PRACTICE AND PROCEDURE — Class 4 civil enforcement proceedings seeking to restrain harming or desecrating of Aboriginal objects in breach of s 86 of National Parks and Wildlife Act 1974 (NSW) — application for inspection of property pursuant to r 23.8 of Uniform Civil Procedure Rules 2005 (NSW) — inspection would not be for purpose of enabling the proper determination of any matter in question — discretion to decline to make order for inspection — application for expert evidence pursuant to r 31.19 of Uniform Civil Procedure Rules 2005 (NSW) — issues to which proposed expert evidence relates not identified
Quick Take
1An order for inspection of property under r 23.8 of the UCPR requires a legitimate forensic purpose. The applicant must identify the matter in question whose proper determination the inspection would enable, and inspection will not be ordered to support speculation that relevant evidence may be found (a 'fishing expedition').
2Inspection aimed at identifying unknown Aboriginal objects cannot assist an alleged apprehended breach of s 86(1) of the NPW Act, because that offence requires knowledge that the object is an Aboriginal object. Whether the s 87(2) due diligence defence is made out turns on evidence of the diligence actually exercised, not on a later site inspection. Assertions of songlines, pathways, food sources and totemic species do not, without more, identify an 'Aboriginal object' within s 5(1).
3On the facts, the Court would in any event have refused inspection as a matter of discretion. The applicant had previously had unconstrained access to the land, and approved cultural heritage monitoring by native title holder site officers was in place. Leave to adduce expert evidence under r 31.19 was refused because the issues to which the evidence would relate, and why it was reasonably required, were not identified.
