Land and Environment Court of New South Wales CITATION : ANDREW DONNELLY and DAVID MUNDINE v. ROSS MINING NL [1998] NSWLEC 267 (29 October 1998) [1998] NSWLEC 10 PARTIES : ANDREW DONNELLY and DAVID MUNDINE v. ROSS MINING NL [1998] NSWLEC 267 (29 October 1998) FILE NUMBER(S) : 40164 of 1998 CORAM: Pearlman J KEY ISSUES: :- National Parks and Wildlife Act 1974 ss 90(1), 176A LEGISLATION CITED: Land and Environment Court Act 1979 Environmental Offences and Penalties Act 1989 Environmental Planning and Assessment Act 1979 Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Port of Melbourne v Anshun ; CASES CITED: Blair and Ors v Curran and Ors (1939) 62 CLR 464 at 532; Carl-Zeiss-Stiftung v Rayner and Keeler Ltd and Ors (No 2) (1966) 2 All E R 536 at p 565 ; Somervell LJ in Greenhalgh v Mallard (1947) 2 All E R 255 at 257; Brisbane City Council and Anor v Attorney-General for Queensland (1979) AC 411; Greenhalgh v Mallard DATES OF HEARING: 8 October 1998 DATE OF JUDGMENT: 10/29/1998 Mr Al Oshlack First and Second Respondents Mr C R Ireland, Solicitor LEGAL REPRESENTATIVES: Third Respondent Ms J M Smithson-Amy, Solicitor Fourth Respondent Mr A E Galasso, Barrister JUDGMENT: JUDGMENT 1. By notice of motion, the first and second respondents seek an order striking out certain parts of the applicants' class 4 application. 2. The first and second respondents ("the respondents") assert that the claims and issues set out in paras 1, 2, 3, 7, 8, 9 and 12 of the applicants' amended class 4 application ("the impugned paragraphs") are precluded upon four grounds, namely: - estoppel per rem judicatem; - issue estoppel; - Anshun estoppel; and - abuse of process. 3. The claims and issues which are raised in the impugned paragraphs are those which arise under s 90(1) of the National Parks and Wildlife Act 1974, which is in the following terms: "90 (1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act." 4. Under s 176A of the National Parks and Wildlife Act, any person may bring proceedings in this Court for an order to remedy or restrain a breach of that Act, "whether or not any right of that person has been or may be infringed by or as a consequence of that breach". Such proceedings are taken in class 4 of the Court's jurisdiction (s 20(1)(cg) of the Land and Environment Court Act 1979). 5. The impugned paragraphs are as follows: "1. A declaration that the First and Second Respondents have breached section 90 of the National Parks and Wildlife Act 1974 by knowingly destroying relics in the undertaking and performance of work on Mining Lease 1386. 2. A declaration that the First, Second and Third Respondents have breached section 90 of the National Parks and Wildlife Act by knowingly destroying relics in the undertaking and performance of work in relation to Development Consent 97/34. 3. A declaration that the carrying out and performance of work on the upgrade of the Timbarra/Poverty Point road pursuant to Development Consent 98/34 is likely to cause the defacement, damage or destruction of Aboriginal relics without a consent from the Fourth Respondent under section 90 of the National Parks and Wildlife Act. 7. A declaration that the carrying out of work referred in paragraph 5 above will likely cause damage and destruction to recorded and unrecorded Aboriginal relics and sites. 8. A declaration that continued clearing, vegetation stockpiling, burning and blasting on land subject to Mining Lease 1386 will likely cause further damage and destruction of recorded and unrecorded Aboriginal Relics. 9. A declaration that the First and Second Respondents have breached section 43 of the Conditions of Authority of Mining Lease 1386. 12. An order that leave be given to the applicants, pursuant to section 25 of the Environmental Offences and Penalties Act, to bring proceedings as pleaded in paragraph 9 above." 6. A number of matters should be noted about the impugned paragraphs. First, the reference in para 7 to the work referred to in para 5 (which is not the subject of the strike-out motion) is a reference to development which involves the clearing, stockpiling and burning of vegetation. Secondly, the reference to "section 43" of Mining Lease 1386 in para 9 refers to condition 43 of that mining lease, which merely restates the law by casting upon the holder of the lease an obligation to comply with s 90(1) of the National Parks and Wildlife Act. Thirdly, s 25 of the Environmental Offences and Penalties Act 1989, which is referred to in para 12, permits any person with leave of the Court to bring proceedings to restrain or remedy a breach of any Act which is causing or is likely to cause harm to the environment. 7. An affidavit of Alan Oshlack, sworn on 16 September 1998, is on the Court file. It was not formally read in relation to the strike-out motion, but reference was made by the parties to two of its annexures, namely, Mining Lease 1386, and development consent 97/34. The latter document is expressed to refer to development being "[t]he widening, and in part realignment and in part relocation of the Timbarra Road from the Bruxner Highway to the land in Mining Lease 1386 together with the use of the whole of that road when widened, realigned and relocated". I am assuming, therefore, that paras 2 and 3 of the impugned paragraphs refer to that development consent, that is, to development consent 97/34. 