Ward, Ben & Ors v The State of Western Australia & Ors [1995] FCA 1035

CATCHWORDS

EQUITY - equitable remedies - injunctions - interlocutory - native title - development of land as irrigated agricultural development - whether further development should be restrained - whether State and Minister should be restrained from granting title upon compliance with conditions - strength of applicants' case - where balance of convenience lies - what is relevant status quo

Evidence Act 1995 (Cth), s75, s135

Federal Court of Australia Act 1976 (Cth), s23

Land Act 1933 (WA), s106

Native Title Act 1993 (Cth), ss22, 23(4), 227, 235 and 238

Adam P Brown Male Fashions v Phillip Morris Inc (1981) 148 CLR 170

Allen v Jambo Limited [1980] WLR 1252

American Cyanamid Co v Ethicon Ltd [1975] AC 396

Bullock v Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 at 241

Carr Boyd Minerals Ltd v Ashton Mining Ltd (1989) 15 ACLR 599

Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148

Cayne v Global Natural Resources Plc [1984] 1 All ER 225

Custom Credit Corporation Ltd v Whitehall Holdings Pty Ltd (Ipp J, SCt of WA, 27 February 1992, library no: 920231, unreported)

Franklin International Export Ltd v Wattie Exports Ltd (1988) 12 IPR 358

Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130

Hubbard v Vosper [1972] 2 Qd 84

Mabo v Queensland (No2) (1992) 175 CLR 1

Re North Flinders Mines Ltd: Peringa Mining and Exploration Co Plc v North Flinders Mines Ltd (1988) 52 SASR 22

O D Transport Pty Ltd v WA Government Railways Commission (1986) 71 ALR 190

Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR 4378

Waanyi People v State of Queensland (FCA, 1 November 1995, unreported)

Western Australia v Commonwealth (1995) 69 ALJR 309

BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF DJANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, PADDY CARLTON, RITA GERRARD, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR AND RONNIE YUNDUN ON BEHALF OF THE MIRIUWONG AND GAJERRONG PEOPLE v THE STATE OF WESTERN AUSTRALIA and INNES HOLDINGS PTY LTD and THE HON GEORGE CASH

NO. WAG 6004 OF 1995

JUSTICE R D NICHOLSON

PERTH

21 DECEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION ) NO. WAG 6004 OF 1995

B E T W E E N: BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF DJANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, PADDY CARLTON, RITA GERRARD, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, TOBY BANMAR AND RONNIE YUNDUN ON BEHALF OF THE MIRIUWONG AND GAJERRONG PEOPLE

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

INNES HOLDINGS PTY LTD

Second Respondent

and

THE HONOURABLE GEORGE CASH

Third Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: JUSTICE R D NICHOLSON

DATE OF ORDER: 21 DECEMBER 1995

WHERE MADE: PERTH

THE COURT ORDERS THAT:

(1) The application dated 17 November 1995 for interlocutory injunctions against the second and third respondents be dismissed.

(2) Paragraph 3 of the application dated 17 November 1995 be set down for hearing on 16 February 1996 at 3.00 pm.

(3) Costs be reserved pending written submissions

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION ) NO. WAG 6004 OF 1995

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

INNES HOLDINGS PTY LTD

Second Respondent

and

THE HONOURABLE GEORGE CASH

Third Respondent

CORAM: JUSTICE R D NICHOLSON

DATE: 21 DECEMBER 1995

PLACE: PERTH

REASONS FOR JUDGMENT

R D NICHOLSON J:

The applicants seek interlocutory relief in the form of two injunctions in respect of proposed activities by the second and third respondents in relation to King Location 788 ("the Land") which is situated within the east Kimberley region of Western Australia.

The first injunction seeks to restrain the second respondent from carrying out (1) water supply and drainage work in
connection with 80ha of the Land; (2) irrigated agricultural development and use of at least 280ha of the Land; and (3) fencing of all boundaries of the Land.

The second injunction seeks to restrain the third respondent from recommending to the Governor of Western Australia that a grant of fee simple in the Land be made to the second respondent and the conditions upon which the Crown grant should issue if the terms and conditions of the second respondent's licence to occupy the Land are completed not later than 54 months after 22 February 1995.

