Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2) [2011] NSWLEC 177

Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2) [2011] NSWLEC 177

The court’s discretion should be exercised in favour of granting access where claims involve alleged heritage significance and are unlikely to be justly resolved without applicant and expert inspection to formulate detailed pleadings and evidence. Procedural fairness and justice outweigh the respondent’s concerns about prematurity or investigation overlap.

Jurisdiction
Australia
Judgment Date
13 October 2011
Procedural Posture
Class 4 / Interlocutory Application for Access—decision on Access Order
Outcome
Interlocutory access order granted to applicant and his nominated experts for inspection, with related procedural orders; costs of hearings reserved.
Legal Topics
['practice and Procedure' 'access Orders' 'indigenous Heritage' 'mining Operations' 'site Inspection']
['environmental Law' 'civil Procedure'] ['practice and Procedure' 'access Orders' 'indigenous Heritage' 'mining Operations' 'site Inspection']

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Procedural Posture

Class 4 / Interlocutory Application for Access—decision on Access Order

Legal Issues

  1. 1 ['Whether the court should grant an interlocutory access order to the applicant and expert witnesses for inspection and report preparation regarding Aboriginal heritage sites affected by mining; Whether such access is premature or necessary for the formulation of pleadings and resolving issues in the matter']

Ratio Decidendi

The court’s discretion should be exercised in favour of granting access where claims involve alleged heritage significance and are unlikely to be justly resolved without applicant and expert inspection to formulate detailed pleadings and evidence. Procedural fairness and justice outweigh the respondent’s concerns about prematurity or investigation overlap.

Court Disposition

Interlocutory access order granted to applicant and his nominated experts for inspection, with related procedural orders; costs of hearings reserved.

Orders

  • ['Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for inspection and report preparation regarding Aboriginal sites within ML 1533 affected by activities of the First Respondent.' 'The persons to be granted access: Robert Lester, an expert archaeologist, an expert in mine...