FEDERAL COURT OF AUSTRALIA
Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106
Aboriginals – Heritage protection – declaration made preventing construction works to protect a significant Aboriginal area – declaration set aside on judicial review – whether civil liability attaches to the Minister and a reporter in respect of failures to comply with procedural requirements imposed by statute – requirements of a valid application for protection – discussion of meaning of Aboriginal tradition – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 9, 10, 28
Aboriginals – Heritage protection – declaration of significant Aboriginal area – Aboriginal tradition – requirement of antiquity of beliefs – whether beliefs held by only one person sufficient to constitute an Aboriginal tradition – whether use and treatment of an area in a manner inconsistent with traditional beliefs held by only one or a small number of Aboriginals can constitute injury or desecration – whether purpose of an application for protection may be ascertained from a series of written and oral communications with the Minister
Trade Practices – Misleading and deceptive conduct – report prepared by anthropologist for incorporation into a representation to the Minister – report prepared by a reporter under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – anthropologist and reporter each engaged under a contract for the supply of consultancy services – reporter supplying services to the Commonwealth - whether representations conveyed by the reports constitute conduct in trade or commerce – whether representations misleading or deceptive – whether an assignee can sue for damage suffered by the assignor by misleading or deceptive conduct of the respondent – whether proceedings brought within three years of the accrual of the cause of action – time when the cause of action accrues – whether time limit can be extended
Tort – Negligence – exercise by a public official of discretionary power arising under statute – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – declaration to protect a significant Aboriginal area – whether a common law duty of care owed by the respositories of power to those likely to suffer economic loss by the making of the declaration – whether the Minister and a reporter exercise powers and functions of a legislative or quasi-legislative nature – whether conduct alleged to be in breach of duty established – whether damage caused by the negligent acts alleged
Tort – Statutory duty – breach of statutory duty – elements – whether applicants within the class of person for whose protection or benefit the statute provides – whether the statute evidences an intention to create a ground of civil liability
Tort – Misfeasance in public office – elements – invalid exercise of powers conferred by the statute – whether respondents knew that they were acting beyond power or were recklessly indifferent as to whether they were so acting – whether respondents acted in bad faith
Acquisition of land – whether acquisition of property from a person otherwise than on just terms – whether declaration for protection of a significant Aboriginal area which prevented the construction of a bridge constituted an acquisition of property – declaration set aside on judicial review – whether an acquisition occurred – whether sterilisation of contractual rights affected by the declaration confers an identifiable and measurable advantage upon the Commonwealth or another relating to the ownership or use of property
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 7, 9, 10, 13, 14, 15, 22, 23, 27, 28
Aboriginal Heritage Act 1988 (SA) ss 7, 13, 23, 24, 35
Planning Act 1982 (SA) ss 40, 50, 51
Real Property Act 1886 (SA)
Trade Practices Act 1974 (Cth) ss 4, 6, 52, 53, 75B, 82
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) ss 39B, 79
Hindmarsh Island Bridge Act 1997 (Cth)
Fair Trading Act 1987 (SA) ss 55(i), 56, 84
Fair Trading Act 1985 (Vic) ss 11, 37
The Constitution, Ch III, ss 51(xxxi), 51(xxvi)
Fair Trading Act 1987 (NSW) ss 4, 42
Corporations Law s 477
Federal Court of Australia Act 1976 (Cth) ss 50, 59(2B)
Limitation of Actions Act 1936 (SA) ss 38A, 48
Limitation of Actions Act 1958 (Vic) s 34
Evidence Act 1995 (Cth) s 130
Royal Commissions Act 1917 (SA) ss 5, 6, 7, 8, 9
Federal Court Rules O6 r 2, O13 r 2, O 34A
Chapman v Luminis Pty Ltd (1998) 86 FCR 513 referred to
Chapman v Tickner (1995) 55 FCR 316 referred to
Tickner v Chapman (1995) 57 FCR 451 referred to
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 referred to
Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337 referred to
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied
Prestia v Aknar (1996) 40 NSWLR 165 cited
The Queen v The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 applied
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 distinguished
Durant v Greiner (1990) 21 NSWLR 119 distinguished
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272 applied
Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41 – 669 applied
Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 41 – 710 applied
Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 distinguished
Merman Pty Ltd v Cockburn Cement Ltd 1988 84 ALR 521 distinguished
Pacific Cole Pty Ltd v Idemitsu Queensland Pty Ltd (1992) ATPR 46 – 094 distinguished
Plimer v Roberts (1997) 80 FCR 303 applied
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited
Bowler v Hilda Pty Ltd (1998) ATPR 41 – 625 cited
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 cited
James v ANZ Banking Group Ltd (1986) 64 ALR 347 cited
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 cited
Park v Allied Mortgage Corporation Ltd (1993) ATPR 46 – 105 cited
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Fed C, Beaumont J, 7 November 1994, unreported) cited
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 considered
Brookfield v Davey Products Pty Ltd (Fed C, Branson J, 8 February 1996, unreported) cited
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 followed
Trendtex Trading Corporation v Credit Suisse [1982] AC 679 considered
Weldon v Neal (1887) 19 QBD 394 cited
Zoneff v Elcom Credit Union Ltd (1990) ATPR 41 – 058 cited
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 distinguished
Commonwealth of Australia v International Air Aid Pty Ltd (Fed C, Neaves J, 2 September 1994, unreported) cited
Liff v Peasley (1980) 1 WLR 781 cited
Brook v The Flinders University of South Australia (1987) 47 SASR 119 cited
John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 cited
Vink v Schering Pty Ltd (1991) ATPR 41 – 073 distinguished
Pyrenees Shire Council v Day (1998) 192 CLR 330 distinguished
Perre v Apand Pty Ltd (1999) 198 CLR 180 referred to
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 distinguished
Calveley v Chief Constable of Merseyside [1989] 1 AC 1228 cited
Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 cited
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 cited
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 considered
Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 cited
Anns v Merton London Borough Council [1978] AC 728 cited
Sutherland Shire Council v Heyman (1985) 157 CLR 424 distinguished
Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330 (Full Court - unreported) cited
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 cited
Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 distinguished
Caparo Industries Plc v Dickman [1990] 2 AC 605 cited
Hill v Van Erp (1997) 188 CLR 159 considered
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 distinguished
Tickner v Bropho (1993) 40 FCR 183 considered
The Commonwealth v Tasmania (1983) 158 CLR 1 cited
The Queen v Kirby; Ex parte Boilermaker’s Society of Australia (1956) 94 CLR 254 cited
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
The Commonwealth v Grunseit (1943) 67 CLR 58 cited
Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 cited
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 cited
Foster v Mountford & Rigby Ltd (1976) 14 ALR 71 cited
Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 considered
Dunlop v Woollahra Municipal Council [1982] AC 158 cited
Kioa v West (1985) 159 CLR 550 cited
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 cited
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited
O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 cited
Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 considered
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 followed
San Sebastian Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 followed
Tepko Pty Ltd v Water Board (2001) 75 ALJR 775 followed
Voli v Inglewood Shire Council (1963) 110 CLR 74 referred to
Bryan v Maloney (1995) 182 CLR 609 referred to
Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 referred to
Al-Kandari v J R Brown & Co [1988] 1 QB 665 referred to
Clarke v Bruce Lance & Co [1988] 1 WLR 881 referred to
White v Jones [1995] 2 AC 207 referred to
Ross v Caunters [1980] 1 Ch 297 considered
Sutherland v Public Trustee [1980] 2 NZLR 536 referred to
Chapman v Luminis Pty Ltd [No 2] [2000] 100 FCR 229 referred to
Western Australia v Ward (1977) 76 FCR 492 cited
David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 considered
Briginshaw v Briginshaw (1938) 60 CLR 336 referred to
Shaw v Wolf (1998) 83 FCR 113 cited
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 cited
Rowling v Takaro Properties Ltd [1988] AC 473 considered
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 considered
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 considered
Tampion v Anderson [1973] VR 715 referred to
Sykes v Cleary (1992) 176 CLR 77 cited
Sanders v Snell (1998) 196 CLR 329 referred to
Northern Territory v Mengel (1995) 185 CLR 307 referred to
Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 considered
Minister of State for the Army v Dalziel (1944) 68 CLR 261 distinguished
Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330 applied
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 cited
First English Evangelical Lutheran Church v County of Los Angeles 482 US 304 (1987) distinguished
Loveladies Harbor Inc v The United States 28 F 3d 1171 (1994) distinguished
Clunies-Ross v The Commonwealth (1984) 155 CLR 193 referred to
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 referred to
Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 cited
The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 cited
The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 considered
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 distinguished
Commonwealth v Western Australia (1999) 196 CLR 392 referred to
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 followed
Smith v ANL Ltd (2000) 176 ALR 449 followed
Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 cited
Air Services Australia v Canadian Airlines International Ltd (1999) 167 ALR 392 cited
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 cited
Commonwealth v Western Mining Corporation Ltd (1996) 67 FCR 153 followed
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 cited
Bennett v Minister of Community Welfare (1992) 176 CLR 408 cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 cited
Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 332 cited
Midland Montagu Australia Ltd v Harkness (1994) 35 NSWLR 150 cited
Farrow Finance Co Ltd (in Liq) v ANZ Executors and Trustee Co Ltd [1998] 1 VR 50 cited
In re Lines Bros Ltd (in Liq) (No 2) [1984] 2 WLR 905 cited
Graham v Baker (1961) 106 CLR 340 cited
Professor Bernard McCabe, “Re-visiting Concrete Constructions” (1995) 3 Trade Practices Law Journal 161
The Laws of Australia (LBC), Government 19.3 [34], Torts 33.8 [137] and Business Organisations 4.7 [182]
The Australian Oxford Dictionary 1999
The Macquarie Dictionary 3rd ed. 1998
Report of the Hindmarsh Island Bridge Royal Commission (State Print, December 1995)
Dr Ron Brunton, Hindmarsh Island and the Hoaxing of Australian Anthropology (May 1995) Quadrant 11
R M and C H Berndt, A World That Was, The Yaraldi of The Murray River and The Lakes, South Australia (UBC Press, 1993)
D Bell, Ngarrindjeri Wurruwarrin: a world that is, was, and will be (Spinifex Press, 1998)
G Jenkin, Conquest of the Ngarrindjeri (Rigby Ltd, 1979)
Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1984, p 2133
Matter No. SG 33 of 1997
THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA
von DOUSSA J
ADELAIDE
21 AUGUST 2001
| IN THE FEDERAL COURT OF AUSTRALIA |
| |
| SG 33 OF 1997 | ||
| BETWEEN: | THOMAS LINCOLN CHAPMAN FIRST APPLICANT
WENDY JENNIFER CHAPMAN SECOND APPLICANT
BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) THIRD APPLICANT
| |
| AND: | LUMINIS PTY LTD FIRST RESPONDENT
DEANE JOANNE FERGIE SECOND RESPONDENT
CHERYL ANNE SAUNDERS THIRD RESPONDENT
ROBERT EDWARD TICKNER FOURTH RESPONDENT
COMMONWEALTH OF AUSTRALIA FIFTH RESPONDENT
| |
| DATE OF ORDER: | ||
| WHERE MADE: | ||
THE COURT ORDERS THAT:
1. The application against each respondent be dismissed.
2. The question of costs be adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| SG 33 OF 1997 |
| BETWEEN: | FIRST APPLICANT
WENDY JENNIFER CHAPMAN SECOND APPLICANT
BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) THIRD APPLICANT
|
| AND: | FIRST RESPONDENT
DEANE JOANNE FERGIE SECOND RESPONDENT
CHERYL ANNE SAUNDERS THIRD RESPONDENT
ROBERT EDWARD TICKNER FOURTH RESPONDENT
COMMONWEALTH OF AUSTRALIA FIFTH RESPONDENT
|
| JUDGE: | |
| DATE: | |
| PLACE: |
TABLE OF CONTENTS
SUBJECT PARAGRAPH
1. Introduction .............................................................................................................. 1
The declaration ............................................................................................... 3
The applicants ................................................................................................ 8
The respondents ............................................................................................. 9
Factual background ...................................................................................... 13
2. The Causes of Action .......................................................................................... 149
Luminis and Dr Fergie
Misleading or deceptive conduct .................................................. 150
Negligence .................................................................................... 151
Professor Saunders
Misleading or deceptive conduct .................................................. 152
Accessorial liability ....................................................................... 153
Negligence .................................................................................... 154
Breach of statutory duty ............................................................... 155
Misfeasance in public office .......................................................... 156
Mr Tickner
Negligence .................................................................................... 157
Breach of statutory duty ............................................................... 158
Misfeasance in public office .......................................................... 159
The Commonwealth
Acquisition of property other than on just terms ......................... 160
3. Misleading or Deceptive Conduct Claims ......................................................... 161
Introduction ................................................................................................ 161
In trade or commerce ................................................................................. 165
Misleading or deceptive conduct ................................................................. 192
Limitation of action issues ........................................................................... 201
4. Negligence Claims ............................................................................................... 227
Professor Saunders and Mr Tickner – duty of care ...................................... 227
The Aboriginal and Torres Strait Islander Heritage Protection Act
(the HPA) .................................................................................................. 249
Other issues under the HPA ........................................................................ 270
The notice ..................................................................................... 271
The application under the HPA, s 10 ............................................ 272
Natural justice issues .................................................................... 273
The Minister’s obligation to consider representations ................. 274
Aboriginal tradition ...................................................................... 275
Luminis and Dr Fergie – duty of care .......................................................... 276
5. Factual Issues ...................................................................................................... 301
Evidence received in closed session ............................................................ 301
Comment on some witnesses ...................................................................... 310
The Royal Commission ............................................................................... 320
Late emergence .......................................................................................... 333
Literature and expert evidence .................................................................... 355
Only one woman knew ............................................................................... 382
Irrationality of women’s business ................................................................. 390
Finding as to restricted women’s knowledge ............................................... 400
Further comment on Dorothy Wilson’s evidence ......................................... 401
Mouth House meeting – 9 May 1994 .......................................................... 402
The Graham’s Castle meeting – 19 June 1994 ............................................. 404
The Graham’s Castle meeting – 20 June 1994 ............................................. 410
Further comment on Dr Kartinyeri’s evidence ............................................. 425
6. Particulars of Alleged Wrongful Conduct ........................................................... 439
Dr Fergie – Misleading or deceptive conduct and negligence ....................... 441
Professor Saunders – Particulars of misleading or deceptive conduct ........... 542
Professor Saunders – Particulars of negligence ............................................ 589
Mr Tickner – Particulars of negligence ........................................................ 635
7. Breach of Statutory Duty .................................................................................... 678
8. Misfeasance in Public Office .............................................................................. 691
9. Claim Against the Commonwealth ...................................................................... 709
10. The Question of Loss and the Assessment of Damages ................................... 750
The applicants’ case ................................................................................... 750
The respondents’ case ................................................................................ 777
The applicants’ further evidence .................................................................. 782
Villas .......................................................................................................... 791
Commercial and rental ................................................................................ 792
Timeshare .................................................................................................. 802
Delay ......................................................................................................... 808
Discount rate .............................................................................................. 812
Delay in effecting a sale ............................................................................... 820
Valuation assuming a bridge after a delay .................................................... 826
A departure from the experts’ initial assumptions ......................................... 830
11. Conclusion ............................................................................................................ 852
List of Abbreviations
REASONS FOR DECISION
1. INTRODUCTION
1 These proceedings seek to recover losses suffered by the developers of a marina complex known as The Marina Goolwa on Hindmarsh Island which followed the making of a declaration on 9 July 1994 by the Federal Minister for Aboriginal and Torres Strait Islander Affairs which had the effect of banning the construction of the bridge between Goolwa and Hindmarsh Island for twenty-five years.
2 The developer was Binalong Pty Ltd (Receiver and Managers appointed) (In liquidation) (Binalong).
The declaration
3 The declaration was made under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the HPA) following two emergency declarations under s 9 of the HPA. The purposes of the HPA are set out in s 4, namely:
“The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.”
Sections 9 and 10 provide:
“9. (1) Where the Minister:
(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and
(b) is satisfied:
(i) that the area is a significant Aboriginal area; and
(ii) that it is under serious and immediate threat of injury or desecration;
he may make a declaration in relation to the area.
(2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.
(3) The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.
10. (1) Where the Minister:
(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;
(b) is satisfied:
(i) that the area is a significant Aboriginal area; and
(ii) that it is under threat of injury or desecration;
(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and
(d) has considered such other matters as he thinks relevant;
he may make a declaration in relation to the area.
(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.
(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:
(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:
(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and
(iii) specifying an address to which such representations may be furnished; and
(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.
(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:
(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
(f) the duration of any declaration;
(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
(h) such other matters (if any) as are prescribed.”
4 For an area to qualify for protection under s 10 of the HPA it must be “a significant Aboriginal area”: s 10(1)(b)(i). Such an area is defined in s 3 of the HPA as an area of “particular significance to Aboriginals in accordance with Aboriginal tradition”. Section 3 defines “Aboriginal tradition” to mean:
“The body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships”.
5 Section 13(2) of the HPA provides that the Minister shall not make a declaration in relation to an area in a State unless he has consulted with the appropriate Minister of that State as to whether there is, under a law of that State, effective protection of the area from the threat of injury or desecration. However s 13(4) provides that a failure to comply with this requirement does not invalidate the making of a declaration.
6 A declaration made by the Minister under s 10 has the same status as a regulation. It must be laid before both Houses of Parliament and is liable to be disallowed. This is the effect of s 15 of the HPA.
7 The declaration under s 10 was made on the application of the Lower Murray Aboriginal Heritage Committee (the LMAHC), a committee of Ngarrindjeri people established for the purpose of the Aboriginal Heritage Act 1988 (SA) (the AHA). Lands traditionally occupied by the Ngarrindjeri people before European contact included lands around the Lower Murray, Lakes Alexandrina and Albert and the Coorong. The township of Goolwa and Hindmarsh Island are within this area.
The applicants
8 The first and second applicants, Mr and Mrs Chapman (the Chapmans) own 50 per cent of the shares in Binalong. Mr Chapman was a director of Binalong from 16 December 1966 to 11 February 1993, and was reappointed as a director on 7 November 1996. Mrs Chapman was a director from 8 May 1969 to 7 November 1996. On 4 September 1998 this Court authorised the Chapmans at their own expense and risk as to costs to use the name of Binalong as joint applicant with them in this action: see Chapman v Luminis Pty Ltd (1998) 86 FCR 513. Binalong was thereafter joined as the third applicant. The Chapmans had pleaded that they brought the action as assignees of the causes of action which Binalong had against the respondents. Binalong was joined after the respondents alleged that the purported assignments relied upon by the Chapmans were not in law assignments and, for that reason, that the Chapmans did not have standing to enforce the rights of action alleged by them against the respondents.
The respondents
9 The first respondent, Luminis Pty Ltd (Luminis) is a duly incorporated company carrying on business in South Australia as a provider of consultancy services. Luminis is the consultancy company of the University of Adelaide. The second respondent, Dr Deane Fergie, is an anthropologist who at material times was employed by the University as a lecturer in the Department of Anthropology. Luminis was engaged on 17 June 1994 by the Aboriginal Legal Rights Movement (ALRM) in South Australia on behalf of the LMAHC to provide consultancy services in connection with the application made for a s 10 declaration, and Dr Fergie was in turn engaged by Luminis to provide those services. The services ultimately included the preparation of a report containing an anthropological evaluation of the significance of restricted women’s knowledge within Aboriginal tradition upon which the LMAHC was relying in support of its application. Dr Fergie’s report (the Fergie Report) became an annexure to a submission made by the ALRM to the reporter nominated by the Minister under s 10(1)(c) of the HPA.
10 The third respondent, Professor Cheryl Saunders, is a Professor of Law who was nominated by the Minister to prepare a report in accordance with s 10(4) of the HPA. She is also the Director of the Centre for Comparative Constitutional Studies at the University of Melbourne. Professor Saunders submitted a report (the Saunders Report) to the Minister on 7 July 1994.
11 The fourth respondent, the Hon Mr Robert Edward Tickner, was at the relevant time the Federal Minister for Aboriginal and Torres Strait Islander Affairs.
12 The fifth respondent is the Commonwealth of Australia (the Commonwealth).
Factual background
13 The following factual summary draws largely on evidence about which I do not understand there to be any significant dispute. Later in the reasons it will be necessary to return to many of the events mentioned in the background to consider other evidence where there is dispute either as to detail or the significance of what occurred.
14 In about 1977 Binalong acquired a parcel of farming land in the south-west portion of Hindmarsh Island, opposite South Goolwa. Between 1981 and 1984 Binalong progressively obtained planning and other approvals for the establishment of a marina complex comprising 561 marina berths, a 200 berth hardstand and carpark area, associated jetties and boat ramps, a par three golf course, a forty room motel, restaurant and conference centre, eleven cabin style accommodation units and various administration and workshop buildings. It is convenient to refer to the overall development as proposed from time to time as “the marina”. The zoning of the land was changed to “tourist/recreation”. By 1985 Binalong had substantially completed the first marina basin and created 320 wet berths and supporting infrastructure.
15 In the 1980s, and for decades before, the only vehicular access to Hindmarsh Island was by a ferry that crossed the Goolwa Channel between the township of Goolwa and Hindmarsh Island. With increasing development on Hindmarsh Island the ferry had become a traffic bottleneck where delays of several hours could occur at peak traffic times on public holidays. In March 1981 the local council, the District Council of Port Elliot and Goolwa (now the Alexandrina Council) (the Council), approached the South Australian Government seeking better access by way of duplicating the ferry or constructing a bridge. In 1983 a larger ferry was installed but at times traffic delays continued. Public meetings of local residents called for the construction of a bridge, and in November 1987 the Council sent a deputation to the South Australian Minister for Transport seeking the construction of a bridge. The Council continued thereafter to press for a bridge.
16 Notwithstanding the difficulties with access to Hindmarsh Island, Binalong continued to develop the marina complex for which it had approval. In the first half of 1988 additional building approval was obtained for a tavern and restaurant and for twenty-four villas. The tavern (with bottle shop) and restaurant opened in 1989, and seven of the villas were subsequently constructed.
17 In early 1988 Binalong decided to significantly expand the marina. For this purpose, Binalong entered into agreements to purchase some 280 hectares of additional land on the eastern boundary of its then current landholding on Hindmarsh Island (being portions of Sections 2 and 6 and Sections 3, 7, 10, 11, 14 and 15 in the Hundred of Nangkita). Numerous consultants were engaged to undertake the design work and to put together a planning application. By July 1988 the planning application had been prepared. It provided for the construction of marina extensions of 590 additional wet berths (to give a total capacity, rounded off in various reports, of 1150 berths); an additional 300 dry stand berths; the creation of 876 residential allotments; additional boat ramps; a tourist development including forty timeshare units, a 100 bed motel, club facilities, a heliport and a charter boat facility; and associated infrastructure including water and sewage facilities, waste water disposal and a wood lot, and a site nursery. The development was programmed to occur progressively in six stages. However, the application was not lodged at that time as the Department of Environment and Planning (DEP) requested that its lodgment be deferred until a draft Supplementary Development Plan (SDP) for Hindmarsh Island had been prepared and put on public display. At that time the planning approval for developments was based on a Development Plan under s 40 of the Planning Act 1982 (SA). The proposed bridge and marina extensions were not permitted uses under the then current Development Plan and the DEP, it seems, desired to have a SDP made which would recognise and permit those uses. The process leading to the making of an SDP was prescribed by s 41 of the Planning Act, and required an extensive process of public consultation and hearings.
18 As part of the preparation of a draft SDP the Aboriginal Heritage Branch of the DEP instructed an archaeologist, Ms Vanessa Edmonds, to carry out an Aboriginal archaeological survey in the area of Hindmarsh Island including the marina and the Hindmarsh Island approach to the ferry. Ms Edmonds identified various archaeological sites (middens and burial sites) in that area in her report (the 1988 Edmonds Report).
19 In late 1988, before the draft SDP had been prepared, another land owner on Hindmarsh Island lodged a planning application for a competing development. This caused Binalong to lodge its already prepared planning application on 18 November 1988.
20 Submissions from the public on these two planning proposals were sought and obtained. Many submissions expressed a desire for better access to Hindmarsh Island. Binalong’s planning consultants also made submissions suggesting improved ferry access. However, the South Australian Government (the State) expressed a preference for a bridge. On 2 June 1989 Binalong offered to the State Minister for Environment and Planning (the EP Minister), and to the Council, to build a bridge.
21 On 20 June 1989 at a public meeting held at the Hindmarsh Island Hall, the majority of those present expressed a desire for better access to the Island, with a bridge being the favoured option.
22 On 8 August 1989 Binalong was advised by the EP Minister that it was likely that Binalong’s planning application would be classed as a major project under s 50 of the Planning Act, and as such would be dealt with by Cabinet rather than the South Australian Planning Commission. For the application to be dealt with in this way, Binalong would be required to follow an Environmental Impact Statement (EIS) process. Binalong was later advised on 26 October 1989 that Cabinet would recommend to the Governor that the marina and bridge proposals be dealt with under s 50 of the Planning Act, and that the Department of Road Transport would contribute either one half of the cost of the bridge or $3 million whichever was the lesser sum. This contribution reflected, in part, savings to the State in not running the ferry.
23 Binalong immediately commenced the preparation of an EIS. By 3 November 1989 a draft EIS had been completed by Binalong, and was put on public display. Public comment was invited. A public meeting was held in Goolwa on 5 December 1989 by the Major Projects and Assessment Branch of the DEP. About 300 people attended. Whilst there was objection to the proposed alignment of a bridge along Chrystal Street on the Goolwa side there was apparently little objection expressed to the bridge proposal itself. Mr Chapman does not recall any Aboriginals being present at that meeting. Following the meeting and the receipt of public responses a supplement to the draft EIS was prepared proposing an alternative bridge alignment along Brooking Street.
24 In the course of discussion with DEP personnel on the requirements of the EIS, Binalong had been advised that it would need to deal with Aboriginal heritage matters.
25 Following the meeting the DEP prepared a preliminary assessment of the draft EIS which pointed out that the section on Aboriginal heritage was based solely on the 1988 Edmonds Report. The DEP said that a comprehensive archaeological survey was needed for both the bridge site and the marina site by a consultant acceptable to the Aboriginal Heritage Board and “the appropriate Aboriginal Heritage Committee”. The preliminary assessment continued:
“Similarly, although the EIS makes reference to discussions with the Point McLeay Community Council, any consultations with the Aboriginal traditional owners and any anthropological study should be carried out by a suitably qualified and experienced anthropologist. This anthropologist should be acceptable to the Aboriginal Heritage Branch which can also advise on the brief for such a study.”
26 Two surveys were to be conducted at the expense of the developer. Binalong through Mr and Mrs Chapman arranged for the archaeological survey to be conducted by Ms Edmonds, and for the anthropological survey to be conducted by Mr Rod Lucas.
27 The further report from Ms Edmonds, completed on 23 January 1990 (the 1990 Edmonds Report), identified several new archaeological sites comprising midden scatters, one associated with a burial site. The sites on Hindmarsh Island were close to the shoreline and not within areas proposed to be subdivided.
28 Although the DEP required surveys covering both the bridge site and the marina, there is doubt about the scope of the survey conducted by Mr Lucas. In his letter to Mr Chapman confirming his instructions he agrees to provide Binalong with a report on anthropological issues “relating to Hindmarsh Island in the Murray Mouth. The report … will assess the historical and contemporary significance of the island to Aboriginal people”. In terms his report (the Lucas Report) is confined to anthropological issues relating only to Hindmarsh Island. The Lucas Report completed on 30 January 1990 included the following statements:
29 “MYTHOLOGICAL ASSOCIATIONS
Although a large body of Ngarrindjeri myths, legends, stories and songs has been published, a comprehensive search of this material has failed to find any specific reference to Hindmarsh Island.
Moriarty (1879:51) notes the ‘Goolwa’ clans’ knowledge of Ngurunderi mythology – the epic story of discovery and creation which was of paramount importance to the Ngarrindjeri. He also records their myth of Wyungare (Tindale’s ‘Waijungari’), a mythic being who climbed into the sky to become the bright planet Mars (Moriarty, ibid:51-2). Neither of these myths specify sites on Hindmarsh Island. Details of the island’s mythic geography are, therefore, probably lost to us now.”
and under CONCLUSIONS:
“There is no extant mythology which specifies mythological sites on Hindmarsh Island.”
30 On 16 March 1990 an Assessment Report on the draft EIS and the supplement to it was released by the DEP. The Assessment Report recommended approval, subject to certain conditions set out in Section 7.4 of the report relating to Aboriginal heritage matters. Conditions of these kinds had been recommended in the Lucas Report.
31 The proposed conditions in due course became part of the planning approval given to Binalong on 12 April 1990, and included the following:
“• Binalong should consult directly with the relevant Aboriginal representative bodies identified herein, and with any other Aboriginal persons chosen by those bodies. The expense of such consultations in respect of time and travel on the part of the Aboriginal representatives to be borne by the developer.
• All relevant Aboriginal representative bodies should be notified immediately and fully consulted concerning any possible skeletal material revealed by survey of the development of the site.
• Binalong and all subsequent agents such as construction crews, etc should be fully conversant with the provisions of the Aboriginal Heritage Act, 1988, particularly in respect of skeletal material.
• Binalong and all subsequent agents, should be fully acquainted with the procedures of the Aboriginal Heritage Branch in respect of Aboriginal skeletal material.
• Binalong should forward a full report of any action taken in respect of Aboriginal skeletal material revealed as a consequence of survey or development activity on the Hindmarsh Island site, to the relevant Aboriginal representative bodies, at this point identified as the Ngarrindjeri Tendi, Raukkan Community Council, Ngarrindjeri Lands and Progress Association and the Lower Murray Heritage Committee.”
The Raukkan Community Council is otherwise known as the Point McLeay Community Council, and the reference to the Lower Murray Heritage Committee is to the LMAHC.
32 It is the case of the applicants that during the EIS process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive manner during which appropriate consultation with Aboriginal organisations occurred. The topic of consultation is discussed in more detail later in these reasons: see par 504 and following.
33 In March 1990 a formal planning application for approval of Binalong’s proposed marina extensions and the bridge as a major project was lodged. On 12 April 1990 the Governor in Executive Council granted consent to the proposal subject to a number of conditions, including the above conditions reflecting Section 7.4 of the Assessment Report relating to Aboriginal heritage matters. Other conditions provided that Stages 2 to 6 of the marina extensions were not to proceed until the practical completion of the bridge. Authorisation was also given under the AHA to proceed with the marina extensions and the bridge “as no Aboriginal sites of archaeological or anthropological significance will be affected by such a development”. The State confirmed its commitment to pay Binalong the lesser of 50 per cent of the total construction costs of the bridge or $3 million towards the construction cost of the bridge, payment to be made within seven days of practical completion of the bridge.
34 The formal approval under s 51 of the Planning Act was later reconfirmed in relation to Stages 2 to 6 by the Executive Council on 26 August 1992 as the approval of 12 April 1990 was expressed to lapse if the bridge was not substantially completed within two years, but on this occasion the conditions attached to the approval made no reference to the conditions in Section 7.4 of the Assessment Report relating to Aboriginal heritage matters. By this time the AHA had come into force, and it seems that the conditions were omitted as the AHA was thought to provide adequately for consultation with relevant Aboriginal interests: see the AHA, s 13.
35 The procedure followed by the State under ss 50 and 51 of the Planning Act bypassed the restrictions imposed by the then existing Development Plan, and was not dependent on the promulgation of an SDP.
36 On 18 October 1990 a draft SDP for Hindmarsh Island, which included a bridge, was put on public exhibition. Submissions were called for, and on 14 February 1991 a public meeting was held at the Council Chambers in Goolwa to discuss the draft SDP. Fifty to sixty people were present. Mr Chapman says two Aboriginal men were present, and did not express objection to the SDP. Processing thereafter of the draft SDP was protracted. It was not finally approved and gazetted until 9 December 1993.
37 At this point it is necessary to refer to Binalong’s financiers, and financial position. Prior to 1987 Binalong had been involved with another entity, not associated with the Chapman family, in joint venture projects trading as Key Chapman & Co. Partnership Pacific Limited (PPL) was the financier of the joint venture. When the joint venture ceased in 1987 the assets and liabilities were divided between the joint venturers and Binalong assumed an obligation to PPL of approximately $6 million secured, in part, by a debenture charge and first mortgage over the marina. On 30 June 1989 Binalong also became the owner of another quite separate marina development at Wellington East. This development had been financed by Beneficial Finance Corporation Ltd (BFC). The developer had failed, and BFC had entered into possession as mortgagee. Binalong considered that there could be an advantage in operating both the Goolwa marina and the Wellington marina. Binalong agreed to purchase the Wellington marina from BFC with BFC lending $5 million to Binalong to be used as to $3 million to acquire the land and water rights, $200,000 to settle on the purchase of Sections 14 and 15 in the Hundred of Nangkita (being part of the land adjoining the Goolwa marina which Binalong had agreed to buy but could not otherwise finance) and the balance to be applied to developing the Wellington marina. BFC took a second debenture charge over Binalong and a first mortgage over Sections 14 and 15. Binalong was later to allege that as part of the transaction with BFC, BFC agreed that it would re-finance the Goolwa marina.
38 Binalong’s debt to PPL fell due for repayment in July 1989. By this time PPL had been taken over by Westpac Banking Corporation Ltd (Westpac). Future dealings, it seems, were conducted by Westpac, but at times in the name of PPL. It is therefore convenient to refer to “Westpac/PPL” as financier of the marina.
39 Binalong was unable to repay Westpac/PPL, but was granted time to arrange alternative finance. By September 1990 alternative finance had not been obtained and Westpac/PPL was demanding payment. Binalong nevertheless made application to Westpac/PPL for additional finance to develop Stage 1 of the Goolwa marina extensions. Binalong argued that revenue generated from Stage 1 would alleviate its financial position and enable re-financing then to be arranged.
40 On 30 October 1990 Westpac/PPL declined to finance Stage 1, and sought repayment of Binalong’s outstanding debt.
41 On 12 October 1990 Binalong had also requested the State to lend half the cost of the bridge up to a maximum of $3 million. After Westpac/PPL declined to finance Stage 1, the State had discussions with Westpac/PPL to which Binalong was not a party. The State agreed with Westpac/PPL that it would undertake construction of the bridge provided that Westpac agreed to finance Stage 1 of the marina extensions. In March 1991 Binalong was advised by an officer of the Premier’s Department that the State would take over responsibility to build the bridge, with Binalong to reimburse the State for costs over $3 million, and that a contract recording the terms of this proposal would be drawn up between the State, the Council and Binalong. It took time for this to happen. The draft heads of agreement were circulated by the State Crown Solicitor on 4 November 1992, and it was not until 31 March 1993 that a tripartite agreement between the State Minister for Transport Development, the Council and Binalong was executed (the Tripartite Agreement). Under this agreement the State Minister was obliged to procure the construction of the bridge.
42 On 15 May 1991 Westpac/PPL offered Binalong new finance facilities to enable Binalong to compromise existing debts and to construct Stage 1 of the marina. To meet the conditions imposed by Westpac/PPL, Binalong entered into a scheme of arrangement with its existing creditors on 17 May 1991. Under the scheme the creditors of the company were classified as either Scheme Creditors, Remaining Unsecured Creditors or Deferred Creditors. The Scheme Creditors, totalling eleven in number, were owed in aggregate $1.38 million and received a payment of $25,000 or 25¢ in the dollar whichever was the greater, plus an allotment of preference shares for the balance. The Remaining Unsecured Creditors, many in number, each of which were owed less than $25,000 and were owed in aggregate $492,804, were paid in full. The Deferred Creditors, five in number (and three of which were members of the Chapman family and one of which was a related company) were owed in aggregate $4.43 million and received only an allotment of preference shares. Westpac/PPL advanced approximately $860,000 to enable the scheme of arrangement to be carried out. The scheme deed recites that Binalong was unable to pay its debts as and when they fell due. Binalong was plainly insolvent before the scheme took effect.
43 As part of the restructuring of Binalong, Binalong entered into a licence agreement with another Chapman family company, Marina Services Co Pty Ltd (MSC) whereby Binalong licensed all its plant and equipment to MSC for a fee of $1.00 per annum. MSC thereafter undertook the management and operation of the marina, leaving Binalong in the sole role as holder of the title to the marina and developer of the proposed subdivision of land. This arrangement apparently had the effect that MSC also took over the management and operation of the Wellington marina.
44 This restructuring of Binalong enabled work on Stage 1 of the marina extensions to proceed. On 6 October 1991 Stage 1 was opened by the Premier of South Australia, the Hon Mr John Bannon. The Premier announced that the bridge would be completed by 1993.
45 In January 1992 core drilling along the alignment of the bridge was carried out from a barge in the river. There is no evidence that any complaint was received from any Aboriginal person about this drilling which was well publicised in the local press. No skeletal remains or objects of archaeological significance were discovered by the drilling engineers in the cores. On 8 May 1992, in reply to a request from the project engineers for clearance of the bridge under the AHA the Aboriginal Heritage Branch raised no objection to the proposed realignment along Brooking Street. However the Aboriginal Heritage Branch advised that it was concerned about the uncovering of any sub-surface archaeological features such as burials or occupation deposits during construction and urged that contractors be made aware of the reporting requirements under the AHA.
46 By early 1993 approximately 90 per cent of the allotments in Stage 1 had been sold. As noted, the Tripartite Agreement was executed on 31 March 1993. On 1 May 1993 the Department of Road Transport called for tenders for the construction of the bridge. Tenders closed on 8 June 1993 and on 20 September 1993 the tender from Built Environs Pty Ltd (Built Environs) was accepted, the tender price for the bridge being approximately $4.1 million. With design costs and other allowances the total cost of the bridge for the purposes of the Tripartite Agreement was agreed between Binalong and the Department of Road Transport at $4.99 million.
47 On 1 July 1993 the terms of the planning consent for Stages 2 to 6 were varied by the Executive Council to allow Binalong to make application under the Real Property Act 1886 (SA) to deposit a plan of subdivision once the bridge had been “constructed to the point of substantial commencement”. This amendment allowed for Binalong to apply for and obtain titles for Stage 2 ahead of the completion of the bridge.
48 In November 1991 and October 1992 petitions against the bridge had been tabled in Parliament, but, generally speaking, there had not been much public opposition to the construction of the bridge. However, from early 1993 onwards opposition grew. In February 1993 a group of local residents and holiday home owners opposed to the bridge formed the Friends of Hindmarsh Island. In about October 1993 the Friends of Hindmarsh Island became incorporated as the Friends of Goolwa and Kumarangk Inc (the Friends). Kumarangk is a recognised Ngarrindjeri name for Hindmarsh Island. As 1993 progressed, other organisations joined the Friends in opposing the bridge, including the Conservation Council of South Australia Inc and the Construction, Forestry, Mining and Energy Union (the CFMEU), the Goolwa Residents and Ratepayers Association and, in October 1993 the LMAHC and Greenpeace.
49 In March and April 1993 Legislative Council members of the Liberal Party, then in opposition, made statements in the South Australian Parliament opposing the arrangement under which the State was to contribute to the cost of the bridge. On 21 April 1993 the Legislative Council resolved that the Parliamentary Environment, Resources and Development Committee (the ERD Committee) should hold an inquiry into issues relating to the funding of the bridge. The ERD Committee tabled its report in Parliament on 6 October 1993 recommending that the bridge proposal be reassessed and that the review consider better access by way of a second ferry. The terms of reference in the inquiry by the ERD Committee related solely to the financial aspects of the bridge. Even though the ERD Committee broadened the scope of its inquiry to encompass environmental issues that featured in much of the public response, the report did not extend to an assessment of Aboriginal issues.
50 Prior to October 1993 no statement had come into the public domain that identified objections by Aboriginal people to the construction of the bridge.
51 It became public knowledge that work on the construction of the bridge was to commence at about the end of October 1993. On 8 October 1993 a public meeting was held at Goolwa arranged by the Friends, the Conservation Council of South Australia and the CFMEU protesting against the bridge. The Friends held two further public meetings at Amelia Park, which is immediately adjacent to, and to the north of the Goolwa ferry terminal on 16 and 23 October 1993. By late October protesters had commenced to maintain a picket at the bridge site.
52 In the latter part of October 1993 the LMAHC expressed concern about the impact of the proposed bridge on Aboriginal sites to the Department of State Aboriginal Affairs (DOSAA). That Department had taken over responsibility for Aboriginal heritage issues arising in planning and development matters from the Aboriginal Heritage Branch of DEP in about February 1993. On 20 October 1993 DOSAA wrote to the State Office of Planning and Urban Development saying that issues concerning Aboriginal heritage sites and their environmental associations, and consultation with Ngarrindjeri people needed to be considered in the assessment of the draft SDP that was still under consideration.
53 Similar concerns were also expressed by the LMAHC to the State Minister for Aboriginal Affairs.
54 On 23 October 1993 the LMAHC wrote to Mr Tickner as the Federal Minister for Aboriginal and Torres Strait Islander Affairs expressing grave concern at the proposed construction of the bridge; the approaches were near Aboriginal sites of significance; Binalong and the State had not consulted with the LMAHC about the effects of the bridge on those sites; and the LMAHC had concern about other sites on Hindmarsh Island and the ecology of the region, the northern end of the Coorong, being sacred to the Ngarrindjeri people.
55 Work on the bridge commenced on 27 October 1993. Late that day the contractor was told to cease work by an inspector under the AHA as there was concern that the grading of a diversion road adjacent to Amelia Park could damage an Aboriginal heritage site which had been identified in the 1990 Edmonds Report. Nonetheless a picket was maintained at the site by protesters, and issues concerning the bridge became regular stories in the electronic and print media.
56 On 2 November 1993 the State Minister for Transport Development announced that the Department of Transport would provide $20,000 to fund a study of the Aboriginal heritage of Hindmarsh Island by Dr Neale Draper, in conjunction with the LMAHC. This grant was made in response to a request from DOSAA to fund a comprehensive Aboriginal heritage survey of Hindmarsh Island and Goolwa. Dr Draper was at the time an archaeologist and anthropologist employed by DOSAA. The survey commenced early in November 1993. By late December 1993 it was partially performed, but further funding was required to enable completion. The survey to that point had discovered a number of new sites of significance.
57 Further correspondence from the LMAHC to Mr Tickner’s office followed, and on 23 December 1993 the LMAHC made a specific request to Mr Tickner to consider using his powers under s 10 of the HPA -
“to protect the two major camp Site areas adjacent to the bridge approaches, and the Sites on Hindmarsh Island as a whole, which are significant to Aboriginal persons and which are under the threat of injury and desecration by the construction of the proposed Hindmarsh Island Bridge”
should the State Minister for Aboriginal Affairs not take action to grant protection under the AHA. In this respect the request was clearly conditional.
58 On 23 December 1993 the LMAHC also requested the State Minister of Aboriginal Affairs to exercise power under s 24 of the AHA to protect Aboriginal sites which could be affected by the bridge construction. That section empowers the Minister to give directions prohibiting or restricting access to and activities on areas surrounding an Aboriginal site where such directions are necessary for the protection or preservation of the site.
59 On 11 December 1993 parliamentary elections were held in South Australia. There was a change of government and the Liberal Party came to power.
60 On 20 December 1993 the new Government through the Crown Solicitor appointed the Hon Mr S J Jacobs QC to investigate and report on the State’s contractual obligations regarding the bridge.
61 On 4 February 1994 Mr Jacobs reported to the State. On 15 February 1994 the State Minister of Transport made a Ministerial Statement that the State was contractually obliged to build the bridge but that work would remain suspended until the possibility of converting the Goolwa barrage to a bridge link was investigated. On 15 March 1994 the State Minister announced that a bridge on the Goolwa barrage was impracticable and that the bridge work at the existing site would recommence.
62 In the course of his report to the Government Mr Jacobs said that he had consulted with two representatives of the Aboriginal community (Mr George Trevorrow and Mr Douglas Milera) who raised objection to the bridge on three broad grounds: first, that the site works associated with the construction of the bridge on the mainland will intrude upon Aboriginal sites of archaeological significance; secondly, that there is some concern of the same kind with respect to site works associated with the development work on the island; and thirdly:
“It is claimed as a fundamental objection to the bridge itself that it will change the visual and physical character of the locality by linking the island to the mainland. It is said that the character of the island as an island will thus be lost by reason of its linkage to the mainland and that is said to be an unacceptable affront to the spiritual identity which the Aboriginal community has with the land of its forebears.”
Mr Jacobs in his inquiry had access to documents in departmental files relevant to Aboriginal issues. Mr Jacobs could find no reference to the third of these objections being raised by or on behalf of the Ngarrindjeri people with any Government department prior to this. He therefore asked Messrs Trevorrow and Milera: “You have not raised this before. Why not?” and they said words to the effect “We thought that when the bridge was constructed we would be consulted”.
63 Public demonstrations in opposition to the bridge continued. On 24 March 1994 there was a large rally in North Terrace outside Parliament House in Adelaide. Aboriginal people were included among the protesters. There was another demonstration outside a Westpac bank on 24 March 1994 where a representative of the CFMEU was prominent.
64 On 24 March 1994 the Department of Road Transport (the successor to the Department of Transport) approved a further grant of $35,000 to complete the survey of Aboriginal heritage being conducted by Dr Draper.
65 On 30 March 1994 Binalong sought and obtained an ex parte injunction in the Federal Court under s 45D of the Trade Practices Act 1974 (Cth) (the TPA) against various persons and entities involved in picketing bridge work. On 18 April 1994 a judge of the Federal Court continued interlocutory injunctions against seven of the ten respondents named by Binalong in those proceedings.
66 Binalong was again in severe financial difficulties. In May 1993 Binalong had applied to Westpac/PPL for finance to develop Stage 2. This application was refused and Binalong was given until 15 December 1993 to find another financier to repay Westpac/PPL. On 8 October 1993 Westpac/PPL served a notice of default on Binalong, the outstanding debt then being close to $16 million. Representations by Binalong about prospects of finding another financier led to an extension of the time for repayment to 28 February 1994. Binalong could not find another financier.
67 On 30 March 1994 Westpac/PPL served a demand for payment on Binalong, and as the demand was not met on 8 April 1994 Westpac/PPL appointed Mr R H Heywood-Smith and Mr J M Morgan as Receivers and Managers of both Binalong and its related company MSC. The directors of Binalong challenged the appointment of the Receivers in the Supreme Court and sought a stay of the receivership. The stay was refused and no appeal was lodged. Mr and Mrs Chapman and their children were retained for a short time on contract by the Receivers and Managers to continue running the marina.
68 In early April 1994 Mr Tickner’s office inquired what action the State Minister for Aboriginal Affairs would take on the LMAHC’s request for protection under s 24 of the AHA.
69 On 6 April 1994 the State Minister for Aboriginal Affairs wrote to Mr Tickner saying:
“The South Australian Government has reluctantly announced that, pursuant to contracts entered into by the previous Government, construction of the Hindmarsh Island Bridge will proceed in order to avoid significant legal penalties. The South Australian Government has found this situation most distressing but is advised that it is legally bound.
…
I am informed that the application made by the [LMAHC] for a halt to bridge construction under the terms of section 24 of the Aboriginal Heritage Act (1988) will not be supported by the relevant Minister.”
DOSAA was advised of this decision the same day.
70 On 7 April 1994 the ALRM wrote to Mr Tickner saying no response had been received to their letter to the State Minister for Aboriginal Affairs dated 23 December 1993, and reporting a radio news item that the State was sticking with its decision to build the bridge. The letter requested Mr Tickner to make an emergency declaration under s 9 of the HPA whilst obtaining a report pursuant to s 10(4) of the HPA. This letter altered the description of the area in respect of which protection was sought from that given in the ALRM’s letter of 23 December 1993. The letter said the significance of the area to the Ngarrindjeri Aboriginal people had been more fully revealed in a briefing paper from Dr Draper to the LMAHC, a copy of which was enclosed. The letter now specified the two camp sites previously described and added the Goolwa Channel between them which together were said to constitute a single site of cultural significance. The letter did not explain the reason why the single site had that cultural significance.
71 On 14 April 1994 the State Minister for Transport sought an authorisation under the AHA from the State Minister for Aboriginal Affairs to allow the bridge construction to proceed. That authority was needed under s 23 of the AHA which prescribes that a person must not damage, disturb or interfere with any Aboriginal site without the authority of the Minister. The bridge works would damage or disturb a known Aboriginal site recorded in the 1990 Edmonds Report. On 15 April 1994, the State Minister for Aboriginal Affairs met with officers of DOSAA and representatives of the LMAHC and the Ngarrindjeri community for the purpose of consultation as required by s 13 of the AHA as a precondition to the grant of authorisation under s 23 of the AHA. Those officers included the Chief Executive Officer of DOSAA, Mr David Rathman, and Dr Draper. The Aboriginal participants in the meeting included both men and women. There were some twenty-five people present in person or by telephone. The Minister said that the State was contractually bound to construct the bridge, but the State desired to limit the damage to Aboriginal sites. He said he would seek a two week deferral of the decision under s 23 from Cabinet on 18 April 1994. Shortly afterwards the Minister agreed to defer the grant of authorisation to enable Dr Draper’s survey to be completed. Dr Draper was instructed to continue the survey.
72 On 20 April 1994 the ALRM again wrote to Mr Tickner seeking protection under the HPA. The letter referred to the meeting between the State Minister for Aboriginal Affairs and the LMAHC, and reported on the application by the State Minister for Transport for an authority under s 23. The letter then added a most important new dimension to the reason why protection was sought. The letter said:
“In the course of the past four days my client’s have reluctantly divulged some secret/sacred information about the Hindmarsh Island, the Lakes and Coorong area including the sea, in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition. They have given me instructions to disclose this information to you to assist your assessment of the importance of this matter for aboriginal people and in particular the Ngarrindjeri people.
‘Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong. The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life. The Goolwa Channel is the ‘Meeting of the Waters’, and is of crucial importance in these terms.
Consequently, the bridge proposal is culturally destructive. It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People.
The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the ‘meeting of the waters’. The bridge would also create a permanent physical connection between Kumarangk and the Mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture.’”
The letter concluded by saying that the ALRM request for an emergency declaration made on 7 April 1994 still stands, and is needed whilst a report under s 10(4) is prepared.
73 Dr Draper made a preliminary report to the State Minister on 29 April 1994. It will be necessary later in these reasons to refer in greater detail to this report. At this point it is sufficient to note that his preliminary report said that three Aboriginal sites of great cultural and heritage significance would be directly impacted by the construction of the bridge. The first was the archaeological site of the original Aboriginal township, Katunkald, extending along the Goolwa foreshore. The second archaeological site was Rawaldarang, a former township site on the Hindmarsh Island side of the Goolwa Channel. The third site, said by Dr Draper to be the most important site, was described as the “‘Meeting of the waters’, the Goolwa Channel around Goolwa, and the Murray Mouth”. In respect of this site Dr Draper said:
“This area represents a crucial part of Ngarrindjeri cultural beliefs about the creation and constant renewal of life along the lower Murray lakes, the Murray Mouth and the Coorong. …
The cultural traditions concerning this ‘site’, and its relationship to the surrounding lakes and Coorong, are highly confidential, and only their very general nature is documented in this report. …From the Ngarrindjeri perspective, the bridge approaches and piles would damage the physical structure of the channel, and further disturb the natural flow of the life-giving waters of the Murray Mouth. It would also permanently join Kumarangk to the mainland in a way that is repugnant to Ngarrindjeri cultural traditions. There is no way to both build a bridge at this location and avoid this form of disturbance to the Aboriginal site.”
74 On 3 May 1994 the State Minister for Aboriginal Affairs made a Ministerial Statement advising that he had reluctantly authorised the construction of the bridge under s 23 of the AHA. The Minister said that he recognised that Aboriginal sites will be damaged by the construction and that this fact causes great distress to the Aboriginal community. However it was not practicable to both preserve those sites and construct the bridge, and he had concluded that he should authorise damage to the sites, but subject to strict conditions designed to minimise damage to them. The Minister said the Government would complete the survey of Aboriginal sites of Hindmarsh Island as a matter of priority, and that the LMAHC would be asked to be involved in the process. On 6 May 1994 Built Environs was instructed by the State to recommence work on the bridge.
75 Mr Chapman says that Binalong first learned that Aboriginal opposition based on heritage issues included women’s issues on 26 April 1994. On that day Mr Chapman and Binalong’s solicitors met with Mr Matt Rigney, the regional chair of the Aboriginal and Torres Strait Islander Commission (ATSIC), and one of ATSIC’s legal advisers at a café at North Adelaide. Mr Rigney said that the heritage issue had to do with Aboriginal women, it was a women’s issue to do with Hindmarsh Island, associated with birth, and the shape of the island, and its Aboriginal name was relevant. Mr Rigney also referred to tree burials in the area. He suggested the two ferry option might be a potential compromise.
76 On 27 April 1994 Mr and Mrs Chapman met with Mr Rathman and representatives of the LMAHC, Sarah and Doug Milera and Henry and Jean Rankine. In the course of the meeting Mrs Milera said that opposition to the bridge was based on cultural grounds, and the bridge was taboo for a “big special reason”. Mr and Mrs Chapman say the meeting concluded on the basis that further discussion should occur with the full committee of the LMAHC. Mr and Mrs Chapman offered to meet with the committee anywhere at anytime, but say that notwithstanding subsequent requests to Mr Rathman and Mr Rigney to help organise such a meeting, the LMAHC never set a time.
77 The emergence of women’s issues, and in particular, restricted women’s knowledge is discussed in detail later in these reasons: see pars 333 and following.
78 On 2 May 1994 Westpac/PPL issued proceedings in the Supreme Court of South Australia seeking to wind up Binalong. The first hearing date was set for 17 June 1994. When the application came on for hearing, the directors of Binalong opposed it. The application was adjourned until it was known whether the bridge construction would go ahead.
79 On 9 May 1994 there were private meetings of Ngarrindjeri women and others at the Bunk House and at the Mouth House on Hindmarsh Island: see pars 341, 351, 402 – 403.
80 Pickets at the bridge site and protests continued. On 11 May 1994 bridge work recommenced, there being present at the site a considerable number of protesters, media representatives, supporters of the bridge, and the police. The work continued in similar circumstances on 12 May 1994, but was halted during the day by the announcement that Mr Tickner, as the Federal Minister, had made an emergency declaration under s 9 of the HPA which had the effect of banning work for thirty days.
81 The s 9 declaration defined the area by map coordinates which delineated a corridor between the Goolwa foreshore and Hindmarsh Island encompassing the proposed bridge site.
82 On 23 May 1994 Mr Tickner by executing a document entitled “Instrument of Appointment” nominated Professor Saunders to prepare a report as required by s 10(4) of the HPA.
83 The instrument commences with a recital that:
“Whereas on 23 December 1993, I Robert Edward Tickner, … received an application made under Section 10 of the [HPA] seeking the preservation or protection of a significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island, on behalf of Aboriginal people …”
84 On 26 May 1994 a special Commonwealth Gazette containing a notice from Professor Saunders inviting representations was published. A similar notice was also published shortly afterwards in The Advertiser newspaper. The notice sought representations from interested persons on:
“… an application made under s 10 … on behalf of Aboriginals seeking the preservation and protection from further injury or desecration of significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia.”
The area in respect of which the declaration was sought was not further defined or delineated in the notice, nor was there any further description of the purpose of the application. Representations were required to be made by 11 June 1994. The notice said the report would deal with the topics which are listed in s 10(4) of the HPA.
85 Shortly afterwards Professor Saunders signed an agreement with ATSIC for the performance by her of “consultancy services”, defined in the agreement as: “Preparation of a report to the Minister under the provisions of s 10(4) of the [HPA]”. In form, the agreement is in the common terms of a consultancy with the Commonwealth. It is stated to be nominally with the “Centre for Comparative Constitutional Studies, c/- Professor Cheryl Saunders, Director …” but the agreement recites that the Minister has appointed Professor Saunders to report under s 10(4) of the HPA, and it is signed by Professor Saunders, not by the Centre for Comparative Constitutional Studies. It has been common ground during the trial that the legal issues between the parties are to be resolved on the basis that Professor Saunders is to be treated as a contracting party under the consultancy agreement. Thus, the contractual term that “The Consultant shall perform the Consultancy Services … at a high standard” is to be treated as contractually binding on Professor Saunders. The consultancy agreement dealt with many administrative matters relating to the provision of those services, specified the daily rate of fees payable by ATSIC for the consultancy services, and provided for the payment of other expenses “required for the consultant to provide the consultancy”. It also provided that Professor Saunders’ report was to be completed by 6 July 1994.
86 On 10 June 1994 Mr Tickner extended the emergency declaration for a further thirty days.
87 On 11 June 1994 solicitors for Mr and Mrs Chapman made a long written submission on their behalf to Professor Saunders. This was followed by a number of communications between those solicitors and Professor Saunders, and also between solicitors for the Receivers and Managers of Binalong and Professor Saunders over the following four weeks. Binalong said it would suffer a capital loss of $18 million, and Mr and Mrs Chapman said they would suffer additional losses said to run into many millions of dollars if the bridge did not go ahead.
88 Professor Saunders made arrangements to be in Adelaide for the week commencing 20 June 1994 and to meet with a number of interested parties.
89 On 17 June 1994 Luminis and Dr Fergie received instructions from the ALRM. Dr Fergie was informed by the ALRM that Professor Saunders would meet with a group of Ngarrindjeri women at Goolwa on 20 June 1994. Luminis and Dr Fergie accepted a consultancy for her to act as a facilitator at the proposed meeting. The consultancy did not require her to prepare any written report. I accept Dr Fergie’s evidence that she contacted Professor Saunders who expressed concern about Dr Fergie’s proposed role. Professor Saunders asked that Dr Fergie have the ALRM telephone her. Later Dr Fergie was informed by the ALRM that Professor Saunders would meet with the Ngarrindjeri women without Dr Fergie being present. Professor Saunders had made it clear that she wished to meet the Ngarrindjeri women without an anthropologist being present. The ALRM nevertheless wished Dr Fergie to be at Goolwa in case she could be of assistance to Professor Saunders. Dr Fergie said she would attend only if she were assured that the Ngarrindjeri women wanted her to be there. The following day Dr Fergie was contacted by four Ngarrindjeri women who were to attend the meeting at Goolwa. They gave her that assurance.
90 On Sunday 19 June 1994 Dr Fergie attended Goolwa. She met a group of Ngarrindjeri women near the Hindmarsh Island ferry, including Dr Doreen Kartinyeri. Dr Fergie had known Dr Kartinyeri through their work at the South Australian Museum. The women informed Dr Fergie that they were on the way to a meeting at the home of Mr Rocky Marshall, a white man at whose home a meeting of the Friends was taking place. Dr Fergie went with the women. When they arrived at Mr Marshall’s house, a meeting of the Friends was in progress. Some of the Ngarrindjeri women participated in the discussion taking place. In the course of the meeting Dr Kartinyeri confronted Mr Marshall concerning a letter which had been published in The Advertiser newspaper the preceding day in which Mr Marshall related information, which he said had come to him from his grandmother, the daughter of police officer Rickaby who had been stationed at Goolwa. The letter included the following:
“My grandmother, Catherine Rickaby, was born at the Goolwa Police Station in 1861. She told me she remembered when, as a young girl, ‘the black women came to have their babies in the bushes on the hill behind the police station’.
I believe Rickaby must have occupied the station until about 1871. Grandmother said: ‘Dad trained police recruits there.’
Grandmother started and ran maternity hospitals at both Tumby Bay and Murray Bridge, could speak several Aboriginal dialects and told me she learnt a lot of midwifery skills from the black women.
She told me of the Aboriginal legend covering this Lower Murray area as being a mother figure, with the Murray Mouth as the vagina, Hindmarsh Island as the womb, Mundoo Island as the egg, and the river, surrounding lakes and mainland as a connected part of the whole.
This becomes clear when one looks at an aerial photo of the areas but it is a legend Aborigines themselves are forbidden to discuss, as are many sacred sites which are three-tiered – those of the individual, those of a clan and those of the clans that make up the tribe.”
Dr Kartinyeri publicly reproached Mr Marshall in front of those present at the meeting and did so in strong terms that upset a number of the non-Aboriginal people present. She told him he had no right to publish such things. Later, outside Rocky Marshall’s house, Dr Kartinyeri also had a verbal altercation with a Ngarrindjeri woman, Amelia Campbell, in the course of which it is alleged that Dr Kartinyeri told Amelia Campbell that she would not be welcome at the forthcoming meeting of Ngarrindjeri women at Graham’s Castle at Goolwa.
91 On the evening of 19 June 1994 thirty-five Ngarrindjeri women met at the Graham’s Castle Convention Centre in Goolwa. Dr Fergie was present. The women discussed what was to be said to Professor Saunders at their meeting the following day. Dr Kartinyeri addressed the meeting, relating information which she said was not to be told to men (restricted women’s knowledge) which she had received from her Grandma Sally and her Auntie Rose. What was said at this meeting has assumed considerable significance in the course of the trial.
92 Dr Kartinyeri’s background is as follows. She was born at Point McLeay (Raukkan) on 3 February 1935. Her mother died when she was ten years old. She then spent three years in a girl’s home in suburban Adelaide, then two years working as a domestic. She returned to Point McLeay in about 1950 for about four years during which time she lived with her grandmother, Mrs Sally Kartinyeri (Grandma Sally). In 1954 she married and went to live at Point Pearce amongst the Narungga, although there were also Ngarrindjeri people living at Point Pearce whose roots were in Point McLeay families. Dr Kartinyeri’s Auntie Rose Kropinyeri (formerly Rigney) lived at Point Pearce. She was Dr Kartinyeri’s mother’s eldest sister. Dr Kartinyeri remained at Point Pearce until about 1975 when she moved to Adelaide for some years. Auntie Rose died at age 87 in 1981. In about 1979 Dr Kartinyeri commenced working on a project to record details of Aboriginal family genealogies. In the early 1980’s she obtained employment at the South Australian Museum as an Aboriginal researcher. In 1995 she received an Honorary Doctorate from the University of South Australia for her work in relation to Aboriginal genealogy.
93 In evidence Dr Kartinyeri has said that she learned as a young child at Point McLeay, from four women, that Hindmarsh Island was a special place. (She was not cross-examined on that statement.) She said that she also received information relating to restricted women’s knowledge that she disclosed to Dr Fergie and Professor Saunders from Grandma Sally, but that information was unstructured. Whilst it related to gender specific matters and practices, the information did not make sense to her at the time. It made sense later when further information was learned by Dr Kartinyeri from Auntie Rose.
94 Dr Kartinyeri said that she spent a lot of time talking with Auntie Rose after she moved to Point Pearce. Whilst this assertion was initially challenged by the applicants, once Dr Kartinyeri’s evidence about her times with Auntie Rose was understood the challenge largely evaporated. I am satisfied Dr Kartinyeri did spend a lot of time talking with Auntie Rose.
95 When Dr Kartinyeri was pregnant with her first child, in about 1954, she says Auntie Rose told her about child birth and commenced relating stories about Hindmarsh Island (Kumarangk) and other places in the lower Murray lakes and Coorong. The information related to initiations, ceremonies and corroborees and the preparation of men and women for manhood and womanhood. She also told her about burials and burial rituals. She was told about the stars and a story about the Seven Sisters star constellation. During these conversations the restricted women’s knowledge was revealed. As time went on the discussions continued and more detail was transmitted about the restricted women’s knowledge, associated practices, and other traditional cultural matters.