In each case the restraint is sought until the above acts are permissible future acts under the Native Title Act 1993 (Cth), s235.

In the same amended application the applicants seek permanent relief to similar effect, and in addition, the transfer of this action into Federal Court Action WAG 6001 of 1995 ("Action 6001"). That action is one brought by the applicants as members of the Miriuwong and Gajerrong people claiming that they are the holders of native title at common law in an area of the east Kimberley area comprising 1.4 million ha. The Land forms part of that claim and constitutes 381ha of it.

An application for determination of native title made by the applicants was accepted by the Native Title Registrar pursuant to the Native Title Act 1993 on 27 May 1994. The application in this proceeding was filed on 3 August 1995. In between those dates steps had been taken in accordance with the Land Act 1933 (WA) to invite tenders for the purchase of the Land for irrigated agriculture as part of the Ord River stage 2 development. The second respondent tendered for purchase, was successful and was granted a right of entry on the Land. In March 1995 it commenced clearing of the Land.

On 16 March 1995, the decision in the High Court of Western Australia v The Commonwealth (1995) 69 ALJR 309 was handed down and had the effect of declaring invalid the Land Titles and Traditional Usage (Act) 1993 (WA). It is not maintained that Act has any relevance to this application save that the consultation processes engaged in by the first respondent in inviting tenders for purchase of the Land proceeded on the basis that that Act was valid and so were not conducted in accordance with the Native Title Act 1993.

On 3 and 4 August 1995, the applicants applied for interim injunctions ("the interim application"). The application was refused and in brief reasons the Court held that, for the purpose of the urgent application for an interim injunction, there were serious issues to be tried but the balance of convenience did not favour the applicants on the state of evidence before the Court at that time. No concluded view was expressed concerning the strength of the applicants' case.

Since that hearing there have been two significant developments. The first involves the assembly of evidence on behalf of the applicants to the effect that there are means alternative to irrigated agricultural development to prevent the Land from seriously eroding if the second respondent is made the subject of an injunction. Secondly, the second respondent has advanced its work on the Land to the point where approximately 90% of the development under the terms and conditions of its Licence to Occupy has been completed. That Licence was issued on 21 August and was registered on 25 August. As the evidence of alternative erosion treatments is dependent upon the Land not having been dealt with beyond the state in which it was at the time of the hearing of the interim application, it is contended for the applicants that the status quo to which the Court should have regard on this application is that which existed at the time of the interim application.

Status Quo

For the applicants it is contended that the purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action: Cf Meagher, Gummow and Lehane: Equity: Doctrines and Remedies 3rd ed (1992) at 589, par2167. The case for the applicants contends that the relevant status to which the Court should turn is that which is determined by application of the following passage from the speech of Lord Diplock in Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130 at 140:

"The status quo is the existing state of affairs; but since states of affairs do not remain static this raises the query: existing when? In my opinion, the relevant status quo to which reference was made in American Cyanamid is the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction or, if there be unreasonable delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion. The duration of that period since the state of affairs last changed must be more than minimal, having regard to the total length of the relationship between the parties in respect of which the injunction is granted; otherwise the state of affairs before the last change would be the relevant status quo."

This passage was applied in Carr Boyd Minerals Ltd v Ashton Mining Ltd (1989) 15 ACLR 599 at 605 by Malcolm CJ who also there said that "the determination of what is, or what is not, the status quo in any given case for the purpose of considering an application for an interlocutory injunction is, in my view, a question of fact". The dictum of Lord Diplock in Garden Cottage (supra) has also been considered and applied in Franklin International Export Ltd v Wattie Exports Ltd (1988) 12 IPR 358 and in Re North Flinders Mines Ltd: Peringa Mining and Exploration Co Plc v North Flinders Mines Ltd (1988) 52 SASR 22, overturned on appeal at 39.

In addition to relying upon the dictum of Lord Diplock in Garden Cottage (supra), the case for the applicants contends that it would be wrong as a matter of policy to permit the Court to consider the present application in relation to the state of the Land as it had become as a consequence of further steps toward irrigated agricultural development taken by the second respondent since the last hearing. It is contended this would give to the second respondent the benefit of its actions taken since that time.