8. The respondents assert that the claims and issues set out in the impugned paragraphs were the subject of a judgment given by Talbot J in this Court on 23 April 1998 in proceedings 40295/97 ("the earlier proceedings"), and hence the four legal grounds arise which preclude those claims and issues from being raised again between the same parties in the current proceedings. 9. The earlier proceedings involved a class 4 application made by Mr Andrew Donnelly and Mr David Mundine (the same applicants as in the current proceedings) against Ross Mining NL (the first respondent in the current proceedings), Capricornia Prospecting Pty Ltd (the second respondent in the current proceedings) Tenterfield Shire Council (the third respondent in the current proceedings) and the Minister for Mineral Resources (who is not a party to the current proceedings). 10. According to an unrevised transcript of the earlier proceedings annexed to the affidavit of Mr C R Ireland, the judgment given by Talbot J on 23 April 1998 was in the following terms: "The reasons for the orders that I now make have I think been demonstrated by the argument and I do not need to go further than to make the orders in the circumstances. The applicant is given leave to amend the amended application class 4 in the manner of the second further amended points of claim which the applicants are given leave to file in Court today. I dismiss paragraphs 3(c), 4, 7, 8, and 10 of the amended application class 4 dated 8 April 1998. I order that the applicant pay the costs of the first, second and third respondents thrown away as a consequence of the amendments and dismissal." 11. The respondents assert that the dismissal of the claims in paras 7, 8 and 10 of the application in the earlier proceedings gives rise to the grounds for striking out the impugned paragraphs from the current proceedings. Those three paragraphs in the application in the earlier proceedings are as follows: "7 A declaration that the roadworks ("the Roadworks") purportedly approved by:- (a) the Development Consent; and (b) the Part 5 Approval, will destroy, deface or damage relics within the meaning of Section 90 of the National Parks & Wildlife Act 1974. 8 A declaration that the mining of the land to which ML 1386 applies will destroy, deface or damage relics for the purposes of Section 90 of the National Parks & Wildlife Act 1974. 10 An order that the First, Second and Third Respondents, by themselves, their servants and agents, be restrained from destroying, defacing or damaging any of the relics referred to in declarations 7 and 8 above." 12. For the purpose of understanding the ambit of paras 7, 8 and 10 above, it is necessary to note that the "Development Consent" is defined in the application in the earlier proceedings as a development consent granted by Tenterfield Shire Council to itself on or about 20 March 1998 to upgrade, widen, fix or vary and reform the levels in the road from Bruxner Highway along Timbarra Road and the Poverty Point fire trail to mining lease 1386. I assume, for the purpose of determining the strike-out motion, that this is development consent 97/34. The "Part 5 Approval" referred to is defined as the approval which Tenterfield Shire Council purported to grant to itself pursuant to pt 5 of the Environmental Planning and Assessment Act 1979 to upgrade, widen, fix or vary and reform the levels in the road described above. 13. I return to the transcript of the argument which took place before Talbot J on 23 April 1998. Mr P W Larkin, counsel for the applicants, conceded that claims based on a breach of s 90 of the National Parks and Wildlife Act were "premature" at that time. Mr P D McClellan QC, counsel for the some of the respondents, sought a dismissal of those claims. Mr Larkin conceded that there was no present threat of harm to relics, but submitted that, if a threat were to materialise, the applicants would not wish to be precluded from bringing proceedings to restrain that threat should it materialise. 14. The transcript records the following exchange between his Honour and Mr Larkin: "HIS HONOUR: I'm satisfied that in the circumstances your client will not necessarily … be excluded from bringing future litigation in relation to these relics depending on the circumstances. Now I'm not ruling that way but one of the reasons that I am prepared to make an order for dismissal … (is) an issue was raised by the respondents here which squarely deals with the position as it now is, if the circumstances and the facts change then I'm not persuaded that there would be a bar to your clients formulating some further action depending upon future circumstances. But I don't know that I'm going to give you any assurance about that nor could I. But that explains why I will make the order if you proceed in that way because I believe that McClellan's client should be afforded protection to at least that extent. LARKIN: It may be that my clients and the concerns that I have raised could be resolved appropriately if your Honour were to give a short judgment in which your Honour noted the concession that was made about the premature notice - HIS HONOUR: It's on the record. It doesn't