96 Nanna Laura Kartinyeri (the daughter of Pinkie Mack, to whom reference is later made) was married to Dr Kartinyeri’s father’s second eldest brother. Dr Kartinyeri had known her from the time she was a small child. Dr Kartinyeri says that Nanna Laura also told her about birthing practices and related matters which in some respects repeated what Auntie Rose had told Dr Kartinyeri, and in other respects was complimentary.
97 The effect of Dr Kartinyeri’s evidence, as I understand it, is that the central parts of the restricted women’s knowledge which she related to Dr Fergie and Professor Saunders were told to her by Auntie Rose, with supporting and peripheral detail coming from the other two women.
98 On 20 June 1994 Professor Saunders and her assistant Ms Mullins met with the thirty-five Ngarrindjeri women at Graham’s Castle. Ms Mullins was a research fellow in the Centre for Comparative Constitutional Studies. The meeting concluded at lunchtime. Dr Fergie joined Professor Saunders and the women for lunch, and travelled with them that afternoon to Hindmarsh Island where features of the Island were pointed out to Professor Saunders, and the Ngarrindjeri women conducted a ceremony at Sugars Beach adjacent to the Murray Mouth.
99 On the evening of 20 June 1994 the Ngarrindjeri women met again at Graham’s Castle. Professor Saunders, Ms Mullins and Dr Fergie were present. There is a strong body of evidence (challenged by the applicants) that the women appointed Dr Kartinyeri to disclose restricted women’s knowledge to Professor Saunders. Arrangements were made for Dr Kartinyeri to meet Professor Saunders on 22 June 1994.
100 On 20 June 1994 in correspondence to Professor Saunders Binalong objected to her receiving opinion and assistance from an anthropologist appointed by the ALRM when members of the Ngarrindjeri community had earlier declined to reveal to Ms Edmonds, acting on Binalong’s behalf, details of women’s issues. Binalong had engaged Ms Edmonds to review the archaeological evidence in May 1994 after the first s 9 declaration was made.
101 On 22 June 1994 Mr and Mrs Chapman and their solicitor met with Professor Saunders and Ms Mullins. Professor Saunders was given a supplementary submission by Mr and Mrs Chapman. The Chapmans complained to Professor Saunders that they had been unable to find out what claims were being made by the Aboriginal applicants for the s 10 declaration in part because the Aboriginal community refused to give that information to them or their expert adviser. In the statement of claim (par 41(n)) it is alleged that Professor Saunders said at this meeting that she would generally conduct herself in accordance with Binalong’s request that she not be assisted by an anthropologist appointed by the ALRM.
102 Similar complaints about not knowing the nature of the claims by the proponents for the s 10 declaration had also been made to Professor Saunders by the Receivers and Managers of Binalong in a meeting with her the preceding day, and were repeated in later correspondence.
103 On 29 June 1994 the Chapmans’ solicitors provided a second supplementary submission to Professor Saunders. Particular complaint was made that Dr Draper’s report had not been released to them.
104 On 22 June 1994 Professor Saunders met with Dr Kartinyeri at the South Australian Museum, and Dr Kartinyeri disclosed to Professor Saunders details of the restricted women’s knowledge. Before this meeting, Dr Fergie had met briefly with Dr Kartinyeri at the Museum café. Dr Fergie arranged for copies of material which Dr Kartinyeri had prepared to be given to Professor Saunders.
105 On 24 June 1994 Professor Saunders and Ms Mullins again attended Goolwa, and in the course of their visit collected from Mr and Mrs Chapman at the marina copies of the 1988 and 1990 Edmonds Report and the Lucas Report, the release of which had by then been authorised by the State Minister for Aboriginal Affairs under s 35 of the AHA. This section provides that except as authorised by the AHA or with the authority of the Minister, a person must not, in contravention of Aboriginal tradition, divulge information relating to an Aboriginal site, object or remains, or Aboriginal tradition.
106 On 24 June 1994 Dr Fergie, at the request of the ALRM, drove to Point Pearce, collected Dr Kartinyeri, and conveyed her to the ALRM office in Adelaide to enable her to confer again with Professor Saunders and Ms Mullins late in the afternoon. In the course of the drive from Point Pearce to Adelaide Dr Kartinyeri disclosed the restricted women’s knowledge to Dr Fergie.
107 I am satisfied on the evidence that Dr Kartinyeri conferred with Professor Saunders and Ms Mullins at the ALRM office in the absence of Dr Fergie, although Dr Fergie joined them towards the end of their meeting. The evidence satisfies me that Dr Fergie was not involved in discussion with Professor Saunders and Dr Kartinyeri about restricted women’s knowledge on that occasion.
108 Professor Saunders and Ms Mullins returned to Melbourne on 24 June 1994.
109 On Sunday 26 June 1994 the ALRM’s instructions to Luminis and Dr Fergie changed. Dr Fergie was then asked to write a report containing an anthropological evaluation to be forwarded as part of an ALRM submission to Professor Saunders. In the course of doing so over the ensuing days Dr Fergie obtained oral information from Dr Kartinyeri which she transcribed and attached to her report as Appendix 2. Dr Fergie also prepared a preliminary anthropological evaluation of the information recorded in Appendix 2 which became Appendix 3 to her report. Appendices 2 and 3 were placed in envelopes marked “To be read by women only” and accompanied her main report dated 4 July 1994. These envelopes have come to be known as the “secret envelopes”. A draft of her report was sent by Dr Fergie to Professor Saunders on 2 July 1994, together with the secret envelope containing Appendix 2. The report itself later became part of the ALRM’s submission to Professor Saunders on behalf of the applicants for the declaration.
110 The Fergie Report describes its aims and scope, and the consultative process by which Dr Fergie gathered information about Aboriginal tradition and beliefs related to her by Ngarrindjeri women. The report then discusses the significance of the area according to that information, and the threat of injury and desecration perceived by those who had been her informants. The report expresses conclusions on these topics and makes recommendations in support of the need for protection under the HPA. The report refers to the archaeological significance of the area, and also records what in places is referred to as secret women’s knowledge and in places a secret oral tradition. The substance of that knowledge or tradition is openly stated in the body of the report:
“The area of the Lower Murray, Hindmarsh and Mundoo Islands, the waters of the Goolwa Channel and Lake Alexandrina and the Murray Mouth are, in Ngarrindjeri women’s sacred traditions, crucial for the reproduction of the Ngarrindjeri people and of the cosmos which supports their existence.”
111 The content of the belief, as disclosed to Dr Fergie by Dr Kartinyeri, and Dr Kartinyeri’s account of why the building of the bridge could gravely injure Ngarrindjeri culture was the subject of Appendix 2.
112 The Fergie Report said that the women’s secret knowledge until recently had been confined to a small group of senior women, identified as Connie Roberts, Maggie Jacobs, Doreen Kartinyeri, and Edith Rigney. The report said that this group “was clearly seen as the custodians of this knowledge by the meeting” on 19 June 1994 at Graham’s Castle. On the issue of threatened injury or desecration perceived by the women the report, in its open text, said:
“Their opposition [to the bridge] is based on a profound conviction that the building of a bridge between the mainland and Hindmarsh Island would bring about the absolute demise of their culture and traditions.”
113 On 7 July 1994 a copy of Professor Saunders’ completed report was sent by facsimile to Mr Tickner’s ministerial office in Canberra. The original Saunders Report and the representations received by Professor Saunders, which exceeded 400 in number, were delivered to the ministerial office.
114 Professor Saunders concluded that in three respects the construction of the bridge would affect a “significant Aboriginal area” as defined in s 3 of the HPA. The three respects were: first the immediate area of the bridge was adjacent to a known Aboriginal site; secondly skeletal remains, known and anticipated, were present in the area; and thirdly the bridge site was within a general area regarded by Ngarrindjeri women as crucial to the reproduction of the Ngarrindjeri people and their continued existence, that topic being the subject of the secret envelopes.
115 On the first two aspects Professor Saunders concluded that the known Aboriginal heritage site in the immediate bridge area, including portions which crossed the Goolwa Channel, might have greater significance in archaeological terms than was presently known. Referring to the report by Dr Draper dated 29 April 1994, and to the 1990 Edmonds Report and the Lucas Report, Professor Saunders observed that the bridge area, considered as part of a larger area, might have still more significance. Professor Saunders noted:
“These areas are important and deserve respect, preservation and sensitive management in the interests of all Australians. From the standpoint of the Ngarrindjeri people, they are evidence of a past of which they can be proud and on which their cultural renaissance already is being built. Moreover, the presence of skeletal remains in these areas, known and anticipated, makes the area more important still … The issue arises however whether these characteristics of the area attract the definition in the Commonwealth Act of an area ‘of particular significance to Aboriginals in accordance with Aboriginal traditions’. The answer may be that it does, insofar as an area or areas include skeletal remains. There is no doubt but that the disrespectful treatment of remains is inconsistent with Aboriginal tradition. As far as I am aware, however, the Act has not previously been used for the protection of areas of largely archaeological significance.”
116 On the third aspect Professor Saunders concluded that:
“The third aspect of significance claimed for them, however, is of a very different order. As described to me, Hindmarsh and Mundoo Islands and the waters surrounding them have a supreme spiritual and cultural significance for the Ngarrindjeri people, within the knowledge of Ngarrindjeri women, which concerns the lifeforce itself. If destroyed, the Ngarrindjeri people believe they will be destroyed. The area is, as Doreen Kartinyeri said, drawing an analogy with the significance of Uluru for the people of Central Australia, ‘the most important place for Aboriginal people of the Lower South’. Dr Fergie’s report describes the area of the Lower Murray, Hindmarsh and Mundoo Islands, the waters of the Goolwa Channel and Lake Alexandrina and the Murray Mouth as ‘crucial for the reproduction of the Ngarrindjeri people and of the cosmos which supports their existence. The adequate functioning of this area is vital to Ngarrindjeri existence’. In what was inevitably a preliminary study, given time constraints, an Appendix to her report offers analysis of the broader, cosmological significance of Aboriginal beliefs about the area. This attachment is confidential and should be read by women only. Even without it, however, it is in my view open to the Minister to conclude that the area has particular significance for Aboriginal people within the meaning of the [HPA].”
117 On 7 July 1994 Binalong, the Chapmans’ solicitors, and the State Minister of Aboriginal Affairs were given a copy of Professor Saunders’ report by Mr Tickner’s office.
118 On 7 July 1994 at about midday Mr Tickner travelled from Canberra to Sydney where he remained until after he made the s 10 declaration, he says at about 11.30 am on Saturday, 9 July 1994. During this time he was in contact with his ministerial office in Canberra, in particular with his ministerial assistant, Ms Kee. A number of relevant documents were sent to him by Ms Kee by fax to his electoral office in Sutherland including on 8 July 1994 the Saunders Report, the Fergie Report without the secret envelopes, and a letter from the State Minister of Aboriginal Affairs, Mr Armitage which alleged factual errors in the Saunders Report. Mr Tickner also received formal ministerial advice from officers in ATSIC.
119 On 8 July 1994 Binalong and the Chapmans’ solicitors requested copies of Dr Fergie’s report, which was provided to them, without the secret envelopes, at about 4.00 pm that day.
120 Late on 8 July 1994 solicitors for the Chapmans faxed a submission by them to Mr Tickner together with comments on anthropological issues by an anthropologist, Dr Lindy Warrell and comments on the Saunders Report. They said there was insufficient time to comment on the Fergie Report. Dr Warrell had also been instructed by the Chapmans in May 1994. Solicitors acting for Binalong and its Receivers and Managers also faxed a submission.
121 Mr Tickner says that late on 8 July 1994 he studied the Saunders Report and the other material that was available to him relating to the s 10 application (but there is a question whether he read the Fergie Report: see par 501 below). He says he reached a preliminary view in favour of making a declaration but did not reach a concluded view, and did not make his decision, until late in the morning of 9 July 1994. He says that the final catalyst for his decision was a telephone conversation on 9 July 1994 with the Premier of South Australia, the Hon Mr Dean Brown, during which he formed the view that the Premier did not understand the spiritual significance to Aboriginal people of the area as explained in the Saunders Report, and that there was no chance of persuading the State to delay recommencement of the work. The applicants dispute Mr Tickner’s evidence about the timing of his decision, and assert that other evidence shows the decision was made on 8 July 1994 before Mr Tickner had received their submission: see par 660 below.
122 On 10 July 1994 it was announced that a ministerial declaration had been made on 9 July 1994 under s 10 of the HPA. The same day a special Commonwealth Gazette was printed containing the declaration. Under s 14(1)(b) of the HPA the declaration came into force on the publication of the Gazette. The declaration by its terms banned any act of the kind specified without the written consent of the Minister for twenty-five years. The protected area covered by the declaration was defined by map coordinates delineating the same corridor area which was protected by the emergency declarations. The prohibited acts were:
“Any act that will, or is likely to, injure or desecrate any part of the [protected area] including:
(a) bulldozing, grading, drilling or excavating; and
(b) any act done for the purpose of constructing a bridge in any part of the area.”
123 In a press release issued by Mr Tickner on 10 July 1994, he said that the declaration was made because of the spiritual and cultural significance of the area to Aboriginal people, particularly Aboriginal women, and because of the failure of the State Government to adequately consult with Aboriginal women as part of the decision making process.
124 On 22 July 1994 Mr and Mrs Chapman and their son commenced proceedings in this Court for judicial review of Mr Tickner’s decision to make the s 10 declaration. The application was subsequently amended to also seek review of Professor Saunders’ report. The respondents to the proceedings were Mr Tickner and Professor Saunders.
125 On 8 August 1994 an order was made in the Supreme Court of South Australia winding up Binalong, and appointing a liquidator.
126 Although not directly relevant to these proceedings, from about August 1994 BFC took steps to take possession as mortgagee of the Wellington marina which was eventually sold at auction by BFC on 22 April 1995. Mr and Mrs Chapman opposed the sale and later instituted proceedings in the name of Binalong against BFC for damages.
127 On 11 October 1994 a motion for disallowance of the s 10 declaration was defeated in the Senate, and on 9 November 1994 a motion for disallowance was defeated in the House of Representatives.
128 On 5 December 1994 the hearing of the application for judicial review commenced before O’Loughlin J. By that time Ms Isobel Norvill and Mr Douglas Milera, both Ngarrindjeri people, had been joined at their request as respondents to the proceedings. Separate proceedings for judicial review had also been commenced by certain residents of Hindmarsh Island who in substance supported the position of the Chapmans. Those proceedings were heard at the same time. Judgment was delivered on 15 February 1995 quashing both the decision to make the s 10 declaration, and Professor Saunders’ report: see Chapman v Tickner (1995) 55 FCR 316. Implementation of the decision was stayed pending an appeal. The stay was eventually lifted on 24 July 1996.
129 On 17 March 1995 Mr Tickner, but not Professor Saunders, instituted an appeal against O’Loughlin J’s decision. That appeal was heard in May 1995 by a Full Court of this Court. The appeal was dismissed on 7 December 1995: see Tickner v Chapman (1995) 57 FCR 451.
130 The proceedings determined by O’Loughlin J and the Full Court invoked the jurisdiction of the Court to order judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). I shall refer to the proceedings as the ADJR litigation. O’Loughlin J set aside the decisions under review essentially on two grounds. First, he held that the notice published, nominally by Professor Saunders, under s 10(3)(a) was fundamentally flawed. It did not identify the applicants. It did not adequately specify the area the subject of the application for protection, and it did not state the purpose of the application by indicating that the perceived threat of injury or desecration caused by the proposed bridge had its basis in spiritual and cultural beliefs of Aboriginal women (in “women’s business”). Secondly, O’Loughlin J held that Mr Tickner had not “considered”the representations received by Professor Saunders and transmitted to him in accordance with the requirements of s 10(1)(c). The representations had remained in Canberra. Ms Kee had looked at them on 8 July 1994 and had discussed the thrust of them by telephone with Mr Tickner. With the authority of Dr Kartinyeri she had read the secret envelopes (that had been received as part of a representation from the ALRM that included the Fergie Report). She advised Mr Tickner that “there is nothing contained in them which does not support the information in Professor Saunders’ report”. Mr Tickner did not read the secret envelopes at any stage. His Honour noted the short time available to Ms Kee to read the representations, and found Ms Kee’s evidence about her discussion with Mr Tickner “vague and nebulous” (at 370). His Honour rejected the submission on Mr Tickner’s behalf that he had adequately considered the representations by a combination of reading the Saunders Report which summarised in a few pages major points made in representations, and by discussing them with Ms Kee and obtaining her advice that the representations which she had read were adequately reflected in the Saunders Report.
131 The Full Court in upholding O’Loughlin J’s decision agreed that the notice was deficient in not adequately identifying the area and the purpose of the application, and that Mr Tickner had not met the statutory condition that he “consider” the representations before making the s 10 declaration.
132 In late 1994 dissent emerged within the Ngarrindjeri community as to the existence of restricted women’s knowledge. Although the contents of the secret envelopes were not disclosed to them, some members of the Ngarrindjeri community denied that there was any secret “women’s business”. The dissident group included Mrs Dulcie Wilson and Mrs Dorothy Wilson. The dissident group gathered support, and their dissent moved into the public arena in about May 1995. On 19 May 1995 Mrs Dorothy Wilson, in an interview that was broadcast on television, claimed that the women’s business had first been mentioned by men. Thereafter the dissent was widely canvassed in the media. On 7 June 1995 Mr Doug Milera in a radio interview said that he “was one of the instigators who created this story to stop the bridge” and that the women’s business was “all fabricated” (an allegation that he was later to withdraw).
133 On 8 June 1995 the Premier of South Australia announced that a Royal Commission would be established to inquire into and report whether the “women’s business” described in the secret envelopes was a fabrication. On 16 June 1995 the Royal Commissioner, Mrs I E Stevens, was appointed. The Royal Commissioner reported on 19 December 1995 that the whole of the “women’s business” was a fabrication, the purpose of which was to obtain a declaration under the HPA to prevent the construction of the bridge. Dr Kartinyeri did not give evidence, and the contents of the secret envelopes were not part of the evidence before the Royal Commission.
134 On 20 May 1995 Mr Tickner issued a press release stating that he had received a fresh application for a s 10 declaration from the ALRM on behalf of the Ngarrindjeri women, but no action was taken in respect of that application at the time, pending the outcome of the Full Court appeal. Nonetheless, Mr Tickner announced on 8 June 1995 that there would be a further independent inquiry into the significance of Hindmarsh Island to Aboriginal people to be conducted by the Hon Justice Jane Mathews. On 7 December 1995, when the Full Court appeal was dismissed, Mr Tickner announced that procedures had been set in train for the preparation of a fresh report under the HPA by Justice Mathews.
135 On 19 December 1995 a further application for a s 10 declaration to stop the construction of the bridge was made to Mr Tickner by a group of Ngarrindjeri men and women. In response to a request from these applicants, the Prime Minister on 22 December 1995 designated Senator Rosemary Crowley to act on behalf of the Minister for Aboriginal Affairs for the limited purpose of determining the application made on 19 December 1995. On 16 January 1996 Senator Crowley nominated Justice Mathews to prepare the report required by s 10(1)(c) of the HPA.
136 Justice Mathews by notices published on 19 January 1996 invited representations. Thereafter she conducted inquiries and received many submissions, including submissions from Ngarrindjeri women opposed to the construction of the bridge. The dissident Ngarrindjeri women who denied the existence of restricted women’s knowledge did not participate in the inquiry process carried out by Justice Mathews.
137 Justice Mathews delivered her report in June 1996. However before she did so, a number of the dissident Ngarrindjeri women sought a declaration from the High Court of Australia that the nomination of Justice Mathews was incompatible with her commission as a judge of the Federal Court of Australia. On 6 September 1996 a majority of the High Court held that s 10(1)(c) of the HPA did not authorise the nomination of judges appointed under Chapter III of the Constitution: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1. In consequence, the appointment of Justice Mathews was invalid.
138 Whilst Justice Mathews’ inquiry was under way the Federal election on 2 March 1996 took place, and a change of Government occurred. On 8 March 1996 Senator John Herron was sworn in as the new Minister for Aboriginal and Torres Strait Islander Affairs. On 17 September 1996 Senator Herron tabled the report of Justice Mathews in the Senate, and publicly announced that the Government would introduce special legislation to prevent a further application under the HPA, and to authorise the construction of the bridge.
139 In her report Justice Mathews noted that there was an expectation that the proponents for the s 10 declaration would advance the restricted women’s knowledge which was the subject of the secret envelopes as a reason why the area to be traversed by the bridge was a significant Aboriginal area. However, for reasons canvassed in Chapter 4 of her report, proponent Ngarrindjeri women were not prepared to reveal the contents of any restricted knowledge, and she concluded that it was therefore unnecessary for her to embark upon the vexed issue of whether “women’s business” exists in Ngarrindjeri culture. The overview to the report includes the following summary:
“In the absence of restricted women’s knowledge, other issues assumed much greater significance under the application than had initially been anticipated. In particular the applicants relied strongly on the fact that the Hindmarsh Island/Goolwa area was once an important Ngarrindjeri living, trading and ceremonial centre, with many remaining archaeological signs of its early days. The applicants have claimed that there are significant archaeological sites in the area, including burials, which would be desecrated by the building of a bridge to Hindmarsh Island. They have also relied upon the significance of the waters surrounding Hindmarsh Island. In particular they have identified three traditions from which these waters are said to derive their significance. One relates to ‘the Meeting of the Waters’, one derives from a story about the ‘Mulyewongk’, and one is associated with the ‘Seven Sisters Dreaming Story’. The construction of the bridge, they said, would adversely affect the channel between Goolwa and Hindmarsh Island which is significant in accordance with these traditions.
All these matters are discussed extensively in Chapters 8 and 9 of the report. After considering them carefully I have concluded that whilst they may well make the area a ‘significant Aboriginal area’, there is insufficient material from which the Minister could be satisfied that the building of the Hindmarsh Island bridge would desecrate this area according to these traditions.
If my advice on these matters is accepted it means that the applicants have failed to provide adequate material to support the making of a declaration as sought in their application.”
140 The proposed legislation was initially opposed by the Opposition, but later received its support. The Hindmarsh Island Bridge Act 1997 (Cth) was passed on 12 May 1997 and received Royal assent on 22 May 1997.
141 By a deed dated 22 May 1997 Binalong assigned to Mr and Mrs Chapman causes of action which it alleged against Luminis, Dr Fergie and Professor Saunders (the first deed of assignment).
142 On 23 May 1997 these proceedings were commenced by Mr and Mrs Chapman against Luminis, Dr Fergie and Professor Saunders.
143 On 27 May 1997 Dr Kartinyeri and another Ngarrindjeri person commenced proceedings in the High Court of Australia seeking a declaration that the Hindmarsh Island Bridge Act was invalid. The High Court dismissed that challenge to the legislation on 1 April 1998: see Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337.
144 From May to September 1997 confidential negotiations took place between interested parties including Westpac/PPL and Mr and Mrs Chapman about the sale of the marina by PPL as mortgagee in possession to Kebaro Pty Ltd (Kebaro), as trustee of family trusts of which Mr and Mrs Chapman and members of their family are the beneficiaries. On 19 September 1997 PPL through the Receivers and Managers which it had earlier appointed to Binalong entered into possession of the marina. By deed dated 25 September 1997 PPL sold the marina to Kebaro. The contract of sale settled on 30 September 1997. The deed required Kebaro to pay a sale price of $50,000 forthwith and a further amount which escalated depending on when that additional payment was made. The additional sum was $1,390,200 if paid within six months; $1,690,200 if paid within one year; $1,990,200 if paid within two years; and $2,490,200 if paid within three years. That additional payment had not been made, and was overdue under the terms of the deed, when evidence in this case concluded.
145 On 25 September 1997 Binalong assigned to Mr and Mrs Chapman causes of action which Binalong alleged against Mr Tickner and the Commonwealth (the second deed of assignment). Thereafter these proceedings were amended to include Mr Tickner and the Commonwealth as fourth and fifth respondents. The proceedings were further amended in September 1998 by adding Binalong as an applicant.
146 The proceedings formulate the applicants’ claim for damages in the following way. It is alleged that if the s 10 declaration had not been made, the State Minister for Transport and the State would have caused the bridge work to recommence, and the bridge work would have recommenced shortly after 9 July 1994. Shortly after 9 July 1994 Westpac/PPL would have entered into possession of the marina, and exercised its power of sale as mortgagee in possession. A contract of sale would probably have been entered into in about December 1994 with settlement occurring on or before 25 February 1995. The likely gross sale price would have been $16.8 million, and the likely net proceeds of sale after expenses would have been $16.582 million. The net proceeds of sale would have been applied at settlement to reduce Binalong’s debt to Westpac/PPL from $18.496 million to $1.914 million. However, the s 10 declaration had the effect that bridge work did not recommence on 9 July 1994, and the marina was not sold until the sale to Kebaro Pty Ltd. That sale was at a very low price because the bridge had not been constructed. The debt of Binalong to Westpac/PPL accordingly was not reduced in the manner anticipated in the pleadings and Binalong continued to incur interest on the debt outstanding at 9 July 1994. The applicants as assignees of Binalong in the pleadings claimed the difference between $16.582 million and the amount for which the marina was actually sold to Kebaro, together with the interest differential which, it was alleged, continued to accrue. The quantification of the loss changed somewhat during the trial, but the structure of the damages claimed remained.
147 The decision of the High Court of Australia upholding the validity of the Hindmarsh Island Bridge Act on 1 April 1998 cleared the last of the legal challenges to the statutory authority contained in that Act for the construction of the bridge. However it remained for the State to authorise the necessary steps to enable the construction of the bridge to proceed, including the renegotiation of the construction contract with Built Environs. The State was not prepared to take this step until threatened claims by the applicants and by Westpac/PPL had been satisfactorily resolved. From April 1998 to August 1999 negotiations continued between the State, Westpac/PPL, the Group Asset Management Division representing BFC, and the applicants. Agreement was reached, and a deed of settlement was executed by all parties on 11 August 1999. This cleared the way for construction to proceed.
148 Construction work on the bridge commenced in late October 1999 and proceeded through the period of the trial. The bridge was completed, and opened to traffic on 4 March 2001.
2. THE CAUSES OF ACTION
149 The broad contention against the respondents, other than the Commonwealth, is that Luminis and Dr Fergie, Professor Saunders and Mr Tickner each failed to do their respective jobs properly; had they done so, the s 10 declaration would not have been made, and the bridge construction would have proceeded. The claim against the Commonwealth is based on an alleged acquisition of Binalong property effected by the ss 9 and 10 declarations. The respondents each deny the allegations made against them, and also deny that Binalong suffered any loss in the events which happened.
Luminis and Dr Fergie
Misleading or deceptive conduct
150 Paragraph 38 of the statement of claim alleges that the Fergie Report was misleading or deceptive or was likely to mislead or deceive. Accordingly Luminis engaged in conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) (the TPA). Paragraph 39 alleges that Dr Fergie was involved in these contraventions within the meaning of s 75B of the TPA and incurred liability as an accessory. Further, par 40 of the statement of claim alleges that because her report was misleading or deceptive or was likely to mislead and deceive Dr Fergie engaged in conduct contrary to s 56 of the Fair Trading Act 1987 (SA). The particulars of the conduct alleged, and why the Fergie Report was misleading or deceptive are extensive, and are addressed in detail later in these reasons.
Negligence
151 Paragraphs 42A to 45 of the statement of claim allege that Dr Fergie was negligent in the performance of her consultancy role, and that Luminis is vicariously responsible. The role performed by Dr Fergie is said to give rise to a duty of care to Binalong as a party whose economic interests were likely to be affected by a failure by Dr Fergie to carry out her consultancy with reasonable care. That duty of care is alleged to have been broken by inaccurate statements made in the report, and a failure by Dr Fergie to carry out proper and sufficient tests and investigations. The particulars given in support of the allegation that the Fergie Report was misleading or deceptive are repeated.
Professor Saunders
Misleading or deceptive conduct
152 Paragraph 41 of the statement of claim alleges that Professor Saunders engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to s 52 of the TPA as that Act extended to her conduct by virtue of s 6(2)(a)(iv) of the TPA, and contrary to s 56 of the Fair Trading Act 1987 (SA) or s 11 of the Fair Trading Act 1985 (Vic). Again extensive particulars of conduct and of why the Saunders Report was said to be misleading or deceptive are pleaded. Many of the particulars raise factual issues that are common to, or similar to, the particulars pleaded against Luminis and Dr Fergie.
Accessorial liability
153 Paragraph 42 of the statement of claim alleges that Professor Saunders was involved in the contraventions of s 52 of the TPA and s 56 of the Fair Trading Act 1987 (SA) pleaded against Luminis and Dr Fergie respectively in that she aided and abetted, counselled or procured the contraventions by forwarding a copy of the Fergie Report to Mr Tickner knowing that matters stated and impressions given by the Fergie Report were incorrect.
Negligence
154 Paragraphs 45A to 48 of the statement of claim allege that Professor Saunders owed a duty of care to Binalong to carry out the preparation of the Saunders Report to a high standard because Binalong was vulnerably exposed to, and was unable to protect itself against, loss arising as a consequence of any lack of care on her part. The particulars of breach of the duty of care repeat the alleged misstatements and other conduct said to be misleading or deceptive; they allege failures to adequately investigate and question information reported on; and allege procedural errors and omissions.
Breach of statutory duty
155 Paragraphs 49 and 50 of the statement of claim allege that Professor Saunders acted in breach of duty to carry out the functions required by s 10 of the HPA in accordance with the HPA. Many of the particulars pleaded as misleading or deceptive conduct are repeated.
Misfeasance in public office
156 Paragraphs 50J to 50M of the statement of claim allege on several grounds that Professor Saunders is liable for misfeasance in public office in carrying out a statutory process as a reporter under s 10 of the HPA.
Mr Tickner
Negligence
157 Paragraphs 50A to 50C of the statement of claim allege that the circumstances gave rise to a common law duty of care by Mr Tickner as the Federal Minister to Binalong whose economic interests would be seriously affected by a s 10 declaration. Extensive particulars of breaches of that duty are pleaded.
Breach of statutory duty
158 Paragraph 50E of the statement of claim pleads that Mr Tickner acted in breach of statutory duty arising under the HPA, and, as particulars of breach of that duty, repeats the particulars given regarding Mr Tickner’s negligence.
Misfeasance in public office
159 Paragraphs 50N to 50QA of the statement of claim allege that Mr Tickner was guilty of misfeasance in public office. It is alleged that he knew he was acting beyond power or was recklessly indifferent or wilfully blind as to whether or not he was acting within power in making the s 10 declaration, in particular, in not personally receiving and reading representations received by Professor Saunders; in making the declaration in the face of information that there was a question about the precise definition of the area potentially the subject of the declaration and about whether the notice published by Professor Saunders seeking representations was adequate; and in making the declaration when he knew of circumstances which vitiated the appointment of Professor Saunders as reporter, namely that he had failed to disclose to the applicants that the reporter was a nominee of the proponents for the s 10 declaration.
The Commonwealth
Acquisition of property otherwise than on just terms
160 Paragraphs 50F to 50I of the statement of claim plead that the emergency declarations made under s 9 and the final declaration made under s 10 of the HPA resulted in the acquisition of property within the meaning of s 51(xxxi) of the Constitution and s 28 of the HPA, and that the Commonwealth has failed to pay any compensation in respect of the acquisition. The acquisition of property is said to have occurred because the declarations had the effect of extinguishing the rights of Binalong pursuant to the planning approvals, and under the Tripartite Agreement for the construction of the bridge.
3. MISLEADING or DECEPTIVE conduct claims
Introduction
161 Section 52(1) of the TPA provides:
“A corporation shall not, in trade or commerce, engage in conduct which is misleading or deceptive or is likely to mislead or deceive.”
162 Liability based on contraventions of s 52(1) is pleaded against Luminis, and accessorial liability is alleged against Dr Fergie on the ground that she procured or was knowingly involved in the contraventions. Against Professor Saunders, it is alleged that the TPA has an extended operation so as to apply to her in the provision of consultancy services to the Commonwealth. Section 56 of the Fair Trading Act 1987 (SA) and s 11 of the Fair Trading Act 1985 (Vic) impose prohibitions upon a person, in trade or commerce, engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. The applicants allege that Dr Fergie contravened s 56 and that Professor Saunders contravened both s 56 and s 11. It is also alleged that Professor Saunders was knowingly involved in contraventions of s 52(1) by Luminis, and of s 56 by Dr Fergie.
163 Section 52(1) of the TPA and the corresponding sections of the Fair Trading Acts establish norms of conduct. Civil liability for contraventions of these sections is created by other provisions of the Acts. Relevantly, each Act provides that a person who suffers loss or damage by conduct of another person in contravention of these provisions may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention, provided that action be commenced within three years after the date on which the cause of action accrued: see TPA, s 82; Fair Trading Act 1987 (SA), s 84; and Fair Trading Act 1985 (Vic), s 37.
164 It follows from the terms of these provisions that to make out the causes of action founded on them the applicants must establish that the relevant respondent (1) in trade or commerce engaged in conduct that (2) is misleading or deceptive or is likely to mislead or deceive (3) by which Binalong suffered loss or damage, and (4) this action was relevantly commenced within three years of the accrual of the cause of action. For reasons which follow I conclude that the applicants have failed to establish each of these matters.
In trade or commerce
165 The meaning of the words “in trade or commerce” in s 52 is established by the reasons of the majority of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. At 602 Mason CJ, Deane, Dawson and Gaudron JJ observed that the phrase has a restricted operation which qualifies the prohibition against engaging in conduct of a specified kind. Their Honours, at 603, expressed their preference for the construction that the phrase refers:
“… only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J in a different context in Bank of NSW v The Commonwealth, the words ‘in trade or commerce’ refer to ‘the central conception’ of trade or commerce and not to the ‘immense field of activities’ in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.”
And later at 603 – 604 their Honours said:
“Indeed, in the context of Pt V of the Act with its heading ‘Consumer Protection’, it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.”
166 As the passage last cited recognises, s 52 is concerned with conduct by a corporation towards persons, be they consumers or not which of its nature bears a trading or commercial character. A similar construction is to be accorded to the provisions of the Fair Trading Act 1987 (NSW)in regard to conduct by persons: see Prestia v Aknar (1996) 40 NSWLR 165 at 178 – 180.
167 The critical issue in the present case is whether the impugned conduct of Dr Fergie (both in respect of the claim under the TPA where her conduct is relevantly to be treated as the conduct of Luminis, and in respect of the claim against her under the Fair Trading Act 1987 (SA)) and of Professor Saunders was conduct “in trade or commerce”. The respondents contend that it was not as the making of statements contained in, and representations conveyed by the Fergie Report and the Saunders Report was not conduct that bore a trading or commercial character.
168 It is convenient to deal first with the claims against Professor Saunders. The applicants contend that by force of s 6(2)(a)(iv) of the TPA and the definition of “services” in s 4 of the TPA the supply of consulting services by Professor Saunders to the Commonwealth (through ATSIC) is assumed or deemed to be services in trade or commerce.
169 Section 6(2) has the effect of extending s 52 to the conduct of individuals in prescribed circumstances. However the applicants seek to give s 6(2) added significance in the circumstances of this case. Section 6(2), as it stood in 1994 provided:
“This Act, other than Part X, has, by force of this subsection, the effect it would have if:
(a) any references in this Act other than in subsection 45D(1A) or in section 55 to trade or commerce were, by express provision, confined to trade or commerce:
(i) between Australia and places outside Australia;
(ii) among the States;
(iii) within a Territory, between a State and a Territory or between two Territories; or
(iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of Commonwealth;
(b) sections 45, 45B, 45D, other than subsection (1A), 45E, 46, 46A, 53B, 60 and 61, subsections 64(3) and (4), section 75A and Part VIII were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(i) trade or commerce between Australia and places outside Australia;
(ii) trade or commerce among the States;
(iii) trade or commerce within a Territory, between a State and a Territory or between two Territories; or
(iv) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth;
(c) any reference in Division 2 of Part V to a contract for the supply of goods or services and any reference in Division 2A of that Part or in Part VA to the supply of goods, were, by express provision, confined to a contract made, or the supply of goods, as the case may be:
(i) in the course of, or in relation to, trade or commerce between Australia and places outside Australia;
(ii) in the course of, or in relation to, trade or commerce among the States; or
(iii) in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between two Territories;
(d) in subsection 45(1) and subparagraph 87(3)(a)(i) the words ‘in so far as it confers rights or benefits or imposes duties or obligations on a corporation’ were omitted;
(e) in subsection 45B(1) and subparagraph 87(3)(a)(ii) the words ‘in so far as it confers rights or benefits or imposes duties or obligations on a corporation or on a person associated with a corporation’ were omitted;
(ea) paragraph 45D(1)(a) was omitted and in paragraph 45D(1)(b) the words ‘the fourth person is a corporation and’ were omitted;
(eb) subsection 45E(3) was omitted;
(f) [Repealed.]
(g) subsection 96(2) was omitted; and
(h) subject to paragraphs (d), (e), (ea), (eb) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 50, 50A or 81 included a reference to a person not being a corporation.”
170 The definition of “services” relevantly provides:
“Services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
…
(b) …
(c) …
(d) …
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.”
171 The applicants argue that s 6(2)(a)(iv) refers to trade or commerce “by way of” the supply of services to the Commonwealth. The definition of “services”, because the words “in trade or commerce” do not appear after the words “without limiting the generality of the foregoing” is said to deem Professor Saunders’ consultancy services, being services in the nature of “benefits … provided … under a contract for or in relation to the performance of work (including work of a professional nature)” to be services provided in trade or commerce.
172 I do not accept that argument. The purpose of s 6(2) is to give an extended operation to s 52 in the way described by Mason J (with whom the other members of the High Court agreed) in The Queen v The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 at 243 – 245. His Honour said at 244:
“The first additional operation given to the Act is that given by s 6(2). It extends the application of the principal provisions of the Act to persons not being corporations, as well as to corporations, whilst they are engaged in interstate or overseas trade or commerce, trade or commerce between territories or with a territory or in the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.”
173 This paragraph recognises that s 6(2) is to be read as a whole. The applicants’ submission by concentrating only on s 6(2)(a)(iv) overlooks the cumulative operation of the several paragraphs of s 6(2) and the purpose of the subsection as a whole. Mason J at 245 considered how s 53(a) of the TPA would be read in light of s 6(2). By parity of approach, s 52(1) should be read in light of s 6(2) as follows:
“A corporation shall not, in trade or commerce, and a person not being a corporation shall not, in trade or commerce –
(i) between Australia and places outside Australia;
(ii) among the States;
(iii) within a Territory, between a State and a Territory or between two Territories; or
(iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth,
engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
174 So read, the extended operation of s 52 given by s 6(2) does not remove the requirement that the prescribed conduct must be “in trade or commerce”, and that is so even if the applicants’ construction of the definition of “services” is correct. The majority in Concrete Constructions at 602 refer to the extended operation of s 52 brought about by s 6(2) but do not suggest that the construction to be given to s 52 will differ according to whether the section has a direct operation according to its terms, or an extended operation by virtue of s 6(2).
175 Although it is not strictly necessary to decide the point, I consider that the construction which the applicants place on the definition of “services” is incorrect. The words which follow the phrase “without limiting the generality of the foregoing”, by expressly including the particular kinds of rights, benefits, proceedings or facilities described, give an expanded meaning to the words “rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities” appearing at the commencement of the definition but, by including within those words rights etc. of the kinds described in pars (a) to (d), all the services remain subject to the “in trade or commerce” qualification.
176 The applicants also contend that the Saunders Report was prepared and published in trade or commerce because Professor Saunders was in a commercial relationship with ATSIC under which she agreed to provide consultancy services and prepare her report for a fee. The fee was to be assessed at a daily rate: see par 85 above. The applicants contend that it should be inferred that ATSIC and Professor Saunders entered into the agreement because they desired commercial arrangements to govern their relationship and to impose commercially useful rights and remedies. They contend that the preparation of the Saunders Report under an agreement to provide professional or consultancy services for reward amounts to conduct in trade or commerce. To support this contention they rely on Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 220, Durant v Greiner (1990) 21 NSWLR 119 at 129 and Prestia v Aknar at 194. The proposition that because the impugned conduct occurred in the course of carrying out a contract entered into in the course of trade or commerce, it is necessarily conduct “in trade or commerce” is inconsistent with the decision in Concrete Constructions. There, the contract of employment was entered into in the course of trade or commerce, but the foreman’s statement that a grate could safely be removed by the plaintiff in the manner he explained was held not to be made “in trade or commerce”. The making of the statement was not conduct of the corporation towards persons with whom it had dealings in the course of its trading or commercial activities which, of their nature, bore a trading or commercial character. The majority at 604 – 605 said:
“The alleged misleading or deceptive conduct of the Company’s foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that that conduct was not, for relevant purposes, conduct ‘in trade or commerce’ and would not, if established, constitute a contravention of s 52 of the Act.”
177 The majority of the High Court at 602 – 603 rejected a construction of s 52 which would encompass all conduct in the course of the myriad of activities which are undertaken in the course of, or incidental to, the carrying on of an overall trading or commercial business. In my opinion the applicants’ contention that merely because the report was prepared by Professor Saunders in the course of carrying out the consultancy agreement it was prepared in trade or commerce is a contention that asserts the same broad construction of s 52 that was rejected in Concrete Constructions. Even though it may be accepted that the consultancy agreement to provide professional services for reward was entered into by Professor Saunders in the course of trade or commerce, the question earlier identified remains: was the impugned conduct of Professor Saunders “in trade or commerce”. That conduct, with one exception, being the particular pleaded in par 41(n) of the statement of claim, relates to communications made to Mr Tickner in the Saunders Report.
178 In making her report, and in gathering information through the receipt of representations made by interested persons, or otherwise, Professor Saunders was carrying out the statutory function of a reporter under s 10(4) of the HPA. In my opinion that is not a function which is itself an aspect or element of activities or transactions which bear a trading or commercial character. That the reporter is carrying out work of a professional nature in performing that function, and is being remunerated for doing so, does not transform the function into an activity which bears a trading or commercial character. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272, Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41 – 669 and Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 41 – 710 provide examples where conduct incidental to the carrying on of an overall trading or commercial business has been held not to be conduct “in trade or commerce” within the meaning of s 52 of the TPA. In my opinion the making of statements contained in the Saunders Report is not conduct by Professor Saunders in trade or commerce.
179 The one exception in par 41(n) concerns a statement said to be made by Professor Saunders to the Chapmans (not to the Receivers and Managers of Binalong) on 22 June 1994 and conduct by her thereafter. The particular reads:
“On 20 June, 1994 the Applicants by their solicitors wrote to Professor Saunders and objected to a proposed course of conduct where Dr Fergie would assist Professor Saunders with her inquiries and/or sit in on her consultations with Aboriginals, and at a subsequent meeting on the 22nd June 1994 Professor Saunders advised the Applicants that she would conduct herself generally in accordance with their request, but on the very same day Professor Saunders consulted Dr Fergie by telephone for about two hours, and she received the Fergie Report, derived assistance from it, and extensively based the Saunders Report on it, and without informing the Applicants at any time that these things were happening.”
180 Accepting for present purposes the accuracy of the factual allegations in this particular, it pleads conduct by Professor Saunders which was plainly conduct in the course of the performance of her statutory function as a nominated reporter under s 10 of the HPA, and was incidental to the making of the Saunders Report. The conduct did not bear a trading or commercial character, and in my opinion could not be characterised as conduct in trade or commerce.
181 The applicants’ reliance on Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd is misplaced. In that case the applicant alleged that the second respondents who had been engaged as consulting and supervising engineers for road, earth and drainage works associated with a land subdivision had misrepresented their experience and expertise in the design and supervision of land subdivisions. The representations were of a promotional nature and their making would ordinarily fall within the notion of conduct in trade or commerce. However it was argued by the second respondents in that case “that the provision of services by a member of a profession is not capable of being conduct in trade or commerce for the purpose of the section” (at 217). It was in answer to that submission that French J at 220 said:
“However, where the conduct of a profession involves the provision of services for reward, then in my opinion, even allowing for widely differing approaches to definition, there is no conceivable attribute of that aspect of professional activity which will take it outside the class of conduct falling within the description ‘trade or commerce’.”
The case does not decide that the provision of professional services for reward necessarily constitutes conduct in trade or commerce. Further, it should be noted that the decision was before Concrete Constructions, and if this passage from the judgment were otherwise supportive of the wide interpretation of “in trade or commerce” for which the applicants contend, that interpretation would be inconsistent with the decision of the High Court.
182 Durant v Greiner and Prestia v Aknar upon which the applicants rely are both decisions which concerned the application of the concept of “in trade or commerce” in the Fair Trading Act 1987 (NSW). It should be noted that this Act contains a definition in s 4(1) of trade or commerce that includes “any business or professional activity”. This definition is a wide one, perhaps reflecting the fact that the New South Wales Parliament is not under the constitutional limitations of the Federal Parliament. The cases must be read in light of that wide definition which is not contained in either the TPA, the Fair Trading Act 1987 (SA) or the Fair Trading Act 1985 (Vic).
183 Notwithstanding the inclusion of professional activity in the definition of trade or commerce, it was held, in Durant v Greiner, that statements made by an elected Member of Parliament, by way of election promises in relation to the non-closure of schools within the State education system, even if those statements constituted professional activity productive of income, were not misleading statements within s 42(1) of the Fair Trading Act 1987 (NSW) as they were not made in trade or commerce. The court, at 128, applied the notion of “in trade or commerce” as enunciated by the High Court in Concrete Constructions.
184 In Prestia v Aknar a solicitor acting as an unpaid informal mediator and in the circumstances not acting in a professional capacity was held not to be acting in trade or commerce for the purpose of s 42(1). In reaching this conclusion the court followed Concrete Constructions. The passage from the judgment of Santow J relied on by the applicants does not support the wide proposition for which they contend. Relevantly, at 194 in summing up, Santow J said:
“1. The purpose of consumer protection is certainly not the sole purpose of the Act; clearly it can be invoked by other than consumers. Its purpose, as confirmed by the Minister’s Second Reading Speech and from the text itself, is to provide a substantially uniform common commercial code, applying equally to commercial and consumer transactions, at the least.
2. The Act is to govern dealings in the course of those activities or transactions, including professional activities, but only those which, of their nature, bear a trading or commercial character.
3. The wider interpretation that would render the Act applicable to any professional activity per se is rejected …”
185 The applicants also seek support from Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595, Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 and Pacific Cole Pty Ltd v Idemitsu Queensland Pty Ltd (1992) ATPR 46 – 094. I do not think these decisions assist the applicants. Both Brown and Merman were decided before Concrete Constructions. In each of the cases, the statements relied upon were made in circumstances where they were intended to further the trading or commercial interests of the maker and fall within the test adopted in Concrete Constructions.
186 I now turn to the position of Luminis and Dr Fergie. The contractual documents which recorded the terms of the agreement between Luminis and the ALRM simply record the basis on which Luminis and Dr Fergie were to be remunerated by the ALRM for the provision of the consultancy services. It is admitted in the pleadings by Luminis that it carried on business as a provider of consultancy services, and Dr Fergie was a professional person utilising her professional skills in the course of the consultancy. However, as with Professor Saunders, these facts are not in themselves sufficient to establish that the impugned conduct of Dr Fergie was conduct in trade or commerce for the purpose of the statutory prohibitions.
187 The conduct pleaded against Luminis and Dr Fergie as the basis for the causes of action founded on misleading or deceptive conduct relates wholly to representations conveyed by her report. Whilst Dr Fergie was not performing a function required by statute, her report was prepared for use in connection with an application made to the relevant Minister for protection under s 10 of the HPA. The report was concerned with the description and analysis of Ngarrindjeri culture and spiritual matters. It had nothing to do with trading or commercial considerations of the Ngarrindjeri people, of the ALRM, or of Luminis or Dr Fergie. There was no element of promotion or indirect protection of commercial interests of the Ngarrindjeri people, of the ALRM, or of Luminis or Dr Fergie. The purpose of the report was to provide Dr Fergie’s professional assessment and opinion upon the Aboriginal tradition that she was asked to consider. The report was the intellectual product of her activities. In this respect the distinction considered by Santow J in Prestia v Aknar at 190, 193 is to be noted. The distinction is one to be drawn between representations about the intellectual product or about the professional practice which generates it as distinct from the intellectual product itself. Representations of the former, but not the latter kind, bear a trading or commercial character. At 193 Santow J cited with approval a passage from an article by Professor Bernard McCabe “Re-visiting Concrete Constructions” (1995) 3 Trade Practices Law Journal 161 at 174:
“If one examines the conduct of a professional carefully, it is possible to discern two different species of act. There is first the exercise of the intellectual skill, which is typically expressed in the form of advice to the client. Then there are the representations about the advice and the advisor which are essentially made to promote the business of providing the intellectual skill. It follows that one may distinguish between the commercial activity of providing the advice (and the representations made in relation to it) and the actual content of the advice …
While the professional relationship clearly bears a trading or commercial character in that a service is provided for reward, the content of the service falls outside the central conception of trade and commerce. In other words the advice is the product: misrepresentations that are made in relation to it in order to induce the client to enter into the professional relationship will clearly be conduct in trade or commerce. The content of the advice, however, will relate to some other matter distinct from the professional relationship … so too with lawyers: where the lawyer advises a client on an appropriate structure for their business, the lawyer is rendering advice that relates to matters of trade, but which do not directly relate to the terms of the commercial relationship between lawyer and client.”
188 The distinction has application here. In negotiating with and entering into contractual arrangements between Luminis and the ALRM for the provision of Dr Fergie’s services, both Luminis and Dr Fergie would have engaged in conduct in trade or commerce. However that conduct bears a different character to the product of the consultancy service.
189 The conduct of Dr Fergie in the preparation of her report, and the representations conveyed by it, are similar in character to the representations considered in Plimer v Roberts (1997) 80 FCR 303. There, the appellant alleged that the respondent had made misleading and deceptive comments in the course of public lectures given by the respondent concerning the existence of Noah’s Ark. Public meetings addressed by Dr Roberts were conducted under the auspices of an unincorporated association whose activities were promoted by publications and tapes sold at the public meetings. The appellant’s claim that the respondent contravened s 52 of the TPA and the mirror provision in s 42 of the Fair Trading Act 1987 (NSW) failed on the ground that statements made in the course of delivering the lectures did not constitute conduct in trade or commerce. Lindgren J (with whom Davies and Branson JJ agreed) said at 327:
“While there is much to be said in favour of the proposition that NARF’s activity in selling the door tickets, videotapes and audio cassettes was conduct in trade or commerce, I find it unnecessary to decide whether it was. I shall assume that it was … In my opinion, Dr Roberts’ misrepresentations did not take place ‘in’ that supposed trade or commerce of NARF.
The delivery of the lectures was not inherently a trading or commercial activity. The misrepresentations, made in the course of the giving of them, were not in the nature of a promotion of NARF’s selling of door tickets or videotapes or audio cassettes. The misrepresentations were no different, in the present respect, from misrepresentations made in the course of the giving of lectures or addresses in many familiar factual settings. A professor delivers a lecture to university students; an academic or other person presents a paper at a conference or seminar held for the practitioners of a profession; a public figure addresses a crowd in a hall. Assume that in each case the speaker is not paid but understands that the institution or organisation which has arranged the event is making an admission charge or will sell various recorded forms of the lecture or address, or both. In such cases, what is said in the course of the delivery of the lecture or address will not ordinarily be ‘in’ trade or commerce, even if the charging and selling by the institution or organisation is. Dr Roberts’ misrepresentations were not placed ‘in trade or commerce’ by the fact that, to his knowledge, an admission charge was being imposed and audio and video recordings were being made and were to be sold.”
190 In the present case, the position of Dr Fergie is distinguishable from that of Dr Roberts in that Dr Fergie was receiving a fee for the preparation of her report. However in my opinion that fact does not alter the character of the conduct of Dr Fergie upon which the applicants rest their case. That conduct was in no sense promotional of the services of Dr Fergie or anyone else. The Fergie Report and the representations in it did not constitute conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. In my opinion the making of the impugned representations conveyed by the Fergie Report was not conduct in trade or commerce.
191 The causes of action against Dr Fergie and Luminis, and Professor Saunders based on the statutory prohibitions in s 52 of the TPA, the Fair Trading Act 1987 (SA) and the Fair Trading Act 1985 (Vic) must fail on the ground that their impugned conduct was not in trade or commerce.
Misleading or deceptive conduct
192 The next issue raised in this limb of the applicants’ case is whether they have established that the Fergie Report and the Saunders Report are misleading or deceptive by reason of representations conveyed in them.
193 A representation will be misleading or deceptive if it leads the recipient into error, or is likely to have that consequence. The statutory prohibitions are not confined to conduct which was engaged in as a result of a failure to take reasonable care. A respondent who has acted honestly and reasonably may nevertheless be rendered liable if the respondent’s conduct has in fact misled or deceived or is likely to mislead or deceive: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ. It is the objective nature of the respondent’s conduct that is ultimately determinative of liability and not the state of mind of the respondent: Bowler v Hilda Pty Ltd (1998) ATPR 41 – 625 at 40,857. A representation constituted by a statement involving the state of mind of the maker of the statement, e.g. promises, predictions and opinions, ordinarily conveys the meaning that the maker of the statement had a particular state of mind when the statement was made and that there was a basis for that state of mind. Thus an expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and that there is basis for the opinion. If those conditions are met, an expression of opinion, however erroneous, misrepresents nothing: see Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 and James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 372.
194 It is not always easy to determine whether an expression of opinion will be identifiable as such by the person to whom the representation is directed. It is necessary in every case to look at the particular reader or class of reader likely to be affected by the representation: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd at 199 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 25 – 26 per Foster J and at 46 where Hill J said:
“No case will afford a guide to any other case, since it must essentially be a question of fact whether a particular formulation of words expresses merely an opinion or a statement of fact. However, two observations may be made. First, the subjective purpose or motivation of the maker of the statement will not be of much significance. It is the reader’s perception of the maker’s intention which will ordinarily be the significant matter. The question will generally be resolved by looking to the persons to whom the statement was directed and asking whether any members of that class of persons would reasonably understand the statement to be one of fact or of opinion.”
195 In the present case the intended readers of the Fergie Report and the Saunders Report were well known to the author of each report. In the case of Dr Fergie, she knew that her report was being prepared to support a representation to be made by the ALRM on behalf of the LMAHC. She knew that, subject to the ALRM and the LMAHC deciding to incorporate the report in a submission, it would be for the consideration of Professor Saunders as the nominated reporter, and Mr Tickner as the Minister under the HPA. In the case of Professor Saunders, her report was prepared specifically for the consideration of the Minister who alone had the responsibility of determining whether a declaration should be made under s 10. In each case therefore the intended readers were known to be well informed intelligent people.
196 The conduct of a respondent must be viewed as a whole. Where, as in the present case, a lengthy document is alleged to be misleading or deceptive, the document must be read as a whole as Gibbs CJ cautioned in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd at 199:
“It would be wrong to select some words or act, which, alone would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading. It is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words.”
197 In the present case, in respect of each of the reports, numerous particulars are alleged, each one directed to a particular statement or aspect of the report. The conduct alleged formed part of a matrix of representations that led ultimately to the conclusions of the Saunders Report that there was restricted women’s knowledge that made the bridge corridor (indeed a somewhat wider area which included the corridor) a significant Aboriginal area which would suffer injury or desecration if the construction of the bridge proceeded. Each of the separate representations must be read and understood in the context of all of the representations in the relevant report. The particulars include allegations concerning statements that there had been inadequate consultation, especially with women, in the Ngarrindjeri community. Professor Saunders expressed the view that inadequate consultation was a reason for the late emergence of the claim for protection based on restricted women’s knowledge. However if restricted women’s knowledge as reported by Dr Fergie and later by Professor Saunders was in truth part of genuine Aboriginal tradition, the late emergence of that tradition could not lessen the significance of the belief and the threat of injury or desecration posed by the construction of the bridge. The fact of late emergence and the prospect of disruption to the further development of Stages 2 to 6 of the marina were common ground. The reasons for the late emergence would not change the nature or extent of the threatened injury or desecration.
198 I consider that unless the applicants can establish that the restricted women’s knowledge was not part of genuine Aboriginal tradition within the meaning of the HPA, the claims based on the statutory prohibitions against misleading and deceptive conduct cannot succeed. This is so largely because the particular representations pleaded will not be shown to be wrong in their cumulative effect, and also because no loss could be caused by the representations if the Saunders Report did not misrepresent the existence of the Aboriginal traditions upon which Professor Saunders reported. Put another way, unless the conclusions to which particular representations contributed are shown to be wrong, it is not to the point to show that implied statements as to past or present fact which underly the conclusions may not be correct, or that there was no reasonable or rational basis for them. A statement of opinion that something exists, which turns out to be correct although based on an incorrect premise or illogical reasoning, will not convey a misrepresentation.
199 For reasons which are discussed below, I am not satisfied that the applicants have established on the balance of probabilities that the restricted women’s knowledge as reported by Dr Fergie and Professor Saunders was fabricated, or was not in truth part of Aboriginal tradition within the meaning of the HPA. In most instances I am not satisfied that the particulars alleged of misleading or deceptive conduct have been established. Where a representation is held to be misleading or deceptive I am not satisfied that it was relied on so as in fact to mislead the recipient of the report. It follows from these conclusions that the claims against Luminis, Dr Fergie and Professor Saunders based on contraventions of the statutory prohibitions, and the claims against them for accessorial liability, must fail.
200 In section 10 of this judgment I consider the question of loss and the assessment of damages. I conclude that Binalong has not established that it suffered loss or damage because of the making of the s 10 declaration by Mr Tickner. The claims must also fail on that ground. Had it been proved that Binalong suffered damage as the result of the making of the s 10 declaration a question of causation would have arisen in relation to the misleading or deceptive conduct claims against Luminis and Dr Fergie. Professor Saunders says that she did not rely on Dr Fergie’s report in reaching the opinions expressed in her report, and the respondents contend that the evidence does not establish that Mr Tickner ever read Dr Fergie’s report: see par 501 below. If this is so, the claims against Luminis and Dr Fergie would also fail on the ground that the loss was not caused by reliance on the Fergie Report.
Limitation of action issues
201 The final issue that would arise on the misleading or deceptive conduct claims, if the applicants had otherwise succeeded to this point, concerns the limitation point pleaded by the respondents. They contend that the proceedings were not relevantly commenced against any respondent within three years of the accrual of the cause of action. It is critical to this submission that the action is brought by Mr and Mrs Chapman as assignees of the rights of Binalong, to enforce Binalong’s rights.
202 The proceeding was first commenced by Mr and Mrs Chapman against Luminis, Dr Fergie and Professor Saunders on 23 May 1997 as assignees of Binalong’s rights under the first deed of assignment: see par 141 above. The pleadings were amended on 11 December 1997 to add Mr Tickner and the Commonwealth as additional respondents following the assignment of Binalong’s causes of action against them to Mr and Mrs Chapman under the second deed of assignment: see par 145 above.
203 The respondents contend that the proceeding brought in the names of Mr and Mrs Chapman is not an action validly brought under s 82 of the TPA for the reason that if Binalong had suffered loss or damage by conduct of the respondents in contravention of s 52, Binalong was the only party who could commence the proceeding. The respondents contend that an assignee of such a cause of action cannot maintain an action to enforce it.
204 It has been consistently held in this court that the cause of action created by s 82 of the TPA cannot be assigned and must be enforced by action by the person who suffers loss or damage. See Park v Allied Mortgage Corporation Ltd (1993) ATPR 46 – 105, Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Fed C, Beaumont J, 7 November 1994, unreported), National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, Brookfield v Davey Products Pty Ltd (Fed C, Branson J, 8 February 1996, unreported) and Pritchard v Racecage Pty Ltd (1997) 72 FCR 203. In the first of those cases, Park, Davies J at 53, 469 based that conclusion on two reasons. He said:
“In my opinion, a right to claim damages under ss 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss 82 and 87 cannot, in my opinion, be assigned …
[Section 82] does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern & City Railway Co [1905] 1 KB 260 at 270 – 1, Defries v Milne [1913] 1 Ch 98 and Poulton v The Commonwealth (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs Park have discontinued their claims and that is an end to them.”
205 Davies J recognised that in the special circumstances mentioned, it might be possible to effect an assignment of a bare right of action in the nature of an action in tort. An action arising under s 82 of the TPA is such an action. In this case the assignments to Mr and Mrs Chapman were made by the liquidator of Binalong in exercise of a liquidator’s powers to “sell or otherwise dispose of, in any manner, all or any part of the property of the company”: s 477(2)(c) of the Corporations Law. If the general law prohibition upon assigning a bare right of action were the only obstacle to the maintenance of an action under s 82 by an assignee of the person who suffered loss or damage by a contravention of a relevant provision of the TPA, it is probable that s 477(2)(c), and the principles discussed in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 by Lord Wilberforce at 694 and Lord Roskill at 703 would overcome that obstacle. However the second ground relied on by Davies J would remain, namely that an assignee is not a person who comes within the terms of the statutory remedy. This view was adopted by Branson J in Brookfield at 28. Lindgren J reached the same conclusion in National Mutual where he said at 539:
“The causes of action under the TP Act … are not assignable, if for no other reason, because it is relevantly only the claimants who could possibly satisfy the statutory descriptions of being persons who suffered loss or damage caused by the conduct described in the statutes …”
206 This construction of s 82 has now been unanimously endorsed by a Full Court of this Court in Pritchard v Racecage Pty Ltd.
207 The provisions corresponding to s 82 of the TPA in the Fair Trading Acts are not in terms distinguishable from s 82. In accordance with the authorities mentioned, I hold that the causes of action alleged under s 82 of the TPA and the corresponding provisions of the Fair Trading Acts are not maintainable by Mr and Mrs Chapman suing as assignees of Binalong.
208 On 12 May 1998, after the respondents had filed defences which pleaded that there was no valid and effective assignment of the causes of action by Binalong to the applicants (a different issue to that now relied upon by the respondents) Mr and Mrs Chapman filed a notice of motion seeking orders giving leave to join Binalong and for consequential leave to further amend the proceedings by adding a new paragraph as follows to the statement of claim:
“7C In the event and to the extent the assignments referred to in paragraphs 6 and/or 7A are invalid and/or ineffective, or in the alternative incomplete in that such assignments are effective only to transfer an equitable interest or some other partial interest only in any of the respective causes of action or rights mentioned in paragraphs 6 or 7A, Binalong seeks to enforce such causes of action and/or rights against the relevant Respondents and recover from them in respect of the same.”
That notice of motion was treated as one made under Federal Court Rules O 6 r 2. Leave was granted to the applicants to join Binalong on 4 September 1998: Chapman v Luminis Pty Ltd (1998) 86 FCR 513.
209 The respondents contend that the earliest date upon which Binalong could be treated as a party to the action would be 12 May 1998, and by this date Binalong’s causes of action under s 82 of the TPA and the corresponding provisions of the Fair Trading Acts were already out of time and the causes of action statute barred. On the footing that leave to join Binalong was granted under Federal Court Rules O 6 r 2, I consider the respondents’ submissions are correct.