In my opinion there are a number of answers to these submissions. The first is that the dictum of Lord Diplock in Garden Cottage (supra) is preceded by a sentence in which he makes apparent that when it was said in American Cyanamid Co v Ethicon Ltd [1975] AC 396 that it was a counsel of prudence to preserve the status quo, that was a consideration "when other factors are evenly balanced". That was a reference to the speech of Lord Diplock in American Cyanamid at 408 where he said, "where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo." He there continued:

"If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial"

Secondly, it is clear that from Meagher, Gummow and Lehane op cit at 590, par2168, that courts will not be prepared to preserve the status quo if there be involved some countervailing disadvantages which more than equal the desirability of stability. The authors there cite Hubbard v Vosper [1972] 2 Qd 84 at 96, where Lord Denning MR emphasised the importance on an application for an interlocutory injunction for the court to look at the whole of the case and for the remedy to be kept flexible and discretionary. In my opinion, to restrain the Court from examining the realities of the Land as it is at the date of this application would be to deny the true discretionary character of the remedy sought and to limit the Court in a most inappropriate way.

Thirdly, in the circumstances of the present case there is no room for a finding that the steps taken by the second respondent since the interim application are steps taken solely to secure benefit to it. In the report of the applicants' expert Dr K R J Smettem, dated 28 August 1995, agreement was expressed by him that earth works were required to stabilise the gullies on the Land and that this work needed to be completed before the wet season. The applicants' expert Dr W Martinick, in a report dated 21 September 1995, opined that if further development for irrigation purposes were halted, then alternative soil conservation measures should be implemented prior to commencement of the wet season. It was common ground at the interim application that, if the wet season came and no steps were taken, very significant erosion could occur to the Land. Completion of development toward irrigated agricultural Land was one way in which erosion would be prevented. This is not a case where the applicants were unaware of the intention of the second respondent to embark upon that course of action to avoid erosion as a consequence of the wet season. In my opinion these circumstances do not come within the ambit of the policy objection raised by the case for the applicants.

Fourthly, the dictum of Lord Diplock is subject to the qualification that the status quo is to be determined on the facts pertaining to the period immediately preceding the motion for an interlocutory injunction "if there be unreasonable delay between the issue of the writ and the motion for an interlocutory injunction". Following the interim application on 3-4 August 1995, the applicant obtained the reports of Dr Smettem and Dr Martinick on 28 August 1995 and 21 September 1995. Their reports were exchanged and mutual comment was complete by 22 September 1995. On 13 October 1995 three of the applicants filed affidavits and Dr Smettem filed a further affidavit. The motion for interlocutory relief was filed on 27 October 1995. Although it is the case that Lord Diplock considered the period of delay must be more than minimal, it is relevant to have in mind that, with knowledge of the wet season approaching in December, the motion for interlocutory relief was not filed until almost 3 months following the interim application and 1 month prior to the commencement of the wet season. Given that the applicants had knowledge of the intentions of the second respondent in relation to the Land and given that the case for the applicants through their expert reports was based upon taking alternative erosion steps, it seems to me that the time taken by the applicants to pursue the motion for interlocutory relief was unreasonable in all these circumstances.

For these reasons, I do not accept the submission for the applicants that the relevant status quo for this application is that which existed at the time of the interim application on 3-4 August 1995. In my view this conclusion is supported by reference to Spry Equitable Remedies 4th ed (1990) at 447.

I accept the submission for the applicants that the approach of the Court on this application is not just to consider whether new facts have come into existence since the interim application and to regard the applicants as under an onus to produce cogent and compelling evidence to demonstrate that the factual circumstances have altered such that the balance of convenience now favours the grant of an injunction: Adam P Brown Male Fashions v Phillip Morris Inc (1981) 148 CLR 170 at 178. In my opinion it is necessary for the Court on this application to examine all admissible evidence without reference to any such onus, particularly as the interim
application was decided on the basis that evidence was then incomplete.

