Service. 4. On the occasion of 1 April 1999, after hearing argument including hearing from Mr Hetherington, acting as appointed agent for Mr Petrie, I ordered that the Motion for joinder be dismissed. 5. I formally adjourned the Motion for access to Mr Petrie's property to 16 April 1999 but intimated that I was prepared to make orders for access and property inspection in my chambers upon the filing of a plan showing the details of the property to be inspected by the Applicant's expert, together with other information such as when, where, by whom and for what purposes the inspection was to be carried out. 6. No such application having been made to me in chambers, the matter came back before me on 16 April on which occasion there was no appearance on the part of the Applicants. Mr Hetherington continued to appear as the agent for Mr Petrie but in addition, Mrs Petrie, the wife of the land owner, appeared and addressed the Court at considerable length. 7. It is not necessary for me to rehearse all that she said on that occasion. It is sufficient to say that she registered the most vigorous opposition to her husband's property being inspected by Mr Milledge, even if such inspection were to be sanctioned by an anticipated Court order or direction. 8. I took the unusual course of allowing Mrs Petrie to directly address the Court (in what was to become an amalgam of factual matter and representations made on her behalf, opposing any access rights being granted in respect of her husband's property) because she had driven a considerable distance to address the Court, she was obviously greatly perturbed at the prospect of an inspection being sanctioned by the Court, and as the affected land owner in respect of whose property the anticipated order was to be made, it appeared to me to be only just and reasonable that I hear from her. 9. This she did for a considerable period of time and it is sufficient for me to say that many of the things that she asserted left me with an uncomfortable feeling that the anticipated property inspection was apparently fraught with difficulty and was not readily implementable. 10. In consequence of the non-attendance on behalf of the Applicant, and after hearing extensively from Mrs Petrie, I made no orders in relation to the outstanding question of access but formally stood the matter over to the Registrar's list on 30 April 1999 for the purpose of the Registrar on that occasion fixing a timetable for the hearing of this case, and I reserved the cost of the days' proceedings. 11. Within a few days of that action the Applicants filed a further Notice of Motion seeking rights of access in respect of the property of Mr Petrie as previously sought, and also, for the first time, seeking inspection rights over adjoining property in the ownership or possession of Mr Brett Watson on whose behalf Mr Hetherington has appeared today as agent, and has read an affidavit sworn by Mr Watson on 23 April 1999 in which he too registers strong opposition to any inspection of his property, and deposes to matters concerning the historical use of his property by State Forests from whom the property is leased by himself, and submits that the sought inspection of his property would serve no useful purpose in the proceedings because, so he asserts, the log dumps and related clearing were undertaken years ago by State Forests and have no bearing upon the factual issues likely to be raised in the present proceedings. 12. I should point out that both Mr Petrie and Mr Watson are not parties to this litigation but lands either owned or occupied by them are the repositories of log dumps identified by Mr Milledge in his affidavit sworn on 20 March 1999 upon which it is believed that the vegetation that was cleared in the process of the extension of the Timbarra Road construction was ultimately deposited, burnt and disposed of. 13. Indeed, in his affidavit, Mr Watson admits that he consented to Ross Mining and its subsidiaries acting on behalf of the Tenterfield Council to enter upon his land to dump logs on existing cleared sites which, he says, had previously been cleared by State Forests for the purpose of dumping logs. 14. It is not in dispute that the log dumps identified by Mr Milledge in his affidavit of 20 March 1999, are located on properties owned or occupied by Mr Petrie or Mr Watson. It appears from the material annexed to the current Notice of Motion, i.e. the one filed in Court on 20 April 1999, that log dumps 1, 2, 3, 4, and 5 are located on property owned and occupied by Mr Watson and log dumps 6 and following are effectively located on the property of Mr Petrie. 15. Mr Hetherington, from the bar table, tells me that that is not right but I am referring to the documentary evidence and that alone. 16. Mr Hetherington, on behalf of Mr Petrie and Mr Watson, has maintained his opposition to any access to their properties. 17. Much of Mrs Petrie's opposition, if well founded, in my opinion will be allayed if the inspection sought by Mr Milledge in concert with the botanist Annette McKinley, is undertaken in association with an officer or officers of the National Parks and Wildlife Service. Apparently, officers of the Service have attended the properties in the past when proceedings were in the Court of Appeal, and it may be anticipated that in view of that past involvement and the suggestion that falls from this Court that they ought participate in the proposed venture, the subject of the present application, that they will be willing and available to attend again. 18. Mr Hetherington has indicated that he too would be available to attend any such joint inspection if either of his principals, Mr Petrie or Mr Watson, so desire. 19. I wish to say for the benefit of Mr Milledge, who will be the principal person to undertake the inspection if it is to be granted (and I propose to grant it) that serious concerns have been expressed by Mrs Petrie about his being on the property. As a professional person and Court witness, Mr Milledge would well appreciate the obligations he carries as such a person involved as a witness in this litigation and I have no reason to suspect that he will not conduct himself during the inspection with proper professional etiquette. I simply mention these things for his benefit that he be on notice that Mrs Petrie, for one, completely opposes his attendance upon the property. 