210 The applicants have sought to avoid this conclusion in two ways. First they argued that whilst the reasons for judgment which accompanied the grant of leave to join Binalong were expressly based on Federal Court Rules O 6 r 2, the application could equally have been treated as one under Federal Court Rules O 13 r 2 in which event, the applicants contend, the joinder of Binalong would “backdate” to the commencement of the proceedings, thereby bringing the notional commencement of proceedings by Binalong within the three year time limit. Order 13 r 2 was substantially amended in 1994 following the enactment of s 59(2B) of the Federal Court of Australia Act 1976 (Cth) which permitted Rules of Court to make provision for the amendment of documents in proceedings “even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment”.
211 As amended O 13 r 2 now reads:
“(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5), (6) or (7) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.
(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) An amendment to alter the capacity in which a party sues may be made if the new capacity is one which that party had at the date of the commencement of the proceeding or has since acquired.
(7) An amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment.”
212 The substantive amendments effected in 1994 introduced subrules (3) to (7). Prior to the amendment the generally accepted view was that the broad power of amendment contained in r 2(1) did not displace the old rule in Weldon v Neal (1887) 19 QBD 394 that amendments were not permissible to allow setting up a cause of action which was already barred by the statute of limitations: see Zoneff v Elcom Credit Union Ltd (1990) ATPR 41 – 058 and Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 per Toohey J at 561 – 562, with whom Deane J agreed at 545. The 1994 amendments were plainly intended to modify the rule in Weldon v Neal to allow amendment in the circumstances described in subrules (4) to (7): see subrule (3). The applicants contend that the joinder of Binalong as a party seeking to enforce its statutory remedies under the TPA and Fair Trading Acts falls within one or other of those subrules. I do not think that any of those subrules have application.
213 I do not consider the application to join Binalong was made to correct the name of a party because there had been a mistake in the name or identity of the parties originally named in the proceedings. The parties originally named remained parties. No correction or substitution occurred. The purpose of the amendment was to rectify an omission to join Binalong under any name or identity at all. Subrules (4) and (5) have no application as there has been no substitution of another party for an original party that was misnamed. Subrule (6) has no application because the amendment was not for the purpose of altering the capacity in which a party already named sought to prosecute the proceedings. I consider subrule (7) has no application to the circumstances in question. The subrule is intended to permit the addition or substitution of new causes of action or other foundations in law for claims between the existing parties to the proceedings. Whereas subrules (4), (5) and (6) contemplate the possibility of an addition or substitution of another person as a party, subrule (7) assumes that the same parties continue but that new bases for the claim may be introduced notwithstanding that they would hitherto have run foul of the rule in Weldon v Neal.
214 There is another dimension to the applicants’ contention that O 13 r 2(7) has application. The applicants contend that Binalong was properly joined as a necessary party to enable the applicants to enforce claims, other than the statutory claims, validly assigned to it. As the statutory claims reposing in Binalong arise out of the same facts as those already pleaded to support the claims in negligence, Binalong should properly have been joined by amendment under O 13 r 2(7) with the consequence that the action by Binalong to enforce the statutory claims would be deemed to have commenced on 23 May 1997. I do not consider that this argument assists the applicants. The fact is that leave to join Binalong was not granted under O 13 r 2(7). Had that rule been invoked at the time, a question would have arisen as to the terms upon which leave to make amendments should be granted. Had the issues that have arisen at trial in relation to the limitation period in respect of the statutory claims been raised at that time it would have been appropriate for the Court to grant leave to join Binalong only upon condition that the joinder did not defeat any limitation defence otherwise open to the respondents. Such a condition was imposed in Commonwealth of Australia v International Air Aid Pty Ltd (Fed C, Neaves J, 2 September 1994, unreported) where leave was granted to add causes of action in an existing proceeding under O 13 r 2. See also Liff v Peasley [1980] 1 WLR 781 at 803 – 804 per Brandon LJ and Brook v The Flinders University of South Australia (1987) 47 SASR 119.
215 In the result, I do not think O 13 r 2 could be invoked so as to overcome the expiry of the relevant limitation periods which had occurred before the applicant sought to join Binalong.
216 The second ground upon which the applicants seek to avoid the operation of the three year limitation period is to assert that time did not commence to run under the statutory provisions until the extent of the loss suffered by Binalong crystallised. The applicants contend that whilst they suffered an immediate loss when the s 10 declaration was made, that loss had the potential to disappear if the construction of the bridge commenced. That potential remained up until the time when the Receivers and Managers sold the marina. The applicants contend that for these reasons time did not commence to run until 30 September 1997. This submission is said to be supported by Wardley Australia Ltd v The State of Western Australia.
217 In my opinion this submission misunderstands Wardley and, indeed, it stands the decision on its head. In those proceedings Western Australia sued Wardley claiming damages for loss alleged to have been suffered by it as a result of misleading or deceptive conduct on the part of Wardley which led the State to grant an indemnity to the National Australia Bank against a facility granted by the bank to Rothwells Ltd. The misrepresentations were alleged to have been made on 24 October 1987, and the indemnity was granted soon thereafter. In due course the bank called on the indemnity, and the State was required to pay monies to the bank. On 14 January 1991, more than three years after the State had granted the indemnity, the State sought to amend its statement of claim to rely on representations made in October 1987. The question that arose for decision was whether the State relevantly suffered loss or damage when it granted the facility, or not until the event occurred which obliged the State to pay. It was held that when as a result of misleading or deceptive conduct a person grants an indemnity under which the person is obliged to make a payment if and when a loss of the party to be indemnified is ascertained and quantified, the indemnifier suffers no loss until the contingency is fulfilled, and accordingly time does not begin to run under s 82 of the TPA until that event occurs.
218 The applicants rely in particular on the following two passages from the joint judgment of Mason CJ, Dawson, Gaudron and McHugh JJ at 527:
“With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough.”
and
“In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of undercompensation or overcompensation, the risk of the former being the greater.”
These observations were made in the context of the issue before the court and relate to the position of an indemnifier under an agreement to indemnify on the happening of a future contingency. However, if the contingency did not happen, there never would be any loss at all.
219 The reasoning of the High Court lends no support to the applicants’ proposition that where a party suffers loss or damage by the conduct of another person in contravention of s 52 of the TPA, but the extent of the loss is at first uncertain, time does not commence to run until the extent of the loss is finally quantified. Here, the applicants’ case is propounded on the basis that there was an immediate and substantial loss, and on that basis time began to run immediately the loss happened, even though the extent of the loss may thereafter have either increased or decreased on the happening of later events.
220 Finally, the applicants argue that if the statutory causes of action are otherwise out of time, the Court is empowered to extend the statutory limitation periods to permit the present action to be maintained. In the case of the time limit imposed by s 82 of the TPA, the applicants contend that by virtue of s 79 of the Judiciary Act 1903 (Cth), s 48 of the Limitation of Actions Act 1936 (SA) is picked up and rendered a surrogate federal law to operate beside s 82 of the TPA. I reject this argument on two grounds. Section 79 of the Judiciary Act provides:
“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
221 Section 48(1) of the Limitation of Actions Act 1936 (SA) relevantly provides that:
“Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -
(a) instituting an action; or
(b) …
(c) …
a court may extend the time …”
222 Section 79 operates only in cases to which the particular State law is applicable, and then only so long as a law of the Commonwealth does not otherwise provide. In my opinion s 82 of the TPA by expressly providing a finite three year period within which a cause of action must be accrued has “otherwise provided” so as to exclude the possible application of a State law which could modify that finite period. Moreover, s 79 only picks up a State law according to its terms, and does not give that law an extended meaning: John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80, 83 – 4, 88 and 94. Section 48 by its terms has operation only in respect of a time limit imposed by “an Act, regulation, rule or by-law”. Those words in a State Act are to be construed as meaning an Act, regulation, rule or by-law made by the State. Accordingly, s 48 by its terms does not apply to a time limit imposed by a law of the Commonwealth. In this respect the present case is distinguishable from Vink v Schering Pty Ltd (1991) ATPR 41 – 073 where the relevant provision of the Limitation of Actions Act 1936 (SA) dealing with actions by infants was in terms wide enough to make it applicable to a law of the Commonwealth. The relevant section was said to apply in respect of time limits imposed “by this Act, or any other Act or law”.
223 In the case of the causes of action alleged against Dr Fergie and Professor Saunders under the Fair Trading Act 1987 (SA), s 48 of the Limitation of Actions Act 1936 (SA) has application and, by virtue of s 79 of the Judiciary Act, this Court has jurisdiction to exercise the discretionary power to extend time. Where the limitation period is imposed by a South Australian Act other than the Limitation of Actions Act 1936 (SA) itself, the discretion is an unfettered one. However the discretion would not be exercised in favour of the applicants if the cause of action for other reasons had no prospect of success. In addition to the reasons already given why I consider the applicants’ claim under s 56 of the Fair Trading Act 1987 (SA) should fail, reference should also be made to s 55(1) of the Fair Trading Act 1987 (SA) which provides that:
“This Part applies to and in relation to transactions that take place, conduct that occurs and representations that are made within the State, whether wholly or partly.”
224 The respondents contend that the conduct said to contravene s 56 occurred wholly outside the State of South Australia, partly in the State of Victoria where and when the Fergie Report was provided to Professor Saunders and partly in the Australian Capital Territory where and when both reports were provided to Mr Tickner’s office. The applicants rely on the prima facie presumption that the operation of State legislation is territorial and submit that s 55 gives expression to what would already be implicit, namely that s 56 is not to be applied to conduct occurring outside South Australia. In the case of Professor Saunders I consider this argument to be correct. The position is less clear in the case of Dr Fergie as she was engaged by the ALRM in South Australia, and she prepared her report in South Australia. In these circumstances the nexus between her conduct and South Australia is plain, and it is arguable that by s 55, Part 10 of the Fair Trading Act 1987 (SA) could apply on the basis that there was within the State a relevant “transaction”. However, even if this is the case, the argument does not overcome the fact that Dr Fergie’s impugned conduct was not in trade or commerce. As the extra territorial application of the Fair Trading Act 1987 (SA) is an important question, and as it is unnecessary to decide it to resolve the present case, I say no more about it.
225 Section 48 of the Limitation of Actions Act 1936 (SA) can of course have no application in relation to the claim made under s 11 of the Fair Trading Act 1985 (Vic). In relation to the claim against Professor Saunders under that Act, the applicants in their final submissions sought to advance a complex argument, notwithstanding the respondents’ objection that it fell outside the pleadings. The applicants contended that by virtue of s 79 of the Judiciary Act, s 38A of the Limitation of Actions Act 1936 (SA) became a surrogate federal law. That section relevantly provides that if a court in South Australia applies a limitation law of another State, a discretion conferred by that law is to be exercised, as far as practicable, in the same way as courts in that other place exercise the discretion in comparable cases. Under that provision, the applicants then invited the Court, at the very end of the trial, to exercise the discretionary power contained in s 34 of the Limitation of Actions Act 1958 (Vic) nunc pro tunc. That section, with the accompanying marginal note, provides:
“34. Abrogation of rule in Weldon v Neal (1887) 19 QBD 394
(1) If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party’s claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.
(2) This section does not apply to an amendment in a proceeding commenced before 1 January 1987.”
226 The discretionary power under this section is to “allow a party to amend a document in the proceeding”, that being the step which was ruled to be impermissible in Weldon v Neal if the amendment would have added to the proceeding a cause of action that was out of time. The section is not addressed to the joinder of a new party to a proceeding where the cause of action against that party is already out of time. The section in my opinion has no application to the present situation where the party entitled to maintain the statutory cause of action, Binalong, was already out of time when the application to join Binalong as a party was made.
4. NEGLIGENCE CLAIMS
Professor Saunders and Mr Tickner – duty of care
227 Luminis, Dr Fergie, Professor Saunders and Mr Tickner deny the allegations of negligence made against each of them, and in doing so deny both the existence of the duties of care, and the breaches alleged against them. The claims against Mr Tickner and Professor Saunders require a consideration of the HPA, and it is convenient to deal with the claims against them first. The discussion about the HPA will throw light on the context in which Luminis and Dr Fergie came to be involved.
228 Against Mr Tickner the duty of care alleged, and the circumstances giving rise to that duty are set out in the following paragraphs of the statement of claim:
“50A By reason of the facts and circumstances [particularised earlier in the statement of claim] and particularly because Binalong would be directly and significantly financially affected by the acts, omissions and decisions of the Minister in the course of carrying out his functions under s 10 of the Heritage Act, the Minister owed Binalong a duty of care to carry out those functions with due care.
50B Further, or in the alternative, such duty of care arose … by reason of the approximate (sic – proximate) relationship between the Minister and Binalong as a result of the following matters … [Then follow lengthy particulars alleging knowledge by Mr Tickner of likely loss to Binalong, control by Mr Tickner over the making of the decision, the assumption of responsibility to Binalong arising from Mr Tickner’s knowledge that Binalong had been deprived of details of the women’s business, and Mr Tickner’s knowledge of the vulnerability of Binalong because it could not protect itself against loss arising from any lack of care by Mr Tickner].”
Paragraph 50C alleges breach by Mr Tickner of the duty of care and gives extensive particulars. The evidence pertaining to the alleged breaches is discussed later in these reasons.
229 The particulars of the circumstances said to give rise to the proximate relationship alleged in par 50B reflect factors identified by members of the High Court in judgments in Pyrenees Shire Council v Day (1998) 192 CLR 330, Perre v Apand Pty Ltd (1999) 198 CLR 180 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 as indicative of a relationship which gives rise to a common law duty of care to prevent the happening of foreseeable harm, including economic loss, to a party (in this instance Binalong) who in fact suffers harm as a result of the breach of duty alleged.
230 Against Professor Saunders duties of care and the circumstances giving rise to them are alleged in the following paragraphs of the statement of claim:
“45A Professor Saunders had a duty of care to Binalong to carry out the preparation of the Saunders Report to a high standard as a result of the following matters:
(a) Under the terms of[the agreement with ATSIC under which she was to perform consultancy services] Professor Saunders expressly agreed –
(i) to perform consultancy services, namely the preparation of the Saunders Report, at a high standard;
(ii) to take into account, in performing such services, the effect the making of a s 10 declaration would have on the proprietary or pecuniary interests of Binalong, being a person other than the persons applying for a s 10 declaration.
(b) Professor Saunders knew, or ought to have known, that Binalong would likely suffer loss if there was any lack of care by her in the performance of such services, or any failure by her to perform such services in accordance with such terms of agreement.”
Paragraphs 46 and 47 correspond with pars 50A and 50B of the pleadings against Mr Tickner alleging in par 46 that Professor Saunders owed Binalong a duty to carry out functions of a reporter under s 10 of the HPA with due care, in particular because Binalong would be directly, significantly and financially affected by the decisions of Professor Saunders in carrying out those functions, and in par 47 that such a duty of care arose by reason of the proximate relationship between Professor Saunders and Binalong arising from numerous factors which were then pleaded. Those factors include Professor Saunders’ knowledge that Binalong had been deprived of details of the women’s business and in consequence would rely on Professor Saunders exercising reasonable care, Professor Saunders’ knowledge that the Minister would rely on her report, her knowledge of likely loss to Binalong in the event of a s 10 declaration, and her knowledge that Binalong was vulnerably exposed and unable to protect itself against any lack of care on her part.
231 Mr Tickner denies that any duty of care as alleged or at all was owed by him in his capacity as the responsible Minister under the HPA because the functions he performed in making the s 10 declaration were legislative or quasi-legislative functions. For like reasons Professor Saunders also denies that she owed a duty of care in performing her functions under the HPA as she was carrying out an integral part of the process required by the HPA. In support of this submission reliance is placed in particular on the following passage in the joint judgment in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 at 18:
“The only power conferred by s 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister’s power to make a declaration. The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister’s power. It is performed as an integral part of the process of the Minister’s exercise of power.”
232 Further it is alleged that no duty of care was owed as each of Mr Tickner and Professor Saunders were exercising a public function of investigation. Both submit that there is a close analogy between persons exercising the public function of investigation which they performed under the HPA and the public functions of investigation in relation to the commission of crime where judicial authority is against imposing a duty of care: see Calveley v Chief Constable of Merseyside [1989] 1 AC 1228 at 1238, Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63 and Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 347 – 349.
233 In response to the assertion that the functions performed by Mr Tickner and Professor Saunders were legislative or quasi-legislative in character, and that the processes required by the HPA are part of a legislative or quasi-legislative process, the applicants contend that the contrary is established by the fact that their decisions were set aside on an application made under the ADJR Act which empowers the court to review decisions “of an administrative character made … under an enactment”: see s 3 of the ADJR Act. The applicants contend it is too late for the respondents now to say that the decisions were not of an administrative character but were of a legislative or quasi-legislative character. This submission confuses public law remedies with those available under private law for a breach of a common law duty of care, and provides no short answer to the defence of Mr Tickner and Professor Saunders. Further, it should be noted that no issue was raised either before O’Loughlin J or the Full Court in the ADJR litigation as to whether the decisions in question were administrative so as to truly attract a jurisdiction under the ADJR Act, or were legislative or quasi-legislative. This is understandable as the pleadings were wide enough to invoke the jurisdiction of the court under s 39B of the Judiciary Act 1903 (Cth) to grant the remedies sought by the applicants even if the decisions were legislative or quasi-legislative in character. (It is of interest to note that in the ADJR litigation the Chapmans argued that Mr Tickner made his decision “for political reasons”: Chapman v Tickner (1995) 55 FCR 316 at 359.)
234 As a matter of public law, a legislative or quasi-legislative decision can be declared invalid and set aside, e.g. because a pre-condition for the exercise of the power has not been fulfilled (as was the case with the s 10 declaration now under consideration) or on other grounds (as occurred in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 where a Management Plan under the Fisheries Act 1952 (Cth) was set aside because it was based on a statistical fallacy which operated to produce an absurd result). However, the fact that a legislative or quasi-legislative decision is set aside on public law principles does not give rise by way of private law remedy to a civil right to damages for breach of a common law duty of care: see judgment of Full Federal Court in Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 affirming (1994) 125 ALR 151 at 175, Crimmins at 20 [32], 35 [82], 62 [170], 78 [217], 83 – 85 [230 – 233], 101 [292].
235 The extent of the protection which the common law extends to the Crown and public authorities from civil action for breach of a common law duty of care in respect of the exercise or non exercise of legislative or quasi-legislative powers and functions is not easy to define, but whatever its limits, it does not extend to acts or omissions which are not concerned with policy matters. In the past, judicial authority has sought to draw a distinction between policy decisions and operational decisions, the protection being extended only to the former kind: see, for example, Anns v Merton London Borough Council [1978] AC 728 per Lord Wilberforce at 754. More recent cases suggest the distinction is one of limited assistance and must be applied with care: Crimmins at 37 – 38 [86] – [90].
236 In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469 Mason J said:
“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”
237 The latter situation was held to apply in Pyrenees Shire Council v Day where the Council was found liable to pay damages to the shop owners for its failure to act under its powers and functions to ensure that the defective fireplace was repaired. So too in Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330 (Full Court - unreported) the Council was held liable for breach of a common law duty of care to a building company because it granted approval to plans for subdivision and construction of cottages on land that was contaminated by toxic compounds. And in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 five members of the High Court held that the Commission owed a duty of care in respect of the safety of members of the public entering a nature reserve, although there was a difference of opinion whether the duty had been broken in the circumstances of the case. In Crimmins the High Court considered whether a stevedoring authority, a public authority established with statutory powers and functions, owed a duty of care to a stevedore who had been exposed to asbestos dust whilst working for employers to whom he had been allocated by the authority. Gaudron J said at 18 – 19 [25] – [27]:
“It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act. What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned.
In the case of discretionary powers vested in a statutory body, it is not strictly accurate to speak, as is sometimes done, of a common law duty superimposed upon statutory powers. Rather, the statute pursuant to which the body is created and its powers conferred operates ‘in the milieu of the common law’. And the common law applies to that body unless excluded. Clearly, common law duties are excluded if the performance by the statutory body of its functions would involve some breach of statutory duty or the exercise of powers which the statutory body does not possess.
Legislation establishing a statutory body may exclude the operation of the common law in relation to that body’s exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. That is why distinctions are sometimes drawn between discretionary and non-discretionary powers, between policy and operational decisions and between powers and duties. Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power.” (Footnotes omitted)
238 These passages stress that in a particular case the terms of the statute governing the relevant powers and functions are of critical importance, a point also made in the same case by Gleeson CJ at 13 [3], McHugh J at 26 [51] and 39 [93], Gummow J at 59 – 62 [159] - [170], Kirby J at 72 [203] and Callinan J at 113 [343]. See also Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 at 391 [307] and 454 [578].
239 Gaudron J in Crimmins approached the question of whether the authority was under a duty of care to the stevedore by considering, at 16 [18]:
“… first, whether the powers and functions conferred on the Authority are compatible with the existence of that duty; and secondly, whether there was a relationship between the Authority and Mr Crimmins of a kind that gave rise to such a duty.”
On the second question recent authority of the High Court requires that the adjudicating court first consider whether the circumstances of the case fall into a factual category of case where the law has already recognised that a duty of care arises when there exists a foreseeable risk of harm. If not, then the court must approach the case incrementally by reference to analogous cases, and what has been decided in them: see Perre v Apand Pty Ltd (1999) 198 CLR 180 at 217 [94], 302 [333], 325 [405]; Crimmins at 29 [61] and 32 [71] – [72] per McHugh J with whose reasons Gleeson CJ agreed; Heyman at 481; Caparo Industries Plc v Dickman [1990] 2 AC 605 at 618; and Hill v Van Erp (1997) 188 CLR 159 at 194. This exercise must however remain subject to the provisions of the statute, heeding the warning to this effect given by Gummow J in Crimmins at 59 [160]. In this exercise the focus will be on salient factors such as the vulnerability of the plaintiff who has suffered injury, reliance of that person on the defendant’s conduct to protect the plaintiff, the risk of harm to the plaintiff, the defendants’ knowledge (or possibly means of knowledge) of these factors, and the power or control of the defendant the exercise of which could minimise or remove the risk of injury: Perre v Apand Pty Ltd, and Crimmins at 23 – 25 [42] – [46], 40 – 42 [100] – [104], and 85 – 86 [233].
240 The particulars pleaded against Mr Tickner and Professor Saunders in pars 50B and 47 respectively in the statement of claim assume that the cases against each of them falls into a novel category of case. However I do not think this is so. In my opinion the cases pleaded against each of them fall into a well established and settled category, being that which is referred to by McHugh J in Crimmins at 29 - 30 [62] – [63]. His Honour there said:
“There is one settled category which I would have thought covered this case: it is the well-known category ‘that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely [footnote omitted] to be occasioned, by their exercise, damages for negligence may be recovered.’ [Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ] Similarly, in Sutherland Shire Council v Heyman [at 458], Mason J citing Caledonian Collieries Ltd v Speirs [at 219 – 220] said that ‘[i]t is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty’.
In directing the plaintiff and other waterside workers to places of work, the Authority was exercising its power to give directions in aid of its function of making ‘arrangements for allotting waterside workers to stevedoring operations’ [s 17(1)(f) of the Stevedoring Industry Act 1956 (Cth)]. That being so, I would have thought that the Authority owed a duty to the plaintiff as a person affected by the exercise of the power to exercise it with reasonable care for his safety. On that hypothesis, duty would not have been an issue in the case; breach of duty and causation would have been the critical issues for determination. But negligent exercise of a statutory power does not seem to be the way that the case was conducted at the trial or in the Court of Appeal. Nor was it the way that it was conducted in this Court.”
241 In the present case both Mr Tickner and Professor Saunders have entered upon the exercise of the powers and functions under the HPA. The present case is unlike Pyrenees Shire Council v Day, Crimmins, and Graham Barclay Oysters Pty Ltd v Ryan where the complaint was that statutory powers had not been exercised.
242 In Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 the plaintiff’s claim was for personal injuries arising out of the occupation and management of a railway pursuant to statutory powers exercised by the appellant. Crimmins case also concerned a claim for personal injuries, and in that respect it could not be distinguished from the circumstances in which the law had recognised a duty of care in Caledonian Collieries Ltd v Speirs. In the present case the claim is for pure economic loss. In Heyman, the fact that the latent defect in the footings may have given rise to a claim for pure economic loss was not treated as material by Mason J at 466, or as a ground for denying liability by Deane J who characterised the plaintiff’s loss as pure economic loss, at 512. See also Brennan J at 493. However where the claim is for pure economic loss, the potential for indeterminate liability to an indeterminate class of people is an important factor to be considered. That was not an issue in Heyman as the class of persons who could be beneficiaries of the duty was closely confined, namely to purchasers of the house property.
243 If the fact that in the present case the claim is for pure economic loss is a ground for treating the claims against Mr Tickner and Professor Saunders as not coming within the established category, factors relevant to assessing the closeness of the relationship between Binalong on the one hand and Mr Tickner and Professor Saunders on the other discussed in Perre v Apand Pty Ltd would arise for consideration. The bridge was the central focus of the claim for protection under the HPA and it was well known both to Mr Tickner and Professor Saunders that Binalong had contractual rights under the Tripartite Agreement and that Stages 2 to 6 of the marina were dependent upon the construction of the bridge. In these circumstances I consider that knowledge, and the particular interests of Binalong which distinguish their position from that of other residents, landowners or business proprietors on Hindmarsh Island, gave rise to a closeness of relationship which would impose on them a duty of care to Binalong if the imposition of such a duty is consistent with their respective powers and functions under the HPA. Hence the need for analysis of the HPA to see if such a duty is compatible with the powers and functions conferred on Mr Tickner, and Professor Saunders as the nominated reporter.
244 The analysis of legislation under which the Crown, or a statutory authority, or public official exercises statutory powers and functions is important not only to determine whether a duty of care was owed to the plaintiff to avoid or prevent the damage suffered by the plaintiff, but also to determine the scope and content of that duty. In Crimmins, Gleeson CJ at 13 [5] said:
“Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority’s conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations.”
245 Gaudron J pointed out at 21 [34]:
“A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question.”
246 Callinan J at 113 [343] said that the provisions of legislation, by stating the functions, powers and obligations of a respondent, operate to modify, mould and indicate the common law principles which may be applied to the respondent which otherwise would have an unfettered application to it.
247 In Crimmins the stevedoring authority had power to make binding orders under s 18(1) of the Stevedoring Industry Act 1956 (Cth) to do all such things as it sees fit. Succeeding subsections required consultation with union and employer representatives before the making of an order, and included the holding of hearings if the authority so determined. The majority of the High Court held that in the particular circumstances of the case the authority owed a duty of care to Crimmins to take effective steps short of making an order, and allowed the appeal on the basis that the authority had failed in that duty. However, the submission of the appellant that the authority was negligent in not making an order directed to protecting the safety of stevedores was rejected. In that respect, Gaudron J (with whom Kirby J agreed on this point at 86 [236]) said at 20 [32]:
“The critical consideration in relation to the Authority’s order-making power under s 18(1) of the Industry Act is that, if made, orders would have had the force of law. It is, thus, appropriate to characterise the power to make orders as legislative in nature. There is considerable incongruity in the notion that the common law might impose a duty of care in relation to the exercise or non-exercise of a power that is legislative in nature. Indeed, so incongruous is that notion that I am of the view that, as a matter of necessary implication, s 18 is to be construed as excluding the operation of the common law in relation to the Authority’s exercise or non-exercise of its power to make orders.” (Footnotes omitted)
Gummow J at 62 [170] said:
“The imposition of a common law duty of care on a statutory authority in respect of a matter the subject of a quasi-legislative power such as that in s 18 would imperil the devolution of responsibility from the legislature to that statutory authority. The common law would circumvent the legislative scheme by entering upon a field which, upon construction of the statute, is constituted by legislatively created norms which provide for delegated law-making. No action in negligence lies in respect of the passing of a by-law which causes economic loss to a plaintiff even if it later be declared invalid.” (Footnotes omitted.)
248 Hayne J at 101 – 102 [292] – [295] said:
“Put at its most general and abstract level, the fundamental reason for not imposing a duty in negligence in relation to the quasi-legislative functions of a public body is that the function is one that must have a public rather than a private or individual focus. To impose a private law duty will (or at least will often) distort that focus. This kind of distinction might be said to find reflection in the dichotomy that has been drawn between the operational and the policy decisions or functions of public bodies. And a quasi-legislative function can be seen as lying at or near the centre of policy functions if policy and operational functions are to be distinguished. But as more recent authority suggests, that distinction may not always be useful and I do not need to apply it in deciding the present matter.
I have referred to a ‘distortion’ of what should be the public focus of the performance of a quasi-legislative function. I turn to explain what I mean and do so by reference to the position if, contrary to the position in this case, the Authority had made an order under s 18.
An order, when made, had the force of law. An order could not lawfully be directed to a particular person or to a particular stevedoring operation; it had to have more general application. No doubt the class of persons affected by an order could be identified and in many (perhaps all) cases the class of persons for whose benefit the order was made could also be determined. It might be said that if those affected by the order and those for whose benefit the order is made can be identified, imposing a duty on a public authority to take reasonable care not to injure those persons would not distort the proper performance of that quasi-legislative function. I do not accept that this is so. Important as the interests of those two classes may be in deciding what order should be made, there will often be other important considerations that affect that question. To give only one example, the Authority may well have had to consider maintaining industrial peace as part of its obligation of securing expeditious, safe and efficient performance of stevedoring operations (s 8). Thus, questions of industrial relations may well have loomed very large in the waterside industry of the 1960s. How would those questions find reflection in the decision to make an order if regard is had only to the interests of those for whose benefit the order is made and those who are affected by it?
To impose a common law duty of care on the Authority would have affected the way in which the body went about its task. It would have shifted the Authority’s attention from what the general good of the industry required (which, of course, included workplace safety but was not limited to that) to what should be done to avoid the Authority being held responsible for particular breaches of workplace safety by those having primary responsibility for the task – the employers of waterside labour. Whatever may have been the social benefits of having the Authority fulfil that kind of role (and they may now be thought to have been large) it is essential not to lose sight of the fact that this is not the role that the parliament gave it. That being so, the courts should not, indeed cannot, do so.”
The Aboriginal and Torres Strait Islander Heritage Protection Act (the HPA)
249 I turn to consider the HPA. At the commencement of this judgment (pars 3 – 7) I referred to provisions of the HPA which set out its purpose, and the Minister’s powers under s 9 and 10 to make a declaration. The history and background of the HPA is discussed by French J in Tickner v Bropho (1993) 40 FCR 183 at 221 – 225. The purpose of the HPA is revealed by its long title and by s 4, namely the preservation and protection from injury or desecration of areas and objects in Australia and Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition. The importance of that purpose and its influence on the construction of the HPA is discussed in Tickner v Bropho at 191 – 195 per Black CJ, at 208 – 209 per Lockhart J and at 201 – 229 French J. Black CJ at 191 described the HPA as clear in its purpose, broad in its application, and powerful in the provision it makes for the achievement of its purpose. The Chief Justice noted at 193 that the HPA was described in the then Minister’s Second Reading Speech (House of Representatives, Commonwealth, Parliamentary Debates, 9 May 1984, p 2133) as beneficial legislation, remedying social disadvantage of Aboriginals and Islanders, and having the effect of preserving and protecting an ancient culture from destructive processes and of enriching the heritage of all Australians.
250 The remedial effects of the legislation, and the importance of preserving and protecting Aboriginal culture, are matters of national interest which transcend the private proprietary and economic interests of individuals in the community which may be adversely affected by a grant of protection.
251 The clear protective purpose of the HPA reflects the high value accorded by the Act to areas of significance to Aboriginal people. The expressions “Aboriginal tradition” and “significant Aboriginal area” are defined in s 3, which also includes an extended definition of injury and desecration. They are broad definitions which were addressed both by Dr Fergie and Professor Saunders in their reports. The definitions are:
“‘significant Aboriginal area’ means:
(a) an area of land in Australia or in or beneath Australian waters;
(b) an area of water in Australia; or
(c) an area of Australian waters;
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.”
“‘Aboriginal tradition’ means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.”
Section 3(2) provides:
“For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
(b) in the case of an object – it is used or treated in a manner inconsistent with Aboriginal tradition;
and references in this Act to injury or desecration shall be construed accordingly.”
252 Whilst the power of the Minister under ss 9 and 10 is conditioned on the Minister being satisfied that an area is a significant Aboriginal area, it is the content of Aboriginal tradition which renders the area significant. The content of Aboriginal tradition also controls the meaning of injury or desecration for the purposes of the HPA. The relevant content of Aboriginal tradition relied on by the applicants for protection under ss 9 or 10 is therefore central to the consideration and outcome of an application for protection.
253 To be a significant Aboriginal area, the area must be one of “particular significance” to Aboriginals in accordance with Aboriginal tradition. In The Commonwealth v Tasmania (1983) 158 CLR 1 at 245 Brennan J, construing a similar phrase, though in a different context, said:
“The phrase ‘particular significance’ in s 8 cannot be precisely defined. All that can be said is that the site must be of a significance which is neither minimal nor ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture.”
The parties agree that these observations apply to the construction of the definition of “significant Aboriginal area” in the HPA.
254 Section 9 makes provision for an emergency declaration in relation to a specified area which has effect for a period not exceeding thirty days as specified in the declaration, although with power in the Minister to extend that period for a period not exceeding sixty days from the commencement of operation of the emergency declaration. Section 10 makes provision for a longer term declaration. In either case, the protection afforded by the HPA lies in the making of a declaration in relation to the area. The making of the declaration is discretionary, and is conditioned on compliance with the procedural mechanisms contained within each section. Under each section the power is enlivened by the making of an application made orally or in writing, by or on behalf of an Aboriginal or a group of Aboriginals seeking preservation or protection of a specified area from injury or desecration. The HPA lays down no particular formality for the making of such an application. Under each section, before a declaration is made, the Minister must be satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration (in the case of s 9, that threat must be serious and immediate). Where a declaration is sought under s 10, the making of a declaration is also conditioned upon the Minister receiving a report under s 10(4) in relation to the area from a person nominated by him, which report he is directed to consider along with any representations attached to it. Section 10(1)(d) provides that the Minister may consider such other matters as he thinks relevant.
255 Section 10(4) sets out the matters that must be dealt with in a report from the person nominated by the Minister under s 10(1)(c). Those matters include the particular significance of the area to Aboriginals and the nature and extent of the threat of injury or desecration to the area, being matters of importance to the applicants for a declaration on the one hand, and, on the other hand, the possible effects of the making of a declaration on the proprietary or pecuniary interests of persons other than the Aboriginal applicants. Section 10(3) envisages that the information on these topics to be gathered by the reporter giving notice to the public of the application, inviting interested persons to furnish representations to an address nominated in the notice, and considering those representations which are to be attached to the report. The report is intended to inform the Minister about both public and private interests that must be balanced in the exercise of the discretion whether or not to make a declaration.
256 In Tickner v Bropho at 211, French J observed:
“The preservation of human cultural heritage as a public duty is recognised in the laws of many nations … The cultural heritage of any country extends to the language, traditions, customs, stories and religions of its peoples past and present. The drive to preserve that heritage sometimes conflicts with other perceived public interests which involve its destruction or impairment. In Australia these conflicts in respect of Aboriginal heritage are complicated by the existence of State and Commonwealth Governments which may have differing perspectives and priorities in their resolution."
The background circumstances in which the HPA was enacted, and the terms of the HPA itself indicate that its provisions were intended to be used as a protective mechanism of last resort where State or Territory legislation is ineffective or inadequate to protect the heritage areas or objects. This intention finds expression in particular in ss 7 and 13 of the HPA, and a reporter by s 10(4)(g) is also required amongst the matters to be dealt with to report on:
“The extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law.”
Section 7 provides that the HPA is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the HPA. Section 13 requires the Minister before making a declaration in relation to an area located in a State or Territory to consult with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from threat of injury or desecration.
257 The interaction of the State and the Commonwealth protective laws in relation to significant Aboriginal areas, and, at times differing social, political and economic policies of the Commonwealth and State or Territory Governments involved, will raise sensitive and important issues of policy.
258 A declaration, when made under ss 9 or 10 has the force of law. A contravention of a provision of a declaration in relation to a significant Aboriginal area is an indictable offence and carries substantial penalties including imprisonment up to five years. Lesser, but still substantial penalties are provided for contraventions of a provision of a declaration in relation to a significant Aboriginal object: see ss 22 and 23.
259 A declaration is akin to a regulation. This follows from s 15. The declaration is therefore subject to disallowance by either House of Parliament. The ultimate fate of the declaration is therefore likely to be decided on considerations which include those of a political and policy nature. It could be expected that the Minister, in the exercise of the discretion whether or not to make the declaration would take into account like considerations.
260 The Minister is exercising delegated legislative power (a function which is not inconsistent with the doctrine of the separation of powers: see The Queen v Kirby; Ex parte Boilermaker’s Society of Australia (1956) 94 CLR 254 at 279 – 280 and 309). When a power of this kind is reposed in the Minister, the statute, in the absence of an indication to the contrary, will be taken to contemplate that the Minister is entitled, within the limits of any other constraint that may be found in the statute, to act in accordance with government policy: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [63]. The decision required of the Minister under ss 9 and 10 is clearly of a political nature: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 63 – 64, and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs at 19.
261 By s 11, a declaration under ss 9 or 10 in relation to an area shall describe the area with sufficient particulars to enable the area to be identified and shall contain provisions for and in relation to the protection and preservation of the area from injury or desecration. The declaration determines the content of the law prescribed by it as a rule of conduct, and moreover, the law as a rule of conduct is one of general application in the sense that it binds everyone, including the Crown in the right of the Commonwealth, of each of the States, and of the Territories (see s 6). That it prohibits conduct in relation to a specified geographical area does not mean that the law is not one of general application. As a declaration determines the content of the law as a rule of conduct and is a law of general application that strongly indicates that a declaration is legislative in character: see The Commonwealth v Grunseit (1943) 67 CLR 58 at 82 and Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265.
262 The declaration not only specifies an area in respect of which protection is accorded, but it prescribes how that protection is to be afforded, whether by outright prohibition of conduct as specified in the declaration, or by other regulation of conduct. Without the declaration there are no rules of conduct that can be applied. The situation is therefore quite different from one where an Act prescribes rules of conduct to prohibit or regulate a particular activity, and separately provides for the making of a declaration to apply those rules to a particular locality or person. In that instance the application of the rules to the particular area or locality, or to particular people, can be achieved by an act which is administrative rather than legislative.
263 In my opinion, the making of a declaration under ss 9 or 10 is legislative in nature. The exercise of the discretionary power involves matters of national interest and is likely to require the weighing of important matters of policy and the division of power between the Commonwealth and a State or Territory. In my opinion, to impose a private law duty upon the Minister in the exercise of that power would be to distort the public focus of the HPA in favour of individual interests of a few members of the community: cf Hayne J in Crimmins at 101 – 102 [292] – [295] cited above.
264 The submission of counsel for Mr Tickner and Professor Saunders based on the refusal of the common law to impose a duty of care upon persons exercising the public function of investigation in favour of those under investigation provides a useful analogy of a dimension of the distortion which is likely to arise. One of the rationales for this immunity against a private law remedy was succinctly expressed by Lord Bridge of Harwich in Calveley v Chief Constable of Merseyside at 1238:
“ … it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.”
The HPA gives the Minister no statutory immunity against civil action. In my opinion, it would not be compatible with the wide and important public interest considerations which the Minister must weigh and balance that at the same time he should be exposed to the risk of civil action by disgruntled individuals whose proprietary or pecuniary interests will be adversely affected if a declaration is made. To allow private law remedies of this kind would have the very real potential to divert the Minister’s attention from the central purpose of the HPA, and to discourage the fearless and dispassionate exercise of a discretion which is likely to involve a most difficult balancing exercise. Moreover, the practical reality of the situation is that any bias resulting from the threat of civil action is one likely to work against the preservation of Aboriginal heritage and the interests of that section of the community which the HPA is intended to benefit.
265 In my opinion the Minister did not owe a private law duty of care to Binalong in connection with the exercise of power under ss 9 and 10 of the HPA.
266 The role of the reporter has been held by the High Court to be an integral part of the process of the Minister’s exercise of power under s 10: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs at 18.
267 The joint judgment in Wilson at 19, after noting that the determination of the competing interests of the Aboriginal applicants for a declaration and of others whose proprietary and pecuniary interests are liable to be affected by the making of a declaration is essentially a political function, said that a reporter could act in accordance with ministerial policy:
“If the Minister has no policy instruction or intimation to give to the reporter, the reporter himself or herself must make political decisions: ‘the extent of the area that should be protected’ (s 10(4)(c)), ‘the prohibitions and restrictions to be made’ (s 10(4)(d)) and ‘the duration of any declaration’ (s 10(4)(f)). These decisions are not necessarily made by finding the nature and extent of an Aboriginal connection with the land or by an assessment of the extent to which Aboriginal beliefs or lifestyles are under threat. The decisions to be made by a reporter are political in character.” (Footnotes omitted)
268 Like the Minister, the reporter in the exercise of the functions to be discharged under s 10(4) of the HPA is given no statutory immunity against civil action. The HPA does not require the reporter to hold a hearing. The reporter has no power to summon witnesses or to gather evidence on oath. It has already been noted that by s 7, the HPA is not intended to exclude or limit the operation of a law of a State or Territory. This has the consequence that provisions such as s 35 of the AHA which makes it an offence to divulge information relating to an Aboriginal tradition in contravention of Aboriginal tradition apply. Equitable principles which protect confidential information would also apply to the reporter. (Those principles are discussed in Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 at 437 – 438 and in Foster v Mountford & Rigby Ltd (1976) 14 ALR 71). If the reporter were required to walk a tightrope among these restrictions which apply to confidential information about Aboriginal tradition given by applicants seeking protection, and at the same time to be concerned with possible civil action from those whose interests might be adversely affected by a declaration made by the Minister after consideration of the report, the fearless and dispassionate role of the reporter could well be compromised. In my opinion the considerations which deny the imposition of a private law duty of care upon the Minister apply also to the reporter whilst performing an integral part of the Minister’s function under s 10.
269 The conclusion that the Minister and the reporter in the exercise of their functions are not under a common law duty of care to those affected by the outcome of an application for protection does not mean that persons aggrieved by the decision to make, or not to make a declaration are altogether without remedy if the exercise of power has miscarried. The decision is undoubtedly subject to attack on public law principles. Judicial review is available and if error of law in the exercise of the power is demonstrated the decision may be set aside, as indeed happened in the present matter and as happened in Tickner v Bropho and Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40. Further, if the Minister or the reporter knowingly or recklessly misuse the power so as to be guilty of misfeasance in public office, a private law remedy in damages will lie.
Other issues under the HPA
270 It is convenient at this point to discuss a number of issues concerning the construction of the HPA which have arisen in the course of argument, although they relate to matters other than those just discussed regarding the possible existence of a duty of care to persons who may be adversely affected by a declaration.
271 l The notice
The first of these matters concerns the content of the notice which a reporter is required to publish under s 10(3) of the HPA. That sub-section requires that the notice to be published in the Gazette and in the local newspaper if any circulating in the region shall “state the purpose of the application” and “the matters required to be dealt with in the report”. The notice shall also invite interested persons to furnish representations in connection with the report by a specified date being not less than fourteen days after the date of publication. The notice is required to specify an address to which representations may be furnished. In the present case, the notice was held by O’Loughlin J and then by the Full Court in the ADJR litigation to be defective in that it did not identify Aboriginal tradition relating to restricted women’s knowledge as a ground for seeking preservation and protection under the HPA, and gave no better description of the area said to be significant than “areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island in South Australia”.
Allegations against both Mr Tickner and Professor Saunders go so far as to plead that they were guilty of misfeasance in public office in that they knew the notice was inadequate, or were reckless as to its adequacy, and proceeded nonetheless to exercise power under s 10. It is also pleaded that they were negligent as to its adequacy.
Section 1.3 of the Saunders Report is headed “The Area” and the text commences with the statement that “[t]here is a question about the precise definition of the area which is the subject of this report and, potentially, any section 10 declaration”. Professor Saunders points out that the ALRM letter of 23 December 1993, which is treated in her instrument of appointment as the application for a s 10 declaration, seeks protection for two major camp site areas adjacent to the bridge approaches, whereas the later ALRM letter dated 7 April 1994 added the Goolwa Channel between these two camp sites as part of the area of significance. Professor Saunders said “[t]his discrepancy has presented some difficulties for the presentation of this report, which the Minister also will need to take into account in making his decision”.
The pleadings assert that these statements in the Saunders Report indicate that Professor Saunders realised that the notice may have been inadequate, and that the inadequacy was thereby brought to the notice of the Minister. This assertion misreads the Saunders Report which makes no reference to the adequacy of the notice.
Notwithstanding the conclusions of the courts in the ADJR litigation, respondents’ counsel argued that at least until the courts so held there was no reason for either Professor Saunders or Mr Tickner to question the adequacy of the notice. Section 10(3)(a)(i) does not prescribe any form for the notice, or indicate any degree of particularity that is necessary either in stating the purpose or in defining an area.
I think it is quite understandable that a reading of the requirements of s 10 could have led a reasonable, competent lawyer or a Minister to believe that a notice saying that the Minister had received an application under s 10 of the HPA on behalf of Aboriginals seeking the preservation and protection from further injury or desecration of significant Aboriginal areas in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island was sufficient both in stating the purpose of the application, and in indicating the area. As to the area, in the present instance, the disputation about the bridge was a matter of public notoriety and there would be every reason to think that whoever read the notice would know that protection was sought in respect of an area around and including the proposed bridge corridor which was already the subject of the s 9 declaration. Moreover, the notice advised that one of the matters to be dealt with by the reporter was “the extent of the area that should be protected”. This suggested a possible interpretation that the exact definition of the area is something which follows the notice, and need not be the subject of particularity in the notice itself.
This interpretation of the HPA was rejected in the ADJR litigation on the basis that by implication a greater degree of particularity is required to enable interested persons to meaningfully respond in respect of the actual Aboriginal tradition and the geographical limits of the protection sought, and as a matter of public law it is not to the point that particular individuals may correctly infer the purpose of the application from other knowledge, or be told by the reporter. The notice is inadequate as it does not sufficiently inform everyone who might read it. Whilst the court has so ruled, I think the alternative interpretation was not one so patently untenable that there should have been doubt in the minds of Professor Saunders and Mr Tickner. It is easy to be wise after the event, but blame, if there be any, must be assessed having regard to views reasonably open to be held at the time: see Dunlop v Woollahra Municipal Council [1982] AC 158.
I note that the notice in the Broome Crocodile case, Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 46, published approximately two months before the notice in this case, was in a similar broad form which mentioned neither particular Aboriginal tradition, nor a precise area. The notice published for the purpose of the Saunders Report was, it seems, in a form then in current use. The applicants’ claims based on the inadequacy of the notice are further discussed at pars 605 and 677.
272 l The application under the HPA, s 10
I have already noted that there is no formality prescribed in ss 9 or 10 as to the making of an application. The application may be made orally or in writing. It is to be made by or on behalf of an Aboriginal or a group of Aboriginals. Included among such a class will be Aboriginals with a traditional upbringing and perhaps with limited access to advice, and with limited linguistic skills. The applicants’ contentions postulate that an application is constituted by a single discrete communication. In my opinion such a narrow construction would not be in accordance with the objects and purpose of the HPA. I consider that an application may be constituted by a number of on-going communications which may progressively add to the description of the area for which protection is requested, and even change the boundaries of the area. It may also enlarge on the information given as the reason for fearing injury or desecration.
I think this is what happened here, and that by the time Mr Tickner as Minister came to exercise power under ss 9 and 10, the application included the letters of 23 December 1993, 7 April 1994 and 20 April 1994. By then the letter of 23 December 1993 had been largely if not totally overtaken by the subsequent letters and in any event made an application stated to be conditional, protection being requested “should the State Minister for Aboriginal Affairs fail to enforce the provisions of section 23 [of the AHA], and, or exercise his powers under section 24(1)(d) …” The letter recognised that State protection might still be available under the AHA. The members of the Full Court in the ADJR litigation make it clear that there must be a valid application, being one that gives a reasonable identification of the area sought to be protected, to enliven the Minister’s powers under ss 9 and 10 (see Black CJ at 458, Burchett J at 480, Kiefel J at 488). However, I do not understand their Honours to deny the possibility that the application may emerge slowly and in the way I have suggested. The important thing is that once the Minister decides to act, the substance of the “application” however made to that point in time becomes fixed in the sense that it is from the information then comprising the application that the area specified by the application (see s 9(1)(a) and 10(1)(a)), and the purpose of the application must be ascertained and published in the notice required by s 10(3)(a).
The problem in this case, which underlies much of the reasoning of the Judges in the ADJR litigation, is that the instrument of appointment which was given to Professor Saunders specified the letter of 23 December 1993, and that alone, as the application. In reality, Mr Tickner did not decide to exercise power under s 9 until after 3 May 1994 when the State Minister granted authorisation under s 23 of the AHA for the disturbance of an Aboriginal site. It then became clear that adequate protection would not be afforded under State legislation, and Mr Tickner decided to act upon the application then before him by nominating a reporter. It was at that time that the substance of the “application” should have been ascertained, and the notice under s 10(3) drafted accordingly.
The requirements of a valid application assume relevance in relation to pleas against Professor Saunders and Mr Tickner that they were in breach of statutory duty and guilty of misfeasance in public office in not treating the ALRM letter of 20 April 1994 and a letter from Dr Kartinyeri dated 12 May 1994 (see par 429) as fresh applications that should have been re-advertised, and in not treating the notice that was published as one that did not empower Professor Saunders to report on women’s business. These allegations are dealt with in pars 607 - 646 below.
273 l Natural justice issues
In Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia a Full Court of this Court held that the responsible Minister, and the Minister’s nominated reporter, were obliged to accord procedural fairness to parties whose interests would be directly and substantially affected by a s 10 declaration. The obligation extended to making available to those interested parties an account of the Aboriginal tradition relied upon by the applicants for a declaration. Where that tradition involved information treated as confidential by the applicants, the obligation was held nevertheless to subsist. The court commented that in the circumstances of that case there was no real practical difficulty which prevented the reporter providing the material in some form for comment and in that way affording the opportunity for interested parties to make their answer (at 52 – 55).
In the present case, the respondents’ counsel sought to distinguish the Full Court decision on the ground that the information there under consideration was not of a highly confidential, restricted nature and submitted that where the disclosure of secret-sacred material would be to use the material in a manner inconsistent with Aboriginal tradition (see the extended notion of injury or desecration in s 3(2)) there should be no obligation to make disclosure to interested parties. In a particular case there may be force in this argument, particularly having regard to authorities which emphasise that the expression “procedural fairness” conveys the notion of a flexible obligation to adopt fair proceedings which are appropriate to the circumstances of the particular case: see Kioa v West (1985) 159 CLR 550 at 584 – 585. However, I do not think it necessary to pursue that question here. Professor Saunders, in her report (in section 1.4.2) says that she was conscious throughout the process of the need for her to deal fairly with all the interested parties, subject to the scheme of the HPA itself. She was conscious of the difficulties presented by confidentiality which attached to information. She says in her report:
“I sought to deal with these various restrictions by outlining to each of the parties the general nature of the issues as I understood them. In particular, in discussions with those who wish the bridge to proceed, I explained the various bases on which the applicants seek a declaration from the Minister to protect the area, including, again at a general level, the significance of the area within Aboriginal women’s knowledge. I am satisfied, from the terms of the representations made to me and my own discussions with the parties that at this level, at least, the issues were understood.”
The evidence satisfies me that Professor Saunders has accurately summarised the situation insofar as it concerns Binalong and the Chapmans, and that the Chapmans did understand the general nature of the issues in sufficient detail to respond. As far as the Minister is concerned, before he made the s 10 declaration, the Saunders Report was made available to Binalong and the Chapmans, and they each commented upon it. I consider that report adequately disclosed the nature of the issues sufficient to enable the Chapmans to make answer. The complaint made by the Chapmans in their evidence that Professor Saunders and Mr Tickner failed to accord procedural fairness because they did not give the Chapmans more information is further addressed in par 616 and following.
274 l The Minister’s obligation to consider representations
The applicants’ case goes so far as to contend that Mr Tickner was guilty of a breach of statutory duty because he knew that he was obliged to personally read each of the representations received by Professor Saunders before he made his decision, and he did not do so. Further, in the presentation of their case against Mr Tickner for misfeasance in public office, it was argued that Mr Tickner was required to read all the submissions. These representations exceed four hundred in number and many are of substantial length.
In the ADJR litigation, the Full Court at 461 – 462, 478 and 493 held that the Minister must personally consider the report prepared in accordance with s 10(4) of the HPA and any representations attached to it. Black CJ at 462 explained why:
“The Minister must personally consider the report and any representations attached to it. This is because the powers and functions of the Minister under s 10 (and under ss 9, 12, 13(2), Pt IIA and s 26) are specifically excluded from the power of delegation conferred by s 31(1).
…
The meaning of ‘consider’ used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s 10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level.”
In the later case of Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia the Full Court at 60 described the Minister’s duty under s 10 as a personal non-delegable task, the non-performance of which may result in the Minister’s decision being set aside.
It should be noted that Black CJ in the ADJR litigation, whilst requiring that the Minister should personally consider the representations, did not go so far as to say that the Minister must read word for word every submission, and it is plain that Black CJ did not intend this: see at 462 – 464. Nor do the other members of the Full Court go so far: see Burchett J at 476 – 477 and Kiefel J at 494, 497. To interpret the requirement to “consider” as meaning to read, in some cases could impose an impossible burden upon the Minister, and in other cases one so onerous that it would be difficult to discharge. Indeed, in this case, the exercise of reading all the submissions is so laborious, and the repetition of themes so common, that the exercise of reading word for word each submission is likely to be far less useful than if the Minister were provided with summaries which sought to identify the various arguments for and against propositions presented in the submissions, catalogued the submissions in a way that would enable those dealing with particular topics to be found and important ones to be looked at, and evaluated them according to the interests of those making representations, and the likely degree of impact of a declaration upon them. In this way the subject matter of the submissions could be readily ascertained, and the Minister in a constructive way could go about the task of informing himself or herself of the range and importance of matters discussed in the representations. Assistance of this type is mentioned by Black CJ at 464.
I reject the submission that s 10(1)(c) requires the Minister to read each and every representation. However, I think the applicants are correct in their lesser submission that in the circumstances of this case it was not possible for Mr Tickner to give the degree of personal consideration required to the large number of representations, some of which attached diagrams and photographs, unless he had direct physical access to them – which plainly he did not.
Insofar as the allegations of negligence and misfeasance in public office pleaded against Mr Tickner turn on his state of knowledge, his knowledge about what was necessary under s 10(1) to “consider” the representations must be judged according to what he thought was the position at that time, not in the glare of hindsight and later decisions of the Full Court.
At the time the only decision which addressed the Minister’s responsibility under s 10 was Tickner v Bropho decided on 30 April 1993, a little over fourteen months before the s 10 declaration was made in the present case. Counsel for the applicants stressed statements by Black CJ at 194 in that decision and in particular the following:
“Before submitting a report to the Minister, the maker of the report must give due consideration to any representations furnished to him or her and must attach them to the report: s 10(3). The Minister must himself consider the representations attached to the report as a precondition to the making of any declaration. It is thus the intention of the [A]ct that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application under s 10(1).” (Emphasis added)
The applicants contend that Mr Tickner must have considered the judgment, and he and his advisers must have known that the decision in Tickner v Bropho required him to personally read the representations.
Mr Tickner, however, says that whilst he looked at the judgment at the time that it was delivered, he had no understanding that the judgment determined that he was personally to read every representation or to give the representations the degree of personal attention which the ADJR litigation determined that he should have done. He treated the decision as a significant one, but for a different reason. He understood the decision to hold that he was obliged in every case where he received a bona fide application for protection to obtain a report dealing with the matters specified in s 10(4), and to consider that report before deciding the application. Mr Tickner is correct in that the case does stand for that proposition. He says, and I accept, that he did not focus on the passage in the judgment of Black CJ upon which the applicants fasten, nor was it brought to his attention by any of his advisers that the case said that he was required personally to evaluate every representation. Both before and after the Bropho decision, it was his understanding that he was entitled to have his personal advisers read the representations, and bring to his attention the substance of them. He explained in evidence that the workload of his portfolio made it impracticable to personally read every word of every submission and representation that came to him in the course of his ministerial responsibilities. He said he understood that there was a general practice that Ministers were entitled to rely on such assistance and advice. As a general proposition, Mr Tickner’s belief was in accordance with the law: see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 416, and O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11 – 12. What Mr Tickner did not appreciate was that the general proposition was subject to the relevant statute not indicating a contrary intention, as it has now been held is the case under s 10 of the HPA. Close to his own portfolio, it is of note that in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 30 Gibbs CJ adverted to the requirements of the Minister under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Minister was bound to take into account the Aboriginal Land Commissioner’s comments on detriment under s 50(3)(b) in exercising his power under s 11(1)(b) to decide whether or not a land rights grant should be made. Gibbs CJ at 30 said that the duty of the Minister is to consider the matters mentioned in s 50(3) in light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s 11(1)(b). The learned Chief Justice went on to say:
“Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.”
I accept Mr Tickner’s evidence that it was not brought to his attention that the general right to seek assistance and advice did not relieve him from giving the degree of personal consideration which it has since been held he should have given to the representations before making his decision. I accept his evidence that he thought he had adequately discharged his function by considering the summary contained in the Saunders Report about the representations, and receiving further information from his personal adviser to the effect that they were adequately summarised by Professor Saunders. I do not think that the departmental advice which the Minister received in advance of making the s 10 declaration should have put him on notice that it was necessary to seek further advice specifically on the question of whether his obligation to consider the representations required him to do more than he did. Indeed, the departmental advice which he received reflected error that would have given Mr Tickner false comfort. The advice told him that the “submissions” had to be “received and acknowledged”. I accept that Mr Tickner was mistaken as to the requirement to “consider” the representations, but, I do not consider the evidence establishes that he was recklessly indifferent or wilfully blind to whether he was acting within power when he made the s 10 declaration without first reading or giving closer attention to the representations.
275 l Aboriginal tradition
A number of the allegations made against the respondents are based on the contention that they misunderstood the notion of “Aboriginal tradition” as defined in the HPA. It is contended that both Dr Fergie and Professor Saunders knew that only one woman claimed to know the restricted women’s knowledge, namely Dr Kartinyeri. The applicants contend that if the knowledge resides in only one person, it cannot come within the meaning of “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals”, notwithstanding that the definition goes on to say that Aboriginal tradition includes any such traditions etc. “relating to particular persons …”. Moreover, the applicants contend that if the knowledge resides in only one person the area could not be “an area of particular significance to Aboriginals in accordance with Aboriginal tradition” within the meaning of the definition of “significant Aboriginal area”. The applicants contend that the evidence fails to establish that the knowledge asserted by Dr Kartinyeri had any degree of antiquity which would justify treating it as traditional.
It is unnecessary for the purposes of this case to finally decide these questions of interpretation as I indicate elsewhere that I am not satisfied that only one woman knew the knowledge. Further, and critical to the allegations against Dr Fergie and Professor Saunders, I am satisfied that the information given to them upon which they relied provided a reasonable basis for their opinions that a number of people held the belief. The applicants have not satisfied me that the evidence of Dr Kartinyeri should be rejected. On her evidence, the essential knowledge was given to her in about 1954 by her Auntie Rose who was born at Raukkan in 1894. It is implicit from Dr Kartinyeri’s evidence that the knowledge which Auntie Rose had was itself part of oral tradition handed down by female relatives of preceding generations. Knowledge handed down in that way in my opinion clearly constitutes part of “the body of traditions, observances, customs and beliefs” of Ngarrindjeri people within the meaning of the HPA.
I accept that the definition does require a degree of antiquity to the traditions, observances, customs and beliefs. The HPA, by its title, is in respect of heritage protection. The Australian Oxford Dictionary (1999) defines “heritage” to mean “anything that is or may be inherited”. The notion of tradition is the handing down of beliefs, legends and customs from generation to generation, especially by word of mouth or by practice. See generally the discussion of the notion of tradition in Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 at 194 [65] and in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [27] - [49] and [110] - [122]. The words “observances, customs, or beliefs” are perhaps not so readily understood as importing a degree of antiquity. However, the definitions of each of the words in this expression in the Macquarie Dictionary (3rd ed, 1998) indicates that, standing alone, the words do have this connotation. “Observance” is defined as: “the action of conforming to, obeying or following. A keeping or celebration by appropriate procedure, ceremonies etc. A rule of custom to be observed.” A “custom” is defined as: “an habitual practice; the usual way of acting in given circumstances … a group pattern of habitual activity usually transmitted from one generation to another.” A “belief” is defined as: “that which is believed, an accepted opinion.” Taken in conjunction, the words in the expression “tradition, observances, customs or beliefs” carry with them the notion that there has been a handing down from generation to generation in accordance with the accepted understanding of the way in which Aboriginal history, laws, observances and practices have been transmitted through the aeons.
I am disposed to think that the applicants’ broad submission that there cannot be an Aboriginal tradition if only one person knows of the particular tradition, observance, custom or belief is not correct. The common understanding of many of the witnesses in this case was that traditions, observances, customs and beliefs, particularly in Aboriginal communities that have been removed from their traditional lands and have become urbanised, may be known only to a few people. It was also common ground that the traditions controlling the transmission of traditional information may result in that information not being passed on until the old age of the person possessing it. In these circumstances it is not difficult to envisage that where information is held only by a small group, that sudden illness or tragedy or other circumstances may reduce the number to one. It is not without significance that one of the applicant’s witnesses, a woman who had a traditional upbringing, said that she might be the only person who knew of information passed to her by an aunt about a place where initiations took place, information which she preferred to keep to herself unless and until she picked a time to tell someone else of her choosing. However, where the knowledge is presently held by one person, there may well be a requirement implicit in the definition of Aboriginal tradition that in earlier times the belief was more wide spread, or at least the fact of the tradition if not the detail, was known more widely in earlier times. However, it is not necessary to further explore that question in this case.
For like reason, knowledge of the significance in accordance with Aboriginal tradition about an area or an object once honoured and respected by a community or group of Aboriginal people might with the passage of time and the dispersal of its members from their traditional lands come to be held by only one person. I do not think that means that the area is no longer a significant Aboriginal area. There are numerous examples of edifices and burial grounds that present day communities treat as important parts of cultural heritage even though the civilisation of which the edifices and burial grounds were a part has completely disappeared. Where there is still one or a few surviving members who know the oral history and myths concerning an area and who can relate how Aboriginal tradition renders the area significant, I do not understand why the area would be lacking in significance according to Aboriginal tradition. I think an area could qualify as a significant Aboriginal area even though all the descendant members of the community who once were the native title holders of the area have died if before that occurred the Aboriginal tradition that rendered the area significant had been appropriately recorded, and the tradition is still acknowledged and respected by other members of the Aboriginal community. Other aspects of Aboriginal tradition are also discussed at pars 390 - 399.
