Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd [2006] NSWLEC 325

Kennedy v Director General of the Department of Environment and Conservation and Stockland Development Pty Ltd [2006] NSWLEC 325

Interlocutory relief was refused because the Applicant did not make out a sufficient case on the existence of a serious issue to be tried or on the balance of convenience. Although the twelve month period in Condition 2 had expired without establishment of an Aboriginal Keeping Place, Condition 3 required negotiation with specified Aboriginal community groups, and the Second Respondent's evidence strongly suggested extensive efforts had been made to achieve that outcome. Consent no 2130 authorised work that might involve destruction of Aboriginal objects from 2 March 2005 and did not require the Keeping Place to be established before work commenced. The Court also noted the lack of a...

Jurisdiction
Australia
Judgment Date
13 June 2006
Procedural Posture
Class 4 Proceedings Seeking a Declaration That S 90 Consent No 2130 Is Invalid / Urgent Interlocutory Relief by Notice of Motion Dated 18 May 2006
Outcome
The Applicant's Notice of Motion for interlocutory relief was dismissed; costs were reserved.
Legal Topics
['interlocutory Injunction' 'national Parks and Wildlife Act 1974 S 90 Consent' 'aboriginal Objects and Aboriginal Keeping Place' 'balance of Convenience' 'serious Question to Be Tried' 'delay']
['environmental Law' 'aboriginal Cultural Heritage' 'administrative Law' 'civil Procedure'] ['interlocutory Injunction' 'national Parks and Wildlife Act 1974 S 90 Consent' 'aboriginal Objects and Aboriginal Keeping Place' 'balance of Convenience' 'serious Question to Be Tried' 'delay']

Case Brief

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Procedural Posture

Class 4 Proceedings Seeking a Declaration That S 90 Consent No 2130 Is Invalid / Urgent Interlocutory Relief by Notice of Motion Dated 18 May 2006

Legal Issues

  1. 1 ['Whether the Applicant showed a serious question to be tried or prima facie case warranting interlocutory relief restraining work relying on s 90 consent no 2130 until Conditions 2 and 3 were complied with.' 'Whether the Applicant would suffer irreparable injury for which damages would not be adequate compensation if an injunction were refused.' "Whether the balance of convenience favoured restraining the Second Respondent's works." 'Whether delay in filing the Notice of Motion weighed against interlocutory relief.']

Ratio Decidendi

Interlocutory relief was refused because the Applicant did not make out a sufficient case on the existence of a serious issue to be tried or on the balance of convenience. Although the twelve month period in Condition 2 had expired without establishment of an Aboriginal Keeping Place, Condition 3 required negotiation with specified Aboriginal community groups, and the Second Respondent's evidence strongly suggested extensive efforts had been made to achieve that outcome. Consent no 2130 authorised work that might involve destruction of Aboriginal objects from 2 March 2005 and did not require the Keeping Place to be established before work commenced. The Court also noted the lack of a...

Court Disposition

The Applicant's Notice of Motion for interlocutory relief was dismissed; costs were reserved.

Orders

  • ["The Applicant's Notice of Motion dated 18 May 2006 is dismissed." 'Costs are reserved.']