Serious question to be tried

The principles upon which the Court should exercise its discretion pursuant to s23 of the Federal Court of Australia Act 1976 to grant or refuse interlocutory relief are not in dispute. They require that the Court be satisfied that there is a serious question to be tried and determine where the balance of convenience lies: Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148. These factors are not independent of each other - in considering whether to grant an interlocutory injunction the Court must have regard to the strength of the applicant's claim: Bullock v Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 at 241, applied in O D Transport Pty Ltd v WA Government Railways Commission (1986) 71 ALR 190 at 193. The authorities direct special attention to the strength of the case of an applicant where the practical effect of an interlocutory injunction would be to finally determine the issue and where mandatory interlocutory injunctions are sought: Sabre Corporation Pty Ltd v Laboratories Pharm-a-Care Pty Ltd (1995) ATPR 4378 at 4382-4. In the argument on the present application it was not contested that regard should be had to the strength of the applicants' case. The onus in respect of both the serious question and the balance is on the applicant: Castlemaine Tooheys (supra); O D Transport (supra).

The claim which the applicants seek to assert is one for native title pursuant to an Application for Determination of Native Title lodged under the Native Title Act ("NTA"). By virtue of s22 of that Act, subject to ss24 and 25, an "act" which is an "impermissible future act" is invalid to the extent that it "affects" native title. An act "affects" native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise: NTA, s227.

The applicants' claim that the past conduct of the second and third respondents and the future conduct of the first, second and third respondents in relation to the Land will in each case comprise impermissible future acts under the NTA. It is claimed by them that such acts are invalid and that, if they are not injuncted, by their nature they may extinguish the applicants' native title rights and interests.

The native title rights which the applicants assert, as appears from the affidavits of three claimants on this application, assert a usage in relation to the Land for (a) hunting native fauna; (b) gathering sustenance from native flora; (c) crossing the Land or using the Land as access when travelling to other important country north of Kununurra in respect of which the applicants assert they have native title; and (d) using the Land with other traditional country in order to teach their children about Aboriginal culture. It is not disputed for the purposes of the present proceeding that such usages could constitute native title if established and not extinguished. Findings are not now necessitated on whether categories (a) and (b) overlap with category (d) and whether the former categories involve a usage which occurs on the Land only in conjunction with adjacent land.

On behalf of the first, second and third respondents it is not disputed that there is a serious question to be tried. That much is apparent from the progress of Action 6001 in which the principal issue is whether the native title rights claimed by the applicants have been extinguished by the grant of pastoral leases in the area under claim.

The submissions for the first, second and third respondents do, however, go to the question of the strength of the case to be tried. The respondents contend that, if it is established that the applicants held native title rights over the Land, these have been extinguished by reason of the history of the pastoral lease tenure of the Land, the resumption of the Land for the Ord River Project and acts in pursuance of that project. These contentions are made in reliance on Mabo v Queensland (No2) (1992) 175 CLR 1 where it was held that native title could be extinguished by legislative or executive actions of State Governments, provided they carried a clear and plain intention or clear unambiguous words designed to extinguish native title: Brennan J (as he then was) at 64. At 69 he said:

"Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency."

The onus of proof with respect to extinguishment lies on those who assert it has been extinguished: Mabo [No 2] (supra) at 83; Western Australia v Commonwealth (supra) at 315.

The relevant pastoral leases affecting the Land were either subject to an exception expressed as the "full right to the Aboriginal natives of the said State at all times to enter upon any unenclosed or enclosed, but otherwise unimproved part of the said demised Premises for the purpose of seeking their subsistence therefrom in their accustomed manner" or to legislative provision to the same effect in s106 of the Land Act 1933. In Waanyi People v State of Queensland (FCA, 1 November 1995, unreported) Jenkinson J agreed with a view expressed by the President of the Native Title Tribunal from whom the appeal lay, that if a pastoral lease had issued containing a reservation in favour of Aboriginal people it "would not have wholly extinguished the native title claimed". Hill J said that if a pastoral lease had issued containing such a reservation, its effect was a question of considerable difficulty and would require findings of the nature of the claimed title and to what extent there was an inconsistency with the claimed title. Given this dicta and what was said by the High Court in Mabo (No2) (supra) and Western Australia (supra) I consider that the argument based on the existence of pastoral leases does not show that the applicants' claim for native title is not strong.