Luminis and Dr Fergie – duty of care
276 I turn now to the negligence claim pleaded against Luminis and Dr Fergie. It will be remembered that the formal contract for consultancy services was between the ALRM and Luminis. The consultancy services were carried out by Dr Fergie who, as admitted in the pleadings, was “its agent or contractor”. In respect of the negligence claim, although it is not formally conceded that Luminis is vicariously responsible in the event that an allegation of negligence against Dr Fergie is established, in light of the admission in the pleadings, and the way in which the case has been presented I hold that Luminis would be vicariously liable in that event. Although the allegations of negligence are pleaded in the alternative against Luminis and Dr Fergie, the case has been presented on the footing that identical considerations applied to each of them. Insofar as the terms of the contract between Luminis and the ALRM might be a relevant factor in determining either the existence or scope of a duty of care to Binalong, the case has been presented on the footing that Dr Fergie, at least in a practical way, was obliged to meet the requirements and standards imposed on Luminis by its contract with the ALRM. It is therefore convenient to simply discuss the position of Dr Fergie, recognising that the same duties and obligations in relation to Binalong would rest on Luminis, and vice versa.
277 The circumstances said to give rise to a duty of care, and the scope of the duty are pleaded in the statement of claim as follows:
“42A. Luminis and/or Dr Fergie had a duty of care to Binalong to carry out the preparation of the Fergie Report with reasonable care as a result of the following matters:
(a) The fact that it was an implied term of the agreement [between the ALRM and Luminis] that Luminis and/or Dr Fergie would carry out the services to be provided, namely the preparation of the Fergie Report, with reasonable care.
(b) The fact that Luminis and/or Dr Fergie knew, or ought to have known that Binalong would likely suffer loss if there was any lack of care in the performance of such services, or any failure to perform such services in accordance with such an implied term of agreement.
43. Further, or in the alternative, at all material times Luminis and/or Dr Fergie owed to Binalong a duty of care to make the Fergie Report an accurate report containing opinions expressed on reasonable grounds, and further to ensure that sufficient tests and all proper investigations were done, and that reliable and sufficient information was obtained, for the purposes of such report, by reason of it being foreseeable that, if they were not, Binalong would suffer loss by reason of the likelihood of the making of a s 10 declaration.”
278 In the further alternative par 44 of the statement of claim pleads that “such duty of care” (presumably an expression intended to incorporate each of the duties differently articulated in pars 42A and 43) arose by reason of the proximate relationship between Dr Fergie (and Luminis) and Binalong as a result of a combination of factors which the applicants allege are supported by one or other of the judgments in Perre v Apand Pty Ltd as indicative of a close relationship which gives rise to a common law duty of care. Those factors are said to include the special skill or expertise in anthropology possessed by Dr Fergie, the fact that she knew that her report was to be used by the ALRM in attempting to secure a s 10 declaration, the fact that Dr Fergie knew Binalong had been deprived of the details of women’s business, Dr Fergie’s knowledge that Professor Saunders and Mr Tickner would rely on her report, Dr Fergie’s knowledge or means of knowledge of the existence of Binalong’s contractual rights which would be affected by a s 10 declaration and that Binalong was vulnerably exposed to, and unable to protect itself against loss arising as a consequence of any lack of care on the part of Dr Fergie.
279 Paragraph 45 of the statement of claim alleges breach of “the duty referred to above”, presumably again referring to each of the duties mentioned, and gives particulars of negligence. There are three categories of particulars pleaded. The first alleges that breach occurred through the making of “the inaccurate statements referred to in par 38” being the representations said to constitute misleading or deceptive conduct for the purpose of the claim under s 52 of the TPA, and under the analogous State provisions. The second category alleges Dr Fergie “failed to carry out sufficient tests and all proper investigations for the reasons in par 38(i)”. I interpret this category as containing particulars of a breach of the second limb of par 43 of the statement of claim set out above. The third category alleges that Dr Fergie was in breach of the duty of care in that she “prepared the Fergie Report negligently for the reasons in par 38”. As par 38, through the particulars contained in it, pleads a catalogue of representations made by the Fergie Report which are said to be false, misleading or deceptive, I do not think that the third category adds anything to the substance of the first category of particulars. There is, however, a difference between those two categories, and the second category. The former refers to misleading statements whereas the latter pleads an omission to carry out tests and make all proper investigations. These two categories correspond to the two duties of care pleaded in par 43 of the statement of claim which, in turn, I think should be understood as giving substance to the otherwise general statement of duty which lacks particularity pleaded in par 42A, namely that there was a duty of care to carry out the preparation of the report “with reasonable care”.
280 Paragraph 42A(a) of the statement of claim seeks to base the alleged duty to prepare the Fergie Report with reasonable care upon the obligation owed by Dr Fergie under Luminis’ contract with the ALRM. However the duty of care alleged is in substance a duty to prepare the report so that it does not contain inaccuracy that could have been avoided by the exercise of reasonable care. That is, in effect, a similar duty to that pleaded in par 43. Although the first limb of par 43 alleges a duty to make the Fergie Report “an accurate report”, in the law of negligence that should be understood to mean accurate to a degree consistent with the exercise of reasonable care. The second limb of par 43 whilst it alleges separately a positive duty to ensure the doing of tests and investigations, and the obtaining of information, those steps are really particulars of steps which comprise part of the requirement of reasonable care in the preparation of the report. The requirement of the due care alleged is directed entirely to the content of the Fergie Report so that it does not misstate the matters upon which it reports. In substance, though not in terms, the cause of action which is asserted by the negligence pleadings against Dr Fergie is for negligent mis-statement. But if the claim had been expressed as one for negligent mis-statement, a recognised category of case where the law will impose a duty of care in particular circumstances, the claim would have been destined to fail as the particular circumstances required to attract a duty could not be established. Those circumstances, under the principles flowing from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, San Sebastian Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 and Tepko Pty Ltd v Water Board (2001) 75 ALJR 775 will arise where the mis-statement was made with the intention of inducing members of a class of which the party who has suffered economic loss is a member to act in reliance on the statement. In the present case the Fergie Report was prepared and furnished for use by the ALRM. Dr Fergie knew that the report was likely to become an annexure to a representation to be made by the ALRM to Professor Saunders, and that such a representation would in turn be passed to Mr Tickner. But it was never intended nor was it foreseeable by Dr Fergie that the report would be published to Binalong during the s 10 process under the HPA with the intent that it be relied on by Binalong. Binalong was not within the class of persons who was in contemplation as persons intended to rely on the report. Moreover, it is plain that Binalong did not and never intended to, rely on the report. On the contrary, it was at pains to make it known first to Professor Saunders and then to Mr Tickner that no reliance should be placed on statements emanating from Dr Fergie.
281 Instead of identifying the claim as one for negligent mis-statement, the pleadings seek to base a duty of care on the foreseeability of loss if the Fergie Report was prepared without due care (including without adequate investigation), on the fact of the contractual duty of reasonable care owed to the ALRM and on the various factors indicative of a close relationship between Luminis and Dr Fergie on the one hand and Binalong on the other hand pleaded in par 44 of the statement of claim.
282 The contractual duty of Luminis, and Dr Fergie so far as the contract imposed a duty on her as the person performing the contract, was owed solely to their client, but the existence of such a contractual duty does not necessarily negate a common law duty of care to a third party: Hill v Van Erp (1997) 188 CLR 159 at 166, 181. The client formally was the ALRM but in the circumstances should be understood as including the Ngarrindjeri people on whose behalf the ALRM was acting. That a common law duty may be owed to a third party by one of the parties to a contract is illustrated by Voli v Inglewood Shire Council (1963) 110 CLR 74 where an architect was held to be under a duty of care in the design of a building to anyone who it could reasonably have been expected might be injured as a result of his negligence. It was said in Bryan v Maloney (1995) 182 CLR 609 at 621 by Mason CJ, Deane and Gaudron JJ that in some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity either between the parties to the contract or between one or both of those parties and a third person.
283 In Voli v Inglewood Shire Council, Windeyer J said at 85:
“… neither the terms of the architect’s engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it.”
284 Hill v Van Erp concerned a claim against a solicitor who had negligently prepared a will for the testator by a person named in the will as an intended beneficiary but to whom the testamentary gift failed because of the negligence. Brennan CJ after referring to Voli v Inglewood Shire Council said at 167:
“Generally speaking, however, a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client. But the interests of a client who retains a solicitor to carry out the client’s testamentary instructions and the interests of an intended beneficiary are coincident.
… The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract. A breach of the retainer by failing to use reasonable care in carrying the client’s instructions into effect is also a breach of the solicitor’s duty to an intended beneficiary who thereby suffers foreseeable loss.”
285 In the present case I do not think that it can be doubted that loss of the kind now alleged by the applicants as being suffered by Binalong was a foreseeable likelihood. At the time Binalong was not in liquidation and the events and reasons that cause me later in this judgment to find that Binalong did not suffer loss through the making of the s 10 declaration would not then have been anticipated. Moreover I am satisfied on the information that was known to Dr Fergie at the time, that she knew, or should have known, that Binalong had a contractual interest under the Tripartite Agreement governing the construction of the bridge, and that the development of later stages of the marina was dependent upon the construction of the bridge. In these circumstances I think there was a sufficiently close relationship between Dr Fergie and Binalong to give rise to a duty of care if such a duty, and its content, were coincident with the work to be done by her and the scope of the duty owed to the ALRM under its contract. The terms of that contract therefore become critical.
286 Documents in evidence recording the contractual arrangements between Luminis and Dr Fergie and the ALRM do not spell out the scope of the work to be done. They do no more than record the agreed basis on which the consultancy would be charged. Oral evidence establishes that on 17 June 1994 Luminis and Dr Fergie accepted a consultancy for Dr Fergie to act as a facilitator at the proposed meeting between a group of Ngarrindjeri women and Professor Saunders on 20 June 1994. The purpose of the consultancy was almost immediately changed when Professor Saunders said she did not want Dr Fergie present at her meeting with the Ngarrindjeri women. The consultancy was changed to require that Dr Fergie attend Goolwa to assist the women in the interpretation of their tradition if need be. At that stage the consultancy did not require her to prepare any written report. It was not until Sunday 26 June 1994 that the ALRM’s instructions to Luminis and Dr Fergie changed. Dr Fergie was asked, and agreed, to prepare a written report containing an anthropological evaluation intended to become part of an ALRM representation to Professor Saunders to be made in response to the invitation to interested persons to furnish representations under s 10(3)(a) of the HPA. The best evidence of the intended scope of the evaluation that she was to undertake is to be found in the Fergie Report itself which describes the aims and scope of the report and, moreover, indicates the scope of the report to a reader.
287 Questions that must be answered from a consideration of the scope of the contract include:
· Whether Dr Fergie, as a professional person, was retained to act in the interests of the ALRM’s clients and contrary to those of proponents of the bridge, including Binalong, and if so whether those duties are inconsistent with the alleged duty of care to Binalong: see Hill v Van Erp at 171, 186 – 187, 196, 236.
· Whether the alleged duty to Binalong is inconsistent with community standards that recognise that in a competitive world where one person’s economic gain is commonly another’s loss, a duty to take reasonable care to avoid causing economic loss to another may be inconsistent with what is ordinarily legitimate in the pursuit of personal advantage: see Bryan v Maloney at 618, Heyman at 503; Hill v Van Erp at 193 and 211; and Perre v Apand Pty Ltd at 200 [33], 220 [103], 224 [115], 258 [211], 290 [300], 299 [329] and 328 [419].
· Whether there was a coincident or corresponding duty owed to the ALRM “to ensure that sufficient tests and all proper investigations were done and that reliable and sufficient information was obtained for the purpose of [the Fergie Report]”: see par 43 of the statement of claim.
288 Hill v Van Erp was perhaps an unusual case, certainly a special case where the interests of the intended beneficiary were completely coincident with those of the testator to whom the solicitor owed a contractual duty. As Dawson J put it at 186, the intended beneficiary’s interests were totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor and, in that situation, the solicitor knew of the beneficiary’s dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary. These considerations, in Dawson J’s opinion (with which Toohey J generally agreed at 188), distinguished the case from the general rule that a retained solicitor owed no duty to anyone other than his client, a rule illustrated by Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 at 570; Al-Kandari v J R Brown & Co [1988] 1 QB 665 at 672, 675; Clarke v Bruce Lance & Co [1988] 1 WLR 881.
289 In Gran Gelato it was held that in a normal conveyancing transaction, the solicitor for the vendor owed no duty of care to the purchaser when answering an enquiry by the purchaser about title. In Al-Kandari the Court of Appeal said that in the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client’s adversary. In Clarke the Court of Appeal held that a solicitor owed no duty of care to a prospective beneficiary in relation to dealings by the testator with his property during his life time. These cases were referred to with approval by Sir Donald Nicholls V-C in White v Jones [1995] 2 AC 207 at 223.
290 In Ross v Caunters [1980] 1 Ch 297 on facts similar to those in Hill v Van Erp Sir Robert Megarry V-C held that the solicitor owed a duty of care to the prospective beneficiary who would have taken under the will had it been validly executed. In rejecting the argument that the solicitor owed a duty of care only to his client and not to the prospective beneficiary the Vice-Chancellor at 322 said:
“In broad terms, a solicitor’s duty to his client is to do for him all that he properly can, with, of course, proper care and attention. Subject to giving due weight to the adverb ‘properly’, that duty is a paramount duty. The solicitor owes no such duty to those who are not his clients. He is no guardian of their interests. What he does for his client may be hostile and injurious to their interests; and sometimes the greater the injuries the better he will have served his client. The duty owed by a solicitor to a third party is entirely different. There is no trace of a wide and general duty to do all that properly can be done for him. Instead, in a case such as the present, there is merely a duty, owed to him as well as the client, to use proper care in carrying out the client’s instructions for conferring the benefit on the third party. If it is to be held that there is a duty that is wider than that, that will have to be determined in some other case. The duty that I hold to exist in the present case, far from diluting the solicitor’s duty to his client, marches with it, and, if anything, strengthens it.”
291 The Vice-Chancellor stressed that the duty of care alleged to the third party in that case (the prospective beneficiary) “marched with” and did not differ in content from the duty owed to the client. The testator, the plaintiff and the defendant were “all on the same side” (at 310). In Sutherland v Public Trustee [1980] 2 NZLR 536 where the instructions of the testator were inconsistent with the interests of a disappointed family member of the testator who did not take as a beneficiary under a will drawn by the Public Trustee, the Public Trustee was held to owe no duty of care to that family member.
292 In the present case, by the time Dr Fergie was instructed to prepare a report for the ALRM, the Ngarrindjeri women, including Dr Kartinyeri, who had met with Professor Saunders, had already revealed the restricted women’s knowledge relied on by them to oppose the bridge. She can bear no responsibility for the assertion and description of the restricted women’s knowledge which had already occurred, and on which Professor Saunders has relied. The secret envelopes were prepared as part of the Fergie Report, but Appendix 2 merely set down in writing information the substance of which Dr Kartinyeri had already given to Professor Saunders orally. Her instructions did not specify or require her to seek to validate what had already happened. Her instructions, according to the introduction to her report, were to provide “an anthropological evaluation of the significance of secret women’s knowledge within Aboriginal tradition” to the s 10 declaration being sought by the ALRM on behalf of its clients. The instructions sought an evaluation of information, the nature of which had already been put forward to Professor Saunders, and in part to Mr Tickner as the basis of the claim for protection. They did not invite Dr Fergie to investigate whether that information reflected a genuine traditional Aboriginal belief, or whether it was fabricated. For Dr Fergie to have embarked on such an exercise would have been contrary to the purpose and scope of her instructions. Indeed, it is likely to have been seen by the Ngarrindjeri women and the ALRM as culturally inappropriate and disrespectful had she done so. The instruction was, in effect, to take the information as given, and to express an opinion on the significance of that information for the purpose of supporting the claim that the area which included the bridge corridor was significant in accordance with Aboriginal tradition, and that the construction of the bridge would cause injury or desecration within the meaning of the HPA.
293 The Fergie Report plainly states the limited nature of Dr Fergie’s instructions. At the outset, the report defines its aims and scope:
“Aims
The aims of this report are:
· to outline the particular significance, according to Ngarrindjeri tradition, of the area of the proposed Hindmarsh Island Bridge;
· to identify any threat of injury or desecration by the proposed bridge construction under the terms of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (hereafter referred to simply as the Act).
…
Scope
This report has a limited focus. It concentrates on:
i) the significance, in accordance with Ngarrindjeri tradition, of womens knowledge about the area in which the bridge is proposed to be constructed;
ii) womens beliefs about the consequences which would ensue from such a construction; and
iii) an assessment of the cultural process by which the revelation of womens’ secret knowledge has been negotiated and authorised by a representative group of Ngarrindjeri women.
This report is not intended to provide a comprehensive survey of the anthropological and ethnographic literature on this region. Lucas (1990) provides a useful general appraisal of the relevant ethnography and history.”
294 The description of the consultative process which led to the revelation of the information on which Dr Fergie bases her evaluation (covering pages 2 to 12 of the Fergie Report) describes the sources of the information and the process by which it was revealed. I think it is apparent from reading this part of the report that Dr Fergie is unquestioningly accepting the truthfulness of the information given to her as the basis on which she is to conduct her evaluation. That she is doing so is also apparent from her repeated references to particular individuals as the source of information under discussion, and to the beliefs of her informants. In places the evaluation uses expressions such as “perception by Ngarrindjeri people”, “Ngarrindjeri people believe” and “significance to Ngarrindjeri people”, but when the Fergie Report is read as a whole I think it is clear that the information available to Dr Fergie to support these general expressions has come only from the informants identified in her report (including in Appendix 1).
295 A reading of the Fergie Report in my opinion does not suggest that Dr Fergie has undertaken investigation or research, other than to the limited extent stated, to obtain information about Aboriginal tradition relevant to the assessment of the significance of the area, and the threat of injury or desecration. On the contrary, I think it is apparent that she has not done so. The limited scope of Dr Fergie’s instructions did not require her to ensure that sufficient tests and all proper investigations were done as to whether the restricted women’s knowledge was truly a Ngarrindjeri tradition. To have undertaken such a questioning role would have put her in conflict with her instructions. It was not the purpose of the ALRM instructions to her to do so. To assert that she had a duty of care to Binalong or to any other proponents of the bridge to do so is to assert that she was required to go outside and beyond her instructions.
296 Dr Fergie was asked to conduct an evaluation in her professional capacity. The clear inference from the circumstances of her engagement is that she was to do so exclusively in the interests of the clients of the ALRM who were seeking professional support for their contention that the area was a significant Aboriginal area deserving of protection by preventing construction of the bridge. Dr Fergie is criticised by the applicants for assuming the role of an advocate. An advocate is “(1) a person who supports or speaks in favour, (2) a person who pleads for another …” (The Australian Oxford Dictionary, 1999). That is exactly the role she was instructed to undertake. She was to assist the Ngarrindjeri women to better articulate the merits of the case against the construction of the bridge than they were able to do alone. To accept such a role is entirely in accordance with the role of a professional person instructed to make or assist in making a representation on behalf of a client. This is something that members of the legal profession do day in, day out. In doing so, professional people are required by their professional standards to act honestly and not knowingly or recklessly to misrepresent the facts or mislead (or, to use Dr Fergie’s description of her professional duty, to do so truthfully). But it is contrary to common experience to suggest that such a person is under a duty of care to those with interests which are diametrically opposed to that person’s client.
297 Legal practitioners appearing as advocates before a court, and expert witnesses, (usually members of skilled professions), giving evidence, owe duties to the court in addition to duties owed by them to their clients under their retainers. Those additional duties may require them to bring matters adverse to the interests of their client to the attention of the court. Those duties, however, are owed to the court, not to the opposing side in the litigation. They arise because the legal practitioner is an officer of the court, and in the case of expert witnesses because the curial process, the oath and in some instances practice directions of courts, require that an expert witness owes a paramount duty to the court to assist in the elucidation of the true facts. But those additional duties do not apply in other circumstances to a professional person who is asked by a client to negotiate or argue to secure a position advantageous to the client. In this situation the professional person is retained to act in the best interests of the client which are likely to be contrary to the interests of other parties. To act in this way is not only legitimate in the pursuit of personal advantage of the client, it is also in accordance with community expectations and standards that the professional person will do so.
298 To test the sense and acceptability according to community standards of the duty of care asserted against Dr Fergie, it is helpful to look at the role of other people involved in the controversy over the claim by the Ngarrindjeri people for protection under s 10 of the HPA. Binalong, the Chapmans and a group of Hindmarsh Island residents each instructed professional people, lawyers, to represent them in making submissions in opposition to the making of a s 10 declaration. In those submissions the lawyers vigorously argued points intended to further their clients’ interests including making assertions about the law, about legal obligations, about damages, and about factual matters. To assert that the lawyers owed a duty of care to the Ngarrindjeri people not to put forward claims about potential losses calculated by their clients which happened to be exaggerated, not to put one side of legal argument without mentioning another possible interpretation, and not to put forward factual assertions made by their clients without first investigating and checking the facts, is to assert a plainly absurd position. There are also submissions which were made to Professor Saunders by people with expert professional qualifications about the likely effects on the ecology of Hindmarsh Island in consequence of likely increased traffic and population on the Island. It would be equally absurd to suggest that those people who have sought to exercise their rights of free speech as interested members of the community owed a duty of care either to Binalong or the Ngarrindjeri people seeking protection – both of whose interests were publicly known.
299 To suggest that a duty of care rested on Dr Fergie to protect the interests of Binalong in the circumstances prevailing in June 1994 is not only contrary to prevailing community standards but in my opinion has no support in law. The exercise of professional skill and judgment by Dr Fergie in pursuit of the interests of those instructing her through the ALRM stands in stark contrast to the exercise of professional skill and judgment required by the solicitor in Hill v Van Erp. In that case the scope of the duty of care alleged in favour of the disappointed beneficiary was the same as that owed under the solicitors’ contract with the testator. Here the scope of the duty of care to Binalong alleged is in direct and irreconcilable conflict with the duty owed by Dr Fergie to her clients. To her clients it was her obligation in the performance of the contract between Luminis and the ALRM to use her professional skills exclusively in their interests to interpret the material provided to her by them, and to formulate the case for threatened injury and desecration to advance their interests, which was to stop the construction of the bridge.
300 In my opinion Dr Fergie did not owe a duty of care to Binalong either to carry out the preparation of her report with reasonable care to prevent Binalong suffering loss by the making of a s 10 declaration, or “to ensure that sufficient tests and all proper investigations were done” to test the truthfulness of the restricted women’s knowledge related by her informants.
5. FACTUAL ISSUES
Evidence received in closed session
301 In a ruling made during the trial I held in Chapman v Luminis Pty Ltd (No 2) (2000) 100 FCR 229 that s 35 of the AHA did not apply to witnesses giving evidence in the trial of this action. I also held that evidence as to the content of the restricted women’s knowledge recorded in the secret envelopes appended to the Fergie Report was a relevant issue in the case, in particular to the question whether, if Mr Tickner had read the contents of the envelopes, his decision to make a s 10 declaration may have been different. I rejected an argument by the respondents that under s 130 of the Evidence Act 1995 (Cth) evidence as to the contents of the envelopes should be rejected on the ground of public interest immunity. I held that evidence about Aboriginal tradition did not attract an absolute immunity. In each case it is necessary to balance on the one hand the public interest in providing proper protection and respect for rights and beliefs of Aboriginal people against, on the other hand, the public interest in the proper administration of justice which requires that evidence necessary to elucidate the true facts should be available. In balancing the competing interests, it is legitimate to take into account means available to restrict the publication of the proposed evidence to minimise invasion upon the Aboriginal rights and beliefs involved. This Court has the power to prohibit or restrict the publication of particular evidence under s 50 of the Federal Court of Australia Act 1976 (Cth), and there is also power to do so in s 27 of the HPA in proceedings arising under that Act. I ruled that the evidence should be admitted under s 130 of the Evidence Act, but subject to strict conditions.
302 Those conditions were that the evidence be received in a court closed to the public and to all men, save for the Judge whose role and presence was an inevitable part of the exercise of judicial power under Chapter III of the Constitution: see Western Australia v Ward (1997) 76 FCR 492 at 496. Male lawyers were to be excluded, and the representation of each party limited to two female lawyers. Counsel were required to undertake not to remove any material relating to the evidence taken in confidential session from the Court. Under this regime, Dr Fergie, Professor Saunders, Ms Mullins and Ms Kee (an adviser to Mr Tickner) each of whom had read the secret envelopes were required to give evidence about their contents, notwithstanding the circumstances of confidentiality under which the information was revealed to them by Dr Kartinyeri. Their present recollections of the information in the secret envelopes was explored. The evidence received gives a more detailed, but incomplete explanation of the belief described by Dr Kartinyeri. The explanation is incomplete because the memory of the witnesses has largely disappeared, but it is also probable that the account of the restricted women’s knowledge given to both Dr Fergie and Professor Saunders was not intended by Dr Kartinyeri to be a comprehensive account of all the facets of the alleged tradition. Their evidence gave an incomplete picture both of the structure of the knowledge revealed by Dr Kartinyeri, and its contents.
303 The evidence included references to various practices which Professor Saunders understood to be manifestations of and supporting propositions for the beliefs which constituted the restricted women’s knowledge. The references to these practices were said to be only fragments of an alleged complex tradition, parts of which may now be lost in time, parts of which may not have been disclosed to Dr Fergie or Professor Saunders, and substantial parts of which have now been forgotten by the witnesses. The evidence of Dr Fergie and Professor Saunders also raised the possibility that they had difficulty in distinguishing in their present recollections between what was recorded in the transcript of Dr Kartinyeri’s belief (Appendix 2 to the Fergie Report) as opposed to information that was given to them orally in meetings with Dr Kartinyeri.
304 To enable the information received in closed session to be put to Mr Tickner in a manageable or useful way, I considered that it was necessary for me to make findings as to the effect of that evidence. Draft findings were circulated to the female counsel involved, and after receiving the benefit of their submissions, I published to them findings about the content of the restricted women’s knowledge recorded in the secret envelopes. Those findings were then put to Mr Tickner in the course of his evidence during a closed session.
305 The evidence taken in closed session and the findings are subject to an order of the Court that they not be published to anybody without leave of the Court.
306 The stringent conditions imposed upon the receipt of the evidence in no sense indicated a pre-judgment of the genuineness of the tradition. In my opinion the proper course for the Court to take at that stage was to assume genuineness. If ultimately it were found that the alleged Aboriginal tradition was fabricated, there would be no reason for maintaining the restriction. On the other hand, if the Court were to conclude that the information is, or might be, genuine, the public interest, in my opinion, requires that the information remain subject to the restrictions.
307 The issue of how to deal with confidential material when it comes time for the Judge to deliver a judgment was discussed by Street CJ in David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294. The learned Chief Justice at 300 – 301 said:
“In litigation relating to confidential information such as the present the taking of evidence in public can present a special problem. There is the ever present risk that the exuberance of counsel or the predicament of a witness may let the cat out of the bag. In appropriate cases the judge will decide to hear all or part of the proceeding in camera. When it comes, however, to the formulation of the reasons for judgment and the form or order, there is no such risk. I hesitate to state an absolute [rule] but I find it difficult to conceive a situation in which the need for confidentiality is such as to justify a total non-disclosure of the judge’s reasons and order.
So far as concerns the statement of reasons I should have thought that it would always be possible for them to be formulated in such general terms as would, in deference to the deeply rooted principle I have referred to earlier, convey an adequate account of the litigation and the reasons underlying the orders. Where it is absolutely necessary that the reasons incorporate confidential material, it is commonplace for that material to be identified by some neutral description and to be set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers. Incorporation in this way by reference has been found an effective means of enabling a trial judge to canvass confidential material adequately while at the same time giving, as he is obliged to, a public account of the litigation and the reasons for his orders. Failure to adopt either this or some other course which would enable such a public account to be given will, in my view, almost invariably, if not invariably, amount to error on the part of the trial judge. The extent and the content of the public account may vary according to the particular case in hand. I repeat, however, that I find it difficult to conceive any case in which it is impossible to provide some statement by way of a public account of the proceedings and the reasons.” (emphasis added)
308 In this case no question arises of suppressing totally the reasons for judgment, or the final orders. However, I propose to suppress the findings of fact about the contents of the secret envelopes, but these have been made known to the female lawyers who participated in the receipt of the evidence, and they will be available to any court of appeal that considers the matter. The findings have been sealed up and will be held secured in the records of the Court but will not otherwise be recorded or published. These published reasons are necessarily imprecise as to the content of the restricted women’s knowledge to preserve its confidentiality.
309 I refused the applicant’s application to reveal the findings to Mrs Chapman who offered an undertaking to keep them confidential. I said I would provide my reasons for that decision in due course, and do so at the end of this judgment.
Comment on some witnesses
310 Before turning to the particulars of impugned conduct, I make general comment about a number of witnesses, and express the impressions with which I am left about the principal players.
311 The evidence of Mr and Mrs Chapman, Mrs Chapman in particular, is notable for the high level of anger, hostility and suspicion which is borne by them towards those who have played a role in events which have frustrated their ambitions. This was particularly evident in the cross-examination of Mrs Chapman who obstinately refused to concede points adverse to the applicants’ case even where concession was plainly required. I consider the reliability of their evidence is seriously undermined by their lack of objectivity and a determination that at every turn they must have been right and the actions of others which impinged on their interests must have been wrong. At the end of the day little in this case turns on an unqualified acceptance of their evidence. But there are instances where I later express doubt about accepting what the Chapmans or one of them say on a matter, and I do so for the reasons just given.
312 The applicants mounted a strenuous attack upon the credit of Dr Fergie, Professor Saunders and Mr Tickner, suggesting against each of them that they were bending the truth to vindicate their respective positions. Against Professor Saunders it was alleged that she deliberately misrepresented the facts as related to her during her enquiries to arrive at the opinion favourable to the applicants for a declaration expressed in her report, that she knew she was withholding procedural fairness to Binalong, and that she knew at that time that she was exceeding her powers as reporter. Insofar as she denied these allegations, it was said that she did so dishonestly. Against Mr Tickner it was alleged that he pre-judged the outcome of the application for the s 10 declaration, that he made the decision well before the time he alleges and before he received submissions from the applicants, and that he knew that he was obliged to read each of these submissions but deliberately did not do so before making the s 10 declaration. The applicants’ case asserts that Mr Tickner dishonestly denied these matters in the course of his evidence.
313 My overall firm impression is that each of Dr Fergie, Professor Saunders and Mr Tickner honestly and conscientiously went about their tasks in the manner which they understood was required of them. I totally reject the assertions of dishonesty or recklessness on the part of each of them. On a number of the matters raised by the applicants, there was room to question whether Dr Fergie, Professor Saunders or Mr Tickner were mistaken on a matter, but the evidence lends no support to a suggestion that any mistake was deliberate and dishonest.
314 The assessment of the evidence of Dr Kartinyeri and Mrs Dorothy Wilson is of essential importance. Substantial parts of the applicants’ case before this Court depend on the acceptance of the evidence of Mrs Dorothy Wilson, and the rejection of Dr Kartinyeri’s evidence. In the assessment of their evidence it is necessary to consider evidence about the meetings of Ngarrindjeri people at the Bunk House and at the Mouth House on Hindmarsh Island on 9 May 1994 and the meetings at Graham’s Castle on 19 and 20 June 1994. The findings of the Hindmarsh Island Royal Commission were also heavily dependent on the acceptance of the evidence of Mrs Dorothy Wilson.
315 The Royal Commission’s findings about events at the Mouth House and at Graham’s Castle are made on this basis. This Court has heard evidence from other witnesses who did not give evidence before the Royal Commission about those meetings. This evidence is discussed below where I give my reasons for not accepting Mrs Wilson’s evidence in preference to that of the other witnesses.
316 I do not doubt Mrs Wilson’s honesty, but I doubt the reliability of her present recollection. I think her recollections misconstrue some of the things that happened and that her evidence is coloured subconsciously by a reconstruction of what she thinks must have happened consistently with the view which she now strongly holds.
317 This Court has received evidence from Dr Kartinyeri and nine other Ngarrindjeri women who now express belief in the restricted women’s knowledge as part of genuine Aboriginal tradition. Dr Kartinyeri’s evidence requires separate comment, but like the Ngarrindjeri women called by the applicants, I considered each of the nine Ngarrindjeri women called by the respondents to be credible witnesses who genuinely hold the beliefs and recollections expressed by them. Common to all the women called by either side, questions of reliability and possible mistakes in reconstruction in relation to events that occurred long ago is an ever present possibility requiring consideration.
318 Dr Kartinyeri was subjected to a sustained attack upon her credit. On many events her recollections were imperfect, and I am satisfied that she has confused the timing of a number of conversations that she held with a number of women about the restricted women’s knowledge. On some matters of detail and dates, her cross-examination demonstrated her evidence to be unreliable, but I am not satisfied that this is indicative of anything more than an innocent mistake or faulty recollection. I am not persuaded that she is not a credible witness. I am not prepared to find that her evidence about the circumstances in which she received the restricted women’s knowledge from Auntie Rose, and about the knowledge itself, is a lie. I return to discuss my assessment of Dr Kartinyeri’s evidence later in this section of the judgment: par 425 and following.
319 The Royal Commission did not receive evidence from Dr Kartinyeri. Of necessity therefore it was required to assess probabilities having regard to circumstantial evidence to support an inference as to her state of mind. This Court has received the evidence of Dr Kartinyeri. She has described on oath the circumstances in which she received the knowledge. Since 1994 she has been under attack from many quarters, and has suffered ill health. At times in the witness box her emotions were patent, and she reacted in an angry manner. But if she has been wrongly labelled as a fabricator these responses are understandable. I am not persuaded either by her presentation in the witness box, or by the weight of circumstantial evidence that her account in its essential respects should be rejected.
The Royal Commission
320 At the commencement of the trial, both the applicants and the respondents said that the Court was not required to decide whether the restricted women’s knowledge the subject of the Fergie and Saunders Reports was a genuine part of Aboriginal tradition. The applicants contended that liability would be established if misleading or deceptive conduct or breaches of duty as alleged were established. The breaches of duty alleged include what the applicants term as “process” errors which they contend give rise to liability in Professor Saunders and Mr Tickner regardless of the legitimacy of the Aboriginal tradition described in those reports. The particulars pleaded did not include an allegation that the restricted women’s knowledge was fabricated. The respondents contended that the issue for the Court was whether the Fergie and Saunders Reports fairly and inaccurately reported information supplied to Dr Fergie and to Professor Saunders, and whether there was a reasonable basis for the opinions expressed by them. If so, the respondents said that it was not to the point if the alleged restricted women’s knowledge had been fabricated. In this respect, the respondents had the support of the authorities referred to at par 193. The Court was informed that the hearing would not be a re-run of the central issue considered by the Royal Commission.
321 However, as the case proceeded, a recurring issue canvassed in the evidence was whether the restricted women’s knowledge described in the Fergie and Saunders Reports had been fabricated and whether female gender-specific restricted knowledge could be a feature of traditional Ngarrindjeri culture. The applicants and the respondents called Ngarrindjeri women to contradict or support the existence of the alleged traditional knowledge. Dr Kartinyeri was extensively cross-examined in an effort to discredit her, and to establish fabrication. Some witnesses were extensively cross-examined on evidence given by them before the Royal Commission. The parties led anthropological evidence for and against the likelihood that female gender-specific restricted knowledge was part of traditional Ngarrindjeri culture. In the result, the issue of fabrication or genuineness became one of the main issues canvassed during the trial.
322 The determination of the applicants to establish fabrication was probably encouraged by comments from the Bench that the claims based on misleading or deceptive conduct could fail unless the applicants established that the conclusions expressed in the Fergie and Saunders Reports were wrong. Towards the end of the trial the applicants embraced the task of establishing fabrication more directly in their pleadings by adding against Luminis and Dr Fergie new particulars (now par 38(s) and (t) of the statement of claim) that:
“(s) The Fergie Report conveys the impression that the claimed women’s business was:
(a) a genuine Ngarrindjeri tradition;
(b) a tradition which was known prior to October 1993;
(c) a tradition which satisfied the definition of ‘Aboriginal tradition’ within the Act;
(d) a tradition which satisfied the requirement of ‘particular significance’ within the Act;
whereas it was not one or more of the above.
(t) The Fergie report (at contents page and pages 1, 2, 4, 5, 6, 7, 8, 9, 10, 13, 15, 16, 17, 18, 19 and 20 and by reason of the statement ‘Confidential: To be read by women only’ appended to the secret envelopes):
(i) represents expressly that the claimed women’s business was a Ngarrindjeri tradition which included, or was subject to, a tradition of secrecy
(ii) represents impliedly at the abovementioned pages (and also expressly at pages 4, 5, 16 and 17) that the claimed women’s business was a Ngarrindjeri tradition which was confidential and known only by Ngarrindjeri women
(iii) represents impliedly at the abovementioned pages (and also expressly at page 13) that the claimed women’s business was different from claims relating to Ngarrindjeri tradition which were in the public domain
when in fact it was not one or more of these.”
and against Professor Saunders that her report conveyed like impressions (pars 41(s) and (t) of the statement of claim).
323 Whilst no party sought in this Court to canvass the reasons of the Royal Commission published in the Report of the Hindmarsh Island Bridge Royal Commission (State Print, December 1995) (Commission Report), that report is an officially published document readily available in libraries. The Commission’s findings leading to the conclusion of fabrication are referred to and used in papers of anthropologists which have been placed before the Court through expert witnesses. I have already indicated that I have reached a conclusion which differs from that of the Royal Commission: see par 199 above. As a matter of wide public interest is involved, and as the matter is one that has divided sections of the community, and engendered strong feelings of distress, hostility or anger in several quarters, I think it is necessary that I explain by reference to findings made by the Royal Commission why I have come to a different conclusion.
324 I stress that I have no direct knowledge of what occurred during the course of the Royal Commission hearing. I have seen only small parts of the evidence given by a few of the witnesses (parts used in cross-examination before this Court), and I have seen only a few of the Royal Commission exhibits. My understanding of the reasons for the Commission’s findings are based on the published report.
325 At the outset, the process and procedures followed by the Royal Commission should be noted. The Royal Commission was inquisitorial in nature and was not bound by the rules of evidence (the Royal Commissions Act 1917 (SA) ss 5 – 9). No particular interest group carried an onus of proof. Whilst the Terms of Reference given to the Commission were silent on the standard of proof, the Commission noted that important economic consequences would follow a decision to halt the construction of the bridge, and findings of the inquiry might affect the reputations of some people involved. Accordingly, the Commission proceeded on the basis that:
“Facts must be proved to the reasonable satisfaction of the Commissioner. Accordingly the standard of proof to be applied was proof on the preponderance of probability with due regard to the importance of the particular issue being determined (Briginshaw v Briginshaw (1938) 60 CLR 336 per Latham CJ pp 343 – 344, Rich J p 354, Dixon J pp 332 – 3; Hornal v Neuberger Products Limited (1956) 3 All ER 970 (CA); Cross on Evidence, 3rd Australian Ed, pp 254 – 257.).” (Commission Report p 7)
In my opinion, that is the same standard of proof which this Court must apply, although I would add to the reasons why the principle in Briginshaw v Briginshaw is attracted, the seriousness of finding that an asserted spiritual belief of a group of people is fabricated. In the result, whilst this was the standard to be applied, the Commission has expressed its conclusions in terms that do not suggest that it held any degree of doubt about its key findings.
326 Whilst the Commission had power to subpoena reluctant witnesses, this power was not used to compel people who were unwilling to participate, or to require witnesses to break confidences relating to the alleged women’s business (Commission Report p 14 – 18). The Commission was also constrained to some extent by s 35 of the AHA (see Commission Report p 10 – 16). A number of witnesses who might otherwise have contributed useful evidence did not do so.
327 The Ngarrindjeri women (including Dr Kartinyeri) propounding the genuine existence of the restricted women’s knowledge, referred to in the Commission Report as “the proponents”,took no part during the proceedings. Their participation was limited to making a statement through counsel at the start of formal hearings which gave their reason for not doing so. Whilst their statement is not set out in the Commission Report (see p 20) one of the applicants’ documents in this case indicates that the statement included the following:
“We are deeply offended that a government in this day and age has the audacity to order an inquiry into our secret sacred spiritual beliefs. Never before has any group of people had their spiritual beliefs scrutinised in this way. It is our responsibility as custodians of this knowledge to protect it. Not only from men, but also from those not entitled to this knowledge. We have a duty to keep Aboriginal law in this country. Women’s business does exist, has existed from time immemorial and will continue to exist where there are Aboriginal women who are able to continue to practice their culture.”
328 The “secret envelopes” were not available to the Commission, and the Commission had no direct evidence of their contents. The Commission’s findings about the likely contents of the envelopes, and the detail of the restricted women’s knowledge were arrived at by inference, mainly from what was disclosed in the body of the Fergie Report and the Saunders Report and from the cross-examination of Dr Fergie. Dr Fergie has informed this Court that throughout her lengthy cross-examination at the Commission she endeavoured not to disclose the contents of the envelopes or to reveal anything beyond that which Dr Kartinyeri had authorised for the purposes of the public section of her report.
329 Professor Saunders and her assistant, Ms Mullins, did not give evidence, nor did Ms Kee who had read the secret envelopes at the request of Mr Tickner.
330 Before this Court, a number of Ngarrindjeri women besides Dr Kartinyeri gave evidence in support of the genuineness of the restricted women’s knowledge. Among these women were four women who were present at the meetings on 9 May 1994 at the Bunk House and the Mouth House, and six women who were at the Graham Castle’s meetings on 19 and 20 June 1994 (including Dr Kartinyeri), none of whom gave evidence before the Commission. Professor Saunders and Ms Mullins who were at the Graham Castle’s meeting on 20 June 1994 gave evidence about that meeting, and in closed session they, and Ms Kee, gave evidence about their recollections of the contents of the secret envelopes. In the years since the Royal Commission, anthropological writings and research about the likelihood of the knowledge being part of genuine Aboriginal tradition has been considerable. Evidence was led before this Court from anthropological experts which was not available to the Commission.
331 That the information before the Commission and the Court is different provides an obvious reason for different outcomes. However, I think the public interest involved requires that I should go further and give more specific reasons why this Court is not satisfied that the applicants have established on the preponderance of probabilities (i.e. on the balance of probabilities) that the restricted women’s knowledge was fabricated, and was not part of Aboriginal tradition.
332 The Commission’s conclusion of fabrication rests on several planks. The following are prominent amongst them:
1. Late Emergence. The circumstances surrounding the late emergence of the alleged women’s business was found to be redolent with suspicion of fabrication, the suspicion lying in part in the timing in relation to the imminent construction of the bridge, in part in events considered to be suggestive to Ngarrindjeri persons that there was a need to find “women’s business”, and in part because men were talking about “women’s business”. And, finally, one person, Mr Doug Milera, confessed to being one of the fabricators who made up the story in late April or early May 1994.
2. Literature and Expert Evidence. That there could be gender-specific restricted knowledge held by women which had not been reported in ethnographic studies was unlikely, and it was even more unlikely that knowledge of this kind could exist which was site specific to the Goolwa and Hindmarsh Island area.
3. One Woman Only Knew. The Commission found that only one woman knew the “women’s business” (Dr Kartinyeri) and it was highly unlikely that a tradition that had profound implications affecting the future of the Ngarrindjeri race could have remained such a closely guarded secret. It was unknown to the “dissident” Ngarrindjeri women, who would have known at least something of it if it were true.
4. Irrationality of “Women’s Business”. Having inferred the likely detail of the knowledge that was in the secret envelopes, the Commission said (Commission Report p 241):
“Unless an analogy of the bridge as a form of contraception is accepted, Dr Fergie’s attempt to comprehend and translate what she was told by Doreen Kartinyeri, with comments from a few others, does not explain why the cosmos and the Ngarrindjeri women would be rendered sterile by the construction of the bridge.
The beliefs said to constitute the ‘women’s business’ and Dr Fergie’s elaboration of it, that is, the cultural significance of the area according to Ngarrindjeri tradition, and the threat of injury or desecration said to be posed by the construction of the bridge, are not supported by any form of logic, or by what was already known of Ngarrindjeri culture.”
I propose to discuss each of these topics in turn to show where and why I have not reached the same conclusion.
Late emergence
333 To the eurocentric mind accustomed to the open exchange of information, the late disclosure of an important claim or explanation which supports the interests of the discloser will be viewed with suspicion. However, it is now well recognised in this Court and I think widely in the community, that under Aboriginal custom not all information is open. Much cultural information is surrounded by restrictions on disclosure. Some cultural knowledge relating to sacred beliefs is highly secret. Some, though sacred, may be revealed in part. The concept of graded secrecy, that is layers of knowledge is recognised, where outer layers may be widely known, but inner layers, including knowledge as to the significance of the belief to the culture may be known to only a very small number of senior people in the clan who are considered to be its custodians. The transmission of restricted cultural knowledge is likely to be strictly governed by traditional customs and a system of respect which delineate by whom, to whom and in what circumstances the knowledge may be revealed. The phenomenon of eleventh hour disclosure when all means short of disclosure have failed to protect an Aboriginal tradition is also recognised. Dr Fergie in her report pertinently quotes from the Hon J H Wootten AC QC in his report under s 10(4) of the HPA on the proposed Junction Waterhole Dam, Alice Springs:
“The cultural gulf between European and Aboriginal attitudes to the acquisition and spreading of knowledge often makes it difficult for Europeans to appreciate why Aborigines appear loath to discuss a site until a development proposal appears to be well under way. Aborigines, working under long inherited laws of protection through secrecy, prefer not to mention the existence of a sacred site, let alone its significance, until it is almost on the point of being destroyed. Europeans find this approach to be very frustrating and, because they do not understand it, claim that Aboriginal people find sites only after development proposals have been announced. From the Aboriginal point of view this appears to be a surprising attitude since Aborigines know that they must maintain secrecy unless … the release of that knowledge is perceived, ultimately, to be the only way to protect an area.” (Wootten Report, p 31)
334 The circumstances surrounding the emergence of the information in the present case must be viewed against this background, and also evidence:
· from Dr Kartinyeri that on her understanding of Aboriginal tradition sickness, even death, is the consequence of wrongful disclosure of restricted cultural knowledge.
· from Mr George Trevorrow that where cultural information is revealed to non-Aboriginal people there is the risk that it will be held up to ridicule.
· that there is a risk that disclosure of sacred places or objects leads to damage or desecration.
335 I have discussed the evidence concerning restrictions on disclosure of the restricted women’s knowledge alleged to comprise part of the tradition in reasons for an evidence ruling published on 28 July 2000: Chapman v Luminis Pty Ltd (No 2) (2000) 100 FCR 229 at 243 - 245, [40] – [50]. Dr Kartinyeri said that she was told by her Auntie Rose that the information was not to be told to men, in particular to white men. On the evidence before the Court and on the assumption that the tradition was part of genuine Aboriginal tradition, I held that Aboriginal tradition confined the disclosure of the restricted women’s knowledge (that is, the knowledge recorded in the secret envelopes) to Ngarrindjeri women, chosen by those who possessed the knowledge as appropriate to be entrusted with it. However, I went on to hold (at 243 [40]):
“However that restriction is not exhaustive. In situations judged appropriate by those who hold the knowledge, the knowledge may be disclosed to others including, in an exceptional case, to a non-Aboriginal male person with a special interest to receive it. The outer limits of circumstances that may be judged appropriate for disclosure are not revealed by the available information, but permitted circumstances include disclosure authorised by Ngarrindjeri women who the custodian or custodians of the information respect as Elders in the Ngarrindjeri community, where the disclosure is for the purpose of protecting that tradition or other Ngarrindjeri traditions. Disclosure in these circumstances should only be to the extent necessary to achieve the protection sought. Such a disclosure may be made even though it may result in the restricted women’s knowledge being revealed to a particular man. In such a case the particular man is treated as having been granted permission in accordance with the Aboriginal tradition to receive the restricted knowledge.”
336 From the Aboriginal perspective late emergence of tradition would not be indicative of fabrication: on the contrary, it is to be expected in the case of genuine sacred information of importance. The late emergence in this case must also be viewed against the criticisms that are made about the extent of consultation which occurred about the bridge construction. If the evidence before this Court from the Ngarrindjeri women who support the existence of the knowledge is accepted, the number of living women with the knowledge before May 1994 was few, and they were widely dispersed.
337 Undoubtedly the emergence of issues relating to cultural and spiritual importance of the waters of the Goolwa Channel was late, and notwithstanding what has just been said, that late emergence is a matter that calls for close attention. The explanation given by the proponents of the knowledge is complex. With the dispersal of the Ngarrindjeri people from their traditional lands over the last 150 years, and with their integration first into mission life and Christianity, and then into the general community, many Ngarrindjeri people of today no longer have knowledge of the traditional practices and cultural beliefs of their forebears. However, it is quite clear on the evidence that traditional cultural information remain with some people, although not in a comprehensive structured form. In consequence it is understandable that only a few Ngarrindjeri women would now know aspects of their oral history that concern the importance to women of Hindmarsh Island and its surrounds, and that only a few Ngarrindjeri men would be aware of the fact that the area had a spiritual significance to the Ngarrindjeri people because of its importance to women.
338 Whilst I am critical of the level of the consultation which occurred with representative Ngarrindjeri bodies over the bridge (see par 504 and following), the evidence indicates that the State’s decision to build the bridge was known to some leading male figures within representative Ngarrindjeri bodies before 1993, including to Mr Tom Trevorrow, who gave evidence to this Court that he had been told when he was a child by his mother that Hindmarsh Island was a special place. It is probable that Mr Henry Rankine and Mr George Trevorrow were given information that a bridge was proposed at a Coorong Consultative Committee as early as March 1990. To what extent the proposal to build a bridge was known to Ngarrindjeri women within these organisations is unclear.
339 The Chapmans assert that in September 1989 they discussed the proposed bridge with Mr Henry Rankine, and his wife Mrs Jean Rankine. Although Professor Saunders received conflicting information about this consultation from Mr Rankine (see pars 507 - 511), I think it is likely that Mrs Rankine did know of the bridge by 1993. But even if it is the case that Mr and Mrs Rankine, and a number of other Ngarrindjeri people holding office in representative Ngarrindjeri bodies were aware before 1993 of the bridge proposal, and the Government’s decision to proceed, that conclusion, in my opinion, does not lead on to establish that the late emergence of the restricted women’s knowledge was due to fabrication. There is no evidence that Mrs Rankine was at that time aware of the restricted women’s knowledge, nor that the information received by them about the bridge was more widely promulgated in the Ngarrindjeri community. There is no evidence that those women who are now identified as having knowledge of parts of the restricted women’s knowledge were informed.
340 Proof that some members of the Ngarrindjeri community were knowledgeable about the proposed bridge immediately raises difficult issues concerning cultural restrictions on, and reluctance about, disclosure, and the geographical dispersal of those with relevant understanding of the knowledge. Whilst the late emergence is a significant aspect of the case advanced against the genuineness of the knowledge, and may continue to be viewed unsympathetically by some non-Aboriginal people in the community, the explanation for late emergence which is advanced, in my opinion, is not so improbable that fabrication must be inferred. Without more, I do not think the fact of late emergence is a useful indicator of fabrication. If the restricted women’s knowledge is a genuine part of Aboriginal tradition, late emergence could be expected. On the other hand, if there had been fabrication as postulated, late emergence would also be a feature. It is necessary to look to other evidence to assess whether late emergence is indicative of one or the other situation.
341 Major points persuasive of fabrication in the Commission’s reasoning on late emergence included:
· On 26 March 1994 Dr Lindy Warrell whilst at Camp Coorong on an unrelated matter said in casual conversation about Hindmarsh Island to Mr Tom Trevorrow, and his wife, Mrs Ellen Trevorrow, “[w]hat a pity about the ‘women’s business’. It would be nice if there was some ‘women’s business’ …” or words to that effect (Commission Report pp 103 – 104). The evidence of this statement of Dr Warrell came from an audio-visual tape of a conversation between a television reporter and Dr Warrell. She did not give evidence before the Commission.
· According to a version of a conversation he had with a journalist on 5 June 1995 Mr Doug Milera said he was enlisted by Mr Victor Wilson, Chairman of the LMAHC in about April 1994, to oppose the bridge. According to the journalist Mr Milera said Mr Wilson called him into his office and showed him an aerial photograph of Hindmarsh Island. Mr Wilson said, to the effect, “This is a woman. It’s the creation of the Ngarrindjeri people and I’m going to ring Doreen Kartinyeri to explain it and to find out about it.” (Commission Report pp 107, 292) (Why Mr Wilson would be intending to “find out about it” from Dr Kartinyeri if he was the fabricator of the story is not explored in the Report).
· Early in April 1994 Dr Kartinyeri was making enquiries with staff with whom she worked at the South Australian Museum for information about Hindmarsh Island and its environs (Commission Report pp 111 – 114, 293).
· Around 5 April 1994, a journalist following the Hindmarsh Island affair heard that a story was circulating amongst the Friends at Goolwa that the area of the Murray Mouth was a woman’s place. He heard that the landscape was said to have the shape of the female form (Commission Report pp 106 – 107).
· On 12 April 1994 Mr Dobbs, the section manager of the Heritage and Environment Section of ATSIC in Canberra, said to Dr Draper that the ALRM application required more than archaeological evidence to support it – “i.e. cultural significance” (Report pp 114 – 115, 293). The Commission saw it as significant that “women’s business” became part of the “ALRM case” soon thereafter (Commission Report p 115).
· Between 12 and 15 April 1994 Dr Kartinyeri visited the South Australian Museum with Mrs Sarah Milera and another Ngarrindjeri woman requesting information from the late Professor Tindale’s collection of Ngarrindjeri material. She told Dr Clarke that they knew something, as Ngarrindjeri women, about the Hindmarsh Island area (Commission Report 113). Dr Clarke is an anthropologist at the Museum who later gave evidence to the Commission as an expert denying the likelihood of restricted women’s knowledge relating to the Hindmarsh Island area.
· On 5 May 1994 Victor Wilson drove Dr Kartinyeri to Hindmarsh Island, and two important meetings occurred on 9 May 1994, the first at the Bunk House and the second at the Mouth House.
At the Bunk House about fifteen Ngarrindjeri women were present including Mrs Dorothy Wilson of Murray Bridge who had been requested to attend by Mrs Isobel Norvill (Mr Victor Wilson’s sister) and Mrs Eileen McHughes (Commission Report p 123). The Commission received an account of this meeting from Mrs Dorothy Wilson. She said Dr Kartinyeri told the women that the island was a sacred place where Ngarrindjeri women aborted half cast babies and buried the foetuses. She said this information was confidential to women, it was “women’s business”, but Dr Kartinyeri did not say anything about it being secret. Mundoo Island was also said to be important to men.
The women prepared a letter to Mr Tickner opposing the bridge. Text mentioned the disturbance of graves and that Mundoo Island was the Ngarrindjeri’s morgue. The letter also contained the comment:
“As our discussion was ‘women’s business’ and cannot be told to any man because it is sacred knowledge, We are inviting Veronica Vann and the Honourable Carolyn Pickles to meet with us and discuss these issues with us.”
All the women present at the Bunk House signed the letter which had been drafted (Commission Report pp 123 – 128). After amendment later that day it was dispatched to Mr Tickner.
The women then travelled to the Mouth House on the other side of Hindmarsh Island, adjacent to the Murray Mouth. Already present were Mr Tim Wooley (the ALRM’s solicitor), Messrs Victor Wilson, Doug Milera and George Trevorrow, and Mrs Shirley Trevorrow. According to the Commission Report, Mrs Dorothy Wilson, Mr George Trevorrow and Mr Wooley gave evidence before the Commission. Mr Wooley is reported to have looked at the letter drafted by the women at the Bunk House and said it was not enough and needed more information. An additional passage was then added which, after an introduction dictated by Dr Kartinyeri, was a word for word extract from the report prepared by Dr Draper dated 29 April 1994. The passage said:
“Kumarangk is the Aboriginal word for fertile (pregnancy). That is also the name of Hindmarsh Island. It is all Aboriginal ‘women’s business’. This area represents a crucial part of Ngarrindjeri cultural beliefs about the creation and constant renewal of life along the Lower Murray lakes, the Murray Mouth and the Coorong. The most serious cultural heritage dilemma concerns the Goolwa channel and its vital cultural heritage significance as part of the Meeting of the Waters. The cultural traditions concerning this ‘site’, and its relationship to the surrounding lakes and Coorong are highly confidential and only their very general nature is documented in this report. The barrages have … [the last line of page 1 is illegible].” (Commission Report p 126)
Whilst the letter was being amended, the Commission Report records the following events (at 128):
“At this stage Victor Wilson pointed to a colour aerial photograph of the Island on the wall of the shack in the living room near the table and said, ‘Look at the map up there’.
The following is the evidence of Dorothy Wilson about this episode:
Mrs Shaw: Once Vic had said that you looked at the map on the wall, then what happened. I think you mentioned Doug Milera.
Dorothy Wilson: Yes. Because none of us said anything, we were just looking at the area on the map on the wall, Doug said to us then that the map resembled a woman’s private.
Mrs Shaw: Did he say anything about the waters about Hindmarsh Island.
Dorothy Wilson: Yes. I think he said something to the effect like it was the spiritual waters.
Mrs Shaw: Can you actually remember the words he used. Give us your best memory of what Doug said in direct speech when he first indicated the map.
Dorothy Wilson: He said to us that it was ‘women’s business’, and that the map had looked like a woman’s private, and that the waters around it were spiritual. Something to that effect. I just can’t remember exactly what it was.
Mrs Shaw: Did you see any reaction from the other women. What did they do.
Dorothy Wilson: Doreen was the only one who reacted to it, and she said, ‘Yes, I can see it now, I can see it’, after Doug had said that it resembled a woman’s private. The other women didn’t say anything.
Mrs Shaw: What was Doreen’s demeanour when she said she could see it.
Dorothy Wilson: Well, I think she was just saying that she agreed with Doug, and that she could see what the map resembled.
Mrs Shaw: Could you see that resemblance.
Dorothy Wilson: No.” (Commission Report 128 – 130)
The Commission records that Mr George Trevorrow and Mr Tim Wooley on the other hand gave evidence that conflicted with that of Mrs Dorothy Wilson on the question whether the women were told that the aerial photograph represented a woman’s reproductive organs, or something to that effect. Insofar as that conflict existed, the Commission accepted Mrs Wilson’s evidence as the most reliable and accepted her account as the basis for its findings (Commission Report p 131).
· On 5 June 1995, Mr Doug Milera told a journalist and a number of others that the whole issue of women’s business had been fabricated (giving the information set out above at par 132) and that the pointing out of the features of the aerial photograph to Dr Kartinyeri was part of that fabrication. He said that he and his wife and Dr Draper had been manipulated by the anti-bridge people. Part of Mr Milera’s confession was videotaped and later put to air by television stations (Commission Report p 194). The Commission received evidence that Mr Milera repeated his admissions to a number of people on different occasions shortly thereafter. Mrs Sarah Milera on 10 July 1995 apparently “confirmed the extent of the alleged fabrication” to a journalist (Commission Report 209). However, he later retracted his admissions saying that he was drunk at the time of the television interview. The Commission noted that the retraction was lacking in particularity, and the reasonable inference was that he ultimately succumbed to pressure which he himself predicted would be brought to bear on him for speaking out (Commission Report pp 209 – 210).
342 The above is not a complete catalogue of events concerning late emergence recorded by the Commission but represents the important events on which the Commission relied.
343 Before this Court, however, the evidence was significantly different. First, the evidence received in closed session, whilst incomplete for the reasons already given, contains an account of the restricted women’s knowledge that is different from that inferred by the Commission. There are similarities, some of which relate to aspects of reproduction and the female body, but there are critical differences. I consider the confidential evidence shows that according to the tradition asserted, Hindmarsh Island, Mundoo Island and the surrounding waters are not sacred because of beliefs associated with arcane practices which once took place on Hindmarsh Island and Mundoo Island (see Commission Report p 236), but rather, the practices are a manifestation of a spiritual belief about those Islands and the surrounding waters. Important to that knowledge is the Goolwa Channel. According to the belief, the spiritual importance of the Islands and surrounding waters will be injured or desecrated if Hindmarsh Island is linked to the mainland. The confidential evidence indicates that the secret envelopes offered an explanation why that would be so.
344 In my opinion, therefore, there is considerable significance in the evidence of Mr Jacobs QC that the fundamental objection of the LMAHC, as expressed to him by Messrs George Trevorrow and Doug Milera in January 1994, was that the bridge would link Hindmarsh Island to the mainland so that the Island would lose its character as an island (see par 62). That this was told by men to Mr Jacobs QC at first sight might seem strange to the non-Aboriginal mind if the Aboriginal objection is loosely characterised as “women’s business”. However, the evidence received both in open sessions and in restricted sessions by this Court indicates that the knowledge said to give rise to the objection has, according to tradition, layers, some of which are not confined to women, some of which whilst sacred and confidential seem to have been released from time to time (in particular information that the shape of the landscape has a relationship with the female form), some of which was revealed only to Dr Fergie and Professor Saunders, and some of which Dr Kartinyeri declined to reveal even to them. That two Ngarrindjeri men would know that the area had spiritual significance which would be injured or desecrated if Hindmarsh Island were linked to the mainland is not a ground for rejecting the genuineness of the restricted women’s knowledge. The ALRM in a submission to Professor Saunders made on 10 June 1994 said, in the course of giving a chronology of events:
“Even at this stage [December 1993] the significance of the area to Ngarrindjeri women had not been revealed, no doubt due to Aboriginal tradition.
Ngarrindjeri men (members of LMAHC), however were being told by their wives about the significance of ‘the waters’. The men in vague and embarrassed fashion began talking to Dr Draper about their significance, and at least hinted at the importance of the area to Ngarrindjeri women.
By mid-April after trust had been established, it was made clear that women’s cultural knowledge was at the heart of the Aboriginal tradition being threatened by the bridge construction.”
There is persuasive evidence, which I accept, from Dr Draper and Mr George Trevorrow that either just before or after the meeting between representatives of the LMAHC, the State Aboriginal Heritage Committee, the State Minister and others at DOSAA on 15 April 1994 Dr Draper was told by representatives of the LMAHC that they were concerned about the Goolwa Channel area which was highly significant to the Aboriginal community, and the Ngarrindjeri women.
345 Dr Warrell has not given evidence before this Court. In the forensic context of this case, the failure of the applicants to call someone who was instructed by them to advise on anthropological issues is a surprising omission, and opens a possible inference that her evidence properly tested would not help the applicants’ case. That such an inference should be drawn gains strength from a statement appearing in a paper by another anthropologist, Dr Ron Brunton, to which the Court was referred by the applicants’ witness, Dr Maddock, which reports that Dr Warrell does not doubt “women’s business” itself: Dr Ron Brunton, Hindmarsh Island and the Hoaxing of Australian Anthropology, (May 1995) Quadrant, 11. Before this Court there is no evidence that Dr Warrell suggested “women’s business” to the Trevorrows. There is evidence, however, from Mr Tom Trevorrow that he does not remember anything to the effect alleged being said. He denies that anything Dr Warrell may have said on that occasion played any part in the emergence of restricted women’s knowledge. The suggestion that Dr Warrell sowed the seed for the fabrication of “women’s business” was not put by the applicants to Mrs Ellen Trevorrow in her cross-examination.
