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Editors --- "Williams v Director General of the National Parks & Wildlife Service & Ors - Case Summary" [2002] AUIndigLawRpr 58; (2002) 7(4) Australian Indigenous Law Reporter 28

Court and Tribunal Decisions – Australia

Williams v Director General of the National Parks & Wildlife Service & Ors

NSW Supreme Court (Court of Appeal Sheller JA and Giles JA)

14 June 2002

[2002] NSWCA 176

BC200203291

Practice and procedure — application for leave to appeal refusal to grant interlocutory relief — caution in allowing leave from interlocutory applications — Class 4 application, Land and Environment Court — permit to remove Aboriginal relics — National Parks and Wildlife Act 1974 (NSW) s 87

Facts:

The Director General of the National Parks & Wildlife Service (‘Director General’) issued a permit under s 87 of the National Parks and Wildlife Act 1974 (NSW). It allowed Aboriginal relics on three parcels of land to be excavated and collected.

The applicant commenced a Class 4 application in the Land and Environment Court, seeking a declaration that the Director General’s decision to issue the permit was void. Bignold J found that a serious question had been established, in respect of the applicant’s concern that relics would be removed from the land and interfered with (which would bring spiritual sickness to the local Aboriginal clan). However, the fact that (a) what could be done to the relics was limited by the terms upon which the permit was granted and (b) the problems of delay to the excavation programme itself as well as financial hardship for the permit applicant, its employees, and other field workers that would occur if interlocutory relief were granted, led him to conclude that the balance of convenience did not favour the grant of an interlocutory injunction, per Bignold J Williams v Director General of the National Parks & Wildlife Service & Ors [2002] NSWLEC 231: [1]-[4].

Williams applied to the NSW Supreme Court (Court of Appeal) for leave to appeal from Bignold J’s decision.

Held (as per Sheller JA and Giles JA), dismissing the application:

1. An appellate court should exercise particular caution in reviewing matters of practice and procedure, such as the refusal to grant an interlocutory injunction:. [36]. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor [1981] HCA 39; (1981) 148 CLR 170 and Re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 applied.

2. Bignold J did not err in proceeding on the basis that a serious question to be tried had been raised by the application for an interlocutory injunction: [37].

3. Bignold J appropriately dealt with the parties’ suggestions that they would suffer detriment as a result of his decision to either grant or refuse interlocutory relief. . He did not err in looking to the balance of convenience in determining this issue: [38], [39].

4. The Land and Environment Court’s assertion that s 87 of the National Parks and Wildlife Act 1974 (NSW) enables the Director General to issue a permit which allows a relic that is the property of the Crown to be disturbed and removed from the land is correct: [38].

5. An appellate court, in an application for leave to appeal from a refusal to grant interlocutory relief, should not be influenced by the changed circumstance that the final hearing dates for the substantive proceedings have been allotted. If an appellate court were to do so, it would go beyond its function of determining whether or not to grant leave to appeal: [43]. ?