The position is otherwise with respect to the respondents' reliance upon the resumption for and conduct of the Ord River Project. The resumptions were effected on 27 September 1961 and 4 July 1962 pursuant to Proclamations made on the authority of s109 of the Land Act 1933. Neither that section nor the Proclamations contain any reservation in favour of Aboriginal people or any other persons or activities (Cf the reasons in the dissenting judgment of Lee J in Waanyi (supra)). The resumptions were made for the purpose of the Ord River Project. It was not contended that project excepted Aboriginal people or other categories of persons or activities from its application. Following the Proclamations, executive actions were taken in respect of the land resumed in order to implement the project.

In my opinion the argument that any native title rights of the applicants in respect of the Land have been extinguished by the resumption of the Land and the conduct on it for the purposes of the Ord River Project has the consequence that the applicants' case to be tried in respect of the Land (and clearly without reference to the balance of the area the subject of Action 6001) cannot be considered to be a strong claim.

Balance of convenience

It is not disputed that the Court must weigh the balance of convenience and the question of hardship in the sense that it must consider carefully what effect the granting of an injunction would have on all parties and, in particular, whether to grant an injunction would cause hardship to the respondents or to refuse one would cause hardship to the applicants: Meagher, Gummow and Lehane op cit at 597, par2175.

In the case of the applicants, the effect of refusing an injunction would undoubtedly be to keep them out of the exercise of the native title rights which they claim to have in respect of the Land. On the evidence of the applicants' own expert, this will be for a period of 5 to 10 years - the time necessary for the issue of their claim and other matters to be resolved. Thereafter there would be a period of time, not capable of definition upon the present evidence, during which costly restoration of the Land from an irrigated agricultural development to its previous state or as near to as possible would take place. While I do not consider that I am presently able to find that the applicants would be permanently kept out of the exercise of the claimed native title rights in respect of the Land, I do find that in the event of a refusal of an injunction, they would be kept out for a considerable period, probably in excess of 12 years.

In the case of the second respondent, the grant of an injunction would require it to leave the Land as it is after expending in excess of $1M in preparation of it for irrigated agriculture. It would therefore suffer hardship in that it would be prevented from completing the Land drainage controls and associated works including fencing; it would be prevented from obtaining the benefit of its expenditure by using the Land for the purpose of irrigated agriculture in 1996 and thereafter so as to derive an income from it; it would face possible damages claims from affected third parties if the Land became weed infested and thereby an environmental hazard to agricultural activities (including seed production) being conducted on adjoining properties in the Ord River Project district (see the subsequent discussion on third party effects); it would have to obtain legal advice and institute legal proceedings against other parties to recover its loss
and damage arising out of its expenditure and work in respect of the Land.

The Court was also invited on behalf of the second respondent to weigh the extent of usage of the Land in the exercise of the claimed native title rights and the usage made by the second respondent. This argument, in my opinion, did not invite the Court to qualitatively assess the relative worth of native title rights in relation to agricultural development and had it done so, it would not be appropriate for the Court to do so in the light of the recognition at common law now given to native title rights. In relation to the appropriateness of considering the extent of usage by the applicants on the one hand and the second respondent on the other, it is said for the applicants that as they would be totally precluded from the exercise of their rights by the failure to grant the injunctions they seek, the issue of extent is otiose. In my opinion that submission is correct.

It is material also that the evidence discloses that the continued development of the Land as an irrigated farm has now progressed almost to the point of completion. The Land has been cleared, ploughed and planed. Fencing is over 50% complete. If weather permits it will be completed by 14 December 1995. It is anticipated that subject to weather, all Land developmental control measures will be complete and all conditions for obtaining freehold complied with by 14 December 1995. The development which has taken place is consistent with best practice for the style of farming involved and has removed the risk of soil erosion as a consequence of channel flow in the gully system formerly present on the Land. The grades now established on the Land will reduce the risk of soil erosion from the bare soil surface to acceptable levels. In these circumstances consideration of alternative means of erosion control is academic.