need a short formal judgment to that effect. I'm recognising that the reason that's been put from your side of the bar table that you are not now pursuing those claims is because a proposition has been put in answer to it by the second respondent in particular which your client recognises as being a submission that cannot be answered at this time to the extent that you would inevitably lose the argument in respect of that issue and that you take the responsible course of recognising that and saving any further unnecessary costs on that regard …" 15. Mr Oshlack appears for the applicants in the current proceedings by leave. He raised no issue as to the ambit of what was actually decided by the judgment in the earlier proceedings. I have, therefore, proceeded on the basis that, in dismissing paras 7, 8 and 10 of the application in the earlier proceedings, Talbot J was in fact dismissing the claims that were raised in those paragraphs. 16. I turn now to consider each of the grounds which the respondents assert preclude the applicants from making the claims and issues set out in the impugned paragraphs. Res judicata: 17. The rule as to res judicata "comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding" (per Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597). 18. The rule applies by operation of law; its application is not a matter for the discretion of the Court: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502. 19. Furthermore, since the rule applies even if judgment is entered by consent (Chamberlain at p 508), I put aside as irrelevant the fact that the claims in paras 7, 8 and 10 of the application in the earlier proceedings were abandoned rather than fully argued on their merits. 20. The question which arises is whether the impugned paragraphs seek to litigate a cause of action which has merged into the judgment delivered by Talbot J in the earlier proceedings. 21. The following passages from the judgment of Brennan J in Port of Melbourne v Anshun bear directly upon the determination of this question. At pp 610 - 611, his Honour said: "There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment …; sometimes to mean a right which has been infringed, … and sometimes to mean the substance of an action as distinct from its form … … If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it in any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. … If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, …" 22. The claims made by the applicants in the earlier proceedings were not made to enforce or to compensate for an infringement of a personal right of the applicants. They were brought under the open standing provision of s 176A of the National Parks and Wildlife Act, and the only right which that section conferred on the applicants was the right to bring the proceedings despite having no special interest upon which to base a common law right of standing. Having regard to the provisions of s 176A and s 90(1), it is correct, I believe, to identify the cause of action in the earlier proceedings as meaning the facts which would have supported a right to judgment in those proceedings. 23. An examination of the claims in paragraphs 7, 8 and 10 in the application in the earlier proceedings indicates that they were based upon circumstances which were postulated to occur in the future; that is, that the carrying out of the roadworks approved by the development consent and the part 5 consent "will" destroy, deface or damage relics. Similarly, it was alleged that the mining of the land to which ML 1386 applies "will" destroy, deface or damage relics. 24. A close examination of the impugned paragraphs reveal that some of them speak of past actions and some of them speak of future actions. Thus paras 1, 2 and 9 refer to breaches which have occurred, whilst paras 2, 3, 7 and 8 refer to the likelihood of breach. 25. In relation to paras 1, 2 and 9, the facts have changed. What was earlier perceived by the applicants as threatened damage to relics is now alleged to be actual damage to relics. Those paragraphs are not based upon the same facts as those upon which the judgment in the earlier proceedings was founded. Accordingly, the cause of action which arises out of paras 1, 2 and 9 of the impugned paragraphs is different to the cause of action in the earlier proceedings, and paras 1, 2 and 9 are not precluded by the operation of the rule of res judicata. (Paragraph 12 of the impugned paragraphs is consequential upon para 9, and there is no basis for striking it out). 26. The position is different in relation to paras 3, 7 and 8 of the impugned paragraphs. They are each based on future events. Thus para 3 claims that the carrying out and performance of work pursuant to development consent 97/34 "is likely" to damage relics. Paragraph 7 similarly refers to work which "will likely" damage relics, and para 8 is the same. The facts which support those claims are identical to the facts which support paras 7 and 8 of the application in the earlier proceedings. That leads to a conclusion that the cause of action which arises out of paras 3, 7 and 8 of the impugned paragraphs is identical to the cause of action which arises out of paras 7 and 8 of the application in the earlier proceedings. That cause of action has merged in the judgment delivered by Talbot J and accordingly paras 3, 7 and 8 are precluded by the operation of the rule of res judicata. Issue estoppel 27. The distinction between res judicata and issue estoppel was stated by Dixon J in Blair and Ors v Curran and Ors (1939) 62 CLR 464 at 532 as follows: "… in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." 