20. It is important in the history of this litigation, with its multitudinous interlocutory processes and procedures, that the hearing be finally undertaken and the case be finally adjudicated upon by the Court. 21. The purpose of Mr Milledge's inspection of the log dumps is set forth in his letter to Mr Oshlack dated 16 April 1999 annexed to Mr Oshlack's affidavit sworn on 20 April 1999, namely to determine whether the habitats cleared for the log dumps represented habitats of threatened fauna, as listed under the Threatened Species Conservation Act. That objective, of course, needs to be undertaken in the light of what is alleged in the proceedings against Ross Mining and its related companies. 22. According to the amended Class 4 application and the amended Points of Claim the allegations will not involve an ancient historical research, and accordingly, much of what Mr Watson has deposed to about former activities undertaken by State Forests on the land that he leases from State Forests is not relevant for the purpose of the inspection. The purpose of the inspection is concerned with events in recent times consequent upon the construction of the extension to Timbarra Road. 23. It is said by all who opposed the Motion that the land to be inspected has not been properly delineated with proper cadastral and property title detail and the location of the log dumps 1 to 12 has not been appropriately and precisely delineated. 24. The 12 log dumps are referred to in the affidavit of Mr Milledge sworn on 26 February 1999, paragraph 8, and their location is indicated by reference to a datum point being the junction of Timbarra and Sandys Creek Roads. Additionally, the location of the log dumps is shown on a map annexed to his affidavit of 20 March 1999 by reference to the alignment of Timbarra Road where the adjacent lands are shown with a superimposed 1 kilometre square grid. 25. In my judgment, the objections based upon lack of precise delineation of the log dumps is not sustainable. 26. It follows that I propose to grant the order for inspection of the properties as sought in the amended Notice of Motion, i.e. for inspection to be undertaken on 12 and 13 May this year (i.e. in about a fortnight's time). In my view, this is sufficient notice for the property owners or occupiers concerned and gives them sufficient time to organise, if they wish, for a representative, (e.g. Mr Hetherington) to be in attendance either during the course of the inspection or parts of it. It will also, I trust, give sufficient time to the National Parks and Wildlife Service to make available an officer or officers to conduct the inspection jointly with Mr Milledge and Ms McKinley. 27. It may be as Mr Watson has claimed in his affidavit that the anticipated property inspection will yield little concrete evidence relevant to these proceedings. However, it is not for him to be the judge of what evidence is ultimately relevant in the proceedings. 28. I am satisfied there is a sufficient connection between his land, and the apparent location therein of log dumps 1 to 5 and the subject matter of these proceedings to warrant or order access and property inspection. 29. In the circumstances, I grant the order sought in paragraph 1 of the Notice of Motion filed on 20 April 1999, noting that that inspection proposed by Mr Milledge and Ms McKinley may involve an officer or officers of the National Parks and Wildlife Service and may involve a person nominated to represent Mr Watson and/or Mr Petrie. 30. If such others are to participate in the property inspection (and it is allowed for in the order that I propose) written notice of the identity of the participants is to be given to the Applicants three days prior to the inspection by the landowners and the National Parks and Wildlife Service. The Court's Registrar is also to be given such notice. The right of inspection so far as concerns the Applicants is limited to Mr Milledge and Ms McKinley. 31. Mr Ireland, on behalf of Ross Mining, asked me to formally dismiss the earlier Motion seeking access rights which had been filed on 12 March 1999, i.e. the Motion that came before me on 1 April 1999 which sought, inter alia, joinder of Mr Petrie. I have earlier indicated the history of that Motion culminating with the directions that were given on 16 April 1999, the Motion was not formally disposed of, save for the dismissal of the application for joinder. In other words, what was left outstanding was the application for access. 32. Although it is true that the Motion that I had considered and granted today is expressed as an independent Notice of Motion, in truth it derives from the original Notice of Motion and is properly to be seen as an amended Notice of Motion. (I should say that Mr Oshlack, agent for the Applicants, has apologised to the Court and explained why it was that he did not appear before the Court on 16 April 1999.) 33. In these circumstances, no formal order need be made in relation to the Notice of Motion filed on 12 March 1999, save for that which I have already made on 1 April 1999 by dismissing the joinder application. HIS HONOUR: That concludes my reasons for the order. I should now ask you gentlemen whether you are in a position to deal with the directions in the case so that there will be no need for the matter to be before the Registrar tomorrow, seeing the matter is before me today you don't want to come back tomorrow before the Registrar. I vacate the mention of the matter before the Registrar's Court tomorrow for the purpose of giving directions for the final hearing of the case, and would invite the parties to submit to me in the course of the day a draft timetable for the case. 34. I give the following directions: 1. The Applicant file and serve its affidavit by 28 May 1999. 2. The Respondents, other than the fourth Respondent serve and file its affidavits by 25 June 1999. 3. .The fourth Respondent to file and serve its affidavit by 9 July 1999. 4. The Applicants' affidavits in reply to be filed and served by the 16 July 1999. 5. . The matter be in the Registrar's callover on 16 July 1999 for the purpose of fixing hearing dates. 6. Costs reserved. 7. The application for costs in favour of Mr Watson and of Mr Petrie is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.