Furthermore, in relation to third party effects it is the case that, if left untendered, the probability is that the Land will become infested with undesirable weed species (in particular with sorghum alum and calitropis procera) which are likely to spread to neighbouring seed producing farms causing damage to the Ord River irrigation area seed industry. I reach this finding from the evidence of Messrs McCosker and Morrissey as well as the second report of the applicants' expert Dr Martinick. In the case for the respondents reliance was also placed on this issue in an affidavit of Ms Athanasoff to which objections were made on behalf of the applicants. Ms Athanasoff is a solicitor in the employ of the solicitors for the second respondent. The 8 annexures to her affidavit comprise 5 letters to the second respondent, 2 letters to the solicitors for the second respondent and a report from a Dr H G Gardiner containing comments on the reports of Drs Martinick, Smettem and another. Section 75 of the Evidence Act 1995 provides that in an interlocutory proceeding, the hearsay rule does not apply if the party who adduces hearsay evidence also adduces evidence of its source. I accept the submission for the applicants that the affidavit does not make apparent that the annexures are in the nature of hearsay evidence and so does not identify appropriately a source of knowledge of the deponent; alternatively that it would be unfairly prejudicial or result in undue waste of time if it was to be properly answered: see Evidence Act, s135. I therefore allow the objection and place no reliance upon that affidavit.

The capacity of the Land to regenerate to its pre-development state is also a factor which emerges from the expert evidence. That evidence supports the inference that the Land will regenerate to that state only with active selective planting and management and it would be a costly exercise expected to take between 5 to 10 years.

Among the various discretionary considerations the first is that of delay. There are two periods of relevant delay. The first is the time from when the applicants became aware that the Land would be developed for irrigated agriculture (31 August 1994) and the time which has elapsed since 3 and 4 August 1995. I have already expressed an opinion in relation to the second period. While I accept the submissions for the applicants that they have consistently pursued their objections to the development of the Land for irrigated agriculture, it is the case that after the clearing of the Land in March 1995 by the second respondent they contented themselves with an enquiry on 20 May 1995 before filing the application on 3 August 1995.

The utility of the grant of an injunction is also to be weighed. A grant of the relief would not maintain the present status quo. The Land would deteriorate and the irrigated agricultural property would be stopped slightly short of full development. The steps taken in relation to the Land and the substantial fencing of it would not provide to the applicants the Land upon which their native title rights of hunting, gathering, crossing and teaching could be exercised. Once regard is had to the present status quo, there is no utility in the grant of the injunction. It is not the case that the Land can be left in its present state.

In the event that relief was granted the case for the applicants accepts no responsibility for the funding or planning steps which may be necessary to prevent the Land from becoming an environmental hazard to the agricultural industry in the Ord River Project district. That case looks to the first respondent in that regard. For the first respondent it is said, therefore, that the application is in the nature of a mandatory injunction in that the effect of the grant of the injunction would be to place liabilities and responsibilities upon it. I accept that that would inevitably be the case.

It is also significant that some years may elapse before the legal position in relation to the Land is finally determined in the resolution of Action 6001 or otherwise. The particular concern of the second respondent is that the Land is a small portion of the applicants total area of claim and that the second respondent's position is unlikely to receive any expedited attention in the overall project of the applicants' native title claims. Delay in resolution is therefore a further factor to be weighed in the balance.

Additionally it is the case that, if the applicants succeed in their claim for native title in relation to the Land, steps taken contrary to that entitlement will be invalidated. The long term outcome from the viewpoint of the applicants is that their rights could be established without hindrance and subject to the restoration of the Land. The Land is already in a condition where restoration would be necessary for the exercise of those rights.

If the remedy lies and the second respondent is injuncted from further development, it will be unlikely to obtain any compensation from the applicants for the loss and damage suffered by reason of its inability to farm the Land. Whether it would be able to obtain compensation from the first or third respondents or other parties was not an issue which was argued on this application. Whether the loss of the applicants' native title rights could be adequately compensated by an appropriate award of damages is a difficult question which again was not fully argued. Even if that were not the case, it must be borne in mind that the native title rights claimed by the applicants in respect of the Land are part of the native title rights claimed by them in relation to the very much more substantial adjacent portion of land, so that, loss of rights on the Land would be open to evaluation and assessment in that context.