346 Neither Mr Doug Milera, Mr Victor Wilson nor Mrs Sarah Milera has given evidence before this Court. In no sense are they the witnesses of either side to the controversy, and no inference against the case of any party arises from their absence. But the applicants in this Court are without the support to their case which the Commission detected in the information before it about the role of Mr Milera.
347 The evidence before this Court confirms that Mr Dobbs on 12 April 1994 did say to Dr Draper that evidence of some cultural significance was desirable. Standing alone, a remark like that between officers of two government departments dealing with heritage matters could be expected. The reference to cultural significance, Dr Draper explained in evidence, was a reference to a recognised practice of which he was aware at that time under which ATSIC gave priority to matters of cultural significance, in assessing applications for protection. Dr Draper passed this information on to his CEO, Mr Rathman.
348 As seed for subsequent fabrication, it is necessary that the information from Mr Dobbs be passed back to those allegedly responsible for the fabrication. There is no direct evidence that this occurred, but accepting that it could have happened, the proposition that it led to fabrication of information thought to be culturally significant attributes to Dr Draper professional incompetence in not detecting that process. That is an inference that is not in accordance with the impression I have formed of Dr Draper. More significantly, the suggestion that Mr Dobbs’ remark was the seed for fabrication suffers a timing problem in that Mr Jacobs had been told that the bridge would be an affront to the spiritual identity of Hindmarsh Island more than two months before. The story about the Murray Mouth being a woman’s place, and the landscape having the shape of a female form had been circulating for a week or two by that time. Further, the Goolwa Channel had been identified as an area of concern by the ALRM in its letter to Mr Tickner on 7 April 1994.
349 At about 12 April 1994 Dr Kartinyeri was also saying to the effect that Hindmarsh Island had significance to women. It is not impossible on timing that a message could have been quickly relayed through a chain of communication within the Ngarrindjeri community to Dr Kartinyeri saying there was a need for culturally significant information, but the theory then has fabrication occurring with great speed, and with the precision necessary for the detail to mesh in with what had been said to Mr Jacobs. The probability is against this suggestion.
350 That the seeds for the fabrication of women’s business were sown by Dr Warrell or by Mr Dobbs is not a cogent suggestion on the evidence before this Court.
351 The evidence which this Court received about the Bunk House meeting is not materially different to that before the Commission, but it is significant that what Dr Kartinyeri told the women was said to be confidential to women but was not said to be secret. Similar information was discussed at the Graham Castle’s meetings on 19 and 20 June 1994 in a way that suggests that it was not considered by Dr Kartinyeri or others present who may have known about the restricted women’s knowledge, as being secret information. The evidence received in this Court in confidential session suggests that the topics discussed at the Bunk House are not central parts of the traditional belief, but merely practices that have occurred which reflect it. It is consistent with the confidential evidence that these practices would be considered part of an outer layer of the knowledge. The information about Mundoo Island suggests that it was not gender restricted and it was information that was widely known.
352 This Court has no evidence of an admission by anyone that the restricted women’s knowledge reported to Dr Fergie and Professor Saunders was fabricated. As Mr Doug Milera has given no evidence before this Court, and his many conflicting statements are only obliquely and selectively referred to in newspaper articles contained in tender bundles, I am in no position to speculate about the worth, weight or relevance of any evidence he might have given had he been called.
353 The conversations relied on by the Commission in which Mr Milera made admissions occurred a year or more after the events in question. In the course of the trial in this case suggestions were raised that he was at the time of making the admissions depressed and at least slightly intoxicated, and that he was an alcoholic. Even if his evidence, properly tested, warranted the conclusion that at the Mouth House he pointed to an aerial photograph and told the woman that the photograph represented a woman’s reproductive organs or something to that effect, in light of evidence that this Court has received about the restricted women’s knowledge, I would not conclude that this indicated a fabrication of the restricted women’s knowledge. I think it would indicate merely that Mr Milera had knowledge of the outer layer, and was familiar with a story that had been circulating around Goolwa for a month or so beforehand. The demonstration which he describes in the passages cited in the Commission Report does not involve a revelation about the significance of the shape as related by Dr Kartinyeri to Dr Fergie and Professor Saunders. It makes no reference to the cultural inappropriateness of a link between Hindmarsh Island and the mainland, and gives no inkling of how or why the bridge could cause injury or desecration. Moreover, as I have pointed out, the suggestion that Mr Milera, with or without the assistance of Victor Wilson fabricated the “women’s business” in April does not, as a matter of timing, fit with the statements made by him in the company of Mr George Trevorrow to Mr Jacobs in January 1994. Mr Milera’s statements in June 1995 about what happened at the Mouth House, as reported in the material before this Court, seem to be a reflection of what Mrs Dorothy Wilson had been saying for some time, and no more.
354 For these reasons I do not think the fact of the late emergence of the restricted womens’ knowledge as a ground of objection to the bridge provides proof of fabrication.
Literature and expert evidence
355 Dr Fergie and Professor Saundershad noted in their reports that restricted women’s knowledge relating to the Hindmarsh Island area was not recorded in the literature. The Royal Commission held that “women’s business” was unknown and unrecognised in the literature. The issue which has received the attention of a number of expert anthropologist witnesses before this Court has been whether the existence of gender-specific restricted knowledge relating to the topic disclosed in the Fergie and Saunders Reports is consistent with ethnographic, anthropological and historical accounts of Ngarrindjeri culture. They have considered whether these accounts contain materials which indicates support for the existence of a cultural domain of gender-specific sacred information that was not previously recognised or understood, and whether within these accounts there is material supportive of restricted women’s knowledge of the kind revealed in the Fergie and the Saunders Reports being part of Aboriginal tradition.
356 The applicants called anthropologists, Dr Philip Clarke and Dr Philip Jones, who hold appointments at the South Australian Museum and Professor Maddock, Emeritus Professor in Anthropology, Macquarie University. Dr Clarke and Dr Jones have both worked with the Ngarrindjeri people and have over an extensive period researched Ngarrindjeri culture. Both were witnesses before the Royal Commission. Dr Clarke gave evidence before this Court, the effect of which was to deny the possibility that in Ngarrindjeri culture restricted women’s knowledge in relation to Hindmarsh Island, or at all, could be true. He said it was not consistent with his own research and it was not consistent with the published work of Professor Ronald Berndt and his wife Catherine Berndt: A World That Was, The Yaraldi of The Murray River and The Lakes, South Australia (UBC Press, 1993). This major work was based on ethnographic research undertaken by the authors in 1939 and the early 1940’s, their principal informants being Albert Karloan and Pinkie Mack. The text of the book was almost entirely written up soon after their field work, but due to the pressure of other work they did not come back to complete the book for publication until the late 1980’s. The work was not published until after Professor Berndt’s death. Dr Clarke considered that the book disclosed no gender-based secret-sacred domain in Ngarrindjeri tradition. He drew attention to the Foreword to the book by Professor Robert Tonkinson, Professor of Anthropology at the University of Western Australia, where he discussed this feature of Ngarrindjeri culture. This Court has been informed that Professor Tonkinson is not himself an expert on Ngarrindjeri culture. Professor Tonkinson, in relation to the Ngarrindjeri people, cited with approval a statement from another paper of Mrs Catherine Berndt the observation that:
“Gender-based differences, in the sense of inclusion-exclusion, in religious and other affairs, were minimal.”
Catherine Berndt suggested that was one of the remarkable features of the Yaraldi [Ngarrindjeri] society. Professor Tonkinson went on to say:
“Yaraldi ceremonial life was public, and there was apparently no secret-sacred men’s or religious domain, which is rare in Aboriginal societies. Both males and females underwent initiation, which in the case of girls was focused on first menstruation and the subsequent manggi or marking rituals, where older women burned and cut marks on the novices arms and back …” (Foreword xxix)
357 Dr Clarke also referred to other passages in The World That Was including the introduction to Chapter 1 (see par 366 below) and to the opening sentence of Chapter 14 where the authors say that the Ngarrindjeri society appeared to have had no secret-sacred rituals, at least not in terms of a separation of sexes.
358 It is to be noted that Professor Tonkinson also wrote in the Foreword:
“As to the important question of how accurate a picture of Yaraldi society and culture this study provides, the Berndts hasten to point out that it is built up principally from the ‘memories of fallible people’ – and a very small number at that. It has been shaped, too, by the biases of the authors: their interests at the time, the kinds of questions they asked, their selectivity in recording information, and so on. … They concede that there are gaps in certain aspects of the material gathered and, in their concluding comments, they emphasise that they ‘in no way’ exhausted the extensive repertoire of cultural knowledge held by the Yaraldi people with whom they worked.” (Foreword xix)
359 Dr Jones also gave evidence before this Court. He shares many of Dr Clarke’s views on the unlikelihood that restricted women’s knowledge is a genuine Aboriginal tradition. However, his evidence-in-chief was not directed primarily to matters of his expertise but factual events said to discredit Dr Kartinyeri which arose in the course of his work with her, particularly in 1994 and 1995, and to the timing of an incident in which Mr Hemming, another anthropologist then working at the South Australian Museum, recounted to him a discussion which Mr Hemming said he had in the museum tea room with Professor and Mrs Berndt in about 1988 when they spoke of a possible connection, in mythological terms, between the Lower Murray and the Lakes Area, and a woman’s body (see pars 436 - 437). Dr Jones was not presented as a pivotal witness in the applicants’ anthropological evidence.
360 Professor Maddock was called not as an expert steeped in the knowledge of Ngarrindjeri culture, but to give a qualitative assessment in anthropological terms of the Fergie Report. He was asked to express opinions about Dr Fergie’s methodology, the content of the report and its conclusions. He was critical of Dr Fergie’s methodology, the accuracy and completeness of her research, and questioned whether her opinion was soundly based having regard to available literature. If her opinion were correct she had made, he said, a significant anthropological discovery. Evidence given by him went beyond Dr Fergie’s methodology and report, and contributed to the issues considered by the other anthropologists.
361 On the other side of the divide the respondents called several anthropologists, Professor Diane Bell, Professor of Anthropology and Director of Womens Studies at the George Washington University DC, Professor Morphy, Professor of Social Anthropology at University College, London, Dr Draper and Mr Hemming. Dr Fergie also gave expert anthropological evidence in the course of her defence. Professor Bell, Dr Draper and Mr Hemming have each worked closely with members of the Ngarrindjeri community and undertaken extensive research about their culture. Professor Bell’s interest in Ngarrindjeri culture post-dates the Royal Commission. She acted as a consultant to the Ngarrindjeri women who sought protection under s 10(4) of the HPA in the application referred to Justice Matthews in early 1995. In 1998 she published Ngarrindjeri Wurruwarrin: a world that is, was, and will be (Spinifex Press, 1998) detailing her involvement with the Ngarrindjeri women, her research and her conclusions that the Hindmarsh Island, Goolwa, Murray Mouth area is significance to women; that there are several fragmentary stories for the area; that they do indeed concern the reproduction of the Ngarrindjeri world; and that there are Ngarrindjeri women and men who believe a bridge threatens the health of women, the social order, and the land. Her evidence expanded on her reasons for her conclusions.
362 Both Dr Draper and Mr Hemming had field and research experience in the Ngarrindjeri culture before any issue over the bridge arose. Dr Draper’s role as an employee of DOSAA has already been indicated. Mr Hemming had been involved in the Museum’s family history project as Project Manager between 1987 and 1991. Dr Kartinyeri has undertaken genealogical research as an employee of the Museum as part of that project, and Mr Hemming worked with her for a number of years before 1994. Mr Hemming had led many field trips in which Dr Clarke was involved, gathering ethnological and other material about the Ngarrindjeri culture. Both Dr Draper and Mr Hemming have done more research since the bridge issues arose. In 1996 Dr Draper completed a major report for the South Australian Department of State Aboriginal Affairs and the Ngarrindjeri traditional owners of the Lower Murray Region entitled: Kumarangk (Hindmarsh Island, South Australia): Aboriginal Heritage Assessment. Both are of the opinion that restricted women’s knowledge, of the kind described by the Fergie and Saunders Reports, is likely to be part of genuine Aboriginal tradition.
363 Professor Morphy undertook a role similar to that of Professor Maddock, but was of the opinion that the Fergie Report was a creditable one. He considered the methodology and research undertaken by her, in the time available, were appropriate and that her report expressed an anthropological opinion soundly based on the material available. I was impressed by his evidence. Professor Morphy considers that there is plenty of evidence in the The World That Was to suggest that secret women’s knowledge existed, and that it records traditional practices that were restricted to women.
364 Since the inception of these proceedings Dr Fergie has undertaken extensive research of the literature. By order of the Court she was granted access to the otherwise unavailable original field notes and research papers of Professor and Mrs Berndt. These papers are held by the University of Western Australia under the terms of Professor Berndt’s will subject to a 30 year embargo against access by researchers. The original materials have been extensively analysed by Dr Fergie. By order of the Court, Professor Maddock has also been granted access to this original material, and I did not understand him to disagree with Dr Fergie’s identification of material that was relevant to be taken into account. It is Dr Fergie’s opinion that the introduction to Chapter 1, which does not appear in the text prepared by the authors in the 1940’s, is something written about the time of publication and that it is not supported by any field note. Dr Fergie considers that the original notes lend support in important respects to the likelihood that in the Ngarrindjeri culture there were domains of gender-specific secret-sacred knowledge and that the restricted women’s knowledge is part of genuine Aboriginal tradition. She also pointed to various parts of the text of The World That Was that do not bear out the general proposition that Ngarrindjeri society appeared to have no secret-sacred rituals, at least not in terms of a separation of sexes. The criticism which the anthropologists who have given evidence for the respondents make of The World That Was is that it is a fine, impressive work of reconstructive ethnography, but that it is not a highly analytical work. They consider that the work does not sufficiently analyse and interpret the practices, beliefs and myths the existence of which it reports. It is said that the authors fail to analyse whether broader and more complex interpretations lie behind them. In particular, the respondents’ expert witnesses do not agree with the analysis of the Ngurunderi myth referred to below, and consider the authors have over emphasised male elements in their interpretation.
365 Dr Clarke’s evidence, and the applicants’ case generally, propounds The World That Was as the last word on Ngarrindjeri culture, and as an infallible source of reference. This is to elevate the work far beyond the proper status of an ethnographic study, and to give it the status which the authors, as Professor Tonkinson noted, disavowed. The danger of so treating historical records of this kind has been noted in this and other courts: see Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 at 255 – 257 [342] – [352], Shaw v Wolf (1998) 83 FCR 113 at 130 - 131, Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [56] – [60], and Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 231 – 236. Professor Maddock recognised this when he said it would be naive to think that all traditions have been recorded.
366 The passage in Chapter 1 of The World That Was to which Dr Clarke referred, and to which the applicants give great emphasis reads:
“The great River Murray that dominated the Narrinyeri people was significant not only because of the Ngurunderi myth which was known all over its territory. As it was put to us, the River was like a lifeline, an immense artery of a living ‘body’ consisting of the Lakes and the bush hinterland that stretched across towards the Adelaide Hills and over the southern plains and undulating land. This ‘body’ also included country to the east, most of which was only partially relevant to the Narrinyeri. Its ‘legs’ spread south-eastwards along the Coorong and south-westwards along Encounter Bay and beyond. The ‘body’, symbolic of Ngurunderi himself, embraced five different environments which merged into one another: salt-water country, riverine, Lakes, bush (scrub) and desert plains (on the east) – a combination that had particular relevance to the socio-economic life of the people.”
Dr Clarke and the applicants argue that it follows from this passage that Ngarrindjeri culture would not assimilate the female form with the Lower Lakes and Murray Mouth area.
367 Ngurunderi is one of the pre-eminent ancestral beings and “heroes” of the Ngarrindjeri people. The story of his exploits in one version or another was known in detail by all different Ngarrindjeri groups at the time of European contact. In the Dreamtime, Ngurunderi travelled down the River Murray in a bark canoe in search of his two wives who had run away from him. At that time the river was only a small stream. As he travelled down the river he pursued a giant ancestral Murray Cod (Ponde). As Ngurunderi chased the fish it widened the river with sweeps of its tail. Near Murray Bridge he threw a spear, but it missed and was changed into Long Island. At Tailem Bend he threw another which caused the giant fish to surge ahead and create a long straight stretch of the river. Ultimately, with the help of Nepeli (the brother of Ngurunderi’s wives) the cod was speared in Lake Alexandrina. Ngurunderi divided the fish and created a new species of fish from each piece.
368 The journeys of Ngurunderi in the Lower Murray and Coorong areas, the pursuit of his wives and his ultimate departure to the spirit world in the sky from the western end of Kangaroo Island have an important place in Ngarrindjeri culture.
369 Unlike many Dreamtime stories in other parts of Australia, the central character, Ngurunderi, is not attributed with the creation of the country and the people in it. In Ngurunderi’s case the land was there before his arrival but during his time it was re-shaped, both by Ponde, and by various activities which Ngurunderi undertook alone or in conjunction with other Dreamtime figures. Ngurunderi finished off the landscape creation and law making.
370 Whether restricted women’s knowledge as disclosed by the Fergie and Saunders Reports is or could be part of genuine Aboriginal tradition has been the topic of wide ranging debate outside the confines of this case, and views range between the two extremes amongst anthropologists as well as in the Ngarrindjeri and wider communities. To expect this Court to come up with an answer that is in any way definitive is to misunderstand the role of the Court, and in any event to expect the impossible. All the Court can and should do is to decide only that which is necessary to resolve the issues raised in the pleadings between the parties, and only on the evidence before the Court. Where this requires a choice between conflicting evidence to decide primary facts, or involves the preference of one expert opinion over another, elsewhere, and in different settings, and perhaps on different evidence, other people may well come to different conclusions.
371 The difficulty in the resolution of the issues posed by anthropologists and others can be illustrated by taking two of the papers proffered to the Court through Professor Maddock, being the paper by Dr Ron Brunton (par 345 above) and another by Mr Richard Kimber both of which criticise Professor Bell’s book as severely flawed. These papers criticise Professor Bell for not explaining how her conclusions could be consistent with facts which the authors take as established by the Royal Commission findings. But those “facts” are themselves the product of value judgments based on evidence led before a particular tribunal, and reached in the absence of other material that was then, or has since become, available to others. Whilst the authors have chosen to take some facts as their premises, Professor Bell’s research has led her to select others. Dr Brunton and Mr Kimber rely on findings which the Royal Commission based on the acceptance of Mrs Dorothy Wilson’s evidence, on a particular interpretation of information emanating from Mr Doug Milera and Dr Warrell, and also on an interpretation of information said to come from, and about, the late Mrs Laura Kartinyeri (Nanna Laura, daughter of Pinkie Mack, who died in 1995). My findings differ from the facts deposed to by Mrs Wilson in the Royal Commission. This Court has received no admissible evidence about the admissions said to emanate from Mr Milera or the statement from Dr Warrell on which the Royal Commission relied. Tendered papers before this Court indicate that there could be reason to closely scrutinise what each of these people might now say about relevant facts. This Court also heard evidence about one statement, a statutory declaration, made by the late Mrs Kartinyeri which indicates that there is dispute about circumstances surrounding an alleged disclaimer of restricted women’s knowledge made by her shortly before she died.
372 I do not think any useful purpose would be achieved by me endeavouring to assume the role of an anthropologist and trying to evaluate the large quantity of material placed before the Court at the selection of each of the parties. This is a case where I consider the dispute on anthropological matters should be resolved broadly on an acceptance of one or the other of the contrasting anthropological positions which the expert witnesses have articulated in evidence before this Court.
373 On the anthropological evidence, I have serious concerns about the objectivity of Dr Clarke and the opinions he has given in evidence. His personal diaries on which he has been extensively cross-examined disclose that he is, and has from the time the s 10 declaration was made been resistant to considering the possibility that his spontaneous assessment that Dr Fergie’s opinion must be wrong might itself be wrong. He formed that opinion before he had read the reports of either Dr Fergie or Professor Saunders, and within hours of learning of the declaration. His diaries show that he was the originator of the fabrication theory, and that he thereafter embarked on a course to undermine and discredit Dr Fergie and her opinion, at times attributing blame for the fabrication to Dr Fergie, Mr Hemming and Dr Draper. When the Royal Commission was announced he claims to have taken a role and provided information that influenced the course of the Royal Commission in a way that I consider lacks professional objectivity and was inappropriate. I am not satisfied that Dr Clarke has fairly and objectively considered whether the reasoning and interpretation of research materials relied upon by others may leave open the possibility that his opinion is wrong. I prefer the views of Mr Hemming, Dr Draper and Professor Bell. I am not persuaded by the applicants’ submissions that their opinions are not reasonably based on the research and other materials on which they have relied. On the opinions of Professor Bell, Dr Draper and Mr Hemming, I find that the restricted women’s business identified in the reports of Dr Fergie and Dr Saunders is not such that it should be rejected on the ground of inconsistency with known historical and ethnographic material. On the contrary, I accept their evidence that there is a measure of support to be found in that material for the existence of restricted women’s knowledge of the kind identified in the Fergie and Saunders Reports.
374 The evidence shows that the area of the Lower Murray Lakes around Goolwa was in pre-European times one of great importance. It was on the red ochre trade route. It was a gathering place for ceremonies. It was a meeting point of various dreaming tracks. It was a place visited by Ngurunderi. As Dr Draper’s report records, there were large settlements on both sides of the Goolwa Channel. It was in the region where fresh water met salt water and was rich with fish and bird life. It was in an area where the ngatjis (totems) of the Ngarrindjeri bred. It lay in an area of immense cultural significance. It is hardly surprising that the area should be the subject of traditional beliefs and practices that make it a significant Aboriginal area.
375 This is, of course, not to say that what has been reported by Dr Fergie and Professor Saunders was not fabricated by their informants. A decision on that question must turn ultimately on the view which is taken about the credit-worthiness of the informants. However, I think the conclusion does lend some weight to the improbability that the informants concocted the alleged tradition in a short space of time in 1994. The coincidence that they would have done so, and arrived at a story that is consistent with information scattered through historical and ethnographic material about which they would have had little or no knowledge is unlikely.
376 The evidence in chief of Professor Maddock and Professor Morphy was primarily directed to the professional quality of Dr Fergie’s methodology and report. On that score, my preference is for the view of Professor Morphy, a topic discussed at pars 441 - 445.
377 There is, however, one piece of ethnographic evidence upon which I think I should comment. The applicants called Dr Alison Brookman, a retired anthropologist, who in June 1939 interviewed Pinkie Mack at the request of Professor Tindale with a view to exploring if there were any secret ceremonial life amongst Ngarrindjeri women as he had information to suggest that amongst male Ngarrindjeri there were fascinating male initiations.
378 Dr Brookman kept meticulous notes. A page of her notes for 24 June 1939 is headed “Birth – Secret”, and the entry thereunder deals with birthing and menstrual practices. Doctors Clarke and Jones retrieved Dr Brookman’s notes from the Museum’s archival records at the time of the Royal Commission.
379 Dr Jones sent a copy of her notes to Dr Brookman under cover of a letter dated 31 July 1995. The letter informed her that her comment was sought on the notes and that counsel assisting the Royal Commissioner would like to speak with her. The letter continued:
“I do apologise for intruding on your privacy in this matter, and do so only because we have been asked to provide all relevant information to the Commission. The view which several of us hold here is that the evidence suggests that a great deal of information relating to those matters relating to reproduction and sexuality was known of and discussed, particularly among women of the region, but that no defined category of ‘secret-sacred women’s business’ existed in the region.”
380 Dr Brookman had not seen her notes, or had the occasion to think about the events recorded for decades. Dr Brookman gave evidence to the Commission, and to this Court, that the word “secret” in her entry for 24 June 1939 simply indicates the private nature of birth to the women in the camp, and the specialist nature of the company of midwives at the time. Perhaps the risk that suggestion by an examiner will unwittingly corrupt the reliability of the answer sought from the examinee is better understood in police and forensic enquiries than by anthropologists, but it is unfortunate that the Dr Jones’ letter made the suggestion which it did. When Dr Brookman was cross-examined in this Court she acknowledged that Pinkie Mack interpreted for her every Ngarrindjeri word which Dr Brookman recorded in her descriptions of the culture save for three, and two of those words appeared under the “Birth – Secret” heading. Dr Brookman could not explain why these words had no corresponding interpretation. One of those Ngarrindjeri words, “witjuti”, it is known from other sources, refers to the naval cord relationship of “ngengampi” which was an important cultural practice with significant sacred connotations, and the other word “narambi” means taboo, secret or sacred, in the context of initiation and cultural practices. The account of child birth being recorded by Dr Brookman appears to stop at these uninterpreted words. When the meaning of the two words was put to Dr Brookman she adhered to a view that “secret” meant only private but accepted that it is plausible that Pinkie Mack at that point said she could not go on. Given that Dr Brookman has no independent recollection of what Pinkie Mack said to her some sixty years ago, and the suggestion of meaning conveyed to her when the notes were forwarded by Dr Jones, I accept the submission of counsel for Dr Fergie that the note might provide yet another indication that there did exist a secret-sacred domain of female knowledge. The ambiguity of Dr Brookman’s note is certainly not inconsistent with that possibility.
381 No doubt the debate about the possible existence of restricted women’s knowledge will continue amongst the anthropologists, Ngarrindjeri people and in other sections of the community, and will continue to be influenced by entrenched positions, political considerations and self interest. The impression I am left with at the end of this case is that any further attempt by forensic process to establish the existence or non-existence of the knowledge as part of genuine Aboriginal tradition will be fraught with difficulty. Those who might be thought to have relevant knowledge and who played a part in the events of 1994 and 1995 have been subjected to such a range of experiences – including hostility, pressure to honour allegiances, duress, pressures from within Aboriginal politics, and a barrage of print and electronic media reports of different viewpoints – that it is almost inevitable that their recollections of oral histories and events at that time is likely to be affected. The risk that current recollections and interpretations of fact, however genuinely believed, are seriously flawed will be ever present.
Only one woman knew
382 This topic is also dealt with in pars 446 and following. I am not prepared to act on the evidence of Mrs Dorothy Wilson on which the proposition that only one woman knew of the restricted women’s knowledge is based. I do not accept that the applicants have proved that only one woman knew (and more important to the outcome of these proceedings, I do not accept that either Dr Fergie or Professor Saunders should have inferred from the information before them that only one woman knew).
383 It is convenient at this point to refer to the body of evidence led in this Court from Ngarrindjeri women who for one reason or another align themselves to the “dissident” group of Ngarrindjeri women who deny the existence of “women’s business”. Twelve women from this group gave evidence before the Royal Commission and were found by the Commission to each be credible witnesses (Commission Report p 297). Eight of these women gave evidence before this Court, and like the Commission, I consider they were credible sincere people who now firmly hold the views which they express. I accept that they were not aware of restricted women’s knowledge as described in the Fergie and Saunders Reports. However, restricted knowledge, by its very nature, may not be known by everybody. According to Dr Kartinyeri’s account, this tradition was one to be handed down by mother to daughter or, where that was not possible, to be handed down by another close family member, but only in circumstances where the person holding the knowledge thought it was culturally appropriate to do so. One reason which could render it culturally inappropriate to pass on the information would be that the member of the next generation was no longer interested in traditional practices and beliefs.
384 It is clear from the evidence of a number of the dissident women who gave evidence before this Court that they consider traditional Ngarrindjeri culture and practices as historical curiosities that are no longer a part of, or appropriate to, their current lifestyles as Christian members of a wider urban community. It is of interest, however, that the evidence of the dissident women who disavow the restricted women’s knowledge nevertheless demonstrates that Ngarrindjeri myths and practices, particularly in the form of cautionary tales and superstitions, influenced their upbringing and are still adhered to. Their evidence indicates that even amongst them Ngarrindjeri culture is not completely dead. I do not think their evidence denies the possibility, indeed probability, that important pockets of traditional knowledge remain possessed by some Ngarrindjeri members of the community.
385 It is not without significance that one of the Ngarrindjeri witnesses called by the applicants said she knew of a secret initiation place about which she had received oral knowledge from an aunt. She was firmly of the view that tradition required her to keep that information strictly secret to herself until she chose an appropriate time to pass it on to a selected person.
386 The evidence of Mrs Veronica Brodie also provides an example of restricted cultural information being passed by mother to one daughter but not to another because the other was considered at the time to be an inappropriate recipient.
387 The evidence of Mr Graham Jenkin, a historian and author of Conquest of the Ngarrindjeri (Rigby Ltd, 1979) painted a picture of Ngarrindjeri culture still being well alive in many respects in the 1920’s at Point McLeay, notwithstanding earlier attempts by well meaning missionaries to stamp out beliefs and practices that were perceived to be out of conformity with Christianity. In 1926 the four Gospels were reprinted in the Ngarrindjeri language. This demonstrates that the language was still extant in the Ngarrindjeri community.
388 Mr Jenkins considered that Ngarrindjeri culture has been remarkably resilient and much of it has survived amongst some of the Ngarrindjeri. He observed that some Ngarrindjeri elders through the early part of last century had been enormously successful in reaching a compromise between the conflicting dictates of missionary life at Point McLeay and traditional beliefs and customs so as to retain as much of their ancestral ways as possible.
389 Among the Ngarrindjeri women who gave evidence in the applicants’ case were two grand-daughters of Auntie Rose, both of whom said that the restricted women’s knowledge as they understood it to be had not passed on to them. The applicants contend that this renders it unlikely that Auntie Rose would have passed the information to Dr Kartinyeri. That argument is certainly one for consideration, but there could also be a host of reasons why Auntie Rose did not pass on the same information to her grand-daughters. Dr Kartinyeri’s evidence is that she spent long periods of time discussing Ngarrindjeri life and cultural practices with Auntie Rose, and consulted with Auntie Rose as part of her research for the Rigney Genealogy (see par 426). If the evidence of Dr Kartinyeri is accepted, it describes a context and a relationship in which a decision by Auntie Rose to pass on the information is understandable. It is of interest that one of these witnesses did not deny the probability that the restricted women’s knowledge was genuine. Her concern was that it was passed to Dr Kartinyeri and not to her as a direct descendant, and she and her cousin plainly had a sense of grievance about that.
Irrationality of women’s business
390 The Fergie and Saunders Reports recount that their informants believe that the building of the bridge would so impair the functioning of Hindmarsh Island according to their beliefs that reproduction of the Ngarrindjeri people and the continued existence of Ngarrindjeri society would cease. Professor Saunders in her report cites Dr Kartinyeri as saying “if you link any part of the body to another you will die” (Saunders Report p 40).
391 The confidential evidence received in closed session in this Court gives more information about the content of the restricted women’s knowledge related to Dr Fergie and Professor Saunders by Dr Kartinyeri, and further explanation why the linking by the bridge of Hindmarsh Island to the mainland would cause serious injury or desecration in accordance with Aboriginal tradition. However, the further explanation does not go much beyond that disclosed by Dr Kartinyeri’s statement “if you link any part of the body to another you will die”. In terms of eurocentric thinking and logic, the explanation proffered does not provide an understandable explanation why the linking of Hindmarsh Island to the mainland would have the forecast devastating consequences for Ngarrindjeri society and culture. The restricted women’s knowledge describes what is said to be a spiritual belief associated with creation and procreation. Spiritual beliefs do not lend themselves to proof in strictly formal terms. Their acceptance by true believers necessarily involves a leap of faith. To use lack of logic as a test to discredit those asserting a particular spiritual belief is to pose a test that is both unhelpful and inappropriate. I expect that non-Aboriginal people generally may have difficulty understanding many Aboriginal spiritual beliefs that are of profound importance to Aboriginal people. The asserted belief in this case is no different.
392 In terms, the HPA does not require that the Minister understand and accept the reasoning why in the case of an area, its use or treatment in a manner inconsistent with Aboriginal tradition, or the happening of one of the other circumstances specified in s 3(2)(a) of the HPA, will cause harm. Professor Saunders notes in her report (at p33) the difficulties which confront non-Aboriginal people in understanding aspects of Aboriginal tradition, and cites a passage from the Hon J H Wootten AC QC’s Proposed Junction Waterhole Dam Report at 7.1.10 which expressed the conclusion that:
“The issue should not be whether, judged by the norms and values of our secular culture or our religions, the sites are important, but whether they are important to Aboriginals in terms of the norms and values of their traditional culture and beliefs. In other words, the issue is not whether we can understand and share the Aboriginal beliefs, but whether, knowing they are genuinely held we can therefore respect them.”
The informants to Dr Fergie and Professor Saunders asserted that the construction of the bridge would constitute a use or treatment of the area in a manner inconsistent with spiritual beliefs said to be of great importance. The depth and sincerity of the beliefs of the informants was accepted and reported on by both of them. The reason why the construction of the bridge would constitute a use or treatment of the area in a manner inconsistent with Aboriginal tradition is stated: the permanent link is an affront to that tradition. At this point, the clash of cultures interrupts further understanding of the reason why in a manner that can be shared by non-Aboriginal minds. At this point, the reason why becomes the subject of spiritual belief, and unless one holds the belief the reason why is likely to be incomprehensible.
393 The effect of the applicants’ case before this Court is to assert that the HPA requires that the Aboriginal applicants for protection must explain in terms comprehensible to white people why the bridge will cause harm before the Minister is entitled to be satisfied as required by ss 9(1)(b) and 10(1)(b) of the HPA. In my opinion, s 3(2) of the HPA has been purposely drafted in terms that recognise that non-Aboriginal people may have difficulty understanding traditional Aboriginal beliefs. Under s 3(2) an area “shall be taken to be injured or desecrated if …”. The provision, in the circumstances specified in pars (i), (ii) and (iii) of s 3(2)(a), deems there to be injury or desecration without any need for the demonstration by a process of reasoning to the satisfaction of a non-Aboriginal mind why one of those circumstances will cause harm.
394 However, this is not to say that the expression, and some understanding, of the reason why a proposed use or treatment of an area, or the doing of something in or on the area, or the passage through or over, or entry upon, the area is inconsistent with Aboriginal tradition, is irrelevant. Under s 10(4) of the HPA, matters with which a report shall deal include:
(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected; and
(d) the prohibitions and restrictions to be made with respect to the area.
The reason why a proposed activity gives rise to a threat of injury or desecration must be addressed, but depending on the nature and content of the Aboriginal tradition involved, it may not be possible for the reporter, or the Minister, to go beyond receiving a description of the beliefs which constitute the tradition, similar to those obtained by Dr Fergie and Professor Saunders in the present case, and then forming a view about the depth, sincerity and importance of those beliefs.
395 Acceptance of the alleged Aboriginal tradition, the beliefs involved and their content, will depend on the veracity of the informants. A proper assessment of their veracity is not aided by an attack based on an assertion that the alleged beliefs and their content are irrational. Such an attack would not only be unhelpful, it would also be contrary to the purpose of the HPA which is to recognise, respect and protect Aboriginal beliefs which constitute part of Aboriginal tradition. It would also be contrary to the multicultural aims of our community, and would involve a discriminatory assertion that the religious or spiritual beliefs of one culture are superior to those of another.
396 It is apparent from the reports of both Dr Fergie and Professor Saunders that they had difficulty in comprehending the reason why a permanent link constituted by the bridge would have the devastating consequences asserted. It is also apparent from Mr Tickner’s evidence that he shared their difficulty. But in my opinion that is no reason for denying protection under the HPA. Where the reporter and the Minister encounter such a difficulty, of necessity they must proceed according to their perceptions of the depth and sincerity of the beliefs held by those seeking protection, and their evaluations of the importance of those beliefs as part of Aboriginal tradition. That is what occurred in this case.
397 The understanding of reasons why particular activities will in the eyes and minds of Aboriginal people constitute injury or desecration is probably rendered more complex and difficult where the white community seeks to impose on the environment physical structures and activities that had no counterpart in pre-contact times. Accepting for the moment the belief as publicly disclosed, it is unlikely in the extreme that Ngarrindjeri thinking in pre-contact times contemplated an artificial link created by human intervention between the island and the mainland, anymore than it would have contemplated reservoirs or major mining activities. As these post-contact events arise, necessarily a measure of innovation must occur as the bounds of Aboriginal belief and tradition are projected or refined to accommodate the changing world. In this case if it be said (and I understand the applicant’s case to do so) that any such innovation cannot come within the definition of Aboriginal tradition in the HPA, I do not agree. I do not think such a broad proposition is justifiable in law.
398 The impact of change on Aboriginal customs and beliefs brought about by contact with European settlement has been considered by this Court in a number of cases in the context of native title claims. Those authorities are discussed in detail by Black CJ in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [27] – [49]. His Honour observes at [35] that it is wrong to treat “traditional” as, of its nature, a concept concerned with what is dead, frozen or otherwise incapable of change. Far from being concerned with what is static, the very notion of “tradition” as involving the transmission from generation to generation of statements, beliefs, legends and customs orally or by practice implies recognition of the possibility of change. At [49] the learned Chief Justice, in the context of a native title claim, said that one of the considerations to be borne in mind was that:
“The laws presently acknowledged and the customs presently observed must be shown to be ‘traditional’ but laws and customs that are adapted or evolved may still be ‘traditional’. They will be ‘traditional’ if, in their essence, they still reflect a continuity of tradition and are rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown.”
399 Each case will depend upon its facts, and upon the degree of innovation involved. At the least, if a traditional Aboriginal custom or belief of some antiquity centrally underpins the belief as modified to accommodate the change, I consider that the custom or belief will still be within the notion of “Aboriginal tradition” as defined in the HPA.
Finding as to restricted women’s knowledge
400 In summary, I am not satisfied on the evidence before this Court that the applicants have established on the balance of probabilities that restricted women’s knowledge as revealed to Dr Fergie and Professor Saunders was not part of genuine Aboriginal tradition.
Further comment on Dorothy Wilson’s evidence
401 It is convenient at this point to refer in more detail to the evidence received in this Court about the meetings at the Mouth House and at Graham’s Castle on which I rely for my assessment that the evidence of Mrs Dorothy Wilson cannot be relied upon. She was present at all these meetings. My rejection of Mrs Wilson’s evidence has a bearing on my assessment of Dr Kartinyeri’s evidence.
Mouth House meeting – 9 May 1994
402 I have earlier set out the evidence given by Mrs Wilson to the Royal Commission about Mr Doug Milera telling those there assembled, that the aerial photograph of the Murray Mouth area looked like a woman’s private, to which Dr Kartinyeri said she agreed, and she could see what the map resembled. This evidence has no support from any of the other people present at the meeting who have given evidence before this Court. Dr Kartinyeri denies it. Mrs Isobel Norvill and Mrs Eileen McHughes did not hear it. Each of these witnesses said that they would not have forgotten something like that which would have been considered a very disrespectful and upsetting thing for an Aboriginal man to have said in front of Aboriginal women – a view which was also expressed by Mr George Trevorrow. He too denied the substance of Mrs Wilson’s evidence, but both he and Mr Wooley gave evidence that an aerial photograph had been the subject of discussion, but in a quite different context. Their evidence was:
Mr Wooley
“Towards the end of the meeting at the Mouth House a group of women produced a letter for me to look at which was addressed to Minister Tickner … The letter was placed on the table in the dining room where I then sat. Near to the table was a large aerial photograph of the mouth of the Murray River … I indicated that I didn’t think this information [in the letter] was helpful in demonstrating to Minister Tickner the significance of the area as a traditional site … It was necessary for the women to consider divulging more information. It was at this stage that George Trevorrow pointed to the aerial photograph with his walking stick and said words to the effect ‘It’s obvious, isn’t it’. Either then George Trevorrow or one of the other men said words to the effect that ‘It’s up to you women now’. In the context in which these comments were made I interpreted them to mean that it was being impressed on the women that it was now crucial for them to divulge information to protect the tradition and only they could divulge it. The meeting concluded without me obtaining any further information regarding the detail of the tradition.”
In cross-examination Mr Wooley said he thought Mr Trevorrow was referring to the Goolwa Channel and the waters referred to in the Draper Report, and that it was a statement meaningful to those that had that knowledge:
Mr George Trevorrow:
“I remember Tim Wooley looking at the letter and saying something to the effect that what they were highlighting in the letter was not enough to send to Tickner.
There was then some further discussion about more information being provided to Mr Tickner. There was discussion on the importance of the area and where we were actually sitting in regards to the land. I pointed to the aerial photograph on the wall with my walking stick to show people where we were.
I pointed out the southern area (of the Coorong) and said how the southern area was stuffed and how if the bridge went ahead it would stuff up this area. I said it is obvious that it is important to protect this area.
Then Victor or Doug said a few words about the need to protect the area and what the men had done to protect it. We said that it was now up to the women to do something to protect the area.”
Mr Trevorrow said that no man explained women’s business at the meeting.
403 There is support for Mr Trevorrow’s version of the discussion in the evidence of Mrs Norvill, who impressed me as a sensible, careful witness. She recollected Mr Trevorrow standing near the aerial photograph and pointing at it with his stick. At the time she remembers him talking about the deterioration of the coastline and how much Hindmarsh Island had changed because of the abuse by four wheel drive vehicles, how the barrages had changed the coastline, and matters of that nature.
The Graham’s Castle meeting – 19 June 1994
404 It was the evidence of Mrs Dorothy Wilson at the Royal Commission and before this Court that at the meeting of Ngarrindjeri women held at Graham’s Castle on the evening of Sunday, 19 June 1994 Dr Kartinyeri told the group that she would tell them about women’s business on Hindmarsh Island, things which had been told to her by her Grandma Sally and Auntie Rose. An aerial photograph was available. Dr Kartinyeri pointed to it and said it was in the shape of women’s private, saying “There is the vagina, and if you look there, there you can see the clitoris.” She said this was confidential for women only, and that was why Mr Tickner was sending over a woman as it could not be told to a man. She said Mundoo Island concerned men’s business and was associated with death and the treatment of the dead. At this point, six or seven of the older women present, including Mesdames Maggie Jacobs, Daisy Rankine, Sheila Goldsmith, Grace Sumner and Connie Roberts, said that they had never heard anything about women’s business. Dr Kartinyeri said words to the effect “I am the only one who knows about the women’s business” and she intended to tell Professor Saunders. Mrs Connie Roberts protested saying that if the information was secret it should not be revealed. There was some discussion on the disclosure of confidential information. A vote was then held on whether Dr Kartinyeri should tell Professor Saunders. Everyone voted in favour of her doing so, including Dorothy Wilson.
405 Dr Fergie was present for a good deal of this meeting, including at the time that Dr Kartinyeri spoke of the significance of Hindmarsh Island, and by reference to the aerial photograph attributed various aspects of the landscape to particular female body parts but not, she says, in the terms described by Mrs Wilson. She gave evidence that she observed discussion between the women initiated by Mrs Connie Roberts as to whether the women should tell white people things that were meant to be kept secret. She has no recollection of senior women saying they knew nothing of the significance of Hindmarsh Island to Ngarrindjeri women and is confident that she would remember had the five women identified by Mrs Wilson spoken as she alleges. Dr Fergie denies that Dr Kartinyeri at that meeting or at any other time said that she was the only woman that knew. This is also the general effect of the evidence of Dr Kartinyeri and Mesdames Maggie Jacobs, Isobel Norvill and Eileen McHughes. None of them support Mrs Dorothy Wilson’s evidence that Dr Kartinyeri said she was the only one who knows about the women’s business or that senior women said they had not heard about women’s business. Mrs Maggie Jacobs says that she told Mrs Wilson that she did know of it.
406 Mrs Veronica Brodie’s evidence about the meeting on 19 June 1994 does not address specifically whether Dr Kartinyeri said she was the only one who knew. However, Mrs Brodie says she knew of women’s business on Hindmarsh Island, but did say at one point in the meeting to Mrs Wilson that she did not know of women’s business on Hindmarsh Island. She says she said this as she thought it was culturally inappropriate to say anything about women’s business to Mrs Wilson at that time and in that context. However, she says she separately told Dr Fergie that “it did happen”.
407 Apart from the evidence of Mrs Brodie, there is no support for the view that senior women present disclaimed knowledge of the matters being discussed. Dr Fergie later said in her report that “the small group of elders comprising Connie Roberts, Maggie Jacobs, Doreen Kartinyeri and Edith Rigney were clearly seen as custodians of this knowledge by the meeting.” There is support for this in the evidence of the witnesses. Mrs Norvill from her observations concluded that Mrs Connie Roberts knew, and Mrs Jacobs has given evidence that it was her knowledge that the place was a special place for women. This had been told to her by her grandmother and another old lady when she was young.
408 There is no support from the witnesses for Mrs Wilson’s evidence that Dr Kartinyeri used the English descriptions for parts of the female genitalia either in reference to an aerial photograph or otherwise.
409 At this meeting I find that Dr Kartinyeri mentioned the Seven Sisters when speaking of the cultural significance of the area. I return to this topic below.
The Graham’s Castle meeting with Professor Saunders – 20 June 1994
410 Mrs Dorothy Wilson gave evidence to this Court that once again Dr Kartinyeri said that she was the only one who knew, and she had been elected to speak about the women’s business which was handed down by word of mouth. Dr Kartinyeri said she could not write it down. She had been informed by her Grandmother Sally and Auntie Rose about women’s business and Hindmarsh Island. She said the Island was sacred to women but did not say why. Mrs Wilson recollected nothing being said on this occasion about the abortion of half-cast babies and the burial of foetuses on Hindmarsh Island, and she did not remember there being a debate or discussion between the women as to the revelation of their knowledge to Professor Saunders and, in turn, through her to the Minister. Mrs Wilson says that Professor Saunders on at least two occasions said she needed more evidence to take back to Mr Tickner.
411 Mrs Wilson’s assertion that Dr Kartinyeri informed the meeting and Professor Saunders that she was the only one who knew the information stands in contrast with other evidence received about that meeting.
412 In her affidavit which constituted her evidence-in-chief, Professor Saunders said:
“I was informed that there was a belief held by the Ngarrindjeri women that made Hindmarsh Island significant to the Ngarrindjeri. I was told that a number of the women at the meeting had knowledge of this belief. In my Report, in the last paragraph on page 25 I referred to the persons who were responsible for organising the meeting and in particular to Sarah Milera and Doreen Kartinyeri. In the same paragraph I referred to other persons present including Connie Roberts, Maggie Jacobs and Edith Rigby and say of them ‘… all of whom are recognised by the other women as the custodians of the oral tradition’. The passage quoted does not refer to Sarah Milera or Doreen Kartinyeri; their position is described on page 26 of my Report. My understanding from that meeting, however, was that Doreen Kartinyeri also was one of the custodians. This section of my Report does not identify Sarah Milera as one of the persons represented at that meeting to me as being a custodian of the oral tradition.
I then witnessed a discussion on whether the knowledge should be revealed to me. Some women told me that they considered it to be unfair that the content of their belief had to be revealed to me. It was explained to me that a part of the belief system was that the knowledge should only be revealed to appropriate people, namely only to Ngarrindjeri women, at an appropriate time. I was told that it would be contrary to their law for the belief to be told to me. I explained that this was the requirement of the Act.
The women told me of their concern that a person who revealed the contents of the knowledge contrary to their law would suffer harm. They also told me they were concerned that their revelation of the content of the belief to me might not be sufficient to obtain protection under the Act in which case they would have exposed themselves to harm, without any corresponding benefit.
I gained the impression at the meeting that the women present shared a belief which they regarded very seriously and which they were very cautious about revealing to a person not a Ngarrindjeri woman.
At some stage during the morning I became aware that Connie Roberts was considered to be the most tribal/traditional of the women and that the other women regarded her opinion as being of high importance.
At or about 11.00 we had a morning tea break. During this time one of the young women whose name I do not recall approached me and said words to the effect of:
‘I think that they will talk to you but you have got to sit quietly and not take notes.’
She said that she had not known of the knowledge until a meeting the night before. She told me that the knowledge accorded with practices that had been passed down to her for which she previously had no explanation. She said words to the effect:
‘It made sense of things that I do automatically as a matter of habit without knowing why.’
By the end of the morning I learned that there had been a meeting of the women held the night before. I understood that at that meeting the women who were custodians of the oral tradition had made the decision to inform the other women of their knowledge. By the time that I met the women I understood that they had all been told of the oral tradition. I also understood that considerable discussion had taken place at the meeting as to whether or not I should be informed of the content of that tradition.
During the course of this morning information came out very slowly. I did not make any notes during the course of the meeting. I spent the morning trying to gain some rapport with the women and building up trust. Even by the end of the morning, it was not clear that they would agree to give their information to me.”
413 At the conclusion of the morning session, Professor Saunders had lunch with the women. Dr Fergie joined the gathering, and after lunch all the women travelled to Hindmarsh Island. Professor Saunders observed that at Sugars Beach from where the Murray Mouth is visible, some of the women became very emotional, at one stage standing in a circle holding hands. Mrs Maggie Jacobs said a prayer. Later that evening, after their return to Graham’s Castle, the meeting re-convened and there was another discussion amongst the women on the subject of whether or not the content of their knowledge should be revealed. Professor Saunders observed the women make a decision that Dr Kartinyeri was to give her more details of the women’s knowledge. Professor Saunders also said in her affidavit that during the day she learned that the information being withheld from her was important not only to the women present but also to their mothers and grandmothers. Her impression at the end of the day was that what was involved was something of considerable importance to the women. She says:
“Throughout the day there were a number of breaks providing plenty of time for individual women at the meeting to approach me and offer an alternative view to that which was being expressed. No one did so.”
414 In her cross-examination, Professor Saunders said that during the morning meeting evocative things were being said and hints were being made about the aerial photograph with remarks such as “Well, you know, work it out yourself”. Professor Saunders was shown the aerial photograph and also a video presentation of the myth of Ngurunderi. She was then asked whether the information the women had given to her was enough, and she replied to the effect, “Well, no, you need to tell me about these things so that I can convey the information to the Minister”, and at the end of the day she made it clear that she could not adequately report to the Minister unless the women revealed more information to her about the knowledge said to make Hindmarsh Island special and sacred. This description fits in with Dr Kartinyeri’s evidence that during the meeting Professor Saunders told the women that they needed to tell her all that they knew, but there was a reluctance amongst the meeting to do so “and we kept - well, I kept on withholding information, hoping what we did tell them would be enough, but she said it wasn’t enough …” In this context, Mrs Wilson’s evidence that Professor Saunders said she needed more information or “evidence” can be understood, but her evidence that Dr Kartinyeri stressed that she was the only woman who knew the information cannot be reconciled.
415 Professor Saunders made no notes during her meetings with the women on 20 June 1994. However, Ms Mullins was also present and made notes which are informative, though far short of a transcript. With the benefit of her notes, Ms Mullins said in her evidence:
“At the beginning of the meeting, I recall having a sense that people seemed a bit nervous and reserved.
My notes indicate that early in the meeting Sarah Milera talked about the fact that a local resident called Rocky Marshall had written a letter to the Adelaide Advertiser which had been published on the previous Saturday. She was upset because she thought that the letter written by Marshall had divulged culturally sensitive information.
Looking at my notes, I can see that the issue of why people had not spoken up earlier about the significance of the area to women was raised (‘Why not speak up earlier’ is written at the top of the second page of my notes.) My recollection is that Professor Saunders and I were informed that the women had not raised it earlier due to a combination of the factors, such as that some of the women were living in places other than Goolwa and that broad consultations had not taken place about the building of the bridge. … My notes indicate on the second page that ‘D’, which is a reference to Doreen Kartinyeri, told us that in March 1994, it was realised that the Lower Murray Aboriginal Heritage Committee was not doing wide consultations as they did not have sufficient funds. My notes indicate that we were told it was decided then to get the women involved and that this was the third meeting of the women. I refer to page 34 of the Saunders Report (Document 8) where Professor Saunders states that the ‘The Aboriginals … note also that Ngarrindjeri women were not involved in the Aboriginal organisations that might have had some earlier knowledge of the proposal and therefore were not aware of any discussions that had taken place until late March 1994’. This statement accords with both my recollections and my notes of the meeting.
This meeting was very emotional by the end and I have some recollection of some of the women crying.
My notes indicate that Doreen Kartinyeri also said words to the effect that the women ‘have to break a few of our little rules to save it’. I understood this to mean that under normal circumstances the restricted information would not be shared outside the group, but that the women had to ‘break the rules’ relating to disclosure of the information in order to protect the area. On the sixth page of my notes I have written that someone (identified only as ‘other’) said that ‘the knowledge seen as trade for what they want’ and I understood this to have a similar meaning.
There was considerable discussion about the sacredness of the area and certain features of it particularly the sacredness of the area generally to Ngarrindjeri people and particularly, in some respects, to Ngarrindjeri women.
… I recall, by reference to those notes that Doreen Kartinyeri said that the details of the particular significance of the area had been passed down to her at least through several generations.
I recall by reference to my said notes that we were told that the sacred knowledge was not known to all of the Ngarrindjeri women, at least until a meeting the night before. The explanation given included the fact that within the Ngarrindjeri community assimilation had taken place and child removal practices had broken up clans and broken down connections preventing the knowledge from being passed on.”
416 Ms Mullins’ notes indicate that Professor Saunders was told during the meeting that “Kumarangk” means pregnancy. The notes record “waters also sacred”, and there are two matters of detail about these topics noted which correlate directly to information later revealed by Dr Kartinyeri and recorded in the secret envelopes.
417 Mesdames Veronica Brodie, Isobel Norvill and Eileen McHughes have given evidence about the meeting with Professor Saunders. The evidence of Mesdames Norvill and McHughes is consistent with that of Professor Saunders and Ms Mullins.
418 Both say that Dr Kartinyeri did not say that she was the only one who knew, and Mrs McHughes says Professor Saunders was told that a number of women knew.
419 There is one answer by Mrs Veronica Brodie in the course of her cross-examination which, if taken alone, lends support to Mrs Wilson’s evidence that Dr Kartinyeri said she was the only one who knew. In answer to a direct question whether Dr Kartinyeri had said that, Mrs Brodie answered “She did”. However this answer is difficult to reconcile with her evidence that when Dr Kartinyeri was talking about aborted foetuses and the shape of the area she said to Professor Saunders that she knew of women’s business on Hindmarsh Island. I think the respondents are probably correct in their submission that Mrs Brodie misunderstood the question as referring to Dr Kartinyeri saying that she was the only person present when she was given the knowledge by Auntie Rose.
420 Mesdames Maggie Jacobs and Ellen Trevorrow were present at the Graham’s Castle meeting on 20 June 1994 but their evidence does not discuss what was said by those present.
421 The weight of the evidence is strongly in favour of a finding that Dr Kartinyeri did not say to Professor Saunders that she was the only person who knew the restricted women’s knowledge.
422 There is no support in the evidence of other witnesses for Mrs Wilson’s assertion that the reasons why the island was special were not articulated at the meeting and there is much evidence to the contrary.
423 For the above reasons I am satisfied that Mrs Dorothy Wilson’s evidence should not be accepted, and should not be used as a basis for discrediting Dr Kartinyeri and others. Mrs Dorothy Wilson has consistently given as her main reason for disbelieving that Doreen Kartinyeri genuinely held restricted women’s knowledge, the fact that an aspect of that knowledge, a relationship between the shape of the Murray Mouth and Lower Lakes and the female form, was first mentioned by men. That an observation to this effect was made by a man is not, on my understanding of the constraints under which the restricted women’s knowledge should be held, indicative of the inconsistency which concerns Mrs Wilson. Knowledge of the relationship based on shape seems to be part of the outer layer of the knowledge that was not strictly confined. On this interpretation of the evidence, Mrs Wilson has based her opposition on a fundamental misunderstanding of the restricted women’s knowledge and the constraints on its transmission.
424 There is another strange feature of Mrs Dorothy Wilson’s evidence. She says that following the meetings on 9 May 1994 she returned to Murray Bridge and asked a number of Ngarrindjeri women about women’s business related to Hindmarsh Island (including Nanna Laura Kartinyeri, the daughter of Pinkie Mack) and received a negative response from everyone. She decided the women’s business could not be true. Yet she said nothing to that effect during either of the meetings on 19 or 20 June 1994. On the contrary, she voted to authorise Dr Kartinyeri to supply information to Professor Saunders. Mrs Wilson said that she also thought that the berating by Dr Kartinyeri of Mr Rocky Marshall at his home on 19 June 1994 was a pantomime and that the prayer ceremony at Sugars Beach was a contrived act of deception to make Professor Saunders think that the Murray Mouth was sacred. By the evening of 20 June 1994 she says she realised Professor Saunders may have been deceived. Yet she did nothing to rectify the position, she says because she was an employee of the Nungas Club at Murray Bridge. Notwithstanding this explanation, I find it odd that she should be so outspoken months later, yet complicit in what she then believed to be acts of serious deception in June 1994.
Further comment on Dr Kartinyeri’s evidence
425 My conclusion that I am not persuaded that I should reject Dr Kartinyeri’s evidence and find that she has lied about the restricted women’s business is based partly on my rejection of Mrs Wilson’s evidence that only one woman knew, and in the support which Dr Kartinyeri’s evidence about the events at the Mouth House and at the Graham’s Castle meetings receives from other witnesses. The following considerations also influence that conclusion.
426 One avenue of attack on Dr Kartinyeri lay in a number of statements said to have been made by her in the past that she had only a very limited understanding of Ngarrindjeri culture. One statement relied on by the applicants appears in the introduction to The Rigney Family Genealogy authored by Dr Kartinyeri and published in 1983. In recounting how she was approached in 1979 to work on the genealogy project for the Australian Institute of Aboriginal Studies in Canberra, she said:
“I told Lewis [O’Brien] I didn’t know much about the culture, customs and language but I said I do know the identities of the Point Pearce and Point McLeay people.”
However, it is significant that later in the same introduction Dr Kartinyeri wrote:
‘I am especially thankful for my Auntie, the late Mrs Rosetta Kropinyeri (Auntie Rose). She had a marvellous memory for people and occasions, even long ago, right up to the time she died. One day I went to see her in the Maitland Hospital, in 1981. I showed her an old photograph I’d found, of her and her brother Rufus Gordon Rigney in Army uniform, with the family at Point McLeay in 1916; it was ‘before he was shipped out’, she said. (He had three weeks of embarkation leave.)
We talked about her brother Rufus who died as a prisoner of war in Germany in 1917. My Auntie described the plain fawn dress she had made especially for his leave; she told me all the little details like the brown trimming around the waist and at the collar. But Rufus did not return; she never saw him again. I sat on her bed and wept with her as she told me about his last leave and how they felt as they watched him go.
Auntie Rose had a lot of sadness in her life. Yet she cared for so many people, especially the children she brought up. I admired her a lot. And I learned so much from her. She told me many things about the family. Like Benjamin and Edward Rigney being the children of Isabella Mutyuli and Benjamin Challenger. Auntie Rose made it all so interesting that I would stay there and listen to her until I had to go home and put the tea on. I would visit her regularly. She explained a lot of things to me, as my mother would have done had she been alive.”
427 The attack also relied upon statements said to have been made by Dr Kartinyeri in the course of her work at the South Australian Museum to anthropologists that her knowledge was limited. In comparison to the knowledge held by the anthropologists I have no doubt that her knowledge on many matters was meagre and statements such as those alleged are understandable. Significantly, there is evidence from the anthropologists themselves that she was able to contribute knowledge about an aspect of traditional female practice relating to menstruation whilst the Ngurunderi exhibition was being prepared in the late 1980’s.
428 The attacks based upon Dr Kartinyeri’s statements about her limited knowledge at the end of the day establish no more than that she acknowledged that her understanding of traditional Ngarrindjeri culture was incomplete.
429 The applicants contend that Dr Kartinyeri is discredited by the contents of a letter she wrote to Mr Tickner on 12 May 1994 (three days after the meetings at the Bunk House and the Mouth House). The letter includes the following passages:
“My concern is that we need to let you know of the Women’s Business associated with Hindmarsh and Mundoo Islands only known by the Raminyeri and Ngarrindjeri women.
Thank you for intervening in the Hindmarsh Island issue and allowing us time to provide you with the information about this place.
I also want to bring to your attention the SA Aboriginal Heritage Act which I feel has not been followed through appropriately by the State Government. There really hasn’t been a chance for women to tell about their traditions associated with Hindmarsh and Mundoo Islands and the Coorong. This can only be told to women and all those involved in the Heritage process in SA have been men. I would like to talk to a senior women in your Department about some of the details of this Women’s Business.
I have always known about the stories associated with Raminyeri and Ngarrindjeri Women’s Business but until recently I didn’t know the exact place that they referred to. My Grandmother Sally Kartinyeri, my Great Aunt Laura Kartinyeri and my Auntie Rose Kropinyeri passed on those stories about Women’s Business to me.”
430 It is said that the statement “until recently I did not know the exact place that they referred to” indicates that, at the least, Dr Kartinyeri has fabricated that part of the asserted belief that relates restricted women’s knowledge to Hindmarsh Island or the surrounding waters.
431 Dr Kartinyeri’s explanation is that the letter misstates what she intended to convey which was that she had only recently learned about the proposed bridge and its location. Dr Kartinyeri said she first learned of the proposed bridge whilst she was confined to hospital in January 1994.
432 I am not persuaded that Dr Kartinyeri’s explanation should be rejected. I think the more telling thing in the letter is that Dr Kartinyeri names Mrs Laura Kartinyeri as one of the people who told her the stories. Mrs Kartinyeri was then alive and could have been contacted. If the letter of 12 May 1994 is part of the implementation of a plot to advance fabricated evidence, it is amazing that a living person not involved in the conspiracy should be nominated as a source of the transmission of tradition to Dr Kartinyeri.
433 Dr Kartinyeri in early April 1994 asked Dr Clarke at the Museum about the similarity between “Kumarangk” and the word “kumeri” which she said meant pregnant. Dr Clarke said that Kumarangk meant “the points” and the more contemporary word for pregnant was not “kumeri”. The applicants argue that Dr Kartinyeri’s assertions that Kumarangk derives its name from “kumeri” (in the evidence spelt “kummari”) indicates that the claim is new (fabricated) because it had not been recorded in earlier writings. But Dr Kartinyeri has throughout said that the relationship was told to her by Auntie Rose, and it is the fact that kumeri is a word used by older people to mean pregnant. I agree with respondents’ counsel that of the various possibilities recent fabrication of the connection between Kumarangk and kumeri is less likely than that Dr Kartinyeri was already possessed of that information. I do not think the point indicates fabrication. I note that at the meeting involving DOSAA and the Minister of Aboriginal Affairs on 15 April 1994 (see par 71), at which Dr Kartinyeri was not present, it was said by one of the LMAHC members that Kumarangk was a place to have babies.
434 Detailed arguments attacking Dr Kartinyeri’s credibility are made in the applicants’ final written submissions based on alleged inconsistencies between statements taken from her evidence, and statements extracted from the evidence and documents of other witnesses. I have considered these various arguments. Many of them depend upon a strained interpretation or a selective quoting of the evidence said to be inconsistent with that of Dr Kartinyeri, or assume the acceptance of the other evidence even where it can equally be argued that it is Dr Kartinyeri’s evidence which is more likely to be correct. The attack mounted on inconsistencies of this kind overlooks that in many respects Dr Kartinyeri acknowledged that she was uncertain of dates, of an exact sequence of events, or of past events. The attack also overlooks the difficulties many of the Ngarrindjeri witnesses encountered during their cross-examination in understanding the nuances of questions posed to them, and in answering in a precise way that might be expected of a non-Aboriginal person more familiar with the court system and its expectations of witnesses. I am not persuaded by the extensive criticisms made on grounds of this kind that the evidence of Dr Kartinyeri should be rejected.