28. Issue estoppel was explained by Lord Guest in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd and Ors (No 2) (1966) 2 All E R 536 at p 565 as follows: "Within recent years the principle has developed so as to extend to what is now described as 'issue estoppel', that is to say where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatem." 29. Once again, the issue turns on an apprehension or threat of damage to relics on the one hand, and actual damage on the other. The issue in controversy in the earlier judgment was that apprehension or threat. The dismissal of the paragraphs of the application in the earlier proceedings amounted in effect to a decision that there was no such apprehension or threat. That decision had nothing to say about actual damage to relics. 30. On this ground, therefore, paras 1, 2, 9 and 12 of the impugned paragraphs are based on a state of facts which was not decided by the judgment in the earlier proceedings. The position is different in relation to paras 3, 7 and 8 of the impugned paragraphs, because they raise an issue which was in controversy but has been decided by the judgment in the earlier proceedings. Anshun estoppel 31. In framing their notice of motion, the respondents relied upon the extended principle of estoppel in Port Melbourne Authority v Anshun, that is, that it will be unreasonable for a party to raise an issue in second proceedings if the issue was so closely connected with the subject matter of the first proceedings that it could and should have been raised in the first proceedings. 32. In his submissions, Mr Ireland, appearing for the respondents, raised Anshun estoppel particularly in relation to para 9 of the impugned paragraphs. He contended that the claim that the respondents have breached condition 43 of ML 1386 was not raised in the earlier proceedings, yet it was so closely connected with the claims and issues raised in the earlier proceedings that it would be unreasonable to permit the applicants to raise the same claim in the current proceedings. 33. I reject that submission because it fails to recognise the change in the facts in issue. The claim made in the current proceedings is that the respondents have breached condition 43 of ML 1386, which is different to a claim that they will breach that clause. 34. In any event, the application of Anshun estoppel is discretionary. It depends on a finding of that it would be unreasonable for the respondents to raise the claim in the current proceedings. Having regard to the reasons for the dismissal of the claims in paras 7, 8 and 10 of the application in the earlier proceedings, which included a statement by Talbot J that he was not persuaded that if the facts and circumstances were to change the applicants would be barred from formulating a further action (see the passage from the transcript quoted above), I do not regard it as unreasonable for the applicants to formulate a claim for breach of condition 43 in the current proceedings. Abuse of process 35. The respondents assert that the raising of the claims and issues set out in the impugned paragraphs in the current proceedings is, in the circumstances of the earlier proceedings, an abuse of process. 36. The basis for that assertion is to be found in a passage from the judgment of Somervell LJ in Greenhalgh v Mallard (1947) 2 All E R 255 at 257 as follows: "I think on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." 37. In Brisbane City Council and Anor v Attorney-General for Queensland (1979) AC 411, Lord Wilberforce, in delivering the judgment of the Privy Council, approved at p 425 the expression of the doctrine by Somervell LJ in Greenhalgh v Mallard , but went on to say that "… it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation". 38. Once again, the comparison of the respective claims in the earlier proceedings and the current proceedings puts paid, in my opinion, to an assertion that all of the claims in the impugned paragraphs amount to an abuse of process. It is one thing to claim that a statutory provision "will" be breached; it is entirely another thing to claim that the actions of the respondents have meant that the statutory provision "has been" breached. It is more than simply a change of tense; paras 1, 2 and 9 of the impugned paragraphs raise claims and issues different from those claimed in the earlier proceedings. 39. I have concluded, for the foregoing reasons, that the claims and issues raised in paras 3, 7 and 8 of the impugned paragraphs cannot now be raised by the applicants in the current proceedings, but that paras 1, 2, 9 and 12 are not so precluded. 40. My formal orders are as follows: 1. Paragraphs 3, 7 and 8 of the amended class 4 application are struck out. 2. I reserve the question of costs. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM. Associate 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.