There is the further question of the absence of any adequate undertaking. Undertakings have been proffered from the Bar table on behalf of two of the applicants and of the Aboriginal Corporation with which the applicants are associated (the Miriuwunga Gajerronga Ningguwung Aboriginal Corporation). I allow the objection made on behalf of the second respondent to pars4 and 5 of the affidavit of Ms H Ketley, sworn 11 December 1995 because those paragraphs fail to state a source of knowledge of the deponent as required by s75 of the Evidence Act 1995. In its submissions the case for the applicants accepts that the undertakings on behalf of the applicants will not be of great value.

The importance of an undertaking is that in the absence of it a defendant who is ultimately victorious at the final hearing has no recourse to recover the damages which the defendant may have incurred from complying with an interlocutory injunction: Meagher, Gummow and Lehane op cit, p601, par2181. Even where an undertaking is given, relief may be refused if it would not adequately compensate a respondent for prejudice that it would suffer if restricted in its activity in the manner contemplated by the relief. It is apparent that no adequate undertaking would be available to protect the respondents against such prejudice in the event relief issued. For the applicants reliance is placed upon the decision in Custom Credit Corporation Ltd v Whitehall Holdings Pty Ltd (Ipp J, SCt of WA, 27 February 1992, library no: 920231, unreported) in which reliance was placed upon Allen v Jambo Limited [1980] WLR 1252 at 1258 and 1256-7. At the former page reference Templeman LJ regarded the presence of an inadequate undertaking as only a factor to be borne in mind. At the latter reference Lord Denning MR expressed the view that a poor plaintiff should not be denied a Mareva Injunction just because of poverty. There is much to be said for that view and for applying it in the context where newly recognised rights of native title are sought to be enforced by those who possess those rights but are otherwise not in the possession of capital. However, examination of what was said in those authorities and in Cayne v Global Natural Resources Plc [1984] 1 All ER 225 at 233 makes it apparent that such an exception is recognised where the inability to provide an undertaking or an adequate undertaking would effectively preclude a plaintiff from the opportunity of having rights determined in a full trial so that the poverty would be a direct cause of an injustice in that the plaintiff would be kept from proving those rights. That is not the case here. The refusal of the application for an interlocutory injunction will in no way preclude the applicants from having their native title entitlements tested at law in Action 6001 or otherwise. Furthermore, the applicants are in a preferred position in that, if those rights are vindicated at law, acts taken by the respondents in respect of the Land will be invalidated at law. The consequences economically for the applicants of a grant of relief and the possibility of the applicants' claim for native title rights in respect of the Land not succeeding at law gives enhanced significance to the absence of an adequate undertaking. It follows that the inability of the applicants to provide an adequate undertaking in this case is a matter which is to weigh against the grant of relief.

Finally, the balance of convenience in relation to the second respondent is to be determined by weighing all of the matters discussed under this head together with the previous assessment of the strength of the applicants' case. In my opinion consideration of all those factors weighs substantially in favour of the second respondent and against the issue of interlocutory relief.

The position of the third respondent requires additional consideration. There is a question whether the third respondent should be injuncted from recommending steps that will lead to the grant of fee simple. It was not argued before me, however, that the second respondent could continue to occupy the Land pursuant to the Licence and without a grant for such period as may be necessary for resolution of the applicants native title claim. Furthermore, there is no apparent prejudice to the applicants by permitting the third respondent to make the recommendations and for the consequent Crown grant to issue if that is to occur. This is because if the applicants ultimately establish their native title rights in respect of the Land, such steps will be invalidated so far as they affect native title: NTA, s22. In addition the non‑extinguishment principle would apply to the Crown grant: NTA, s23(4) and s238. Taking these matters into account with all the other factors raised in relation to the balance of convenience and my assessment of the strength of the applicants' case for native title, I consider that the balance lies in favour of refusing the grant of interlocutory relief in relation to the third respondent.

For these reasons I consider that the application should be dismissed.

I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:

APPEARANCES

Counsel for the Applicant: Mr M L Barker

Solicitors for the Applicant: Aboriginal Legal Service

Counsel for the

First & Third Respondent: Mr K J Martin

Solicitors for the

First and Third Respondent: Crown Solicitor's Office

Counsel for the

Second Respondent: Mr C P Stevenson

Solicitors for the

Second Respondent: Mallesons Stephen Jaques

Date of Hearing: 11 and 12 December 1995

Date of Judgment: 21 December 1995

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