435 An example of an inconsistency of this type which is referred to several times in the applicants’ submissions concerns the timing of Dr Kartinyeri’s first visit to a protest rally at Goolwa when she met a number of members of the Friends, including Mr Rocky Marshall. The applicants assert that the visit occurred in October 1993. On one interpretation of an answer to a question in cross-examination, Dr Kartinyeri assented to this date as being correct. However she also said she was not certain of the date. There is other evidence to suggest that the visit was in May 1994, which would be generally consistent with evidence given by her about other events and her knowledge about the bridge. I am not satisfied that Dr Kartinyeri attended Goolwa in October 1993.
436 As mentioned in par 359 Dr Jones was called to give evidence of events said to discredit Dr Kartinyeri. Part of his evidence challenged evidence given by Mr Hemming as to Mr Hemming’s recollection of two conversations. The first, Mr Hemming said, took place with Professor Berndt in about 1988, in the museum tearoom. He said Professor Berndt said that he was starting to think that features of the Murray River, lakes and Coorong had feminine significance, but that he was not sure of the details. Mr Hemming thought Dr Jones was present during the conversation. In the second conversation about which he gave evidence, Mr Hemming said that when speaking with Dr Jones and Dr Clarke in February 1995 he recollected the 1988 conversation and related it to them. Dr Jones gave evidence that the conversation which Mr Hemming said occurred in February 1995, occurred in about June 1994. Further, Dr Jones said that he had no recollection of the conversation with Professor Berndt. The Court was invited to infer that as the conversation between Dr Jones and Mr Hemming occurred in about June 1994, Mr Hemming would have had the recollection of his conversation with Professor Berndt in mind, and probably related it to Dr Kartinyeri. In her cross-examination Dr Kartinyeri said that whilst she had no good recollection of the timing of the conversation, Mr Hemming had informed her at some stage of his 1988 conversation with Professor Berndt. She conceded it was possible that this conversation occurred as early as May 1994. The Court was then invited to infer that Dr Kartinyeri developed this information into the fabricated allegation of restricted women’s knowledge.
437 I do not accept Dr Jones’ evidence that his conversation with Mr Hemming occurred in about June 1994. At the Royal Commission he had suggested that the conversation was in September 1994, but that date proved wrong as Mr Hemming was giving a paper at the Melbourne University at the time suggested. The different time suggested by Dr Jones in his evidence before this Court happens to coincide with a period when Mr Hemming was on leave. Further, I think it is most improbable that Mr Hemming conveyed his recollections of the discussion with Professor Berndt to Dr Kartinyeri in May or June 1994. He says he did not recollect it at that time. Further, had he given her that information, I think it is inconceivable that it would not have been conveyed by Dr Kartinyeri to either Dr Fergie or Professor Saunders as independent evidence of the existence of the tradition. I accept Mr Hemming’s evidence that the conversation with Dr Jones did not occur until 1995.
438 On the issue of Dr Kartinyeri’s credit, see also pars 472 and 473.
6. PARTICULARS OF ALLEGED WRONGFUL CONDUCT
439 I propose to comment on each of the particulars of misleading or deceptive conduct, and of negligence pleaded against Dr Fergie, Professor Saunders and Mr Tickner. In the course of doing so the following different issues may require discussion. First, in some instances, there is a question whether the pleading insofar as it states a representation said to have been made in one of the reports, or recites background facts against which negligent conduct is said to have occurred, correctly states the representation or background facts. Secondly, there is the question whether the alleged wrongful conduct is established on the evidence. Thirdly, where the wrongful conduct is said to be a misrepresentation, there is the need to consider whether the representation is one of fact or one of opinion, and in the latter case whether the opinion was honestly held and based on rational and reasonable grounds. Fourthly, there is a further question in some instances, which it is convenient to deal with in this section of the judgment, whether the wrongful conduct, be it a misrepresentation, or an act or omission said to constitute a breach of duty, would have had any causative effect in bringing about the loss alleged by the applicants. There are allegations of conduct which, even if established, have not been shown to have been a factor that materially contributed to the making of the s 10 declaration. And there are allegations of acts and omission where the evidence does not establish that the alleged loss would not have happened had the acts or omission not occurred.
440 I propose to go through the particulars in the sequence in which they appear in the pleadings. The issues raised by some particulars are related to, or repetitious of those raised by other particulars. I have endeavoured to cross-reference discussion in these instances.
Dr Fergie – Particulars of misleading or deceptive conduct and negligence
441 The particulars of misleading or deceptive conduct pleaded in par 38 of the statement of claim also form the basis of the particulars of negligence pleaded in par 45. The particulars pleaded allege specific errors of fact or opinion represented by the Fergie Report. However, evidence in the applicants’ case also mounted a more broadly based attack on the methodology adopted by Dr Fergie, that attack being supported initially by a detailed report from Professor Maddock. That attack was answered primarily by the evidence of Professor Morphy, led on Dr Fergie’s behalf. I have indicated at par 376 that I prefer the evidence of Professor Morphy. He considered that the way in which the restricted women’s knowledge emerged, as reported by Dr Fergie, and the way in which the women at Graham’s Castle authorised Dr Kartinyeri to speak with Professor Saunders, is in accordance with what he would understand to be part of the social and cultural process of the people concerned. He considered the information emerged in precisely the kind of context and in a way that he would expect important sacred information to be released to an outsider. That inside aspects of the information in certain of its details was known only to a small group of people, even only to one of the group, could be expected if that information was culturally important. Professor Morphy considered that the Fergie Report was an excellent example of applied anthropology in difficult circumstances. He noted the situation in which Dr Fergie was unexpectedly placed on 26 June 1994 when she was asked to prepare a written report within a very tight timeframe. He noted that she accepted the task notwithstanding the difficulties which it presented as she considered it her professional responsibility to pass on her opinion, and if she did not do so it was unlikely that the ALRM could find another anthropologist to perform the task within the time available. Professor Morphy said that in similar circumstances he would have done the same. He considered Dr Fergie, in the time available, took into account as well as could be expected work of others that had come to different conclusions from her own, and drew attention appropriately to it.
442 Professor Morphy’s opinion as to Dr Fergie’s methodology and the reasonableness of her conclusions in light of the information she received was supported also by Professor Bell who considered that Dr Fergie’s conclusions were based on sound anthropological methods and analysis, and that her conclusions were reasonable and proper; by Dr Draper who considered her methodology was appropriate and consistent with proper anthropological practise and was as thoroughly and properly researched and prepared as circumstances allowed; and by Mr Hemming.
443 Professor Maddock’s written report criticises Dr Fergie’s methodology and report but much of that criticism in my view reflects a misunderstanding as to the limited role which Dr Fergie was asked and expected to perform. In places he also puts a reliance upon the opinions of Dr Clarke, which were conveyed to him as part of his instructions, which I do not think the evidence in this case justifies. I have commented on the scope of Dr Fergie’s instructions at par 286 and following, and on Dr Clarke’s evidence at par 373. In the course of his cross-examination, many of the criticisms initially made by Professor Maddock disappeared or were significantly qualified. He agreed that Dr Fergie used a correct approach in embarking on her task, and that she was entitled to rely on the advantage which she had in observing what happened at the meeting at Graham’s Castle on 19 June 1994. He accepted that it was part of her task to report the beliefs as they were told to her, and to comment on the beliefs. He agreed that it was appropriate for Dr Fergie to report on the observations she made of Mrs Connie Roberts’ behaviour at the meeting and the behaviour of Mrs Maggie Jacobs at the Murray Mouth. He agreed that it was reasonable for Dr Fergie in the circumstances to take on the role that she accepted because if she did not it would be difficult to find someone else to undertake the task, and he agreed that a number of other aspects of her methodology were appropriate. He was complimentary of Dr Fergie’s review and analysis of the Berndt field notes. At the conclusion of his cross-examination, Professor Maddock’s criticisms came down to two substantive issues: first, available evidence did not justify the conclusion that there is a tradition of the kind she described; and secondly that she should have qualified her report in relation to the difficult circumstances under which she was working.
444 The first of these criticisms, insofar as it is said to support a finding that Dr Fergie was guilty of misleading or deceptive conduct, or was guilty of a want of care that contributed to the damage alleged by Binalong, could only have that effect if the applicants establish that there is no tradition of the kind which Dr Fergie describes. Unless that is established, the criticism of her report leads nowhere. I have already indicated that I am not satisfied that the applicants have established the non-existence of the tradition. The evidence of Professor Bell, Dr Draper and Mr Hemming, supported to an extent by Professor Morphy, and the evidence of some of the Ngarrindjeri women who gave evidence in the respondents’ case, all points the other way. Further, the issue before this Court, even if the tradition were disproved, turns ultimately on whether the opinions expressed in the Fergie Report were honestly held and reasonably based upon the information available. In my opinion, the opinions were so held.
445 The second of Professor Maddock’s substantive criticisms is in my opinion unjustified. I consider the nature, aim and scope of the Fergie Report and the circumstances of its preparation are clear from a reading of the report as a whole. In any event, the circumstances under which Dr Fergie came to accept the task of preparing the report, the time constraints she faced, and the fact that she was not a long standing expert in Ngarrindjeri culture were matters known to Professor Saunders to whom her report was to be delivered as part of the ALRM representation, and if these were matters that required qualification to her opinions it could be expected that Professor Saunders would take them into account in her evaluation of the representation. In the events that happened, it is not established that Mr Tickner read the Fergie Report, and the absence of any qualification, if qualification were required, could not have been a matter that misled or influenced him.
446 The first two particulars pleaded against Dr Fergie in par 38 (a) and (b) are as follows:
“(a) The Fergie report gives the impression that a significant number of Aboriginal women knew about women’s business and/or had informed Dr Fergie about women’s business, and further stated that a group of four women were custodians of this knowledge, and that ‘knowledge of the full significance [was] confined to a small group of senior women’ and ‘four had had this knowledge since their puberty’, when in fact, and as Dr Fergie well knew because it was stated at the 19 June meeting, only one person, Doreen Kartinyeri, claimed to know it, and articulated such matters to Dr Fergie.
(b) The Fergie report stated that, at the 19 June meeting, a ‘small group of elders comprising Connie Roberts, Maggie Jacobs, Doreen Kartinyeri, and Edith Rigney’ were ‘clearly seen’ as custodians of women’s business by the women present at the meeting, and that Connie Roberts was subsequently willing to give Dr Fergie ‘an extended confidential statement’ of ‘the knowledge’, when the fact was that Connie Roberts, Maggie Jacobs and Edith Rigney told the meeting they had never heard anything about women’s business in relation to Hindmarsh Island.”
That expression “women’s business” used by the applicants in the statement of claim is not defined by the applicants. The applicants’ case asserts that the alleged “women’s business” implies a confined body of knowledge, every part of which is secret to Ngarrindjeri women. The expression “women’s business” is used by the applicants as an all encompassing description which covers any knowledge which by anyone at any time has been said to be restricted knowledge of women, or has an association with the female form or female related practices. The undiscerning use of the expression by the applicants underlies fallacious reasoning in their case. The applicants’ case seizes on any alleged traditional knowledge coming within this broad umbrella description which is known to a man or is to any extent in the public domain, and then contends that it therefore cannot be secret. It is argued that because the information is not secret, the claim that it formed part of the restricted women’s knowledge must therefore be false and an indicator that “women’s business” has been fabricated. This use of the expression denies an understanding of the concept of layered or graded secrecy which is an important part of Aboriginal culture: see par 344. The evidence unsurprisingly shows that the restricted women’s knowledge the subject of the Fergie and Saunders Reports has been dealt with by and among different people at different levels, reflecting a graded secrecy to the tradition.
447 These two particulars are based on the allegation that only one woman knew about “women’s business”. In my opinion the Fergie Report does not convey the “impression” pleaded in par 38(a). The Fergie Report expressly states that at the meeting on 19 June 1994 Dr Kartinyeri gave an account of the “women’s secret knowledge … to inform the younger women who did not themselves have this knowledge” (Fergie Report, p 5), and in relation to the visit to Hindmarsh Island on 20 June 1994 the report also refers to comments made by a number of younger women which indicate that they had not previously had the knowledge. At p 16, the Fergie Report says:
“Knowledge of the full significance of the sites and area appears to have been confined to a small group of senior women who were all living in different and distant parts of South Australia, and who for some time were unaware of the proposal to build a bridge to Hindmarsh Island.” (Emphasis added)
A footnote to the reference to a small group of senior women says that of the thirty-five women who met at Graham’s Castle for discussion with Professor Saunders only four had this knowledge since their puberty. Those four can be identified at p 4 of the report which, as part of the description of the meeting on 19 June 1994 says, “the small group of elders comprising Connie Roberts, Maggie Jacobs, Doreen Kartinyeri and Edith Rigney were clearly seen as custodians of this knowledge by the meeting”. It will be noted that at p 16 the report says that the full significance “appears” to have been confined to a small group. In any event, these statements are representations of the opinion which Dr Fergie formed from her observations at the meetings. The evidence about the meetings indicates that there was a reasonable basis for these opinions.
448 Insofar as pars 38(a) and (b) allege that it was said at the meeting of 19 June 1994 that only one person knew, and that Mesdames Roberts, Jacobs and Rigney said they had never heard anything about “women’s business”, I have already indicated that I do not accept the evidence of Mrs Dorothy Wilson upon which these allegations are based. These allegations are not made out on the evidence.
449 This is a convenient point at which to further discuss the evidence about the restricted women’s knowledge.
450 Professor Bell concluded in her primary written statement to this Court:
“I have come to conclusions which indicate that the Hindmarsh Island/Goolwa/ Murray Mouth area is significance (sic) to women; that there are several fragmentary stories for the area; that they do indeed concern the reproduction of the Ngarrindjeri world; and that there are Ngarrindjeri women and men who believe a bridge threatens the health of women, the social order, and the land.”
451 In the limited time available in June 1994, Dr Fergie and Professor Saunders recorded information which was given to them in confidence by the women identified in their reports. The effect of the evidence is that the women who held knowledge about the area revealed only part of it, and that the level of information revealed was due primarily to the preparedness of the women to impart what they knew and partly by time constraints. Insofar as parts of that information were revealed at the meetings of the women, the women have been prepared to discuss those revelations in open court. Additional information was given in confidence by Dr Kartinyeri to both Dr Fergie and Professor Saunders and became the subject matter of Appendix 2 in the secret envelopes. The confidential findings record the reconstruction of the contents of Appendix 2 insofar as that is now possible from the evidence received in closed session from Dr Fergie, Professor Saunders, Ms Mullins and Ms Kee. No evidence as to the contents of the secret envelopes has been received from Dr Kartinyeri.
452 Dr Kartinyeri has made it clear that she did not reveal the full story to either Dr Fergie or Professor Saunders, and revealed even less of the story to other Ngarrindjeri women in their meetings. She acknowledged in evidence that part of the story which she revealed to them is about the cultural terrain of the area, that is about the shape and about the area being part of a woman’s body, but she said there is another unrevealed story behind why that is so. Dr Kartinyeri revealed to the Court that in her youth she had been to Hindmarsh Island and had been told by older women at Raukkan that there were places they were not allowed to go and things they were not allowed to do, although she was never explicitly told the reasons why. It was not until much later that she started to find out these reasons. In the meantime she had also been told things by her Grandma Sally as she was growing up. These things were referred to as “women’s business” but were not treated by her as sacred. The information she was given concerned the facts of life and the teachings which a mother would normally convey to a daughter as she matured. Part of that information, however, assumed new significance to her when, at the age of nineteen, she received information about Ngarrindjeri culture and the restricted women’s knowledge from her Auntie Rose. At that time she was pregnant with her first child. Auntie Rose gave her factual instruction about pregnancy, child birth and health care, and it was in the context of those discussions that Auntie Rose commenced telling her about significant places in the Lower Murray Lakes and Coorong: see pars 92 – 97 above. One thing told to her was that Auntie Rose, who had suffered a childhood injury that required her to walk with a crutch, was restricted to tracks on Hindmarsh Island. The reason why is part of a detailed story relating to abortions which is part of the restricted women’s knowledge. The outward manifestation of the story was that if Auntie Rose left the tracks her crutch could damage the ground. Auntie Rose also told Dr Kartinyeri of the importance of the umbilical cord and what happens with the cord after a baby is born. This information was confirmed in a much later discussion with Nanna Laura Kartinyeri. Nanna Laura was a midwife. On one occasion whilst Dr Kartinyeri was assisting her with a birth, Nanna Laura told her things which were culturally significant to women which accorded with or complemented other things which Auntie Rose had told her. Part of that information concerned women who had been raped who would be taken to Kumarangk to abort babies. Nanna Laura also gave her information about cultural practices with twins which accorded with information that had been given to her by Auntie Rose.
453 Dr Kartinyeri says Auntie Rose also gave her information about the Seven Sisters. She was informed that as a Ngarrindjeri story, the waters around Hindmarsh Island were important to the Seven Sisters. Dr Kartinyeri said that the detail of this story made sense of things which she had been told by her grandmother and provided an explanation for why she was told that certain things and places were taboo when she was a child.
454 In her letter to Mr Tickner dated 12 May 1994 (see par 429), Dr Kartinyeri identified her grandmother, Nanna Laura and Auntie Rose as the source of the stories that she knew about women’s business. It is clear from her evidence that she was not intending to convey that each of these women gave to her exactly the same information. Her evidence is that the full significance of the knowledge was conveyed to her by Auntie Rose, but that the two women gave her complementary information which fitted into and formed part of the knowledge. The evidence suggests that this aspect of the transmission of the knowledge to Dr Kartinyeri has been misunderstood on occasions, including by Mrs Dorothy Wilson. One is left to wonder what account of “women’s business” was given to Nanna Laura by Mrs Wilson as part of her enquiry whether Nanna Laura knew of it. The possibility arises that the women were at cross purposes from the outset.
455 The Seven Sisters was mentioned as a component of the knowledge spoken about by Dr Kartinyeri at Graham’s Castle on 19 June 1994. The Seven Sisters dreaming was recorded as part of Ngarrindjeri culture decades before the bridge dispute arose, and is discussed by Professor Bell in Ngarrindjeri Wurruwarrin at 573 – 585. Dr Clarke in his PhD thesis completed in March 1994 records one of his female Ngarrindjeri informants as saying that all Aboriginal people were believed to have originated from the Seven Sisters.
456 At both the Bunk House and the Graham’s Castle meeting on 19 June 1994, Dr Kartinyeri mentioned the significance of Hindmarsh Island as a place where aborted foetuses were buried. At Graham’s Castle she mentioned the relationship of the shape of the area with the female form, and these topics she has also spoken about publicly. Mrs Veronica Brodie has given evidence that she learned of restricted women’s knowledge to do with Hindmarsh Island from her sister Leila who died in 1992. She was not prepared to disclose to the Court the full content of restricted women’s knowledge held by her, but she said that it related to the Seven Sisters and it prepared young women for womanhood and things that went with it. From what her sister had told her shortly before she died she believed that the waters around Hindmarsh Island are very sacred.
457 I was impressed by the apparent genuineness of Mrs Brodie. She was vigorously cross-examined about her credit on the basis of an alleged prior inconsistent statement. She handled the cross-examination with dignity. It ultimately transpired that the earlier statement was not inconsistent, but entirely consistent with her evidence. I accept her evidence about the oral transmission of restricted women’s knowledge to her through her sister, Leila, part, at least, of which relates to the Seven Sisters and the Goolwa Channel. Insofar as she was prepared to reveal her knowledge, it lends support to Dr Kartinyeri’s evidence that the area which includes the Goolwa Channel is a significant Aboriginal area, especially to Ngarrindjeri women.
458 Mrs Margaret Jacobs has given evidence that she has known since she was a young girl that Hindmarsh Island was a special place to women. She heard stories to that effect from her grandmother and other older Ngarrindjeri women. She was prepared to reveal that the women had one side of the Island as a place to which young girls were taken and given instruction. She understood that the waters around Hindmarsh Island were special and should not be covered for a reason related to the Seven Sisters story which had been related to her from old folk when she was young. Mrs Jacobs was not prepared to reveal more detail of the knowledge. Her evidence, like that of Mrs Brodie, does not give an account of restricted women’s knowledge that is co-extensive with the information given by Dr Kartinyeri to Dr Fergie and Professor Saunders, but asserts, in a general way, that Hindmarsh Island and the waters surrounding it are of sacred importance to the Ngarrindjeri women. It was the view of both these women that the bridge would cause injury or desecration in accordance with the Aboriginal tradition known to them.
459 The relationship of the Seven Sisters story to the restricted women’s knowledge which Dr Kartinyeri disclosed to Dr Fergie and Professor Saunders is not revealed by the evidence in this case. Although it was mentioned at Graham’s Castle by Dr Kartinyeri, the evidence received in closed sessions about the contents of the secret envelopes did not mention the Seven Sisters dreaming story. That may indicate only that the witnesses have no present recollection of the Seven Sisters being mentioned, or it may indicate that the Seven Sisters dreaming has no close interrelationship with that part of Aboriginal tradition which Dr Kartinyeri described, or it may indicate that Seven Sisters dreaming is part of the restricted women’s knowledge that Dr Kartinyeri did not disclose. The relevance of the evidence about the Seven Sisters given by Mrs Jacobs and Mrs Brodie to the issues in this case is not that it directly supports the existence of the restricted women’s knowledge recorded in the secret envelopes, but because it asserts that Hindmarsh Island and the surrounding waters were of sacred importance to Ngarrindjeri women in accordance with Aboriginal tradition – a fact wholly denied by the applicants’ case.
460 Mrs Isobel Norvill also gave evidence that she had learned that Hindmarsh Island was a special place for women when she was a young girl. She had been there with her family when she was about thirteen or fourteen years old and her mother gave her that information then and told her that she would find out more one day when she was older. She says that unfortunately her mother did not pass on additional information to her. Mrs Norvill’s mother knew Auntie Rose well at Point Pearce.
461 Mrs Eileen McHughes gave evidence that as a young girl she received hints as to the significance of Hindmarsh Island and a connection which it had to Mundoo Island which was a place where bodies were prepared as part of the burial practices. She says she was responsible for including a reference to Mundoo Island in the letter to Mr Tickner prepared at the Bunk House on 9 May 1994. Her evidence provides only peripheral support for part of the restricted women’s knowledge which Dr Kartinyeri spoke about at Graham’s Castle, but nevertheless to that extent it must be taken into account.
462 Both Mr Tom Trevorrow and Mr George Trevorrow have given evidence that they learned as children that Hindmarsh Island and the waters around it were special to Ngarrindjeri people. Mr Tom Trevorrow was told by his mother whilst they were camping on the Island that the area was a special place for the Ngarrindjeri. He was brought up to know that Hindmarsh Island was a special sacred place. Mr George Trevorrow had a like upbringing and understood that the waters were special as it was a place where the fresh and the salt waters met and had special significance for this reason. The anthropologists, Professor Maddock in particular, point out that even a highly restricted secret tradition the inner layers of which are known only to a very few custodians, will have an outer manifestation in the community. Unless at least the fact that a place or practice is the subject of a secret tradition and is entitled to respect, or is taboo, is known the tradition cannot receive community respect. It is therefore consistent with the existence of restricted women’s knowledge according to which Hindmarsh Island and the surrounding waters have particular cultural and spiritual significance to Ngarrindjeri women that men should know of it, even though they have only a superficial understanding of why, and even though only a very few women may know the full story.
463 Mr George Trevorrow also said he is aware of secret men’s business and men’s places, thereby supporting the proposition that there exists in Ngarrindjeri culture gender specific secret-sacred domains of knowledge.
464 Mrs Iris Sparkes said that as a child she learned that Hindmarsh Island was for women, and related a story about the collection of swan eggs from Hindmarsh Island when two Ngarrindjeri men in the expedition required a female to swim to the Island to collect the eggs as they would not land there because it was a place for women. This story bears some similarity to that recounted to Professor Saunders by a Hindmarsh Island resident, Mr Kym Denver, about an Aboriginal man who preferred to take his canoe around the Island rather than ride his bicycle across it “for superstitious reasons” (Saunders Report p 32).
465 The applicants also led evidence from Mrs Stella Newchurch, an elderly woman who, at times in her life, has lived at Point Pearce, and knew Auntie Rose well. She says that she was reminded of information which Auntie Rose had conveyed to her at Point Pearce when she saw a photograph of the silted up Murray Mouth in The Advertiser newspaper on 1 February 2000. The following day, a solicitor was in Point Pearce enquiring as to Dr Kartinyeri’s relationship with Auntie Rose and she related to him information which she says Auntie Rose gave to her about Hindmarsh Island. An order suppressing from publication part of the evidence she gave presently exists. Without going into detail, her evidence included that Auntie Rose had informed her that Hindmarsh Island was a place Aboriginal women went to abort babies that they had by white men, and that the Murray Mouth area had an association with the female form. This witness was clearly confused as to dates and places where Auntie Rose had lived from time to time. However, I find no reason to reject her evidence that Auntie Rose gave her information on the topics mentioned back in the same timeframe as Dr Kartinyeri says that Auntie Rose conveyed the restricted women’s knowledge to her.
466 In addition to this direct evidence, Professor Saunders was informed by Ms Amelia Campbell that there was both women’s business and men’s business on Hindmarsh Island because of which both she and her brother were opposed to the construction of the bridge. Professor Saunders said that the information given to her by Ms Campbell in a telephone conversation extending over some ten minutes, was consistent with that which she had received from Dr Kartinyeri (although she does not suggest that it was co-extensive). At Rocky Marshall’s house on 19 June 1994, Dr Kartinyeri and Ms Amelia Campbell argued. Different versions of that argument are given by different witnesses, and I do not think it is safe to place significant weight on only one of those versions. However, I note that on one version, Ms Campbell on that occasion was threatening to tell secret information, inferentially similar to the content of Mr Marshall’s letter, and Dr Kartinyeri was arguing with her over the inappropriateness of that course.
467 There is also the letter published by Mr Marshall: see par 90. In my opinion that letter is of importance. The applicants seek to belittle the creditworthiness of Mr Marshall and of the account contained in the letter by attacking historical facts about the time during which Mr Marshall’s great grandfather was the police officer stationed at Goolwa, and on the unlikelihood that Mr Marshall’s grandmother would have relayed the story which he reported she had told him as a young boy. The attack based on historical information, in my opinion, is not only weak in substance, but misses the importance of the account itself which was that his grandmother had learned the information, not as a child at Goolwa, but as a nurse working with Aboriginal people with whom she could converse in later life.
468 The story in the letter relates the geographic terrain of the Lower Murray area to part of the female body. Whilst the account given by Mr Marshall uses western anatomical expressions to describe landscape features, I do not think that this is a ground for dismissing the story as something of recent invention. The account was given to him by a European nurse and it is anything but surprising that she should use those expressions as a means of placing a European interpretation on an Aboriginal story.
469 I think the significance of the letter lies in the fact that from a source apparently independent from Dr Kartinyeri, a story emerges that is unmistakably a mirror image of that part of the restricted women’s knowledge which relates the area to the female form.
470 Mr Marshall did not give evidence at the trial because of ill health, and no inference is to be drawn against any party because of his absence. Nevertheless, the fact of the publication remains. It is either strongly supportive of the existence of restricted women’s knowledge, or else it is a recently concocted story published by Mr Marshall to garner support for the bridge opponents. The latter possibility cannot be entirely discounted, but I think it is unlikely. The historical research conducted by the applicants supports the statement that Mr Marshall’s grandmother was born at the Goolwa Police Station. The statement that his grandmother ran maternity hospitals in towns with high Aboriginal populations has not been disputed. I do not think that it is unlikely that a grandmother with the experience reported in the letter would convey the story to a grandchild. The theory of recent invention, and publication of the story to support the bridge opponents, seems to me to be inconsistent with the descriptions given in evidence of the altercation which Dr Kartinyeri had with Mr Marshall on 19 June 1994, and Mr Marshall’s reaction to her anger. Whilst the applicants would have it that the altercation was part of a pantomime to give an aura of veracity to a fabricated story (of which Dr Kartinyeri was one of the principal fabricators), I consider the evidence about the altercation renders this possibility fanciful. I think the evidence shows that Dr Kartinyeri was displaying genuine anger, and Mr Marshall genuine surprise and distress at the situation. This does not eliminate the other possibility that Mr Marshall gathered evidence of the female form association from general gossip in the community, but for him to have fitted that story into the historical setting which he has given it is, I think, unlikely.
471 In the face of this evidence, particularly that from the Ngarrindjeri women whose testimony I see no reason for rejecting, I am not persuaded that the restricted women’s knowledge recounted by Dr Kartinyeri is a recent invention, fabricated as an eleventh hour attempt to stop the construction of the bridge.
472 The applicants contend that one reason why Dr Kartinyeri’s evidence cannot be accepted is that it is unlikely that her Auntie Rose, living at Point Pearce, would have cultural information of the kind claimed about the area around Hindmarsh Island and the Murray Mouth. Auntie Rose was born and grew up at Raukkan and visited Hindmarsh Island. She was a Ngarrindjeri woman. However, she lived her later life at Point Pearce, and the question is posed as to why a person at Point Pearce should come into possession of cultural information that according to tradition would be passed down to mature age women who have appropriate cultural interest and standing. This question has exercised the mind of Professor Bell and, subsequent to the preparation of her report, Dr Fergie. Their view, with which Mr Hemming agrees, is that the transmission of the information has been through the putari domain. The putari were Ngarrindjeri midwives through whom, it seems, confidential, sacred and restricted gender specific information was transmitted. A number of Ngarrindjeri women with Hindmarsh Island connections who practised putari, or who had strong family connections with putari, lived at Point Pearce. On the evidence, it is not improbable that Auntie Rose could have come into possession of the information through these channels.
473 The applicants’ mantra, only one woman knew, is a component of their case that “women’s business” was likely new in 1994, or more bluntly stated, was a fabrication. The fabrication case is remarkable for the number of people who have been included in the plot at one point or another in the presentation of the applicants’ case. At one point, it was suggested that the seeds of invention came from Dr Warrell and/or Mr Dobbs, a theory that implicates Mr Tom Trevorrow and his wife, Ellen, and/or Dr Draper. At another point, through Dr Clarke, it was suggested that the “perpetrators” of the fraud were Dr Kartinyeri, Dr Fergie, Dr Draper and Mr Hemming. At another point, through Mrs Dorothy Wilson, the “inventors” were said to be Messrs George Trevorrow and Doug Milera who by reference to an aerial photograph introduced Dr Kartinyeri to the female form component. At another point, it was suggested that Dr Kartinyeri and Mr Marshall were actors in a pantomime to give credibility to the hoax. At another point, it was suggested that Mr Victor Wilson was involved as a person who solicited or encouraged Dr Kartinyeri to spread the story. Considered individually, I think it is unlikely that Mr Hemming or Dr Draper, both professional anthropologists, would have each, and separately, participated in such a hoax. The impression I formed of the three Trevorrows, and their standing in their communities, is against the likelihood that they would be participants in a serious hoax involving their cultural traditions. The evidence does not support the likelihood that Mr Marshall was acting out the role suggested. Those women who since 1994 have given evidence or said that they have restricted knowledge that supports the tradition reported on by Dr Fergie and Professor Saunders are presumably also to be labelled as liars. As the number of participants in the formulation of the fabrication theory increases, so too does the unlikelihood of the theory being correct. In this observation on the fabrication case I have left out of account my assessment of Dr Kartinyeri whose veracity for other reasons I do not reject.
474 There is another dimension to the applicants’ argument that only one woman knew. They contend that Dr Kartinyeri was the only informant to Dr Fergie and Professor Saunders who could have provided information upon which they could have based their opinions that the area was under threat of injury or desecration. They contend that it was misleading for each of Dr Fergie and Professor Saunders to express the opinion that the information given by their “informants” was sufficient to meet the definition of “injury or desecration” under the HPA. The applicants contend that as only one woman knew there could be no basis for an opinion that there was a belief of a “community or group of Aboriginals” that the building of the bridge would injure or desecrate their claimed tradition.
475 For reasons just given, I am not satisfied that the applicants have established on the evidence that only one woman knew. However, the opinions as to the threat of injury or desecration expressed by Dr Fergie in her report (and also by Professor Saunders in her report) were based not solely on information given by Dr Kartinyeri for the purposes of the secret envelopes, but on the totality of the information provided by all her informants including the group of Ngarrindjeri women who met at Graham’s Castle, as well as on the information given by Dr Kartinyeri as a person authorised to speak for those at Graham’s Castle.
476 The expert evidence received from anthropologists establishes that Dr Fergie was justified, as an anthropologist, in placing weight upon the discussion which she witnessed amongst the Ngarrindjeri women leading up to their authorisation of Dr Kartinyeri to speak on their behalf. The process by which Dr Kartinyeri was so authorised was in accordance with the respect system which is itself part of Aboriginal culture and tradition.
477 The evidence indicates that at each of the meetings at Graham’s Castle expressions of concern that the bridge would cause injury or desecration in accordance with Aboriginal tradition came from a number of participants, not just Dr Kartinyeri. Further, those expressions of concern received tacit support from the continuing discussion and the absence of any dissent within the group. The events which occurred at each of those meetings, in my opinion, provide a reasonable basis for honest beliefs by Dr Fergie and Professor Saunders respectively that the communal expressions of concern that the bridge would cause injury or desecration were underpinned by the beliefs of at least those women which the meetings appeared to recognise as custodians of the restricted women’s knowledge.
478 Paragraph 38(c) alleges that:
“The Fergie report gives the impression that the available literature relating to the Ngarrindjeri supported and/or was consistent with the opinions proffered in the Fergie report about women’s business, when in fact –
(i) there was no mention of women’s business at all in such literature and
(ii) there was no reference to it by any researcher of the Ngarrindjeri
(iii) there was no independent evidence to suggest it existed previously
(iv) the women’s business amounted to a significant anthropological discovery.”
As the particular acknowledges, there is no express representation to the effect alleged. The representation is said to arise by way of “impression”. In my opinion, a fair reading of the Fergie Report as a whole does not give rise to any impression or implied representation as alleged. There are various references to earlier literature in the course of the report, but I do not understand them to give rise to such an impression. The thrust of the report is that the restricted women’s knowledge imparted to Dr Fergie, in part in the meetings with the Ngarrindjeri women and in part by Dr Kartinyeri, is an oral account not to be found in previous literature, and at p 16, the reader is informed that the full significance of the sites and area appears to have been confined to a small group comprising only four of the thirty-five women at the Graham’s Castle meeting, and that “it seems clear that women’s secret-sacred knowledge relevant to this case was not known by those involved in earlier evaluative work”. The earlier evaluative work is identified as the Edmonds Reports of 1988 and 1990, and the Lucas Report. Moreover, the introduction to the report expressly states that whilst the report itself is not intended to provide a comprehensive survey of anthropological and ethnographic literature on the region, the Lucas Report provides a useful general appraisal of the relevant ethnography and history.
479 In my opinion, the Fergie Report does not give the impression alleged, and in any event, the existing literature, including The World That Was, taken as a whole is not inconsistent with there being gender specific restricted knowledge of the kind reported on by Dr Fergie.
480 Paragraph 38(d) pleads that:
“At pages 6, 13, 15 and 44, the Fergie report cites and discusses the leading text relating to the Ngarrindjeri, The World That Was, by Ronald and Catherine Berndt, in such a way as to give the impression that this text supported and/or was consistent with opinions proffered in the Fergie report, but failed to state that in the book:
A the Berndts had specifically suggested that there was no gender based secret-sacred domain in the Ngarrindjeri tradition, and that, in a foreword to the book, Professor Robert Tonkinson has specifically canvassed such feature of Ngarrindjeri culture
B (with respect to the claimed women’s business insofar as it included a claim that there was a female figure in the landscape) the Berndts had specifically propounded the existence in Ngarrindjeri mythology of a dominant male figure (namely Ngurunderi) which already provided a considerable explanation of the landscape in a comprehensive and well worked out way.”
It is correct that the Fergie Report cites The World That Was for specific propositions to do with Ngarrindjeri culture at pp 6, 13 and 15. The reference at p 44 is simply a bibliography reference. However, the citations are specific and do not carry the implication that there is general support lent by them to the ultimate opinions proffered in the Fergie Report, nor do the citations imply a consistency with those opinions. The allegation therefore fails at that point.
481 I have already referred to references in the introduction to The World That Was, and to the opening sentence of ch 14 at pars 356 - 357. The anthropological evidence which I have accepted in this case is that the information recorded in The World That Was is indicative of there being gender based secret-sacred domains of both male and female knowledge. Professor Tonkinson’s Foreword, when read as a whole, does not deny the possibility that there may exist some gender based differences and restricted women’s knowledge. The Fergie Report at p 13 cites the introduction to ch 1 of The World That Was which is set out at par 366 above. Dr Fergie comments that in this passage the Berndts outline some dimensions of the “public knowledge” concerning Ngarrindjeri understandings of their territory and its corporeal characteristics. She continues:
“My report is also concerned with Ngarrindjeri knowledge and more particularly with secret knowledge and traditions about a more specific area of the ‘body’ of Ngarrindjeri territory – the area in which the lower Murray River meets the Southern Ocean …. This forms a localised area of particular significance in Ngarrindjeri tradition. For Ngarrindjeri women this is a woman’s area vital to the reproduction of human beings and the cosmos more generally. Within that area of traditional, secret and sacred significance, more specific sites of significance in Ngarrindjeri tradition can also be identified.”
I do not think that this reference to the introduction to ch 1 required any further qualification or explanation.
482 In any event, the evidence shows that female attributes in the landscape were a recognised part of Ngarrindjeri culture, and the implication which the applicants seek to put on the introduction to ch 1 of The World That Was cannot be sustained. Other recorded examples of the female body and the landscape, or female characteristics in the landscape, include the wives of Ngurunderi changing into the Pages Islands, the seaweed at Chiton Rocks, and women’s rafts which became grass trees at Rumply Point. Dr Clarke himself in his PhD thesis at p 115 records a female body in the landscape represented by hills between Mason’s Lookout and Ashville (somewhere near Raukkan). The hills are considered to be a woman lying on her side facing the lake. Professor Bell gives other examples of the influence of female characters on the landscape including that the fleeing wives of Ngurunderi played a part in the creation of the River Murray as Ngurunderi chased them; thukapi, a pregnant turtle, who by slowly dragging her body to the sea created the Murray Mouth leaving a female imprint on the land; the female prupe, a dreaming ancestor, shape at McGraths Flat; the action of three sisters reported by Dr Clarke in his thesis who were considered “water spirits” that explained dangerous waters on Lake Alexandrina; and Professor Tindale’s account of an old woman who “was engulfed in flames and died but as the people fled, her body leapt up like a great flame and she thrust her digging stick into the ground and the Murray River appeared”. The anthropological evidence indicates that it is not inconsistent within Aboriginal culture for there to be a number of powerful figures within the landscape, and for different stories to co-exist at the same time. Professor Bell makes the point that the landscape was pre-existing before Ngurunderi came to it which is itself a reason for doubting the comprehensive symbolism suggested by the introduction to ch 1 of The World That Was.
483 Paragraph 38(e) alleges:
“The Fergie report gives the impression that women’s business was an Aboriginal tradition of some antiquity, and also suggests that it was at least about 50 years old in stating that four elder women ‘had had this knowledge since their puberty’, and that Dr Fergie had made due investigation of the issue of its antiquity, but failed to state that –
(i) Dr Fergie considered her brief did not require an investigation of its antiquity
(ii) Dr Fergie believed that it was irrelevant if the tradition was new (that is, recently invented) and
(iii) Dr Fergie made no investigation of its antiquity.”
The Fergie Report does not in terms make any representations about “antiquity”, although the report in a number of respects gives rise to the inference that the restricted women’s knowledge had been passed down from earlier generations, and had been known by the four women who appeared to be custodians for many decades. The matters identified in sub pars (i), (ii) and (iii) are not stated in the report, but I consider there is no reason why they should have been as the evidence does not indicate that they represent correct statements of fact. The actual scope of the report is stated at its commencement. It was not Dr Fergie’s function to opine what might be the situation if a false tradition was propounded in support of an application for a s 10 declaration. In any event, she did not believe the alleged tradition to be “new”. Insofar as she conducted investigations, they are recorded in the report which summarises the information upon which she expressed the opinion that the four women identified appeared to be accepted by the meeting at Graham’s Castle as custodians. As a matter of fact, the applicants have not established that the restricted women’s knowledge did not have a time depth sufficient to bring it within the concept of Aboriginal tradition as defined in the HPA: see par 275.
484 Paragraph 38(f) alleges that:
“The Fergie report gives the impression of being an objective expert’s report, and that Dr Fergie’s opinions stated therein were objective and unbiased opinions, but failed to state that –
(i) the existence and/or veracity of the claimed tradition depended wholly on the veracity of one person, Doreen Kartinyeri, who was (as is noted in the Fergie report) a friend and confidante of Dr Fergie
(ii) Dr Fergie was of the view that her role was to be an advocate for the Aboriginal claimants rather than an independent assessor.”
Professor Saunders already knew that Dr Fergie had been retained by the ALRM and understood her role. That role in any event is clearly stated in the introduction to the report, and the two intended readers could be under no elusion that Dr Fergie’s role was other than to act in the interests of the Ngarrindjeri women. In my opinion the report implies no representation beyond that Dr Fergie, as a professional anthropologist acting for those by whom she was retained, prepared the report honestly in accordance with the ethics of her profession. The report itself on a fair reading would clearly indicate both to Professor Saunders and Mr Tickner that the opinions expressed as to the content of the restricted women’s knowledge were dependent upon the veracity of Dr Kartinyeri, and as to the threat of injury or desecration were dependent substantially on her veracity, but also on that of other informants who had provided information on that topic as recorded in the report. Insofar as it might be relevant to the two intended readers of the Fergie Report to know that Dr Kartinyeri was a former colleague and friend of Dr Fergie, that fact is clearly stated early in the report.
485 In my opinion, the Fergie Report conveys no misrepresentation of the kind alleged in par 38(f).
486 Paragraph 38(g) alleges that:
“At page 15, the Fergie report adopts the statement of Doreen Kartinyeri that the Hindmarsh Island area was ‘the most important place for Aboriginal people of the lower south’, and that the Murray Mouth was a significant women’s site, but failed to state those propositions were radical and novel respectively, and that there was no evidence in support of those propositions in the available literature.”
The impugned statement appears in a section of the Fergie Report dealing with the particular significance of the area of the Lower Murray, Hindmarsh and Mundoo Islands, the waters of the Goolwa Channel and Lake Alexandrina and the Murray Mouth. The report says that even though the details of the secret oral tradition presented in Appendix 2 cannot be discussed openly, their substance is clear, that broad area is crucial for the reproduction of the Ngarrindjeri people and the cosmos which supports their existence. It is then that Dr Fergie adds the sentence, “as Doreen Kartinyeri has noted, this area is ‘the most important place for Aboriginal people of the lower south’”. In context, I think it is clear to a reader that Dr Fergie is setting down her opinion on the significance of the information which she has been given by Dr Kartinyeri. It is not clear what is intended by the allegation that the report “adopts” the impugned statement. If it is intended to convey any more than that Dr Fergie was of the opinion that Dr Kartinyeri’s description fairly stated the importance of the secret oral tradition which Dr Kartinyeri had presented, the pleading would misrepresent the meaning of the report. As an expression of opinion by Dr Fergie, she has stated the source of the information upon which it was based. I am satisfied that the opinion was honestly held and reasonably based on that information. It is not clear what is intended by the allegation that the report failed to state propositions that were “radical and novel”. On a fair reading of the report, the reader could not be in any doubt that the tradition had not been known by non-European people before it was revealed in opposition to the bridge. The report expressly says at p 16 that, “it seems clear that the women’s secret-sacred knowledge relevant to this case was not known by those involved in earlier evaluative work”: see the discussion on par 38(c) above. Dr Fergie was not claiming support from the literature and in my opinion no qualification beyond that expressed on p 16 was required. I do not consider that the report is misleading or deceptive as alleged in par 38(g).
487 Paragraph 38(h) alleges that the Fergie Report, in referring to the Lucas Report on several occasions does so “in such a way as to give the impression” that the Lucas Report supported or was consistent with the opinions proffered in the Fergie Report but failed to state the “key findings” which have been earlier set out at par 29. In my opinion the Fergie Report does not represent that the Lucas Report provides support for, or is consistent with, the opinions proffered. The specific purposes for which the Lucas Report is cited are clearly stated in the Fergie Report, and the statement at p 16 – 17 makes it clear that support for the restricted women’s knowledge is not to be found in earlier evaluative work including the Lucas Report. The misrepresentation alleged in this particular is not made out.
488 Paragraph 38(i) pleads that the Fergie Report gives the impression that it is a proper expert’s report and that Dr Fergie had made sufficient tests and all proper investigations as to whether women’s business was truly a Ngarrindjeri tradition but in fact she had not by reason of a catalogue of facts set out within the particular. As discussed in relation to par 38(f), the scope and purpose of the report is stated in the introduction. It is there said to be for the purpose of providing an anthropological evaluation of the significance of secret women’s knowledge within Aboriginal tradition. That the assessment is made by Dr Fergie on behalf of the ALRM is also stated. The report meets that description. The allegation that the report “gives the impression that it is a proper expert’s report” is so vague as to be meaningless. If it is intended to convey that the Fergie Report is an anthropological assessment which meets its stated purpose and scope, the report does so and conveys no misrepresentation. If it is intended to convey something else, the alleged representation is not justified by the report’s expressed description. Neither does the report misrepresent the scope of tests and investigations conducted by Dr Fergie. The sources of her information and the circumstances in which it was revealed to her are clearly stated. Professor Saunders, one of the intended readers of the report, knew of the time constraints under which Dr Fergie prepared the report, and in her report, Professor Saunders referred to the Fergie Report as “inevitably a preliminary study, given time constraints” (Saunders Report, p 38), thereby informing Mr Tickner of this qualification to the Fergie Report. Insofar as the various matters alleged to constitute insufficient testing are concerned, those inadequacies would be apparent to a reader of the report, aware of the time constraints under which it was prepared. Accordingly I do not think that the allegation in par 38(i) is made out. I shall, however, refer briefly to the testing and investigation omissions alleged:
489 l It is said that Mrs Laura Kartinyeri who was living at Murray Bridge could have been questioned by Dr Fergie but was not. The evidence indicates that Mrs Kartinyeri was an elderly woman in failing health. To interview her would have required a trip to Murray Bridge and a commitment of time to the detriment of other tasks which Dr Fergie considered to be of greater priority. In any event, I am not satisfied that had Dr Fergie questioned Mrs Kartinyeri, the result would have caused her to modify her opinion. It would have been necessary for Dr Fergie to carefully put to Mrs Kartinyeri those parts of the knowledge which Dr Kartinyeri claimed to have received from Nanna Laura. What Nanna Laura’s response may have been must remain a matter of speculation but the chance that it could have corroborated Dr Kartinyeri’s story cannot be discounted: about Nanna Laura see pars 371, 452 and 454.
490 l It is said that Dr Fergie did not directly question the three other women seen by the meeting on 19 June 1994 as custodians. In the circumstances I think this is a far fetched suggestion. The three women were present on 19 June 1994 when Dr Fergie witnessed the authorisation process. They were also present at the discussion with Professor Saunders on 20 June 1994, and Dr Fergie again witnessed a confirmation of the authorisation to Dr Kartinyeri that evening. She had no reason at that stage to question them, and had she done so, her actions were likely to have been seen as culturally inappropriate.
491 l It is said that Dr Fergie should have investigated the representativeness of the Ngarrindjeri women at the meetings at Graham’s Castle, and had she done so investigation would have shown that they were not properly representative. The evidence does not suggest any reason why Dr Fergie should have done more than she did. She had been instructed at the outset that the meetings comprised a representative group. She communicated with Mrs Jean Rankine and she spoke with Ms Vi Deuschle and Ms Shirley Peasley at a Ngarrindjeri Action Group Meeting on 27 June 1994. No one suggested to her that the meetings had not been representative. The applicants’ case appears to assert that Dr Fergie should have spoken with Mrs Bertha Gollan and Mrs Dulcie Wilson, two of the dissident women. However, Mrs Gollan said in evidence that she treated the meeting as representative, and Mrs Wilson, whilst denying that the meeting had that quality, nevertheless agreed that a number of the people at the meeting were recognised Ngarrindjeri elders. Had she been asked in late June 1994 whether the group of women at Graham’s Castle was representative, I think it is likely that she would have answered in the affirmative. I do not think that her vigorous dissent from the proposition in the year 2000, after all the bitterness that has occurred in the meantime fairly reflects what she would have done in 1994.
492 l It is alleged that Dr Fergie failed to analyse any genealogies and had she done so, there would have been reason to doubt the representativeness of the meetings, and other aspects of the information given to her. Again, time did not permit such a refined level of investigation, nor was it within the contemplation of her instructions that she would do so. Moreover, I am not satisfied on the evidence that had there been the time, the resources and the instruction to do so that the outcome would have caused Dr Fergie to alter her opinion. The investigations suggested have been conducted by others for the purposes of this case with no clear result.
493 l It is alleged that Dr Fergie made no or no sufficient enquiry of or research at the South Australian Museum. Again, I do not think it was part of Dr Fergie’s instructions to make an enquiry of this kind, nor on the information that she received from her informants did the need for it appear. However, even if there were an obligation to make enquiries at the museum, mere proof of a failure to do so would not make out the allegation.
The applicants would have to go further and show what sort of enquiry could reasonably have been made, and identify what information would have been received in response. The information relating to the restricted women’s knowledge was given to Dr Fergie in confidence and that would present difficulties in disclosing the nature of the claim to other people. The museum had no particular interest that would justify disclosure to it. Further, the persons to whom the applicants’ case assert enquiries should have been directed, the anthropologists Dr Clarke and Dr Jones, are both men to whom the tradition was not to be disclosed. Had she merely asked if the museum had information about Hindmarsh Island or the area of the proposed bridge she may have been told the museum had very little information. This is the effect of what Dr Clarke had told Dr Kartinyeri and Mr Victor Wilson when they made enquiries of this kind in April 1994. Perhaps Dr Fergie could have made a limited enquiry as to whether the museum held any information about secret-sacred cultural knowledge, and in particular gender restricted cultural knowledge. It is unclear whether in the time available that either of these men could have conducted useful research to provide meaningful information if such a question had been asked. Dr Jones says he would have told Dr Fergie that in his research into Ngarrindjeri culture he had been constrained by restricted knowledge only in relation to men’s initiation and sorcery practices. However the fact that there was gender restricted men’s knowledge would have raised in Dr Fergie’s mind the likelihood that there was also a domain of restricted women’s knowledge. Moreover, when Dr Jones read in the The Advertiser newspaper on 8 June 1994 that the Ngarrindjeri opposition concerned the cultural significance of the bridge site he said in evidence that whilst he was sceptical of the claim he was not inclined to say there was nothing behind it all.
There is force also in the submission of respondents’ counsel that without disclosing a good deal of the substance of the restricted women’s knowledge, various practices about which there may be recorded information would not have been recognised as having a connection with the restricted women’s knowledge. As one of the younger Ngarrindjeri women said to Professor Saunders at Graham’s Castle, she had been following practices passed down to her which previously had no explanation but which fitted in with the knowledge that had just been released to her.
There is a further difficulty which the applicants face. Their case postulates that such an enquiry would have been directed to Dr Clarke or Dr Jones, both of whom have since expressed scepticism about the restricted women’s knowledge. However, the enquiry may have gone to Mr Hemming who did not even at that stage share the same scepticism. An enquiry in whatever terms, may have produced a response that was not inconsistent with Dr Fergie’s understanding of the information she had received.
494 l It is alleged that Dr Fergie made no analysis of available ethnographic data. It was not in her instructions to do so, and the introduction to her report expressly stated that its purpose was not to provide a comprehensive survey of anthropological and ethnographic literature on the region. That analysis has since been conducted and is discussed elsewhere in this judgment. The analysis has shown that there is available ethnographic data to support in important respects the probability of the existence of gender-specific restricted knowledge in the area.
495 l It is alleged that Dr Fergie had no peer review of her report. This is an extraordinary allegation. Dr Fergie was instructed by the ALRM to prepare a report exclusively for its use. It would have been a gross breach of her contractual and professional obligations for her to submit her report to a third party for comment unless express authorisation was obtained to do so. The evidence fails to address the question of whether authorisation would have been permitted, and in any event there was no time for peer review.
496 l It is alleged that Dr Fergie considered that her report was prepared under unacceptable and extraordinary time limitations which put the integrity of the Aboriginal claimant’s case as well as her own professional reputation at risk. This allegation distorts the content of a letter which Dr Fergie delivered to the ALRM with her report on 5 July 1994. Dr Fergie there notes the limitations imposed by time constraints and says:
“The extraordinary limitations of this process risked putting the Ngarrindjeri case, and my professional reputation at risk. I do not think this is acceptable.
It is only by fortuitous circumstances, particularly the coming together of such a representative group of Ngarrindjeri women at the Graham’s Castle meetings, the willingness of Ngarrindjeri men and women to cooperate fully in this process after those meetings, and without doubt the fact that Doreen Kartinyeri and I already had a trusting professional and personal relationship before this consultancy began, that I am able to feel confident of this report’s findings.”
As the letter clearly states, the potential risk identified by Dr Fergie did not in the circumstances eventuate.
497 l It is alleged that Dr Fergie considered that her role was not to test, ascertain or comment on the truth or falsity of the claims. This is not a particular of an insufficient test or investigation, but be that as it may, I think that the allegation correctly describes Dr Fergie’s role, as identified by her in her report.
498 Paragraph 38(j) alleges that the Fergie Report failed to “properly caution the reader of deficiencies in the report arising from Dr Fergie’s failure to analyse genealogies or the available ethnographic data”. As to the ethnographic data, reference has already been made to the express qualification to the report contained in its introduction. The asserted relevance of the failure to analyse genealogies concerns the representativeness of the women at the Graham’s Castle meetings. This topic has already been discussed. I do not think the Fergie Report is misleading or deceptive, or indicative of a want of care in that respect.
499 Paragraph 38(k) alleges that:
“The Fergie report concluded that the construction of the bridge would cause ‘the gravest injury to Ngarrindjeri tradition’, and that the ‘opposition of Ngarrindjeri women to the building of the proposed bridge’ was based on ‘a profound conviction that the building of a bridge between the mainland and Hindmarsh Island would bring about the absolute demise of their culture and traditions’, and the Fergie report referred to ‘grave dangers to Ngarrindjeri tradition’ and desecration that was ‘frightening’, and otherwise expressed in strong terms the opinions of Dr Fergie in support of women’s business, but failed to state, adequately or at all, that –
(i) the absence of any Ngarrindjeri objection to the building of the barrages made such conclusions suspect
(ii) it was highly unlikely that the outward manifestations of a secret tradition such as women’s business would have been missed by the researchers of the Ngarrindjeri, and thus Dr Fergie’s conclusions were highly unlikely
(iii) the fact that it took years for such claims to emerge from the time the bridge proposal was well known to the public of South Australia made such conclusions suspect.”
In substance, the Fergie Report makes the representations pleaded, although in context it is clear that the report is describing the gravity of concerns that had been reported to Dr Fergie, and was based on an acceptance of the information given by those informants. As that is plain from the report the report is not misleading or deceptive by including those representations. It is alleged that the misleading or deceptive quality arises from what was not adequately stated. However, the absence of objection to the barrages, and linkages between the mainland and Hindmarsh Island caused by the ferry and other cables is considered and explained in the report. The report does not expressly refer to the unlikelihood that outward manifestations of a secret tradition such as that revealed by Dr Fergie’s informants would have been missed by researchers, but the report does convey the impression that the alleged tradition had not previously been known to those involved in evaluative work, including the Lucas Report which contained a general appraisal of relevant ethnography and history. I do not think any further qualification was required. The topic of late emergence is also addressed in the report at pp 15 – 16, and it is apparent that in Dr Fergie’s opinion the late emergence is to be explained for reasons that do not render her conclusions suspect. The basis of her opinion is stated, namely the Aboriginal approach to disclosure of secret-sacred information, the dispersal of the few knowledgeable Ngarrindjeri women, and the involvement of men rather than women as central players in the consultative and planning processes.
500 The allegations in this particular fail also on the ground that it is clear that Professor Saunders was in no way misled or deceived by the Fergie Report. Professor Saunders had herself embarked upon enquiry on the topics which it is said the Fergie Report failed to adequately state, and had done so before she received the Fergie Report. I am satisfied that Professor Saunders reached her own conclusions independently of influence from the Fergie Report. As a matter of probability I am not satisfied that Mr Tickner read the Fergie Report, and therefore could have been misled by it, but in any event had he done so, any misleading quality in the Fergie Report of the kind alleged would hardly have been likely to influence him in light of the attention which these matters received in the Saunders Report.
501 On the question of whether Mr Tickner read the Fergie Report before making his decision, the evidence shows that the Fergie Report, without the secret envelopes, was faxed to Mr Tickner’s office at Sutherland on the evening of 7 July 1994. However, there were two fax machines both in that office and in the Minister’s Canberra office. The Saunders Report, a submission by the State and the first five pages of the Fergie Report were sent from one machine in Canberra to one machine in the Sutherland office. Those papers were put out for Mr Tickner to read by his staff, and I am satisfied that Mr Tickner did closely consider the Saunders Report and State’s submission (which included part of the Jacobs Report). Mr Tickner remembers considering those documents, and they bear marks made by him at the time. However, Mr Tickner has no recollection of reading the Fergie Report. I consider the evidence establishes that the balance of the Fergie Report, from page 6 to 27, and page 44 (pages 28 to 43 being the secret envelopes) were sent from the other fax machine in Canberra to the other machine in Sutherland as part of a fax transmission comprising at least fifty-nine pages. It seems likely that the pages of the Fergie Report were not at the time identified by Mr Tickner’s staff as being part of the Fergie Report, or as being related to the Saunders Report, and that they were not brought to Mr Tickner’s attention. I am not satisfied, on the balance of probabilities that Mr Tickner saw or read the Fergie Report before he made the s 10 declaration.
502 Paragraph 38(l) pleads:
“The Fergie report suggests that the absence of any Ngarrindjeri objection to the barrages was addressed by the ‘final and compelling’ argument that the Ngarrindjeri were powerless to stop them being built, and states that the barrages were being built when ‘Aboriginal peoples’ political voice was least likely to be heard’, but failed to state that the Berndts had, in The World That Was, specifically noted outspoken Ngarrindjeri objections to desecration of sites and land at the time of the building of the barrages, and yet the Berndts had not mentioned any Ngarrindjeri objection to the barrages being built.”
I consider this is a far fetched allegation without substance. There seems little doubt that the plight of the Ngarrindjeri people at the time that the barrages were built justified the expression of opinion by Dr Fergie as to the reason why the construction of the barrages was not met with Aboriginal protest, and on this score her report at p 22 records information to that effect given to her by the informants. The passage in The World That Was upon which the applicants seek to base this allegation is not directed to the construction of the barrages. It is dealing with an entirely different topic, and the statement is neither inconsistent with the Fergie Report nor indicative of any feelings which the Ngarrindjeri may have held as to the impact of the barrages on sacred knowledge. The passage in The World That Was, at p 16, is dealing with work into the archaeological past of the region occupied by the Ngarrindjeri. The work of a number of researchers from 1911 to 1936 is mentioned, and the text continues:
“… certainly other archaeological work has been done since then. Our reason for mentioning it here is to note that in the early 1940’s some of the older people including Albert Karloan and Pinkie Mack were outspoken about those who excavated burial mounds and camp sites, and sharply criticised Aborigines who help Europeans in such activities, condemning them for desecrating their land. Throughout this whole area many burial and/or corpse – disposal sites were remembered …”
503 Paragraph 38(m) alleges that the Fergie Report gave the impression that Dr Fergie was expert in and familiar with the customs and traditions of Ngarrindjeri when in fact she was not. There is no express assertion in the Fergie Report that Dr Fergie has the expertise alleged. The report represents by implication no more than that Dr Fergie had the expertise necessary to prepare a report that met its express aims and scope. Dr Fergie had the expertise to undertake that task. Further, Professor Saunders was well aware that Dr Fergie was not an expert in the customs and traditions of the Ngarrindjeri and could not have been misled into thinking otherwise. It seems that Mr Tickner did not give consideration to whether Dr Fergie had any expertise beyond that of an anthropologist instructed by the ALRM, and the evidence does not establish that he was in any respect misled or deceived about Dr Fergie’s expertise.
504 Paragraphs 38(n), (o), (p) and (q) deal with the topic of consultation. Before dealing with these particulars, I discuss more generally the evidence relied upon by the applicants in support of their contention that throughout the planning process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive matter during which appropriate consultation with Aboriginal organisations occurred.
505 In 1988 as part of the preparation of a Draft Supplementary Development Plan, the Aboriginal Heritage Branch of the DEP instructed Ms Vanessa Edmonds to conduct an archaeological survey of the area of Hindmarsh Island which included Binalong’s marina and the Hindmarsh Island approach to the ferry. The 1988 Edmonds Report identified a number of archaeological sites. Ms Edmonds spoke with Mr George Trevorrow at Camp Coorong, representing the Ngarrindjeri Lands and Progress Association, in the course of her survey. Copies of the 1988 Edmonds Report were sent by the Aboriginal Heritage Branch to that Association and to the Point McLeay Community Council (Raukkan Community Council). At that stage the bridge was not in contemplation, and there was no consultation between Binalong and representatives of Aboriginal communities.
506 In February 1989 the planning applications that had been lodged by Binalong, and by another landowner (see par 19) were sent by the Aboriginal Heritage Branch to the Point McLeay Community Council and also to another body, the Coorong Consultative Committee which included Mr Henry Rankine and Mr George Trevorrow as members. However, the Binalong planning application at that stage did not propose the construction of a bridge.
507 In August 1989 Binalong was advised by the relevant State Minister that it should follow the Environmental Impact Statement (EIS) process. Binalong engaged environmental consultants to assist, one of whom was Ms Nadia McLaren. An officer of the DEP informed Binalong that the EIS should deal with Aboriginal heritage matters, and suggested that relevant persons with whom Binalong needed to consult were Henry and Jean Rankine of Point McLeay. At the time Mr Rankine was the Chairman of the Point McLeay Community Council and Mrs Rankine was a Council member. Mr and Mrs Chapman knew Mr Rankine from their mutual involvement in the establishment of the Signal Point Interpretative Centre at Goolwa in 1988. Mr Chapman arranged to meet Mr and Mrs Rankine at Murray Bridge on 2 September 1989, and did so with Ms McLaren. Mr Chapman says that among other aspects of the marina development he recalls telling Mr and Mrs Rankine of the bridge proposal, and the proposed alignment along Chrystal Street. Mr Chapman says that apart from concern about skeletal remains, Mr and Mrs Rankine said that there was nothing of concern to them to do with Hindmarsh Island.
508 Following that meeting, Mr Chapman by letter dated 4 September 1989 forwarded to Mr Rankine a copy of the 1988 Edmonds Report and requested another meeting for 14 September 1989. The letter concluded:
“I look forward to the opportunity of trying to develop water borne tourism to Point McLeay as another destination for the yachts at both Goolwa and Wellington. I believe it would be to everybody’s (sic) advantage.”
On 14 September 1989 Mrs Chapman and Ms McLaren travelled to Raukkan and met with Mr and Mrs Rankine. Mrs Chapman says that the proposed bridge was a topic of discussion. Following that meeting Mrs Chapman wrote to Mr Rankine on 9 November 1989 thanking him for facilitating the meeting on 14 September 1989. The letter referred to ways in which help could be forthcoming for proposed Raukkan community activities, and suggestions were offered. The letter continued:
“We have enclosed a copy of our draft Environmental Impact Statement for you to look at. We were very grateful for your advice, which has been incorporated into the document, as well as your assurance that there is no problem with our development regarding the Aboriginal Heritage and sites. Such assurance will be good for us to display when other people try to make mischief. Would you be prepared to give us a brief signature for us to have on file in case it is required by the Department? I enclose a brief statement for you to sign if you are happy to, and would appreciate receiving it back. (Envelope enclosed)
Section 6.5.1 of the document on p 104 is the writing which reflects your advice.”
The text of the letter enclosed for signature by Henry Rankine reads:
“I was pleased to be consulted on the subject of Aboriginal Heritage and sites contained within the land for your development proposal on Hindmarsh Island at Goolwa.
I have received a copy of the Environmental Impact Statement, and read the section 6.5.1 and agree that it reflects my advice to you and Nadia McLaren, your Consultant. I am very happy to support your intentions of handling the identified sites.”
The letter was never returned to the applicants by Mr Rankine. Section 6.5.1 of the draft EIS draws on the 1988 Edmonds Report for a brief summary of past Aboriginal occupation of the Lower Murray and Coorong region, and refers to Ms Edmonds’ archaeological survey along the coast of the marina development area and the Goolwa ferry reserve. Section 6.5.1 concludes:
“The archaeological sites are all within the coastal strip which is to be left undeveloped. The largest site has already been fenced to prevent damage. The remainder are under no immediate threat. Following discussions held with Henry Rankine, Chairman of the Point McLeay Community Council, and consistent with the recommendations of the consultant archaeologist, the sites will be fenced and screening vegetation planted. If the Aboriginal Heritage Branch decides not to salvage those sites under threat of bank erosion, the bank will be stabilised with rock.”
509 It will be noted that the correspondence between Mr and Mrs Chapman and Mr Rankine makes no reference to a bridge. On the contrary, the correspondence suggests that their discussion was concerned with Aboriginal heritage and sites contained within the marina area, and other matters. In September 1989 the applicants’ preferred position was for the improvement of the ferry service. This preference is stated in the draft EIS at p 9. In these circumstances, the respondents ask rhetorically why would the Chapmans be emphasising the bridge in their discussions with Mr and Mrs Rankine?
510 Following her visit to Adelaide, Professor Saunders sought to gather information from Mr Henry Rankine as to the extent of consultations in which he was involved. She did so by having Ms Mullins communicate with Mr Wooley at the ALRM. In late June, Ms Mullins according to her notes, was informed that Mr Rankine instructed the ALRM that he and his wife had been shown some plans about the Wellington development on a wet Saturday in Murray Bridge but he denied seeing plans for the bridge at that stage.
511 On 30 June 1994 Professor Saunders received a letter from the ALRM confirming earlier (telephone) advice that Mr and Mrs Rankine categorically denied ever having told the Chapmans or anyone else that they consented to the bridge in question being built.
512 Ms McLaren was present at the meetings on 2 and 14 September 1989, and her evidence would have been important on the issue whether the proposed bridge was discussed. Ms McLaren was not called by the applicants. When her absence as a witness was commented upon the Court was informed that she was thought to be overseas, the applicants last contact with her being a letter in 1996 when she was in Belgium. The importance of Ms McLaren’s evidence must have been apparent to the applicants. I consider their failure to undertake enquiries to locate her and to lead evidence from her by affidavit, video or other means is significant. As they failed to pursue any of these means to obtain her evidence, and as there is no reference to the bridge proposal in their correspondence with Mr Rankine, I am not prepared to act on their oral evidence that the bridge was a specific topic discussed with Mr and Mrs Rankine in September 1989.
513 The draft EIS, notwithstanding the observation at p 9 that Binalong would prefer not to finance and build a bridge, contains a substantial section on the environmental affects of a bridge including photographs which have a proposed bridge superimposed on the landscape. If Mr Rankine on receipt of the draft EIS even quickly flipped through it, it is most improbable that he would not have been alerted to the proposal. There is, however, no evidence as to whether this occurred, and what Mr Rankine may have done with the document. Whilst the letter which enclosed the draft EIS was addressed to Mr Henry Rankine, it did not state that it was being referred to him in his capacity as the Chair of the Point McLeay Community Council. Whether the draft EIS was ever seen by that body, and its managing committee or by Mrs Rankine, is not disclosed by the evidence.
514 On 3 November 1989 Binalong’s draft EIS was put on public display. In the course of discussion between Binalong and DEP personnel, Binalong was advised that it would need to deal with Aboriginal heritage matters. It was informed that the 1988 Edmonds Report was insufficient and that a comprehensive archaeological survey was needed which would include consultation with the Aboriginal traditional owners. This led to the preparation of the Lucas Report and the 1990 Edmonds Report: see pars 24 – 29 above.
515 In the course of preparing his work, Mr Lucas met with the Ngarrindjeri representatives listed below on 26 January 1990 to discuss issues relating to Hindmarsh Island. There is uncertainty on the evidence whether Mr Lucas was informed by his instructions that a bridge linking Goolwa to Hindmarsh Island was under consideration. Mr and Mrs Chapman say that he would have been so informed, yet there is no mention of a bridge in his report. Had he been informed about the proposed bridge, I find it remarkable that his report does not deal with archaeological or other Aboriginal issues relating to the mainland area that would be disturbed by the bridge construction. I am not prepared to act on the evidence of Mr and Mrs Chapman alone on this issue. Those present at the consultation meeting with Mr Lucas were:
Mr Victor Wilson (Ngarrindjeri Tendi; LMAHC)
Mr Paul Kropinyeri (Riverland Heritage Committee; Jerry Mason Senior Community Centre)
Mr Tom Trevorrow (Ngarrindjeri Tendi; LMAHC; Ngarrindjeri Lands and Progress Association)
Mr Robert Day (LMAHC)
Messrs Wilson, Trevorrow and Day were still members of the LMAHC in 1993 – 1994. Mr Henry Rankine representing the Raukkan Community Council was invited, that body having expressed a particular interest in the development on Hindmarsh Island. Mr Rankine was unable to attend the consultation, but spoke by telephone with Mr Lucas.
516 One of the issues discussed at the consultation was the processes of consultation about proposed developments on Ngarrindjeri lands. The Lucas Report records that the Ngarrindjeri Tendi expressed considerable dissatisfaction with various consultations that they had experienced in the past. The report states:
“They also desired more direct dealings with potential developers. They have tired of dealing with anonymous companies by way of third parties – either Aboriginal Heritage Branch or consultants. At some point in the process they would like to meet with developers personally.
In respect of Hindmarsh Island, the Tendi resolved to contact all those families with an interest in the island and to facilitate a meeting in which those people debate amongst themselves the issues of development. A second meeting would then be arranged with the developers, to take place on Hindmarsh Island itself. The Tendi requested that the cost of these meetings be borne by the developers: ‘People have to be facilitated to deal with these processes’.”
The Lucas Report also noted that:
“Individuals, families, communities and their representative bodies can be expected to hold a range of opinions on most heritage and development matters. Developers, like consultants, have to listen to everybody and must elicit the opinions of all groups claiming interest in a particular site. Procedurally at least, this process may now become easier with the recent constitution of the [LMAHC]. This committee has statutory responsibility for decision making in respect of Aboriginal sites under the [AHA].”
In a summary to the report, the section dealing with community consultation emphasises the Ngarrindjeri Tendi’s desire for direct consultation by repeating its request that “any potential developer pursue full and direct consultation with the relevant representative bodies … they wished to deal personally with a representative of all companies involved in any development proposal”. The report concluded with five recommendations about consultation that would apply to any potential developer. Those recommendations were proposed as planning approval conditions to the marina development in the Assessment Report on Binalong’s draft EIS, and were ultimately included as planning conditions when approval was granted on 12 April 1990: see pars 30 – 31 above.
517 In the course of preparing the 1990 Edmonds Report, Ms Edmonds spoke with Mrs Rankine on a limited issue concerning burials and recommendations to be made for the re-burial of skeletal remains found at the marina.
518 The 1990 Edmonds Report was completed on 23 January 1990. A substantial portion of the text of the report deals with the proposed bridge. At p 15, the report plainly describes the proposal and the intended location:
“Section 2: Proposed Bridge
1. THE DEVELOPMENT
Description and Location
In addition to the marina extensions, Binalong Pty Ltd is proposing to build a bridge to replace the existing ferry service between Hindmarsh Island and the mainland. The bridge would be a 290 m long, arched profile construction of prestressed concrete beams (Binalong Pty Ltd 1989: 17).
Access to the bridge from the island would be along the existing approach to the ferry. The bridge would then angle 140 degrees east in alignment with Chrystal Street, Goolwa, this being the proposed approach road to the bridge from the mainland (Figure 4).”
519 Copies of the 1990 Edmonds Report were sent by the Aboriginal Heritage Branch to the Point McLeay Community Council and to the Ngarrindjeri Lands and Progress Association. Had the report been read and considered by the committees of these bodies they would have become aware of the proposal to build the bridge. However, there is no evidence that the 1990 Edmonds Report was read by anyone within either of the organisations to which it was sent. Mr George Trevorrow’s evidence is to the effect that the Ngarrindjeri Lands and Progress Association received many reports and submissions that were not necessarily read. He had no recollection of seeing the 1990 Edmonds Report.
520 The first of the conditions imposed on Binalong in the planning approval granted on 12 April 1990 required that:
“Binalong should consult directly with the relevant Aboriginal representative bodies identified herein, and with any other Aboriginal persons chosen by those bodies. The expense of such consultations in respect of time and travel on the part of the Aboriginal representatives to be borne by the developer.”
The Aboriginal bodies are identified in a subsequent condition as the Ngarrindjeri Tendi, the Raukkan Community Council, the Ngarrindjeri Lands and Progress Association and the LMAHC. The condition does not specify upon what matters Binalong is to consult, but having regard to the origin of the condition in the Lucas Report, the condition contemplated that Binalong would continue to consult the specified organisations about the progress of the proposed development.
521 The applicants now seek to discount the importance of this condition by attempting to read it down by reference to the other conditions to apply only in respect of skeletal material that might be found, and because the Ngarrindjeri Tendi never arranged a “second meeting” with Binalong, to take place on Hindmarsh Island, as contemplated by the Tendi in the course of its consultation with Mr Lucas. Given the Chapmans’ knowledge of the contents of the Lucas Report that said that as a range of opinions on heritage and development matters could be expected, direct consultation with each of the identified representative bodies was required, I find these contentions of the applicants to be disingenuous. I do not think that Binalong could have been under any misapprehension that the planning conditions required meaningful and serious consultation between them and representatives of the four organisations identified in the planning conditions, to occur after the grant of planning approval. No such consultation ever occurred.
522 On 8 May 1992 the Aboriginal Heritage Branch of the DEP, in reply to a request from the project engineers for the bridge, wrote that an inspection by an historian of the proposed realignment of the bridge approach on the Goolwa side on 19 April 1992 failed to reveal surface archaeological features, but warned that the AHA required that if archaeological material were uncovered it must be reported. The letter raised no heritage objection. There was no consultation by the DEP with any Aboriginal body at this time.
523 On 20 October 1993 an officer of the Department of State Aboriginal Affairs wrote to the Planning and Urban Development Department (the successor to the DEP) stating that members of the “Lower Murray Aboriginal Community” had expressed concern at the potential impact of the bridge “on Aboriginal Heritage sites on the island” and observed that consultation with Ngarrindjeri people concerned with conservation of traditional cultural values and landscape associated with Hindmarsh Island was an important consideration appropriate to be addressed in the proposed SDP. This correspondence led to the provision of funds for the investigation of heritage sites conducted by Dr Draper from November 1993 leading up to the Draper Report given to the State Minister for Aboriginal Affairs on 29 April 1994. Before these funds were provided work had briefly commenced on the construction of the bridge in October 1993. During Dr Draper’s survey the ALRM wrote to Mr Tickner and to the State Minister seeking protection under the relevant heritage Acts. Before the Draper Report was given to the State Minister, the State announced that it was committed to building the bridge, a statement repeated to members of the LMAHC by the State Minister when they sought to consult with him on 15 April 1994 on the issue whether authority should be given under s 23 of the AHA to damage or disturb Aboriginal sites: see generally pars 52 – 71 above. The notable features about this course of events is that the State had committed to build the bridge in the Tripartite Agreement and then embarked on construction work without any consultation by it with any Aboriginal organisation, although its role was then that of a developer.
524 In the press release issued by Mr Tickner on 10 July 1994 he said one of his reasons for making the s 10 declaration was that the State Government had failed adequately to consult Aboriginal women as part of the decision making process. That criticism was directed to the State Government, not to the applicants, but the case presented to this Court by the applicants displays deep bitterness on their part about their perception that Mr Tickner’s reasons imply criticisms about their consultation. Their attitude reflects a misunderstanding of Mr Tickner’s reasons. But even if the consultation process is extended to incorporate consultations with Aboriginal people by the applicants, the position remains that there were no direct consultations with the four representative bodies identified in the original planning approval, or with any other Aboriginal organisations, after 12 April 1990 about the proposed bridge. The consultations conducted by the applicants with Mr and Mrs Rankine and by Mr Lucas before that date were not immediately concerned with the proposed bridge but were directed to the marina development itself and Hindmarsh Island.
525 I am not satisfied on the evidence that Mr Lucas even knew of the bridge proposal at the time.
526 The applicants assert that Aboriginal women were consulted because there were three women on the committee of the Ngarrindjeri Tendi, one woman on the LMAHC, three women on the Ngarrindjeri Lands and Progress Association and some women on the Raukkan Community Council, including Mrs Rankine.
527 The evidence is that the Ngarrindjeri Tendi only met twice as a full committee, and was a controversial body. The evidence does not establish that the women members of these organisations were ever involved in any discussion within the organisations about the marina development or the proposal to construct the bridge. Such as it is, the evidence suggests that within these organisations the men considered heritage matters to be for them. I have already indicated at par 339 that I think it is probable that by 1993 a number of Ngarrindjeri people including Mrs Rankine would have become aware of the proposal to build a bridge, but that was not in consequence of consultation conducted by the State. The absence of consultation means that their views were not obtained by the State.
528 Against the above discussion on the topic of consultation I return to the specific allegations in pars 38(n), (o), (p) and (q) of the statement of claim. The allegation in par 38(n) is that:
“The Fergie report states that men dominated organisations such as the Ngarrindjeri Tendi, the Lower Murray Aboriginal Heritage Committee and the Ngarrindjeri Lands and Progress Association and states that this fact ‘compounded’ the ‘unawareness’ of ‘knowledgeable Ngarrindjeri’ women of the proposal to build the bridge when in fact there were women representatives on each of the relevant Ngarrindjeri organisations, namely the Ngarrindjeri Lands and Progress Association, the Ngarrindjeri Tendi and the Point McLeay Community Council in the period 1988-1990, and further Dr Fergie knew that Doreen Kartinyeri had known of the bridge proposal since at least early January 1994, and Dr Fergie had not questioned the other three ‘knowledgeable Ngarrindjeri’ to whom she referred, namely Connie Roberts, Maggie Jacobs and Edith Rigney, about their knowledge of the proposal to build the bridge.”
The impugned statements appear on p 16 of the Fergie Report and should be read in context. The report cites the passage from the Junction Waterhole Dam Report set out at par 333 above, and says that the situation in the present case is compounded by another gulf of knowledge, a gulf founded in gender. The report continues:
“Knowledge of the full significance of the sites and area appears to have been confined to a small group of senior women who were all living in different and distant parts of South Australia, and who for some time were unaware of the proposal to build a bridge to Hindmarsh Island. The dispersal of these few knowledgeable Ngarrindjeri was compounded by the fact that, until very recent months, it has been men rather than women who have been the central players in consultative and planning processes involving Aboriginal interests in this region. Men have dominated organisations like the Ngarrindjeri Tendi, the Lower Murray Heritage Committee and the Ngarrindjeri Lands and Progress Association. These have been clearly recognised by developers and consulted in State planning processes.”
The representation to the effect that men have dominated associations of the kind mentioned is, according to the evidence before this Court, a correct statement of fact. That there may have been a small number of women on the committees does not prove to the contrary. Moreover, as I have noted above, the evidence is to the effect that the men treated heritage matters as belonging to them.
529 Insofar as the allegation refers to Dr Kartinyeri’s knowledge, I do not think that is relevant to the correctness of the impugned text. Dr Kartinyeri was not a member of any of the organisations named or other organisations concerned with cultural matters in the Lower Murray area. Similarly, any failure by Dr Fergie to question the named three “knowledgeable Ngarrindjeri” is not relevant to the correctness of the text as the evidence does not suggest that these women were members of any relevant committee. Moreover, the evidence does not establish that any of these three women had other than recent knowledge about the bridge, had Dr Fergie made enquiry.
530 Particular 38(o) alleges that:
“The Fergie report represents that Doreen Kartinyeri was not involved at all in the consultative and planning processes for the bridge and marina when in fact, and as Dr Fergie well knew because Rod Lucas informed her accordingly, Doreen Kartinyeri had been contacted to be consulted by Rod Lucas relating to Hindmarsh Island.”
The Fergie Report makes no representation to this effect. In any event such a representation would be true as Dr Kartinyeri was not involved at all in the consultative and planning processes. Moreover, as the Lucas Report makes clear, neither Dr Kartinyeri nor any other Aboriginal woman was included in the consultation process which he carried out. It seems that at one point in his survey, Mr Lucas may have attempted to contact Dr Kartinyeri but was unsuccessful in doing so. The allegation is without substance.
531 Particular 38(p) alleges that:
“The Fergie report represents that no Aboriginal woman was ‘a central player’ in the consultative and planning processes for the bridge and marina, and further represents that there was a lack of consultation with Aboriginal women in such planning processes when in fact relevant Ngarrindjeri organisations, including those referred to in paragraph (n) were consulted and further, as stated in paragraph (o), Doreen Kartinyeri was approached to be consulted and further the first and second Applications (sic) consulted Jean Rankine on two occasions.”
The representations alleged are based on that portion of the Fergie Report at p 16 set out above. The alleged representations place an unwarranted bias on statements within the text. The inference arising from the text is that no knowledgeable Ngarrindjeri women were, as a matter of fact, consulted in the planning process. That inference is in accordance with the evidence. Insofar as the allegation refers to two consultations with Mrs Rankine, those are the consultations which occurred in September 1989 and do not establish that the text conveys any misrepresentation or inaccuracy. There is no evidence that Mrs Rankine was one of the “knowledgeable Ngarrindjeri”. Moreover, the evidence does not establish what information came to the knowledge of Mrs Rankine about a proposed bridge.
532 Paragraph 38(q) again attacks the text at p 16 of the report set out at par 528 above as conveying a misrepresentation because, it is said, Dr Kartinyeri had not been excluded from the consultative and planning processes and because Mesdames Connie Roberts, Maggie Jacobs and Edith Rigney, had no knowledge of women’s business, so it would have made no difference if they had been individually consulted or not. The allegation regarding an involvement by Dr Kartinyeri in the consultative and planning processes is without substance and the allegation that the other women had no knowledge of women’s business is not supported by the evidence. Only Mrs Maggie Jacobs gave evidence, and she claimed to have knowledge of component parts of the restricted women’s knowledge, and strongly asserted that the proposed bridge presented a threat of injury or desecration in accordance with Aboriginal tradition. The observations of Dr Fergie at the Graham’s Castle meeting on 19 June 1994, and of Professor Saunders at the meeting on 20 June 1994 led each of them to believe that Mrs Roberts and Mrs Rigney held the restricted women’s knowledge. Dr Fergie records in her report at pp 9 – 10 that Mrs Roberts’ daughter later contacted her to convey an offer by Mrs Roberts to contribute directly to the preparation of the report, but time did not permit this to occur. Information conveyed by Mrs Roberts’ daughter is set out in the Fergie Report, and provides an additional basis for an honest and reasonable belief for the opinion given by Dr Fergie in her report that Mrs Roberts was seen by those Ngarrindjeri women who had been present at Graham’s Castle as a custodian of the restricted women’s knowledge.
533 In my opinion, the allegations made against Dr Fergie concerning the topic of consultation are not established.
534 Paragraph 38(r) alleges that:
“The Fergie report represents that there was no disagreement amongst Ngarrindjeri women to Doreen Kartinyeri recounting women’s business to Dr Fergie, and otherwise gives the impression that there was full support amongst Aboriginal women for women’s business, when the fact was that senior, knowledgeable Ngarrindjeri women who should have been consulted by Dr Fergie, but were not, would have denied it’s existence, as well as Doreen Kartinyeri’s asserted authority.”
The Fergie Report does not make the representations alleged. The report records disagreement amongst the women on the topic of disclosing restricted women’s knowledge in the presence of Dr Fergie, and to Professor Saunders and others. The report records that ultimately as a result of a vote the women were unanimous in their authorisation of Dr Kartinyeri to reveal restricted women’s knowledge to Professor Saunders. The report does not represent that there was full support amongst all Aboriginal women for “women’s business”. The report refers only to the Ngarrindjeri women at the meeting or with whom Dr Fergie otherwise consulted, and the report makes it clear that not all participants at the Graham’s Castle meetings possessed the same knowledge.
535 There was no dissent expressed to Dr Fergie by anyone at Graham’s Castle or in the later discussions with Ngarrindjeri women from either the information about restricted women’s knowledge discussed at Graham’s Castle or about the process which authorised Dr Kartinyeri to be the spokesperson. There was nothing said to Dr Fergie that should have put her on notice that further enquiry of the kind alleged should be made. Given the time constraints she was working under and the need to prioritise her work, even if she was under some degree of duty to check the information given to her by her informants, it is not apparent why in the circumstances the discharge of that duty would have required her to seek out other Ngarrindjeri people who were not at the meetings, beyond those who she did in fact speak with about the authorisation process.
536 The “senior, knowledgeable Ngarrindjeri women” who it is alleged Dr Fergie should have consulted are not identified. Presumably they were Mrs Laura Kartinyeri, Mrs Bertha Gollan and Mrs Dulcie Wilson. The evidence does not establish that Mrs Kartinyeri would have denied the existence of women’s business: see pars 371 and 454. Mrs Gollan had been invited to the meeting but declined to go as she was disinterested. In her evidence before this Court, she said that if Professor Saunders had contacted her to ask about women’s business she would not have told her anything. Presumably had an enquiry been made by Dr Fergie, she would have received a similar uninformative answer. Mrs Dulcie Wilson said in evidence that if she had been asked to attend the meeting she would have declined as Goolwa was too far from her home at Millicent, but had she been contacted by Professor Saunders she would have denied the existence of “women’s business”. However, this is an assertion made well after the event. Whilst I have no doubt that Mrs Wilson now holds that view, I am not satisfied that she would have expressed a similar view had she been asked in June 1994 before any controversy over the existence of restricted women’s knowledge had arisen, and before she had been exposed to the views of Mrs Dorothy Wilson. In June 1994 Mrs Dulcie Wilson was grieving over the recent death of her husband on whom she had been heavily dependent for information on cultural matters, and I think it is probable that had she been approached she would have either declined to discuss the issue, or would have provided a non-committal answer. The evidence does not show that any other senior Ngarrindjeri woman would, if asked in June 1994, have expressed a different view. In any event, the opinions contained within the Fergie Report regarding restricted women’s knowledge were honestly held by Dr Fergie and reasonably based upon the information which had been given to her by her informants who are identified by the report.
537 The allegations contained in pars 38(s) and 38(t) are set out at par 322 and in substance allege that the report erroneously represented that restricted women’s knowledge was a genuine Aboriginal tradition, and one subject to a tradition of secrecy known only by Ngarrindjeri women.
538 The Fergie Report does “convey the impression(s)” alleged in par 38(s) but in my opinion none of those representations has been proved to be wrong, misleading or deceptive. Moreover, the representations constitute expressions of opinion held by the author. I am satisfied those opinions were honestly held and reasonably based on the factual material described in the report.
539 I consider par 38(t) reflects a misunderstanding of the nature of the restriction on disclosure imposed by the alleged tradition.
540 The Fergie Report does not make any representation or statement about information in the “public domain” that may or may not have related to the Ngarrindjeri tradition the subject of the report. The Fergie Report makes no representation that fragments of information which might be part of the restricted women’s knowledge have not made their way into the public domain whether in an authorised or unauthorised manner. Once it is appreciated that the restricted women’s knowledge, like many other aspects of Aboriginal tradition is said to have graded layers of knowledge this allegation becomes untenable.
541 In my opinion the evidence fails to establish that the representations alleged, insofar as they are made by the Fergie Report, are misleading or deceptive or that their making constituted a want of reasonable care by Dr Fergie.
Professor Saunders – Particulars of misleading or deceptive conduct
542 The particulars of misleading or deceptive conduct against Professor Saunders are pleaded in par 41 of the statement of claim.
543 Paragraph 41(a) alleges that:
“The Saunders Report conveys the impression that a considerable number of women knew, and suggest that at least five women were custodians of, women’s business, and that it had been known to Doreen Kartinyeri’s daughters for some time, when in fact Professor Saunders knew all that to be incorrect because Doreen Kartinyeri told her at the 20 June meeting that she was the only person who knew about women’s business.”
The wrongful conduct alleged is said to lie in the fact that whilst the Saunders Report gives the impression that a number of women knew of the restricted women’s knowledge, the subject of the report, in fact Professor Saunders knew that only one person knew about it. The sections of the report said to give rise to the impression appear on pp 25 and 26. There is room to question whether the impression there given is that there were four rather than five custodians, but that is not to the point, which is that the report allegedly wrongly represents that more than one person had the knowledge when Dr Kartinyeri had otherwise informed Professor Saunders.
544 To establish this particular, the applicants rely upon the evidence of Dorothy Wilson. For reasons already given, I do not accept her evidence. The evidence of other people present at the Graham’s Castle meeting on 20 June 1994 satisfies me that the events that there occurred, followed by the behaviour of the Ngarrindjeri women at Sugar’s Beach provided ample justification for the impression conveyed by the Saunders Report that a number of people held the knowledge.
545 Paragraph 41(b) pleads:
“The Saunders Report (at pages 32 – 33) quoted a passage from the leading text relating to the Ngarrindjeri, The World That Was, by Ronald and Catherine Berndt, as evidence of women’s business, when in fact the passage in question related to the Ngurunderi dreaming, not to any women’s business, and when elsewhere in the book the Berndts had specifically suggested that there was no gender based secret-sacred domain in Ngarrindjeri tradition.”
The passage cited from The World That Was, is the introduction to Chapter 1 referred to at par 366 above where the authors said that it had been put to them that the Murray River was like a lifeline, an immense artery of a living “body” which body was symbolic of Ngurunderi himself. I have also commented that there is doubt whether the field notes of the authors justify the introduction, and at par 482 I have referred to other evidence which shows that this introduction cannot be accepted as a comprehensive statement about gender relationships with the land form of the area. Even if the report conveyed the representation that there was support in the anthropological literature for the existence of “women’s business”, the evidence fails to establish that such a representation is wrong.
546 Further, I think the particular alleged overstates the importance of the reference to this passage in The World That Was. The impugned quotation appears in the section of the report dealing with the significance of the area as a whole. At p 31, the report summarises the essential character of the knowledge which is part of the alleged tradition, namely that Ngarrindjeri women regard the Murray Mouth area in general and Hindmarsh and Mundoo Islands and the surrounding and separating waters in particular as crucial to the reproduction of the Ngarrindjeri people and their continued existence, and says:
“This tradition is not mythological but spiritual and an actual reflection of traditional practice, handed down from mother to daughter, drawn out of the landscape itself …”
547 At p 32, the report identifies one manifestation of the significance of the area, namely a concern about undue disturbance of Hindmarsh Island. I think on a reading of this section of the report, the statement that this manifestation exists is a statement of opinion formed by Professor Saunders upon three sources of information which she then describes in the remainder of the paragraph concerning the manifestation.
548 The next paragraph on p 32 expresses another opinion, namely that the observed reluctance of the women to impart the traditional knowledge to Professor Saunders was an indication of the importance of the information. Then follows the paragraph which contains the impugned passage from The World That Was. It commences, “In fact there are some indications of this tradition on the public record. Berndt and Berndt, for example, say that …”, and the passage from The World That Was is cited. Notwithstanding the introductory words “in fact”, I consider that this paragraph expresses yet another opinion as one of a number of opinions which in combination lead to the report’s conclusion about the significance of the area as a whole. The opinion is that there are “some indications” of the tradition on the public record, those indications appearing within the cited passage. Professor Saunders in her evidence says that she quoted the passage because in her view it demonstrates that the Ngarrindjeri people regarded the Murray area in terms of a physical body and to indicate that the significance in the geographical area as a whole, identified as a body, had previously been noted. In my opinion it was reasonably open to draw that conclusion from the passage, and to use the conclusion as providing some indication of a tradition which treated the geographical location as having an association with the human form.
549 As an expression of opinion that there is merely “some indication” provided by the passage from The World That Was, I am not persuaded that the opinion is misleading or deceptive. However, of more importance, even if the statement is to be construed as a representation that the quotation provides “evidence” of the tradition of women’s business, I do not think that the use made of that “evidence” caused Professor Saunders to reach an ultimate conclusion that she would not otherwise have reached about the significance of the area, or about the threat of injury or desecration expressed in the report. At the most the “evidence” was a piece among many pieces of information that Professor Saunders noted. The overwhelming reason for her conclusions was her acceptance of the veracity of the informants with whom she had contact during her visit to Adelaide. In my opinion it is clear from a reading of the report, as well as from the evidence of Professor Saunders, that her conclusions would have been exactly the same had she not treated the passage from The World That Was as “providing some indications” of the tradition.
550 Paragraph 41(c) alleges:
“The Saunders Report stated (at page 12), that the Berndts’ text had been “consulted”, and otherwise refers to the text at pages 17, 18, 19, 20, 32, 33, and 37 of the Saunders Report, thus suggesting that such text was entirely consistent with the Saunders Report, when it was not for the reasons in paragraph 38(d).”
The reasons alleged in par 38(d) are that the report failed to state that the Berndts had specifically suggested that there was no gender based secret-sacred domain in Ngarrindjeri tradition, and that in the Foreword to the book Professor Tonkinson had specifically canvassed such a feature of Ngarrindjeri culture: see par 480 and following. The passages from The World That Was relied on by the applicants do not justify the conclusion that The World That Was provides no evidence of gender based secret-sacred domains of knowledge in Ngarrindjeri tradition. In any event, I do not think that the Saunders Report conveys the representation alleged in par 41(c). Apart from the reference to The World That Was at pp 32 – 33 discussed above, the other references relate to historical facts about the Ngarrindjeri. They are not related to the topic of a gender based secret-sacred domain of knowledge and do not alone or together carry the implications suggested in the pleading. The citations are for the purpose of providing a source for background information, and not as a justification for the ultimate conclusions of the report. For this reason the same difficulties of causation exist as with the allegation in par 41(b).
551 Paragraph 41(d) alleges that the Saunders Report conveys the impression that Professor Saunders had little or no reservations about the adequacy of the evidence she received from her informants when in fact at the meeting on 20 June 1994 she was informed that only one person claimed to know the women’s business, and that she had indicated at the meeting that she would need more evidence of it. This allegation fails because I do not accept that Professor Saunders was informed that only one woman claimed to know the women’s business. Moreover, Professor Saunders’ statement that she would need more “information” about the tradition was made in a different context: see par 414.
552 Paragraph 41(e) alleges that the Saunders Report conveys the impression that Professor Saunders relied on the evidence of Mrs Sarah Milera when she was not a significant informant and when in fact Professor Saunders did not so regard her.
553 The representation alleged is made by the report. Professor Saunders refers to Mrs Milera on a number of occasions in her report citing, with apparent acceptance, statements made by her. Professor Saunders admits that to the extent apparent from the report she relied on Mrs Milera as a significant informant, and in respect of those matters there is no evidence to suggest that she wrongly reported what Mrs Milera said or that Professor Saunders did not accept the veracity of Mrs Milera as an informant.
554 The allegation that the representation is false is based on a note made by Mr Wooley. On 24 June 1994 Mr Wooley telephoned Professor Saunders saying that the Ngarrindjeri women were concerned that they needed another meeting with Professor Saunders to further explain the importance of the bridge corridor to the tradition. Mr Wooley’s note records that in the course of the conversation Professor Saunders asked “How is Sarah [Milera] going to help? She is not important. No, I didn’t mean not important but …”. Mr Wooley’s note goes on then to refer to him speaking of the spiritual aspect as relevant in the tradition.
555 The evidence about this conversation does not support the proposition upon which par 41(e) is postulated, namely that Professor Saunders did not treat Sarah Milera as helpful or reliable in any respect. I consider the proper interpretation of the remarks which Professor Saunders made to Mr Wooley is that she did not treat Sarah Milera as a custodian of the restricted women’s knowledge and in that respect she was not important. The report does not record Mrs Milera as an informant on that knowledge. Whilst the report does convey the representation alleged, the particular leads nowhere.
556 Paragraph 41(f) alleges:
“The Fergie Report states that Sarah Milera was a significant informant to Professor Saunders, when she was not, but Professor Saunders failed to correct that statement when forwarding the Fergie Report to the Minister.”
The Fergie Report actually states at p 10:
“Sarah Milera was also a significant informant in the preparation of this report and to Professor Saunders. She did not learn the women’s secret tradition until recently.”
The evidence establishes that Mrs Milera was a significant informant to Professor Saunders. I do not think that the statement in the Fergie Report required correction, and on that basis the allegation fails as a particular of misleading or deceptive conduct. In any event, the allegation faces an insurmountable causation problem as it is not proved that Mr Tickner read the Fergie Report, let alone relied on the statement in it that Sarah Milera was a significant informant to Professor Saunders.
557 Paragraph 41(g) alleges that the Saunders Report is misleading because it states that Sarah Milera was “a custodian of the law of the land” when she was not. The statement in the report is that “Sarah perceives herself and is accepted by others as a custodian of the law of the land”. In this statement Professor Saunders expresses two opinions, namely her opinions as to how Sarah perceives herself, and as to how she is accepted by others. It is evident from reading the report that these opinions are based on what Professor Saunders saw and heard in her interaction with the Ngarrindjeri women on 20 June 1994. As statements of opinion it is not established either that the opinions were not honestly held, or that there was no reasonable basis for them.
558 Again, the applicants would in any event, confront a causation problem. It is not stated by the report that Mrs Milera was a custodian of the restricted women’s knowledge which is central to the ultimate conclusions expressed in the report. The evidence does not establish that Mr Tickner relied on this statement to make a declaration that he would not otherwise have made.
559 Paragraph 41(h) pleads that:
“The Saunders Report stated that Mr S Jacobs QC had identified women’s business in early 1994 but he had not.”
This allegation is based on a statement at p 31 of the Saunders Report which deals with the significance of the area as a whole, namely:
“The final aspect of significance of the area, identified also by Mr S Jacobs in his report to the current government as potentially the most serious, involves the secret knowledge of women.”
On behalf of Professor Saunders it is submitted that this statement in her report is not properly to be characterised as a representation that Mr Jacobs had “identified women’s business” but as a representation that he had identified the final aspect of significance on which Professor Saunders was reporting. On this construction of the statement, it is not misleading or deceptive because Mr Jacobs did identify the area as significant to the whole of the Ngarrindjeri people. He said it had been reported to him that the bridge would constitute an unacceptable affront to the spiritual identity which the Aboriginal community has with the land of its forebears. He reported that there is some evidence to suggest that this was the most serious of the Aboriginal objections.
560 Professor Saunders gave evidence that she intended the impugned statement to convey that Mr Jacobs had identified the final aspect of significance, to which she was referring, as potentially the most serious. If the first comma had been omitted from the statement it would, perhaps, more readily have conveyed the intended meaning. As it is, at least at first sight I think it does convey to the reader that Mr Jacobs identified secret women’s knowledge as potentially the most serious of the objections. So understood, the statement is misleading.
561 However, that conclusion does not assist the applicants because there is clear evidence that the misstatement that Mr Jacobs identified secret women’s knowledge was brought to the attention of Mr Tickner before he made his decision. Mr Tickner had before him when he considered the Saunders Report a letter from the State Minister for Aboriginal Affairs advising him that there was a significant factual error in this statement in the Saunders Report, and that Mr Jacobs did not identify “secret women’s knowledge”. Mr Tickner also had before him at that time the text of par 25 of Mr Jacobs’ report which set out Mr Jacobs actual findings. There are marks on the copy which Mr Tickner had before him which indicate that he read this section of the report, and he said in evidence that he recollects the State Minister’s letter. At this time he is unable to say what his state of mind was in relation to the impugned statement when he made his decision. However, I think the probability is that he would have placed no weight on it in light of the State Minister’s correction, and his knowledge of Mr Jacobs’ findings. It is sufficient to find that the applicants have not proved that the statement had any causative effect on the making of the s 10 declaration. I make that finding.
562 Paragraph 41(i) alleges that Professor Saunders forwarded both the Saunders and the Fergie Reports to the Minister but failed to correct, in the Saunders Report or otherwise, matters stated and impressions given by the Fergie Report which are said to be misrepresentations.
563 Professor Saunders was obliged to forward the Fergie Report to the Minister as it formed part of a representation which she had received in carrying out the process required by s 10 of the HPA. I have held that the misrepresentations alleged in the Fergie Report are not made out as a matter of fact, but, as Professor Saunders points out in her evidence, many of the alleged misrepresentations relate to events which Dr Fergie reports at which Professor Saunders was not herself present, and would have no knowledge as to whether the report was right or wrong. Several of the alleged misrepresentations in the Fergie Report relate to the issue of consultation with the Ngarrindjeri people. On that matter Professor Saunders did have information but that information had led her to an opinion which coincided with that expressed in the Fergie Report and for that reason called for no correction. The issue of consultation is also dealt with in the next following particulars. Apart from these reasons, par 41(i) also fails on causation grounds as I am not satisfied that the Minister read the Fergie Report or took it into account in making his decision.
564 Paragraphs 41(j), (k), (l) and (m) all relate to the issue of consultation. They allege:
“(j) The Saunders Report suggested that Aboriginal women had been completely omitted from the consultative process for the planning approval but failed to state that Binalong had consulted Jean Rankine, a senior Ngarrindjeri woman, and that women were represented on three Ngarrindjeri organisations consulted.
(k) The Saunders Report refers to ‘apparent inadequacies in consultation with the Aboriginal people at an earlier stage’ but failed to recount the details of consultation for the planning approval provided to Professor Saunders by the first and second Applicants.
(l) The Saunders Report refers to an argument that Ngarrindjeri women were not involved ‘in the Aboriginal organisations that might have had some earlier knowledge of the [bridge] proposal and then adopts the argument in referring to the ‘omission of women from consultative processes’, when the fact is that there were women members of the Ngarrindjeri Tendi and the Point McLeay Community Council and the Ngarrindjeri Lands and Progress Association when those organisations received information, and were consulted, about the bridge proposal.
(m) The Saunders Report stated that Aboriginal women ‘were not involved in the earlier [1993] discussions about the [s 10] application’ when in fact Sarah Milera was so involved.”
I have already discussed the consultation issue at par 504 and following. The complaint in par 41(j) concerns the failure to mention Mrs Jean Rankine. However, she was only consulted on two occasions with her husband in 1989, and as earlier noted, the information gathered by Professor Saunders suggested that the Hindmarsh Island bridge was not the topic of conversation at the meetings. Whilst I have found, at pars 338 - 339 that before 1993 some Ngarrindjeri people, including Mrs Rankine, probably knew of the bridge, the information upon which I base that finding was not before Professor Saunders. The only information that Professor Saunders had was particulars of the membership of the several Ngarrindjeri organisations which included a few women. That falls short of proving that Aboriginal women were consulted and fails altogether to prove that those who were identified to Professor Saunders as custodians would probably have received the information as a result of the limited consultation process with others. As I have already pointed out, the striking features about the consultation process are that Mr Lucas consulted only with men, and that in 1990, after the dates of the consultations with Mr and Mrs Rankine which the applicants’ case endlessly emphasises, Mr Lucas recommended that developers should consult directly with the relevant Aboriginal bodies and with any other Aboriginal persons chosen by those bodies, with the expense of the consultation in respect of time and travel on the part of the Aboriginal representatives being borne by the developers. That recommendation became a term of the EIS Assessment Report recommendation, and also a term of the planning approval granted on 12 April 1990. Binalong never engaged in that consultation. The fact that the Saunders Report did not mention possible consultation with Mrs Rankine is in the overall picture about consultation of no real significance.
565 The Saunders Report at pp 33 – 34 says:
“Consultation and communication about the proposal for the bridge and the basis of the objections to it lie at the heart of the dispute. Proponents of the bridge, including the Chapman family, the Receivers and Managers, the Council and the State Government argue that all legal conditions were complied with; representatives of the Aboriginal people were consulted at strategic points; that Aboriginal concerns in any event emerged at a late stage in the dispute, when all other objections had failed, raising questions about their bona fides; and that the concerns of Aboriginal women were raised later still. They point to the compliance of the development project with all planning requirements. They note also successive oral and written approvals by State authorities for the project to proceed, which either fail to raise, or deny, any Aboriginal concerns.
The Aboriginals, for their part, argue that any discussions that took place were neither representative nor in accordance with Aboriginal tradition; dispute the interpretation of them by Binalong Pty Ltd; deny that they clearly involved the bridge proposal; and state that the Aboriginal people wished to deal directly with the developers, not through intermediaries such as Dr Lucas. They note also that Ngarrindjeri women were not involved until late in the process in the Aboriginal organisations that might have had some earlier knowledge of the proposal and therefore were not aware of any discussions that had taken place until late March 1994.
These misunderstandings in the consultation process and consequent conflict are a recurrent issue in section 10 reports. They reflect cultural misunderstandings on both sides. In addition, however, they have been exacerbated by particular features of the Hindmarsh Island issue.”
These paragraphs are a balanced, careful assessment of the competing arguments which the Saunders Report succinctly puts before Mr Tickner. Had there been a further notation that the Chapmans allege two meetings at which Mrs Rankine was present in 1989 when the bridge proposal was discussed, with or without a further qualification by Professor Saunders that the information she obtained suggested that the discussion concerned the Wellington Marina, not the bridge, such additional information would add nothing which was not already conveyed by the above passages. The statement that the proponents of the bridge assert that “the Aboriginal people were consulted at all strategic points” suggests a greater degree of consultation in the planning process than that which the evidence of Mr and Mrs Chapman supports.
566 Paragraph 41(m) is apparently based on the concluding sentence in the following paragraph of the Saunders Report at pp 36 – 37:
“Representations to me from Tom and Wendy Chapman show that the next direct contact with Aboriginal representatives over the development did not take place until November 1993 when representatives of the LMAHC visited the Marina site. This visit in fact was followed by a further letter from the Department of State Aboriginal Affairs withdrawing any objections to the Bridge construction. It should be noted, however, that the Aboriginal women still had not been involved at this stage.”
As a matter of fact, Mrs Milera was present at that inspection. However, she is not one of the women identified by the Saunders Report as a custodian of the restricted women’s knowledge and is not one of “the Aboriginal women” to which the impugned sentence relates. Upon a proper reading, that sentence does not convey the misrepresentation alleged.
567 I consider the allegations relating to the issue of consultation are not made out.
568 Paragraph 41(n) pleads:
“On 20 June 1994 the Applicants by their solicitors wrote to Professor Saunders and objected to a proposed course of conduct where Dr Fergie would assist Professor Saunders with her inquiries and/or sit in on her consultations with Aboriginals, and at a subsequent meeting on the 22 June 1994 Professor Saunders advised the Applicants that she would conduct herself generally in accordance with their request, but on the very same day Professor Saunders consulted Dr Fergie by telephone for about 2 hours, and she received the Fergie report, derived assistance from it, and extensively based the Saunders Report on it, and without informing the Applicants at any time that these things were happening.”
As noted at par 179, this is the only particular of misleading or deceptive conduct that does not relate to an alleged misrepresentation conveyed by the Saunders Report. Paragraph 52 of the statement of claim alleges that the Minister was induced by misleading or deceptive conduct of Professor Saunders to make the s 10 declaration. It is not apparent from par 41(n) how Mr Tickner could have been misled or deceived. On the pleading, if anyone was misled or deceived, it was Mr and Mrs Chapman, and that is not the case which is pleaded against the respondents.
569 The applicants’ case that Professor Saunders and Dr Fergie conferred by telephone for about two hours on 22 June 1994 rests on a very brief note in Dr Fergie’s diary for that day. Both she and Professor Saunders deny that there was any material discussion between them, although it is conceded that there was a short telephone communication to cancel a dinner appointment that had been earlier arranged because it was then thought inappropriate that they should meet.
570 Apart from the diary entry I have no reason to question or reject the evidence of Professor Saunders and Dr Fergie. I assessed each of them as witnesses of the truth. Dr Fergie’s diary entry for the day reads:
| Week 25 June 1994 |
| Wednesday 22 Ember Day
CS going through Museum.
Morning tea Doreen @ home. 11 Museum Café.
pm Berndt & Berndt in Library. Tim Wooly 10.30 – 12.30.
pm 7 – 8.53 phone CS.
2½ Full Day |
571 The entries have been made in at least two different pens. One inference arising from the note is that the entries, shown in heavy type above, were made in advance of the events as reminders, and that the other entries were made after the event to record what happened during the day, and partly as a note to support the preparation of a memorandum of charges. The entry relied upon by the applicants is that in the penultimate line.
572 The evidence of Mr Wooley is that he was in frequent contact with Dr Fergie on and about 22 June 1994. The entry on the third to last line is indicative of a two hour conference with Mr Wooley that morning, and one interpretation is that the commencement of the next line is a continuation of the same note relating to another conference of about two hours with Mr Wooley that evening. Such a possibility emerges from the evidence of Mr Wooley.
573 I am unable to draw any useful conclusion from the diary note. I act on the oral evidence of Professor Saunders and Dr Fergie and find that the allegation that the two conferred as alleged is not established.
574 Insofar as it is alleged that Professor Saunders derived assistance from the Fergie Report, Professor Saunders says as much at p 12 of the Saunders Report where she identifies a number of sources from which she gained assistance. She was obliged by statute to receive the Fergie Report, and to consider it. It was in accordance with her statutory function that she should use that and any other representation that she thought fit in the preparation of her report. She has done so in a number of respects, including making reference to representations from Binalong, the Chapman family and Westpac/PPL in the section of the report which deals with the effects which the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal applicants.
575 Professor Saunders has given evidence that she referred to the Fergie Report for the purpose of articulating the public disclosure of the restricted women’s knowledge given to her by her informants in a way that was culturally appropriate and in doing so she adopted descriptions of the restricted women’s knowledge which Dr Fergie had formulated as appropriate to be included in the open section of her report. Professor Saunders said that the descriptions accurately reflected her understanding of the information she had been given at Graham’s Castle, and by Dr Kartinyeri. It seems probable that the words “reproduction” and “sterility” were not used by any of the Ngarrindjeri women but were Dr Fergie’s interpretation of what was being revealed to her. That Professor Saunders adopted the same descriptions does not mean that her report was based on the Fergie Report. On Professor Saunders’ evidence her report was based on what she was told directly at Graham’s Castle and later by Dr Kartinyeri. She also drew on some parts of the Fergie Report that recorded information (and the source of the information) received by Dr Fergie.
576 The evidence does not support the assertion that Professor Saunders “extensively based” her report on the Fergie Report if that is intended to mean that the opinions expressed by Dr Fergie influenced the ultimate conclusions expressed in the Saunders Report, or caused Professor Saunders to reach conclusions that she would not otherwise have reached. Professor Saunders was adamant in her evidence that she formed her own independent opinion about the veracity of the Ngarrindjeri informants with whom she spoke, and about the substance and significance of the knowledge they imparted to her. I do not doubt that evidence. The information in the Fergie Report “conformed” with the information that Professor Saunders received directly from the informants, and to that extent may have provided an element of comfort, but it did not alter the opinions which Professor Saunders had herself formed before she received the Fergie Report.
577 Paragraph 41(n) insofar as it alleges misleading or deceptive conduct by Professor Saunders is not made out as a matter of fact, but in any event, as I have noted, it is not material to the case based on a breach of the statutory prohibition against misleading and deceptive conduct. Insofar as it is also relied on as a particular of negligence, there is no evidence to show that Mr and Mrs Chapman or Binalong would have acted differently had they been informed of the facts alleged (assuming they were true), so the plea would also fail for the lack of established causation.
578 Paragraph 41(o) alleges that the Saunders Report in a number of respects refers to the Lucas Report, and that Professor Saunders’ notes that she derived anthropological assistance from it, yet the Saunders Report fails to state or deal with the statements in the Lucas Report which are set out earlier in these reasons at par 29 and gives the impression that the Lucas Report supported or was consistent with statements in the Saunders Report. The thrust of the cross-examination of Professor Saunders on this particular was that she failed to state in her report that the restricted women’s knowledge was “new” and was inconsistent with the findings of the Lucas Report.
579 Professor Saunders’ position is that her references to the Lucas Report do not give rise to the impression alleged. Insofar as assistance has been gained from the Lucas Report, the Saunders Report indicates where that has occurred with appropriate attribution. I agree that the Saunders Report read as a whole does not convey the representations alleged in par 41(o). Indeed, at pp 34 – 35, the report, in citing the passage from the Fergie Report at pp 15 and 16 says:
“It seems clear that women’s secret-sacred knowledge relevant to this case was not known by those involved in earlier evaluative work.”
The Saunders Report at p 11 indicates that the earlier evaluative work includes that of Mr Lucas. These statements draw to the reader’s attention that the restricted women’s knowledge was not identified by Mr Lucas in his research.
580 Paragraph 41(p) alleges that the Saunders Report erroneously described the meeting on 20 June 1994 as a “large representative group of Ngarrindjeri women”, and that Professor Saunders made no investigation as to whether it was representative or not.
581 Professor Saunders understood the women at Graham’s Castle had constituted themselves to provide a representation to her. She believed the group was representative and had no reason to think otherwise. The women introduced themselves individually at the start of the meeting and Professor Saunders became aware that they came from different parts of the Murray area, and were of different ages. She considered the group to be a large one. In my opinion there was a reasonable basis for her to form the opinion that the group was representative and plainly her statement to that effect is one of opinion. There is nothing in the Fergie Report which should have caused her to question the representativeness of the group.
582 As a matter of evidence before this Court, the applicants have not established that the group was not representative. Three of the applicants’ witnesses, including Mrs Bertha Gollan, thought that it was and there was general agreement that the group included a number of knowledgeable women who were by reason either of age or knowledge considered as elders. See also par 491 above.
583 Paragraph 41(q) alleges that the Saunders Report misrepresented that the claimed tradition was one of some antiquity, and that Professor Saunders had investigated its antiquity when there was no proper basis for such representations. The evidence shows that Professor Saunders did make enquiries about the antiquity of the tradition, and was supplied information that in the case of Dr Kartinyeri it had been handed down to her by Auntie Rose. On the information she was given, the tradition had a degree of antiquity and met the “Aboriginal tradition” requirement of the HPA: see par 275. I accept that the Saunders Report does represent that the tradition did have a degree of antiquity but that opinion was soundly based upon the information available to Professor Saunders, which she was satisfied was credible and should be believed. The Saunders Report does not therefore convey a misrepresentation, and it does not reflect a want of due care.
584 Paragraph 41(r) pleads that the Saunders Report misrepresented that there was unanimity of the Aboriginal people opposed to the bridge on Aboriginal heritage grounds, and that there was general support for the existence of the women’s knowledge recounted by Dr Kartinyeri, when in fact there were senior knowledgeable Ngarrindjeri women who, if consulted, would have denied its existence as well as Dr Kartinyeri’s authority. A similar allegation has already been considered in relation to the particular in par 38(r) pleaded against Dr Fergie and for reasons there given I am not satisfied that if Professor Saunders had more widely consulted than she did that she would have learned of opposition of the kind which emerged months later. It is of note that Professor Saunders made contact with Amelia Campbell whose absence from the Graham’s Castle meeting on 20 June 1994 the applicants contend is significant. Ms Campbell informed Professor Saunders that there was both men’s and women’s business on Hindmarsh Island, and that both she and her brother opposed the construction of the bridge (Saunders Report p 14).
585 That apart, I agree with the submissions made on Professor Saunders’ behalf that this particular reflects a fundamental misconception as to the duties of the reporter. The reporter’s duty was to advertise for and receive representations. This occurred. The reporter was not obliged to meet with the Aboriginal applicants for a s 10 declaration, but she did so and no dissent was expressed to her with respect to Dr Kartinyeri’s authority. Professor Saunders was led to believe that there were a number of people who held the information, and she was informed of practices that were said to be manifestations of the belief in the presence of the assembled women on 20 June 1994, and no dissent occurred. Even Mrs Dorothy Wilson who now says that she was a disbeliever at the time voted in favour of Dr Kartinyeri revealing information to Professor Saunders. The opinions as to unanimity expressed by Professor Saunders in her report were reasonably based on the information that she gathered in the fulfilment of her statutory duty. Her statutory duty did not require her to make more extensive enquiries than she did.
586 Paragraph 41(s) in substance corresponds with par 38(s) of the statement of claim pleaded against Dr Fergie, set out at par 322 above. The Saunders Report does convey the impression that the claimed women’s business was a genuine Ngarrindjeri tradition which satisfied the definitions of “Aboriginal tradition” and “particular significance” within the meaning of the HPA. However, for reasons earlier given I am not satisfied that this representation, being an opinion, was not soundly based on information available to Professor Saunders or that as a matter of fact it has been established to be wrong.
587 Paragraph 41(t) in substance also corresponds with par 38(t) of the statement of claim pleaded against Dr Fergie, see pars 539 - 540 and for similar reasons fails.
588 Professor Saunders in evidence said that she formed the opinion that the reference to some disjointed parts of the tradition in representations (which included Mr Rocky Marshall’s letter) did not undermine or give reason to doubt the veracity and sincerity of the restricted women’s knowledge as conveyed to her by Dr Kartinyeri, and of the accounts of manifestations of that knowledge given in the meeting with the women at Graham’s Castle on 20 June 1994. I consider this opinion was one reasonably open to Professor Saunders. Having formed that opinion, it was not material to her conclusions to refer to the fact that some aspects of the restricted women’s knowledge may have found their way into the public domain.
Professor Saunders – Particulars of negligence
589 Particulars of the acts and omissions by Professor Saunders said to constitute negligent breaches of duty are pleaded in par 48 of the statement of claim. Paragraphs 48(a) and (b) plead that Professor Saunders was negligent for the reasons pleaded in par 41, and in making the statements there referred to. Those particulars are referred to above and in my opinion none of them would constitute a breach of a duty of care which caused damage of the kind alleged.
590 Paragraph 48(c) alleges that Professor Saunders failed to properly question and report on why Dr Kartinyeri had not come forward earlier than March 1994 with her objection to the bridge. I accept Professor Saunders’ evidence that she did question Dr Kartinyeri on this topic. She was informed Dr Kartinyeri had been ill. She treated the answer as satisfactory. She had no reason to doubt the answer.
591 Paragraph 48(d) makes an allegation of a failure to make any or sufficient enquiry of the South Australian Museum, the pleadings say “despite the fact that she went there on 22, and 24 June 1994 and despite the fact that the Museum had experts with significant knowledge of the Ngarrindjeri and a significant body of available material relating to Ngarrindjeri culture …”.
592 There is no evidence that Professor Saunders visited the Museum on 24 June 1994. She did attend on 22 June 1994, but for the purpose of meeting with and interviewing Dr Kartinyeri.
593 On Professor Saunders’ behalf it is contended that this is an extraordinary allegation bearing in mind the nature of the duties imposed on Professor Saunders by s 10 of the HPA. It is contended that she was not required to undertake investigation of this sort. Her duty was to publish the notice required by s 10, to receive representations and to assess them. She was not required to embark upon a wide-ranging self directed investigation. In general, I think this submission is correct, although if information received left the reporter in doubt, or the reporter thought that there was a need to follow up some line of enquiry, then investigation may be necessary. However, in this case, the evidence does not suggest that Professor Saunders was on notice that it was necessary to go further than she did to be satisfied that the information she had received was credible and worthy of acceptance.
594 Even if there were an obligation to make enquiries at the Museum, mere proof of a failure to do so could not establish liability and negligence. The possible outcomes of such an enquiry are discussed in relation to similar allegations against Dr Fergie in par 38(i): see par 493. That discussion applies equally to the possible outcome of an enquiry by Professor Saunders.
595 Paragraph 48(e) alleges failure by Professor Saunders to appoint an independent anthropologist to assist her investigations. I agree with the submissions made on Professor Saunders’ behalf that no breach of a duty of care would arise through her failure to appoint an anthropologist. The HPA did not require the appointment of one. On the contrary, the HPA assumes that the reporter will be a person appropriately qualified to gather the information that is necessary to deal with the matters prescribed in s 10(4).
596 The function of ascertaining whether beliefs are genuinely held, and whether a particular activity will be in conflict with a belief is something to which people with legal training are suited.
597 Moreover, Professor Saunders made a deliberate decision not to ask the Minister for the resources necessary to enable her to appoint an anthropologist. She considered that she would perform her task more efficiently and effectively by direct communication. If she owed a general duty of care to the applicants, I do not think that she was negligent in making this decision. At the end of the day she felt that she was in some respects advantaged by this decision but noted that she may also have been advantaged had she had the assistance of an anthropologist to help her put the information gathered into context. However, that observation of wisdom after the event is not indicative of a lack of care.
598 In any event, the evidence does not establish that Professor Saunders or the Minister were disabled from performing their respective functions under the HPA because an anthropologist was not appointed to assist Professor Saunders. On the contrary, Dr Fergie’s involvement did not enable her to better explain the reason why the bridge would constitute the injury or desecration asserted than Professor Saunders was able to do, and the evidence does not suggest any reason to think that the appointment of another anthropologist would have altered that situation.
599 The central purpose and responsibility of the reporter is to gather information and form an opinion about the existence of Aboriginal tradition the substance of which renders an area of particular significance to Aboriginals, and about the nature and extent of the threat of injury to, or desecration of, the area. This duty does not require the reporter to pursue in detail an understanding of the inner concepts of the tradition which might give an enlightened understanding of the reason why a proposed use or treatment of the land will be inconsistent with Aboriginal tradition or will adversely affect Aboriginal tradition: see pars 390 – 399 above.
600 Paragraph 48(f) alleges that Professor Saunders was negligent in using the Fergie Report, and/or discussing the issues at length with Dr Fergie despite being requested by the applicants not to do so, and without obtaining comment on the same from the applicants. This particular substantially repeats the thrust of the complaint pleaded in par 41(n) of the statement of claim, and fails for the same reason: see par 568 and following. Professor Saunders was obliged by statute to seek and receive representations. The HPA does not require that representations by one person be made known to another who has expressed an opposing interest in another representation. The use which was made of the Fergie Report was entirely consistent with the statutory requirement to receive and consider the representations.
601 Paragraph 48(fa) alleges Professor Saunders was negligent because she used the Fergie Report and submitted it to the Minister as the sole available anthropological report relating to women’s business when she knew or ought to have known that it contained the misstatements referred to in par 41(i) of the statement of claim. That paragraph is dealt with above. Professor Saunders relied on the information which she had gathered herself, and her own assessment of it to reach her opinions, not Dr Fergie’s opinions. Moreover, Professor Saunders was obliged to receive the Fergie Report, and to forward it to the Minister. The evidence does not establish knowledge by Professor Saunders of misstatements in the Fergie Report. Further, it is not correct to assert that the Fergie Report was passed to the Minister on the basis that it was the sole available anthropological report. The Saunders Report refers to the fact that a report was obtained by Mr and Mrs Chapman from Dr Warrell to which reference is made on p 13 of the Saunders Report and Professor Saunders comments on Dr Warrell’s opinion at p 42. In any event, I am not satisfied that Mr Tickner read the Fergie Report before making his decision.
602 Paragraph 48(g) pleads that Professor Saunders failed to give the applicants a proper opportunity to respond to the Saunders Report and/or the Fergie Report. The particular implies that Professor Saunders was under an obligation to release the ALRM submission to which the Fergie Report was attached, and a draft of her own report to the applicants before submitting them to Mr Tickner. There is no express requirement to do so in s 10 of the HPA nor, in my opinion, does the section imply that such steps are contemplated. Insofar as this particular alleges a failure to accord procedural fairness, see the discussion on par 48(q) of the statement of claim below at par 616 and following.
603 Paragraph 48(h) alleges that Professor Saunders failed to seek to consult sufficient Ngarrindjeri women and/or failed to ensure that the 20 June 1994 meeting was properly representative of Ngarrindjeri women. In my opinion there is no substance in this particular for the reason given at pars 489 – 492 and 536.
604 Paragraph 48(i) alleges Professor Saunders failed to properly question and report as to why a bridge desecrated women’s business. For the reasons given at par 275, I do not consider that Professor Saunders was required to explain why a bridge would desecrate restricted women’s knowledge in a manner that would be understandable to, and shared by, the non-Aboriginal mind. In any event, I do not think the evidence supports the allegation that Professor Saunders did not properly explore the question why. Her report indicates that she explored this question at some length and with a number of people as both she and her informants were having difficulty in explaining the reason why in terms which made sense to a non-Aboriginal person. Professor Saunders recognised this difficulty, and reported on the contentions of the bridge proponents that the assertion of injury or desecration was inconsistent with other linkages that already existed between Hindmarsh Island and the mainland constituted by the barrages and ferry cable. That the Saunders Report does not articulate sufficient details of the reason why to dispel the cynicism of the bridge proponents does not constitute proof of inadequate questioning.
605 Paragraph 48(j) alleges that Professor Saunders published a notice that did not comply with s 10(3) of the HPA. I have already discussed this complaint at par 271. The notice was drafted for Professor Saunders by ATSIC who had experience in claims of this kind. Professor Saunders assumed ATSIC would be familiar with the requirements of the HPA. I think she was entitled to place weight on ATSIC’s experience, but that did not relieve her altogether from addressing the question. She settled the notice, and was satisfied that it fulfilled the purposes of the section. Without the enlightenment provided by the ADJR litigation was this a reasonable view of the legislation at the time? In Rowling v Takaro Properties Ltd [1988] 1 AC 473 at 502 Lord Keith, delivering the judgment of the Privy Council observed in relation to the misconstruction of a statute which led to an administrative decision being held to be void:
“… in the nature of things, it is likely to be very rare indeed that an error of law of this kind by a minister or other public authority can properly be characterised as negligent. As is well known, anybody, even a judge, can be capable of misconstruing a statute; and such misconstruction, when it occurs, can be severely criticised without attracting the epithet ‘negligent’. Obviously, this simple fact points rather to the extreme unlikelihood of a breach of duty being established in these cases …”
In the present case, I have come to the view that Professor Saunders was not guilty of a want of care over the notice and in not realising that the form of notice restricted the ambit of the Minister’s power to the extent held in the ADJR litigation. However, even if there were a duty of care, and a want of care, in my opinion the evidence falls short of establishing that, had a valid notice been published, the outcome would have been any different. On this question of causation, see par 688 below.
606 Paragraphs 48(k), (l) and (m) also plead allegations based on the inadequacy of the notice. The observations made in relation to par 48(j) apply equally to these paragraphs.
607 Paragraph 48(n) pleads that Professor Saunders improperly exercised power to make a recommendation in relation to, and to report on, women’s business when she had not been “appointed” to report relating to women’s business. This raises a similar complaint to that addressed in relation to the notice. However, in the case of a nomination under s 10(1)(c) of the HPA there is no formality required by the Act as to the manner of nomination or the identification of the purpose of the application made under s 10(1)(a). In this case a formal instrument of appointment was issued: see par 83 above. The instrument is silent as to the purpose of the application, and I do not think that it should be construed as limiting the tradition which the reporter was entitled to take into account. The instrument does in general terms specify a broad geographical area which, as Professor Saunders noted in her report, amply covered the bridge corridor, and indeed a much wider area. In my opinion the terms of the instrument adequately identified the task which Professor Saunders was nominated to perform, and did not in jurisdictional terms limit the power of the reporter strictly to the two sites specified in the ALRM’s letter of 23 December 1993. In this regard it is of note that the instrument, whilst referring to that letter as the application (although more correctly it was the initiation of a series of communications which constituted the application), it does not copy the language of the letter in describing the location in respect of which protection is sought. In its terms the instrument reflects the fact that more detail of the claim had emerged since the letter of 23 December 1993 which made it appropriate to be non-specific about the area. Whilst the ADJR litigation holds that the notice published under s 10(3)(a) must be sufficiently precise to identify the area in respect of which representations are sought, that same requirement is not a necessary condition of the nomination of a reporter. In my opinion no error of law on the part of Professor Saunders as alleged in par 48(n) is established.
608 Paragraph 48(o) in substance raises the same issues as pars 48(j) and (n) and requires no further comment.
609 Paragraph 48(p) pleads that Professor Saunders made comment in her report on the issue of consultation with women in the planning process without properly investigating the extent of the consultation. The question of consultation has already been discussed in relation to pars 38(n) to (q) and 41(j) to (m) at par 504 and following and par 564 and following. Further, the issue of consultation was discussed by Professor Saunders with officers of DOSAA, Mr Rathman and Dr Draper. Professor Saunders’ understanding of the information she was given by them led her to believe that Mr Rathman in his capacity as CEO of DOSAA acknowledged deficiency in the consultation process, hence the statement in her report at p 35 that “the omission of women from consultative processes is a problem to be rectified as a matter of urgency and this has been acknowledged by [the CEO]”. Mr Rathman has given evidence that this does not accurately report his conversation with Professor Saunders insofar as it related to consultation in the planning process for the bridge. Mr Rathman says that he intended his remarks to refer to the future generally, rather than to the past about the bridge, but he acknowledges that there was room for misunderstanding. It is of note that Mr Rathman had earlier endorsed a position paper prepared by Dr Draper (by sending a copy of it to Mr Victor Wilson, the chairperson of the LMAHC, on 29 March 1994) that made criticism of the consultation processes. That briefing paper was not directed specifically to consultation with women but in it appears the statement that:
“At the same time [i.e. as the 1989 Edmonds Report] consultant anthropologist R Lucas undertook a study of the cultural and historical significance of Hindmarsh Island and the Goolwa foreshore to the Aboriginal people. In hindsight, it is perhaps unfortunate that these two studies were conducted separately, and that they did not have wider briefs, and that more comprehensive Aboriginal consultation did not occur – but they were limited by the extent of the Planning requirements placed on Binalong for the conduct of the EIS, and by the fact that the SA Aboriginal Heritage Act only came into effect in March 1989 (and more effective regional Aboriginal consultation processes were instituted).”
The briefing paper also makes unfavourable comment upon the consultation that occurred with the LMAHC in relation to the 1992 bridge planning application.
610 On 28 October 1993 Mr Rathman had also signed a minute to the State Minister of Aboriginal Affairs saying, in relation to the Hindmarsh Island Bridge:
“However, the broader issue remains, of the lack of cultural and environmental impact assessment or Aboriginal consultation concerning the effect on the island of the increased traffic, demand for residential and commercial land development, etc, likely to result from the construction of the bridge.”
611 In light of these comments it is not unlikely that Mr Rathman was again critical of the past consultation process when he spoke with Professor Saunders. I accept Professor Saunders’ evidence that Mr Rathman was critical of the consultation process that had occurred over the bridge when he spoke with her.
612 Paragraph 48(pa) pleads that Professor Saunders made comments and expressed opinions in the Saunders Report of an anthropological nature when she was not qualified to do so, or alternatively that she failed to warn the Minister that the comments were outside her expertise, and par 48(pb) pleads that she failed to advise the Minister that an independent anthropologist ought to be appointed to assist her.
613 Mr Tickner was well aware of the professional qualifications of Professor Saunders and no warning in that regard was required. The report spoke for itself and Mr Tickner was astute enough not to be misled in the manner implied by par 48(pa). On the need to appoint an independent anthropologist I have already commented in relation to par 48(e) above. In short, the HPA does not require the reporter to undertake an anthropological assessment or investigation. The statutory functions are different.
614 Paragraph 48(pc) pleads that Professor Saunders failed to properly investigate the claims made to her in not obtaining relevant information from Mr Jacobs, in failing to obtain details of the claims made to him in relation to Aboriginal heritage, and in not investigating why the claims made to him were different to other claims including those made to her.
615 Professor Saunders had been given sections of the Jacobs Report by Ministers of the State, including par 25 which dealt with claims made by the Aboriginal community, including claims by Messrs Milera and George Trevorrow. Professor Saunders also spoke briefly by telephone with Mr Jacobs. She was aware that his Aboriginal informants who had expressed a fundamental objection to the bridge were men. She considered that it was unlikely that either Mr Jacobs or his informants would have received any information relating to restricted women’s knowledge and an enquiry on that topic was both pointless and inappropriate. Mr Jacobs has given evidence before this Court. His evidence does not suggest that he was in possession of information beyond that which was known to Professor Saunders from reading his report which would have any bearing on the conclusions reached by Professor Saunders. Insofar as the allegation alleges a failure to properly investigate by obtaining other information from Mr Jacobs, and in failing to obtain details of the claims made to him in relation to Aboriginal heritage, the particular fails at that point. Insofar as it is alleged that Professor Saunders did not investigate why the claims made to Mr Jacobs, and at earlier times to other people, differed from those made to her, the evidence shows that she did consider those matters. She noted that Mr Jacobs had been informed that the fundamental objection related to the proposed linkage constituted by a bridge between the mainland and Hindmarsh Island. Both the fact of an objection based on spiritual identity, and asserted injury or desecration by reason of the link, were common features of the information given by women to Professor Saunders. She was satisfied that the late emergence of spiritual identity as an objection was due in part to in-adequate consultation and in part to the nature of Aboriginal tradition. Contrary to the allegation, the evidence shows that Professor Saunders did consider the reasons for differing claims, and reached a conclusion which in her opinion provided the explanation. I consider her opinion was reasonably based on the information available to her, and that there was no want of care in her part in not conducting the investigations alleged.
616 Paragraph 48(q) alleges that “by reason of the conduct particularised above”, Professor Saunders failed to accord procedural fairness to Binalong. The obligation of Professor Saunders to extend procedural fairness to Binalong and the Chapmans in the course of carrying out her functions under the HPA is discussed briefly at par 273 above where I express the conclusion that the nature of the claims under consideration were adequately disclosed to Binalong and the Chapmans, and that the Chapmans did understand the general nature of the issues in sufficient detail to respond. Professor Saunders has given evidence, which I accept, that she believes she did all that was reasonably possible, having regard to obligations of confidentiality, to inform Binalong and the Chapmans of matters under consideration relating to Aboriginal culture, and otherwise. She said in evidence that she formed a view herself about the level at which information could be given to anyone seeking to make representations without frustrating the purpose of the HPA, and that consistently with her duty, she could not meet the requests of the Chapmans which were, in effect, to reveal every detail that was in her possession.
617 The sufficiency of the information revealed by Professor Saunders, and as otherwise ascertained by the Chapmans for the purposes of making representations, is revealed by an analysis of those representations. Those representations identify the topics addressed, and the scope of the responses made.
618 One recurring complaint by the applicants is that at no stage before the s 10 declaration was made were they given a copy of Dr Draper’s report of 29 April 1994. This is not a matter for which either Professor Saunders or Mr Tickner carry any responsibility. Professor Saunders informed the applicants that she had no objection to the Draper Report being released to them. However, the report was not released as it was perceived by the State to be subject to s 35 of the AHA, and the LMAHC through the ALRM refused to give permission for its release. However, it is clear from the terms of some of the representations received by Professor Saunders that substantial parts of the Draper Report were known to a number of members of the Friends, suggesting that the LMAHC did not treat those parts of the report that had become known to members of the Friends as confidential. That they did not treat the contents as wholly confidential became common information when The Advertiser newspaper reported on 8 June 1994 that it had negotiated for the release of extracts of the report with the LMAHC. That newspaper article concluded:
“The [Aboriginal] sites were identified in a detailed Department of State Aboriginal Affairs report submitted to the State Aboriginal Affairs Minister, Dr Armitage, on April 29.
An extract from the report has been released by the Lower Murray Aboriginal Heritage Committee to The Advertiser after extensive negotiations lasting several weeks.
The extract says construction of the bridge will affect three sites of ‘great cultural and heritage significance’.
‘The total opposition by the Ngarrindjeri (traditional owners) to the construction of the bridge across these historic and sacred cultural sites is concerned with more than the threat of physical damage to the two foreshore sites’, says the report.
Ngarrindjeri are also very concerned at the diminution of this site as a very important part of a culturally significant landscape and its accelerated fragmentation by the construction of a bridge.
From the Ngarrindjeri perspective, the bridge approaches and piles would damage the physical structure of the channel and further disturb the natural flow of the life-giving waters of the Murray Mouth.”
619 The essential conclusions of the Draper Report which are relevant for present purposes are set out at par 73 above. Those conclusions are published in the above report save for two sentences which follow immediately the reported passages, namely:
“It would also permanently join Kumarangk to the mainland in a way that is repugnant to Ngarrindjeri cultural traditions. There is no way to both build a bridge at this location and avoid this form of disturbance to the Aboriginal site.”
620 A critical part of the restricted women’s knowledge central to the understanding of the assertion that the bridge would give rise to injury or desecration is that the bridge would permanently link Hindmarsh Island to the mainland. This was the basis of the objection voiced to Mr Jacobs in January 1994 and later to Dr Fergie and Professor Saunders. The different levels of disclosure are of significance. The LMAHC, it would appear from the newspaper article, and from representations by members of the Friends to Professor Saunders, treated the knowledge revealed to the newspaper as appropriate for general publication. At another level, information supportive of the tradition, namely the significance of the shape of the terrain and descriptions of practices which were said to be manifestations of the restricted women’s knowledge, were revealed to a number of younger Aboriginal women at the Bunk House and later at Graham’s Castle on 19 June 1994. At yet another level, information that the linking of Hindmarsh Island to the mainland was an unacceptable affront to Aboriginal tradition was revealed only to those with a more direct interest in the preservation of the area, namely in one instance Mr Jacobs, and in another instance to Dr Draper whose report was intended for use by the State Minister of Aboriginal Affairs in deciding whether to authorise damage to an Aboriginal site under s 23 of the AHA. To a still more restricted group additional information was given by Dr Kartinyeri to Professor Saunders and to Dr Fergie for the purpose of the secret envelopes.
621 By the time Professor Saunders came to South Australia and consulted with a number of interested people from 20 June 1994, there was an understanding afoot in the community that Aboriginal objection to the bridge was related to Aboriginal tradition which associated the terrain of the Murray Mouth, the nearby islands including Hindmarsh Island, and the surrounding waters with the female body. The association was referred to in a number of representations made to Professor Saunders by people who appeared to be members of the Friends. The association was asserted in Mr Rocky Marshall’s letter to The Advertiser on 18 June 1994, and had been earlier asserted by him in similar terms in a letter to the local Lions Community Newsletter in May 1994. On 26 April 1994 Mr and Mrs Chapman and the solicitors for Binalong had been informed by Mr Matt Rigney that Aboriginal opposition had to do with women’s issues associated with birth. This aspect of the traditional knowledge was not being treated by Mr Rigney as secret, or as restricted to women only (and it has not been so treated by Dr Kartinyeri in giving evidence or in interviews she has given to the media).
622 In their first representation to Professor Saunders, dated 11 June 1994, the Chapmans said that Mr Rigney had told them that Hindmarsh Island was significant because it was (paraphrasing) “shaped like a womb, and there were women’s issues to do with birth associated with the island”. On 5 June 1994 Mr Rigney, on a television programme, had said that Hindmarsh Island was “the birth place of Ngarrindjeri nation” and on 7 June 1994 a reporter from The Advertiser informed the Chapman’s solicitors that Mrs Sarah Milera had informed him that the Murray Mouth and Hindmarsh Island areas were significant to women because it was “the vagina of Australia”, a belief based on the resemblance of the geography with aspects of the female body.
623 These disclosures about the alleged tradition which had come to the applicants’ attention, did not refer to the importance of a bridge constituting an unacceptable link between Hindmarsh Island and the mainland. However, the notion that injury or desecration according to Aboriginal tradition would arise because the bridge would constitute such a link came to the attention of the Chapmans nonetheless. It was one of the topics addressed in their first supplementary submission to Professor Saunders dated 22 June 1994. This representation was handed in person to Professor Saunders when additional oral submissions were made. Mr and Mrs Chapman say that they outlined their understanding of the Aboriginal objections to the bridge on that occasion, and were informed by Professor Saunders that the issues they had identified were involved. She said that the objections involved “a little bit of everything” the Chapmans outlined.
624 The first supplementary submission at p 5 reads:
“The bridge as a ‘connector’
It may be argued that the bridge effects some unacceptable ‘connecting’ of the Island to the mainland.
Obviously, we are unable to properly respond without knowing the detailed reasons why ‘connecting’ the Island to the mainland is objectionable.
But we can point out that ‘connection’ has already occurred with the Goolwa ferry, the Clayton ferry (now defunct), the Goolwa Barrage and the Mundoo Barrage.
The bridge would merely replace the Goolwa ferry ‘connection’.
It must also be noted that the bridge does not join the mainland to the Island – it only forms a connecting link. In that sense, it only mediates separateness, it will not change the shape of the land other than in minor respects.
This is to be compared with the changes in the shape of the land that would be brought about by the Broome crocodile farm (with the construction of large ponds and levies) or the Alice Springs Dam.
One other point that must be made on any issue of unacceptable ‘connecting’.
The proposal to build a bridge was the subject of intense publicity for in excess of 4 years prior to October 1993. It is impossible for the Aboriginals to claim that they were not aware of the proposal. If that be the case, why did they not object to the bridge as soon as it was proposed?”
625 On 28 June 1994 the Chapmans lodged a second supplementary representation with Professor Saunders. In that document submissions are made based on information received by the Chapmans from Dr Warrell. Those submissions reveal their understanding that “as part of the mother figure legend, the Murray Mouth has been characterised as the vagina”, and that the Draper Report includes reference to the “life giving waters of the Murray Mouth.” Dr Warrell’s suggestion that in anthropological terms, a bridge could be seen as not joining Hindmarsh Island and the mainland, or changing their shape, but as mediating separateness was again mentioned. That argument is referred to in the Saunders Report at p 42.
626 By the time of trial Dr Draper’s report of 27 April 1994 was in the possession of the applicants, yet the evidence in their case does not assert that there is any additional matter which they would or could have put to Professor Saunders had they been in possession of the full text of Dr Draper’s report and had they known that his report said that the bridge would permanently join Hindmarsh Island to the mainland in a way that was repugnant to Ngarrindjeri cultural traditions.
627 The first supplementary submission also seeks to debunk the Rocky Marshall letter and the asserted account by his grandmother that Aboriginal legend associated the area with the female form.
628 In the course of their representations, the applicants (in particular the Chapmans) addressed the following issues:
· The women’s issues are said not to be credible as they did not arise until April/May 1994 and had not been mentioned in earlier consultations.
· The consultation process. In 1989-1990 no problem was raised about the bridge site in discussions with Mr and Mrs Rankine.
· In October 1993 when an Aboriginal objection was first heard, it related only to archaeological sites. The changing nature of the Aboriginal claims thereafter discredit them.
· Driving piles into the river had never been an issue in the past. Extensive piling had occurred in relation to the Goolwa barrage. The second ferry option would require piling. Drilling (core testing) of the channel occurred without objection in 1990.
· Mr Rigney’s description of the women’s issue was totally inconsistent with the place name Goolwa which means elbow.
· Mr Rocky Marshall’s account of a legend is not credible and is an invention.
· The mother figure legend is not credible as Aboriginals were unlikely to have very specific knowledge of the geographical layout of the area or knowledge of the shape and details of internal female organs.
· There is no record of such a legend in the writings of Professor Taplin or Berndt and Berndt, and Lucas contradicted the claims.
· The suggested characterisation of the Murray Mouth as a vagina and as “life giving waters of the Murray” is challenged. A submission is made that the bridge would not cause damage to such beliefs, or additional damage beyond that already caused by other developments.
· The suggestion of unacceptable “connection” is addressed, and a submission made that connection already exists by reason of the barrages and ferry, and that a bridge would “mediate separation”.
· The credentials of whoever are the informants is challenged. It was said that the Aboriginals are being influenced and manipulated by others.
· Amelia Campbell and her cousin had been “kicked out” of the Graham’s Castle meeting.
· White protestors seemed to know the “secret” claims, but the Chapmans had been shut out and secrecy was being used to prevent evaluation.
The representations made by the Chapmans are long and very detailed. The case presented at trial does not indicate any additional information that would or could have been provided had Professor Saunders revealed more to the applicants than she did. The applicants’ case based on a want of procedural fairness or natural justice rests not on a positive specific assertion of this kind, but on a general assertion that had they been given more information about the restricted women’s knowledge, it should be inferred that they would and could have provided material in answer thereto to demonstrate that there was no basis for the Minister to find that there was a threat of injury or desecration in accordance with Aboriginal tradition. Given the exhaustive analysis by the applicants of the issues canvassed at trial, I do not think that such an inference should be drawn when the applicants themselves cannot identify material that they could have but did not place before Professor Saunders.
629 In my opinion, the broad allegation made in par 48(q) fails. I do not consider that as a matter of law Professor Saunders was required to supply more detail than she did to the applicants about the nature of the Aboriginal tradition alleged to ensure procedural fairness. Professor Saunders knew that the Chapmans were aware that the tradition was said to involve a belief about an association of the terrain with the female form, that it related to creation and reproduction of the Ngarrindjeri people, that it was suggested that the connecting of Hindmarsh Island to the mainland was objectionable, and that the belief was sacred, and involved women’s issues and restricted knowledge. They were therefore aware of the main features of the tradition alleged including the aspect of the tradition which would render a bridge linking Hindmarsh Island to the mainland an unacceptable affront according to the sacred tradition. The principal issues relating to Aboriginal tradition before the reporter and the Minister was whether the alleged tradition existed, and whether the bridge would use or treat the area in a manner inconsistent with the tradition. If the tradition alleged existed there could be no real doubt that the area, including the bridge corridor, was a significant Aboriginal area in accordance with that tradition. As discussed at par 391 and following, an understanding in terms acceptable to the non-Aboriginal mind of the reason why according to the tradition, injury or desecration would occur by reason of the construction of the bridge was not essential.
630 In the circumstances of this case, empirical proof or a chain of reasoning valid according to western logic was not possible. Had the applicants been given the findings made on the evidence received in closed session, Dr Kartinyeri’s further explanation in terms of Aboriginal belief why a link caused by the bridge would bring about injury or desecration would not have enabled them to make better answer than they did about Aboriginal tradition. The content of Aboriginal beliefs of the kind in question cannot be proved or disproved by empirical evidence.
631 Insofar as it was necessary for Professor Saunders to identify to the applicants the nature of the tradition and the threatened injury or desecration alleged, I consider that information was already known to the applicants. From their oral discussion with her and from their representations, Professor Saunders knew they had that information. Moreover, disclosure in more detail of the reasons why in this case would require such a level of disclosure contrary to the tradition itself that to do so would defeat one of the purposes of the HPA. At one point in their submissions, the applicants went so far as to say that Professor Saunders should have insisted on the disclosure of the secret envelopes to the applicants to ensure natural justice. Had she agreed to do so the applicants postulate that the claim for protection based on restricted women’s knowledge would have been withdrawn, the Aboriginal opposition would have evaporated, and the bridge would have proceeded. In my opinion this argument demonstrates the absurdity of the extreme position adopted by the applicants, and the need to tailor the requirements of natural justice to fit the circumstances of the case and the particular nature of the tradition itself so as not to allow procedures to defeat the central purpose of the HPA.
632 Paragraph 48(r) alleges that “by reason of the conduct particularised above” Professor Saunders failed to make her report an accurate report containing opinions expressed on reasonable grounds, and further failed to ensure that sufficient tests and all proper investigations were done, and that reliable and sufficient information was obtained, for the purposes of the report.
633 As I said at the outset of the discussion on factual issues (par 313), my overall firm impression is that Professor Saunders honestly and conscientiously went about the performance of the functions of a reporter under the HPA as she understood them to be. In my opinion, the Saunders Report insofar as it relates factual information given to her by other people, does so accurately. Insofar as the report expresses opinions, I find that they were opinions honestly held by Professor Saunders, and reasonably based on information gathered by her in the course of her enquiry, which information she had no reason to question beyond those steps which she actually took.
634 In summary, I am of the opinion that even if Professor Saunders was under a duty of care as alleged by the applicants, the claim in negligence would fail for the reasons discussed above.
Mr Tickner – Particulars of negligence
635 The particulars of negligence against Mr Tickner are pleaded in par 50C of the statement of claim.
636 Paragraphs 50C(a), (b), (c) and (d) may be considered together. They allege:
“(a) Failed to give any consideration at all to the representations contrary to the requirements of s 10(1)(c) of the Heritage Act.
(b) Had no diligent and conscientious personal involvement in considering the representations, which was his duty under the Heritage Act as then quite recently declared by the Full Court of the Federal Court in Tickner v Bropho.
(c) In the premises, acted so as to preclude interested members of the public from having an effective opportunity to provide to him information and express opinion to him concerning the issues relating to the s 10 application, notwithstanding that is the purpose of s 10 of the Heritage Act, as then quite recently declared in Tickner v Bropho.
(d) Made his decision without personally receiving the Saunders Report and attached representations contrary to the requirements of s 10(1)(c) of the Heritage Act.”
I have discussed the Minister’s obligation to consider representations at par 274 above where I said that I accepted Mr Tickner was mistaken as to the requirement to “consider”representations, but that I did not consider the evidence established that he was recklessly indifferent or wilfully blind as to whether he was acting within power when he made the s 10 declaration. However, if at common law Mr Tickner was under a duty of care to the applicants to give each representation the degree of consideration required by the HPA, I think his mistake would constitute a breach of that duty. Whilst he did not actually know that he was required to do more than he did, I think that in light of the decision in Tickner v Bropho, and the resources available to him to obtain legal advice, he should have known that he was required to give a greater degree of deliberation to the representations. However, I consider a claim based on such a breach of duty of care would nevertheless fail on the issue of causation. For the applicants to succeed, it would be necessary for them to establish that had Mr Tickner given the requisite “consideration” to the representations, his decision may have been different. Before completing his evidence in this Court, Mr Tickner read the submissions (thereby giving them a degree of personal attention which I think exceeds that which the HPA required), and said that his decision would have been no different. His reading of the submissions confirmed him in his belief that the significant issues that required consideration had been flagged by the succinct summary of opposing considerations set out in the Saunders Report. Whilst I accept Mr Tickner as a witness of the truth, it cannot be overlooked that he read the representations at a time when he had a direct self interest in the issues before the court and there is the potential for the belief of a person in this situation to be unwittingly influenced by that self interest, however careful the person is to avoid allowing self interest to impinge. The decision is ultimately one that must be made by the Court on an objective evaluation of the contents of the representations. I have therefore read the representations.
637 The representations contain a wide spread of views for and against the construction of the bridge. There is no overwhelming numerical support for any particular position. Submissions range over the matters identified by Professor Saunders. Some present careful arguments from people who appear to have no particular vested interest in the outcome. Some received from persons with interests present careful, balanced arguments. Some are blatantly self interested and lack balance. Some verge on the irrational, expressing bigoted and highly emotional viewpoints. Some urge the need for a bridge based on safety issues relating to medical and fire emergencies. Some support a ban on the construction of the bridge based on protection of Aboriginal tradition, others assert that because the “tradition” has only recently come to light it is of recent origin and must be fabricated. A few suggest that the Aboriginal community has been manipulated by white opponents of the bridge. Many allege that there will be considerable economic loss to people with property or businesses on or connected with Hindmarsh Island if the bridge is banned. Some complain that they have made financial decisions on reliance on statements that the State will build the bridge. Issues raised in these representations are discussed in Chapter 7 of the Saunders Report. Other representations assert environmental reasons why it is in the public interest that there be no bridge. I am not persuaded that there is any likelihood that the Minister’s decision would have been any different had he read the submissions, or, with a measure of assistance from his advisers, given them a sufficient degree of personal consideration to comply with the requirements of the HPA.
638 Paragraphs 50C(e) and (f) may also be considered together. They allege that Mr Tickner:
“(e) Made his decision without considering, properly or at all, relevant responding material provided by the applicants as part of their representations to Professor Saunders.
(f) Made his decision, having read, at most, the Saunders Report, the Fergie Report, and the representation of the Minister for Transport, and without reading and/or considering any responding material, as was his duty aforesaid.”
By letter dated 6 July 1994 faxed to the solicitors for the applicants, Mr Tickner informed them that he intended to make Professor Saunders’ report available to them, and would receive written representations from them provided they reached him no later than Friday, 8 July 1994. The Saunders Report was faxed to the applicants on the evening of 7 July 1994. On 8 July 1994 the solicitors for the Chapmans requested a copy of Dr Fergie’s report which was supplied, without the secret envelopes. On 8 July 1994 submissions were made to Mr Tickner by Binalong’s solicitors and by the Chapmans. In the course of their submissions and in specific comments on Professor Saunders’ report, the Chapmans referred to the three representations made by them to Professor Saunders. Mr Tickner read the text of the submissions made on 8 July 1994 which were faxed to him from his ministerial office, but he did not read the three earlier representations made on behalf of the applicants to Professor Saunders (these being amongst the representations that were in Canberra).
639 For the reasons given in relation to pars 50C(a) – (d), I consider that if there were a common law duty of care owed to the applicants, Mr Tickner should have realised that he was required to give a greater degree of deliberation to the representations than he did. Further, once he had received the representations of the applicants on 8 July 1994, he should have realised that to fully understand their grounds of objection, it was necessary for him to read their earlier representations. His failure to do so would amount to a breach of that duty of care. However, as with the failure to read the other representations, I consider a claim for damages for breach of such a common law duty would fail on the ground of no causation.
640 The issues raised by the representations of the applicants to Professor Saunders had been taken into account by her, and the principle issues summarised in her report. These issues were understood by the Minister, and I do not think that a reading of their submissions would have altered his decision. Before the Minister received the Chapmans’ representations on 8 July 1994, he had read two newsletters published by them as Directors of Binalong entitled “Supermabo Newsletter”, numbered one and two respectively dated 30 June and 4 July 1994. These were inflammatory documents apparently circulated by Binalong to encourage opposition to the making of a declaration under the HPA. The Minister on 6 July 1994 made a note on a departmental memo to the effect that he considered the newsletters contained “a torrent of lies”. The representations from the Chapmans received by him on 8 July 1994 annexed these Supermabo Newsletters together with another two, numbered Supermabo Newsletter three and four dated 6 and 8 July 1994 respectively. Newsletter number three says that the principal Aboriginal claim seems to be that Hindmarsh Island and its surrounds represent an Aboriginal “mother figure”, and comments that whilst the mythology of the local Aboriginals has been extensively recorded, this myth has not been mentioned. The newsletter is disparaging of Aboriginal cultural claims, adding “God forbid that development is now about CHASING MOONBEAMS”. Mrs Chapman is recorded as making statements critical of the process that had been adopted in relation to the application for protection of the Hindmarsh Island bridge site under the HPA, including the statement that “Aboriginal heritage procedures are obnoxious to our system of law which gives people a right to natural justice”. The newsletter concludes with the heading, “THE PLANNING SYSTEM CRASHES”, and a comment that the increasing use of “Supermabo orders” will undermine the whole planning process and result in far less development and stifled economic recovery. Newsletter number four continues the theme that the procedures under the HPA are unfair to developers, and that the applicants for the s 10 declaration were hiding behind secrecy requirements. The Minister could have been left with no view other than that the newsletters which were said by the Chapmans’ representation of 8 July 1994 to elaborate on their ground for objection lacked balance and objectivity, and were seeking to whip up emotional support for their cause. Had Mr Tickner read in detail the three representations made by the Chapmans to Professor Saunders, I think it is highly likely that he would have formed a like opinion about them.
641 The representations to Professor Saunders made by the Chapmans address both the alleged existence of the tradition and the alleged threat of injury or desecration to the area in accordance with that tradition. They put forward a very one sided case for rejecting out of hand any assertion of Aboriginal tradition in relation to the bridge site. That case is summarised by Professor Saunders in her report and she gives reasons for rejecting it.
642 I accept Mr Tickner’s evidence that he found Professor Saunders’ report persuasive. Her report indicates that she accepted the account of Aboriginal tradition given to her by the Ngarrindjeri women who assembled at Goolwa to support the application for protection, and by Dr Kartinyeri. Having concluded after a consideration of Professor Saunders’ report that her reasons for doing so were convincing, I think there is no likelihood that Mr Tickner’s decision would have been any different had he closely read the applicants’ three representations made to Professor Saunders.
643 Paragraph 50C(g) alleges that Mr Tickner:
“Made his decision partly or wholly on the basis that Aboriginal women had not been consulted in the planning processes relating to the bridge, when a consideration of relevant sections of the representations would have shown the case to be otherwise.”
The evidence establishes that Mr Tickner’s decision was made partly on the basis that Aboriginal women had not been adequately consulted in the planning process. In press releases made immediately after the decision, Mr Tickner stated that there were grounds for the Commonwealth declaration because of the failure of the South Australian Government adequately to consult Aboriginal women as part of the decision making process. However, the evidence does not justify a finding that the decision was partly or wholly made on the basis that women had not been consulted at all in the planning process. It should also be noted that Mr Tickner relied on the fact that the South Australian Government had not adequately consulted. His reasoning was not directly concerned with steps that may or may not have been taken by Binalong. Mr Tickner’s reasons reflected the matter that he was required to consider under s 10(4)(g) and the purpose for the consultation required by s 13(2) of the HPA.
644 On the second limb of the allegation, the pleading does not identify the “relevant sections of the representations” which it is alleged would have shown the case to be otherwise had the Minister read them. As I understand the applicants’ case, the relevant sections of the representations are those portions of the applicants’ representations which deal with the question of consultation. Those representations maintain that there was adequate and proper consultation, and their primary submission sets out at length events which the Chapmans rely upon to establish that fact. The main thrust of the facts set out in the representation is that members of the Aboriginal community should have been well aware of the proposed bridge before late 1993, and, if there was any objection based on cultural grounds, it should have made that known long before October 1993. The matters set out in these representations do not squarely address the question of adequate consultation by the State Government. Had Mr Tickner read the representations of the applicants, including those of Binalong, I do not think that they would have led him to hold any different view.
645 Information available to Mr Tickner on the question of consultation was not confined to the Saunders Report and representations which accompanied it. The complaint of lack of consultation and lack of State protection had been a constant theme in the correspondence to Mr Tickner from the ALRM from 23 October 1993, including in the letter of 23 December 1993. The Minister had been forwarded a copy of Mr Rathman’s letter to Mr Victor Wilson which outlined deficiencies in consultation: see par 609. The Minister was informed of the pending application under s 23 of the AHA, and of the State Minister’s decision to grant authority to disturb Aboriginal sites - granted reluctantly because the State Government felt compelled to honour the Tripartite Agreement entered into by the previous State Government. Against the background of those communications, I do not think that a reading of the representations by the applicants, insofar as they addressed the issue of consultation, would have caused Mr Tickner to change his view that the Saunders Report was persuasive and should be acted upon.
646 Paragraph 50C(h) alleges breach of duty in that Mr Tickner:
“Failed to treat the aforesaid letter of the ALRM of 20 April 1994 and/or the aforesaid letter of the Ngarrindjeri women and/or a certain letter to him from Doreen Kartinyeri dated 12 May 1994 as a fresh application or applications under s 10 of the Heritage Act requiring a new nomination of a reporter under s 10(1)(c) of the Heritage Act and/or a fresh notice under s 10(3) of the Heritage Act.”
I have discussed the requirements of an application under s 10 in pars 272 and 606 above. No formality is required in the making of an application, and an application can comprise a number of different communications which add to or expand on information contained in earlier communications about the nature of the significance of the area. In my opinion, the essential content of an application for the purpose of the HPA, insofar as the purpose conditions the exercise of power, is crystallised at the time when notice of the application is published in accordance with s 10(3)(a) of the HPA. The ADJR litigation holds that once the notice has identified the purpose of the application, it is not open to the Minister to make a declaration on grounds not encompassed by the notified purpose. At the time when the notice was published on 26 May 1994 each of the letters referred to in par 50C(h) had been received. In my opinion those letters together comprised the one application. Mr Tickner so treated the letters, and considered that the restricted women’s knowledge as part of Aboriginal tradition fell within the application which had been made to him. In my opinion, particular 50C(h) is wrong in its premise that each of the identified letters constituted a separate application.
647 Paragraph 50C(i) alleges that Mr Tickner was in breach of his duty of care in that he failed to advise Professor Saunders of the letters from the Ngarrindjeri women dated 9 May 1994 and from Dr Kartinyeri dated 12 May 1994 (see pars 341 and 429) and to alert her to the need to publish a fresh notice under s 10(3). In my opinion these two letters do not constitute new applications. They refer to matters pertaining to women’s knowledge, but by then the general topic of the importance of the area including the Goolwa Channel had been raised by the letter of 20 April 1994. In my opinion, this particular together with the allegation in par 50C(j) that Mr Tickner improperly exercised power when he relied on women’s business when there was no application before him relating to women’s business, fail for the same general reasons given in relation to par 50C(h). Moreover, in relation to these three particulars, the applicants would face a causation problem. The evidence fails to establish any likelihood that the outcome would have been any different had the published notice specified the purpose of the application as including the importance of the area in accordance with Aboriginal tradition concerning restricted women’s knowledge. There is no evidence which raises any real possibility that the thrust of representations made to Professor Saunders would have been any different, or that she would have received any different information in the course of her enquiry. The representations, particularly those from the applicants, addressed the question of the area being important to Aboriginal women. This topic was known in the local community, and amongst those who were following events relating to the bridge protests in the media.
648 Paragraph 50C(k) alleges that Mr Tickner was in breach of his duty of care in that he exercised power to make the s 10 declaration relying on women’s business whilst denying himself access to the contents of the secret envelopes. Whilst the ADJR litigation holds that to give the required consideration to representations it was necessary for Mr Tickner to read the secret envelopes, I do not consider that in the state of knowledge applying in July 1994 he would have been in breach of a duty to exercise reasonable care to the Chapmans had such a duty existed at common law. Whilst I have expressed the view above that he would have been in breach of such a duty by failing to give closer personal consideration to the body of representations received, I consider the secret envelopes fall into a separate category where different considerations apply. The confidential nature of those envelopes, and the nature of their contents was disclosed in the Saunders Report which advised Mr Tickner that the contents of the envelopes were to be read by women only. In light of that advice, Ms Kee read the envelopes to confirm to Mr Tickner that their contents conformed with the conclusions expressed by Professor Saunders. Because of the particular claim to confidentiality based on Aboriginal tradition, I do not consider that the Minister was guilty of any want of reasonable care in taking the course which he did, and in not anticipating the construction placed on s 10 of the HPA in the ADJR litigation and in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia.
649 On this particular I think that the applicants would once again face a causation problem. Professor Saunders had with care given an informative description of the nature of the tradition, and of the threat of injury or desecration in her report. These were essential aspects of Aboriginal tradition about which Mr Tickner had to be satisfied. In my opinion it was not essential that he also fully understand the reason why in accordance with tradition the proposed bridge would cause injury or desecration: see par 391 and following. The secret envelopes gave more detail of Aboriginal tradition and why, in accordance with Aboriginal beliefs, injury or desecration would occur. However that reason is not likely to have been readily understood by a non-Aboriginal person and I do not think that a reading of the secret envelopes, insofar as their contents can now be re-constructed, would have given any cause to Mr Tickner to doubt Professor Saunders’ opinion as to the existence of the tradition which rendered the area a significant Aboriginal area and as to the nature and extent of the threat of injury or desecration posed by the bridge. That is also the evidence given by Mr Tickner after he had read the Court’s findings as to the contents of the envelopes.
650 Paragraph 50C(l) alleges that Mr Tickner was in breach of his duty of care in that he failed to properly instruct Professor Saunders as to her task in that the instrument of appointment was wholly devoid of particularity. This particular appears to reflect an observation made by O’Loughlin J in the ADJR litigation, (1995) 55 FCR 316 at 348, that as the instrument of appointment was devoid of particularity “a reporter, in the position of Professor Saunders, had no ministerial guidance as to the land in respect of which she had to report. Her advertisement therefore suffered from the same lack of particularity …”. If, as a matter of fact, the only instruction which Professor Saunders received in respect of the functions she was required to carry out under s 10(4) of the HPA consisted of the terms of her appointment, this allegation might give rise to an issue requiring further consideration. However, the facts are otherwise. Professor Saunders was supplied with a considerable amount of information about the claims made by ALRM on behalf of the LMAHC, and she was aware of the s 9 declarations which specifically defined the bridge corridor. There can be no doubt that the central subject matter upon which she was to prepare a report related to Aboriginal objection to the proposed construction of the bridge. The task that she was then required to perform was to prepare a report dealing with the matters specified in s 10(3) of the HPA. The evidence fails to indicate how in the context of these facts there was a want of care on behalf of Mr Tickner or his department in conveying instructions to Professor Saunders.
651 The observation of O’Loughlin J which linked the inadequacy of the notice to the generality of the instrument of appointment was an observation made on the evidence before him in the ADJR litigation. The evidence before this Court puts a different complexion on how the notice came to be drafted. It was prepared by ATSIC and forwarded to Professor Saunders. She reviewed the notice and considered that it was appropriate in the circumstances. The evidence fails to establish that Professor Saunders in agreeing to the form of notice was influenced by the terms of the instrument of appointment.
652 I deal with pars 50C(m) and 50C(n) together. Paragraph 50C(m) alleges that Mr Tickner was in breach of his duty of care because he made his decision with undue haste. Paragraph 50C(n) alleges that Mr Tickner made his decision with haste that could have been avoided had he taken steps to appoint a reporter “with due expedition”.
653 I consider that a claim based on these alleged breaches of duty would fail on two grounds. First, I do not consider that the decision was made with undue haste, and secondly there is no reason on the evidence to think that the decision would have been any different had Mr Tickner taken additional time to make his decision.
654 By late 1993 Mr Tickner had considerable experience with applications under the HPA. It was his practice where possible to seek out alternatives to making a declaration including by mediation, negotiation or intervention by the relevant State Government. When the letter from the ALRM dated 23 December 1993 was received, that letter indicated that protection was being sought under State legislation, and the application itself was conditional, saying that protection under the HPA would be sought in the event that the State Government did not extend adequate protection. ATSIC and Mr Tickner’s personal advisers kept themselves informed as to the progress of the application for protection under the AHA. It would have been premature for Mr Tickner to have exercised power under s 10 at that stage.
655 On 3 May 1994 the State Minister for Aboriginal Affairs granted authorisation under s 23 of the AHA which effectively allowed the bridge construction to proceed. The State Government had indicated its intention to start construction. Against this happening, the first s 9 declaration was made, followed by the second s 9 declaration that was to expire on Monday 11 July 1994. Mr Tickner understood that there was an urgency to process the application under s 10 so that, in the event that he was satisfied that a s 10 declaration should be made, it would occur before work re-commenced. Because of that urgency, the consultancy agreement with Professor Saunders required her to report by 6 July 1994 at the latest. Professor Saunders just met this time limit. Mr Tickner was fully aware of the time limits. On 9 July 1994, before he finally decided to make the s 10 declaration, Mr Tickner spoke by telephone with Premier Brown. There was no offer from the State Government to delay re-commencement and the attitude of the Premier was one of the matters that caused Mr Tickner to make his decision when he did. If there was haste about the decision making process, I do not consider it was undue or inappropriate in the circumstances.
656 The applicants suggested in the course of the trial that Mr Tickner could have deferred his decision for a few days because as a matter of practicality it is unlikely that work would have resumed on the day the s 9 declaration expired. I consider this to be an unrealistic suggestion. The State said that it intended to proceed. The contractors and others involved in the construction work required certainty. Good administration required a decision to be made before the many parties involved incurred the expense of re-activating construction programmes. Whilst it could have been foreseen that it would take a few days for bulldozers and construction huts to have appeared at the Goolwa site, those events would necessarily be preceded by a good deal of planning and administrative arrangement.
657 Further, on the question of causation, the evidence fails to indicate any reason why the Minister’s decision would have been any different had a few more days elapsed between the receipt of the Saunders Report and the making of a final decision by Mr Tickner.
658 The applicants also suggested that the Minister was blameworthy because of delay in nominating a reporter. Again, I do not think there was any undue delay in this step. It was not until 3 May 1994 that it became apparent that the State would not extend adequate protection to the site under the AHA. Thereafter the s 9 declaration was made and steps were taken to find and appoint a suitable reporter who could undertake the task in time for the s 10 application to be processed and considered in accordance with the HPA before protection under emergency declarations expired.
659 Paragraph 50C(o) complains that Mr Tickner made his decision before, or within a few hours after, his office in Parliament House, Canberra received the representations from Professor Saunders, and “without considering them at all” contrary to the requirements of s 10(1)(c) of the HPA. This particular adds nothing to the substance of pars 50C(a) to (d) above.
660 Paragraph 50C(p) alleges that Mr Tickner:
“Made his decision before receiving and/or considering final submissions he had invited from key stakeholders (including the applicants, the State Government, the receivers of Binalong and the District Council of Port Elliott and Goolwa).”
This allegation fails on the facts. It is postulated on the assertion that Mr Tickner made the decision to impose a s 10 declaration not on Saturday 9 July 1994 as he has always maintained, but not later than the early afternoon of Friday 8 July 1994. This assertion is based on discovered documents which show that ATSIC and Mr Tickner’s advisers on 8 July 1994 took steps to draft a s 10 declaration and to make arrangements with the Gazette Office to have a declaration printed over the forthcoming weekend. I do not consider that these administrative steps indicate that a decision had already been made. Rather, they indicate efficiency within the Minister’s office to ensure that if a declaration were made over the weekend, it could be put into effect before the s 9 declaration expired.
661 Paragraph 50C(q) alleges that the Minister breached his duty of care in failing to appoint an independent anthropologist to assist him and/or Professor Saunders despite being requested by the applicants to do so.
662 By letter dated 25 May 1994 the solicitors for the Chapmans informed Mr Tickner that they had been endeavouring to arrange an independent consultant anthropologist for the purpose of giving them independent advice as to any Aboriginal mythological or other concerns relating to the Hindmarsh Island bridge but that they were getting resistance to that course from two quarters. First it was said that officers from the South Australian Aboriginal Heritage Unit were not cooperating, and secondly resistance was being experienced from Aboriginal people who had advised the Chapmans’ consultant anthropologist that they would not consult with her. (The evidence shows that their consultant anthropologist was Dr Warrell.) The letter continued:
“If our clients are unable to have an appropriate independent expert involved in the anthropological investigation of this matter in such a way as to ensure proper consultation without external influence that would, we believe, be a denial of natural justice.
One way out of the dilemma is if Ms Lindy Warrell, an anthropologist who knows the relevant Ngarrindjeri custodians, and in whom our client has confidence, be appointed as the consultant anthropologist. We believe she would be acceptable to the Aboriginal people concerned.
Also, our clients should have an input into the brief to be given to the anthropologist.”
Mr Tickner replied to that request on 1 June 1994 saying that he had not appointed an anthropologist and did not propose to do so.
663 Mr Tickner’s decision not to appoint an anthropologist was informed by past experience. By May 1994 there had been two occasions where the applicants for protection under the HPA would not cooperate with an anthropologist who ATSIC had appointed to assist in the process. ATSIC had decided that a more effective way of obtaining anthropological assistance for applicants to present their applications to the reporter or to a mediator was to provide funds to their legal advisers to obtain such anthropological assistance as they saw fit in the presentation of their claim. That experience lay behind the provision of funds to the ALRM to enable the engagement of Dr Fergie.
664 It was the policy of Mr Tickner at the time to ensure that a reporter would have any form of assistance requested by the reporter. Had Professor Saunders asked for the appointment of an anthropologist this would have been considered. However, she did not seek such an appointment. The HPA does not require the appointment of an independent anthropologist. In my opinion it was in accordance with the legislative scheme for the Minister to appoint a person with legal training such as Professor Saunders, and thereafter to leave it to the reporter to determine how the functions of the reporter under the HPA were to be performed. I do not consider that the failure by Mr Tickner to appoint an anthropologist either to assist him or to assist Professor Saunders indicates any want of care on his part. The HPA certainly does not contemplate that a party whose economic interests are opposed to the grant of protection under the Act shall participate in the performance of the reporter’s duties in the manner suggested in the solicitor’s letter of 25 May 1994.
665 Paragraph 50C(r) alleges that Mr Tickner failed to give the applicants a proper opportunity to respond to the Saunders Report and/or the Fergie Report.
666 The Minister provided the applicants with the Saunders Report on the evening of Thursday 7 July 1994 and gave them until 5 pm the following day to respond. Mr and Mrs Chapman then requested a copy of the Fergie Report which was not provided to them until about 4 pm on Friday 8 July 1994 (and then without the secret envelopes). Mr Tickner received and considered submissions from the applicants, including comments on the Saunders Report before he made his decision. The Chapmans later forwarded comments on the Fergie Report to the Minister but he did not receive these until after he had made his decision.
667 I think it is doubtful whether a Minister is under any obligation to extend an opportunity to parties interested to make further submissions to him upon the report which he receives under s 10(3) before making his decision. However, in this case he chose to give that opportunity, and having done so, I consider that he was under an obligation to provide a reasonable time to those to whom he supplied the Report to respond. I consider that the time given to the applicants to respond to the Saunders Report was reasonable in the circumstances, and the nature of their responses bears that out. They addressed the principal matters in the Report. In substance the submission to the Minister repeated what had been advanced in representations to Professor Saunders, reference to which was made in the submission to Mr Tickner. I have already discussed Mr Tickner’s failure to refer to those representations in his consideration of the submissions made to him: see pars 638 - 642 above. The applicants have not advanced any evidence to show that had they been given additional time they would have presented other or new information to the Minister.
668 In relation to the Fergie Report, the applicants had insufficient time to respond and, as noted, Mr Tickner made his decision without awaiting a response. However, the Saunders Report expressed similar conclusions to those reached by Dr Fergie, and, for this reason, the response of the applicants to the Saunders Report also responded to the substance of the conclusions reached by Dr Fergie, insofar as those conclusions were known to Mr Tickner from reading the Saunders Report. As I have indicated at par 501, I am not satisfied that Mr Tickner read Dr Fergie’s report before he made his decision.
669 Although as a matter of fact I am not satisfied that Mr Tickner read either the Fergie Report or the applicants’ response to it before making his decision, a question arises as to whether, had he done so, his decision may have been different. In my opinion, had Mr Tickner read them, he would nonetheless have reached the decision which he did based on the Saunders Report. I think it is likely that Mr Tickner would have treated the Fergie Report as supportive of Professor Saunders’ conclusions, and as a further reason in support of a decision to make a s 10 declaration. I do not think that his opinion in this respect would have been altered by reading the applicants’ response to the Fergie Report and Dr Warrell’s comments. A number of Dr Warrell’s comments are critical of aspects of the Fergie Report, alleging “cultural slippage”, “interpretative slippage” and illogical reasoning. In the conclusions to her comments Dr Warrell says:
“This report [the Fergie Report] is replete with unnecessary inclusions and occlusions. The analytical weaknesses I have drawn attention to, and the confusion in the substantive content of the body of the report are such that the conclusions it draws do not follow logically from the discussion.
In my estimation, it would be impossible to make a reasonable assessment of the situation this report should have addressed without reading the ethnographic information in the secret Appendices which would be an infringement of Aboriginal women’s trust.”
I think it is probable that had Mr Tickner read these passages of the conclusion, he would have reasoned that as Professor Saunders had the benefit of reading the secret envelopes, he should act on her opinion, not on the uninformed speculation of Dr Warrell.
670 Paragraph 50C(s) pleads that Mr Tickner was in breach of his duty of care to the applicants in not giving them details about the application and reports and other information about the Aboriginal significance of the area that he had received, as requested in letters from their solicitors written in May, June and July 1994. The allegation does not specify what information was not provided. Major reports provided to Mr Tickner by the ALRM included the Lucas Report, the Edmonds Reports of 1988 and 1990, and the Draper Report. The first three reports were at all times in the possession of the applicants. The Draper Report was not provided to them because it was subject to s 35 of the AHA and the clients of the ALRM would not consent to its release. However, as I have indicated at par 616 and following, I am satisfied that the essential aspects of the report relevant to the Aboriginal tradition relied on by the applicants became known to the applicants in time for them to make comment in their representations to Professor Saunders. The Fergie Report, being one of those requested by the applicants was provided to them at the eleventh hour and is the subject of particular 50C(r). Documents which comprised the application or part of it included the letters from the ALRM dated 7 and 20 April 1994 and letters from the Ngarrindjeri women and Dr Kartinyeri dated respectively 9 and 12 May 1994. The letter of 7 April 1994 was supplied to the Chapmans on 6 June 1994. That informed them that protection was sought not only in respect of two Aboriginal sites on either side of the Goolwa Channel, but also in respect of the Channel itself. It seems that copies of the letters of 20 April 1994 and 9 and 12 May 1994 were not given to the applicants. The first of those letters advanced secret/sacred traditional information concerning the creation and renewal of life as the basis for seeking protection. The letters of 9 and 12 May 1994 informed the Minister that women’s issues were involved.
671 Putting aside the question of according procedural fairness to the applicants, I consider Mr Tickner was under no obligation by statute or otherwise to provide the applicants with copies of these letters. Moreover, I consider that the contents of the letters, and in particular those of 9 and 12 May 1994 indicate that the writers intended that they be treated as confidential information. On the question of procedural fairness, what is important is that the extent and purpose of the claims for protection under the HPA be made known to interested parties so that they have a meaningful opportunity to respond. This requires that an account of Aboriginal tradition of a confidential or restricted kind relied upon by the applicants be made known to non-Aboriginal parties, in some form sufficient to enable them to make their answer: see par 273 above and Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia at 52 – 55.
672 The obligation is one that rests on both the Minister and the reporter, but only arises in respect of information that is not already known to the applicants, and it is an obligation that will be discharged by the provision of an adequate account of the tradition by either one or other of them. In the present case, the applicants independently became aware of the nature of those claims from their discussion with Mr Rigney on 26 April 1994, by a statement by Mr Rigney on television on 5 June 1994 that Hindmarsh Island was the “birth place of the Ngarrindjeri nation”, from The Advertiser account of portions of the Draper Report published on 8 June 1994, from the Rocky Marshall letter, and from general rumour that the bridge as a “connector” would be an unacceptable infringement of tradition; and Professor Saunders confirmed to the Chapmans that the Aboriginal objections to the bridge involved “a little bit of everything”: see par 616 and following.
673 Paragraph 50C(t) alleges that Mr Tickner failed to ensure that the anthropological material provided to him was independent, balanced, comprehensive and/or objective. Insofar as there was anthropological material known to Mr Tickner at the time that he made his decision, it was contained within the Saunders Report. For the most part the opinions within that report were not those of an anthropologist, but those of Professor Saunders reflecting her acceptance of the information that she had been given by the Ngarrindjeri women with whom she consulted. So much is plain from reading the report. At p 38, Professor Saunders refers to Appendix 3, being the second of the secret envelopes in which Dr Fergie offers a preliminary anthropological analysis of the broader cosmological significance of Aboriginal beliefs about the area. However, having referred to the report, Professor Saunders says:
“Even without it, however, it is in my view open to the Minister to conclude that the area has particular significance for Aboriginal people within the meaning of the Act.”
He was thus being advised that upon information gathered by Professor Saunders, she considered that it was open to the Minister without the anthropological analysis within Appendix 3, to conclude that the area was worthy of protection.
674 The Saunders Report at p 42 makes further reference to Appendix 3 but does so to contrast an opinion within it to an opposing opinion from Dr Warrell put forward by the Chapmans. In this respect there were differing anthropological interpretations as to the impact which the bridge could have on the claimed Aboriginal tradition, and the Saunders Report made it clear that Dr Fergie on the one hand had been engaged by the ALRM and Dr Warrell on the other hand had been engaged by the Chapmans. Apart from the fact that the two anthropologists were representing different interests, in my opinion the evidence fails to indicate any reason why Mr Tickner should have questioned whether the anthropological material provided to him needed to be checked. This allegation fails on the facts.
675 Paragraph 50C(u) alleges that by reason of conduct “particularised above”, Mr Tickner failed in the course of carrying out his functions under s 10 of the HPA to act fairly to Binalong. I do not think this allegation adds anything to the matters already discussed. Save for the inadequate opportunity extended to the Chapmans to comment upon the Fergie Report once it was supplied to them, I consider that in the performance of the functions required of Mr Tickner and Professor Saunders under s 10 of the HPA procedural fairness was afforded to the applicants, and that there was no want of care on Mr Tickner’s behalf in that respect.
676 Finally, par 50C(v) alleges that Mr Tickner:
“Failed to obtain advice on –
(i) the adequacy of notices [published on 26 May 1994 by Professor Saunders]
(ii) whether he could act on the Saunders Report and/or the Fergie report although they failed to disclose details of woman’s business to him
(iii) the extent to which he was required to consider representations annexed to the Saunders Report.”
677 The substance of this allegation is incorporated in other particulars which have already been discussed. I do not think that in the state of his experience and legal precedent in mid-1994 Mr Tickner should have been on notice that he needed to obtain advice about the adequacy of the notice, or whether he could act on the Saunders Report even though it failed to disclose the details of the restricted women’s knowledge recorded in the secret envelopes. In any event, he was aware that he was being advised by the reporter, who had eminent legal qualifications, that it was in order for him to make a declaration under s 10 if he was satisfied as required by s 10(1)(b) of the HPA. I have discussed the issue of the notice at par 271, the consideration of the secret envelopes at par 648 and the consideration of the representations at par 274.
7. BREACH OF STATUTORY DUTY
678 Causes of action for damages for breach of statutory duty are pleaded against Professor Saunders and Mr Tickner. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424, Brennan CJ, Dawson and Toohey JJ said:
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O’Connor v S P Bray Ltd, an examination of the statute ‘will rarely yield a necessary implication positively giving a civil remedy’. One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.” (Footnotes omitted)
679 In the present case I have held that Professor Saunders and Mr Tickner did not owe a common law duty of care towards Binalong. Accordingly, the generalisation referred to in the above passage does not apply. However, a cause of action based on breach of statutory duty may exist even where there is no common law duty of care.
680 It is necessary to analyse what obligations it is said are imposed for the protection or benefit of a particular class of persons of which Binalong is a member. In Pyrenees Shire Council v Day at 347, Brennan CJ said:
“An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy and a right to compensation for damage suffered as the result of any breach of the duty to exercise the power in protection of that individual’s person or property. It was on the basis of a public authority’s breach of its statutory duty properly to control a scenic reserve that this Court held in Schiller v Mulgrave Shire Council that a visitor to the reserve was entitled to damages for personal injury when struck by the falling of a dead tree.
No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class. And I doubt whether a duty breach of which sounds in damages would be held to exist if the power were conferred merely to supervise the discharge by a third party of that party’s duty to act to protect a plaintiff from a risk of damage to person or property.”
In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731 – 732 Lord Browne-Wilkinson, with whose speech the other members of the House of Lords agreed, said:
“Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”
681 Binalong must therefore establish that the obligations which it alleges were broken were intended not for the benefit of the public generally, but for a specific class of which it was a member.
682 In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 Kitto J, after saying that the question whether a contravention of a statutory requirement of the kind in question is actionable at the suit of a person injured thereby is one of statutory interpretation, went on to say:
“The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation …” (References omitted)
683 The first consideration mentioned by Kitto J is the nature, scope and terms of the statute including the nature of the evil against which it is directed. The HPA is primarily directed to the evil of injury or desecration to significant Aboriginal areas and objects. Insofar as the protection afforded by ss 9 and 10 of the HPA is directed to a particular class of persons, that class would be the Aboriginal or group of Aboriginals seeking the preservation or protection. However, as earlier noted, the HPA has a wider purpose of benefiting the community as a whole by preserving Australia’s rich Aboriginal heritage. At first sight, it is difficult to conceive that the HPA has an intention to impose obligations for the protection or benefit of a class of which Binalong is a member.
684 The cause of action for damages for breach of statutory duty pleaded against Professor Saunders is found in pars 49 and 50 of the statement of claim which read:
“49. Further, or in the alternative, in the course of carrying out her functions under s 10 of the Heritage Act, Professor Saunders owed Binalong a duty to carry out those functions in accordance with the Heritage Act.
50. In deciding to make, and in the course of conduct for the purposes of the making of, the Saunders Report, Professor Saunders was in breach of that statutory duty.”
Particulars of breach are then pleaded by reference to particulars in par 48(e) – (g), (j) – (o) and (q) and in pars 41(j) and (l) of the statement of claim to which reference has already been made. In short these are that Professor Saunders:
· failed to appoint an independent anthropologist;
· used the Fergie Report and was assisted by Dr Fergie despite being requested by the applicants not to do so, and without their comment on the information so gained;
· used the Fergie Report as the sole available anthropological report knowing that it contained misstatements;
· failed to give the applicants a proper opportunity to respond to the Saunders and Fergie Reports;
· published a notice which did not comply with s 10(3);
· made her report without jurisdiction because of the improper notice;
· failed to treat the ALRM letter of 20 April 1994 which referred to women’s business as a fresh application requiring further notice;
· made a recommendation on women’s business when she was not appointed to do so, and without jurisdiction;
· failed to act in accordance with procedural fairness to Binalong; and
· misrepresented the position regarding consultation in the process for planning approval.
685 The cause of action pleaded against Mr Tickner is found in pars 50D and 50E of the statement of claim. In terms similar to those alleged against Professor Saunders it is pleaded that he did not carry out his functions under s 10 of the HPA in the manner required by the section. As particulars of the breach, the applicants repeat all the particulars of negligence earlier pleaded against Mr Tickner which include the allegations that he:
· failed to give any or proper consideration to the representations received by Professor Saunders;
· made his decision without properly considering materials provided by the applicants;
· failed to treat the ALRM letter of 20 April 1994 as a fresh application;
· failed to alert Professor Saunders to the need to publish a fresh notice;
· improperly relied on women’s business which was not the subject of an application before him;
· made his decision with undue haste;
· failed to appoint an independent anthropologist;
· failed to give the applicants a proper opportunity to respond to the Saunders and Fergie Reports;
· failed to act in accordance with procedural fairness; and
· failed to obtain appropriate legal advice.
686 I have already dealt with the particulars of negligence and misleading or deceptive conduct which are relied upon to establish the breaches of statutory duty alleged. Most of these particulars are general in nature, and it is not possible to identify any provision of s 10 of the HPA which it is said has been contravened. However, in the case of the allegation against Professor Saunders that she published a notice that did not meet the requirements of s 10(3), and in the case of Mr Tickner that he did not give any or proper consideration to the representations, the provisions of s 10(3)(a) and 10(1)(c) respectively can be identified. In relation to those provisions the applicants point to the findings in the ADJR litigation that the published notice being wholly devoid of necessary particularity was fatally flawed, and that Mr Tickner failed to consider the representations as required by the HPA. The applicants then rely on s 10(4)(e) that provides that the report shall deal with the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal applicants. It is contended that this is a sufficient statutory indication that the requirements of the notice, and the consideration of representations are intended to impose obligations upon the reporter and the Minister for the protection of that class of persons whose proprietary or pecuniary interests may be affected by the making of a declaration. However, even if the argument to this point is accepted, I think the claim then fails at the next hurdle, namely that the applicants must show that the HPA discloses an intention to create a private right of action in favour of members of that class if the procedural obligations imposed by s 10 on the reporter and the Minister are not fulfilled. In my opinion no such intention is disclosed. Those procedural requirements are merely incidental to the main purpose of the HPA which is to protect Aboriginal heritage for the benefit of the Aboriginal applicants and the public at large.
687 The procedural requirements imposed by the statute are public law duties which condition the exercise of the statutory power to grant protection against the threat of injury or desecration to Aboriginal heritage. A failure to comply with those procedures attracts public law remedies which enable a decision made in contravention of the procedures to be set aside. In my opinion, there is nothing in the HPA to indicate a statutory intention to create a private right of action for damages in favour of a person said to be aggrieved by the procedural failure.
688 Even if I am wrong in these conclusions, the applicants face two further obstacles to success. The evidence fails to show that if a notice with greater particularity had been published, if Mr Tickner had read the submissions, and the various other matters about which complaint is made had occurred differently, a s 10 declaration would not have been made. As a matter of public law, the notice has been held to be deficient but as a matter of practical reality there is no evidence that Binalong or the Chapmans or anyone else were under any misapprehension as to the area that was under consideration. Further, by the time of the notice, it was known to Binalong and the Chapmans that Ngarrindjeri people asserted that the area was a significant Aboriginal area of spiritual importance to women in particular. The applicants’ case does not point to anything that they could have put before Professor Saunders and Mr Tickner in representations had the notice been different that they did not include in the representations actually made. On issues relating to the lack of procedural fairness, again, the evidence does not show that the position would have been any different had the matters about which the applicants complain occurred differently. The Chapmans, notwithstanding present protestations, had a detailed knowledge of the issues being considered by Professor Saunders and the Minister, and made detailed submissions on them. That issue is dealt with at par 616 and following.
689 As to Mr Tickner’s failure to sufficiently consider the representations, I have indicated my conclusion that Mr Tickner’s decision probably would not have been different had he closely read the submissions in the manner for which the applicants contend: see par 636 and following.
690 The final obstacle is that the applicants would need to establish that the making of the s 10 declaration caused Binalong to suffer loss and damage. They fail on that score: see Section 10 of this judgment.
8. MISFEASANCE IN PUBLIC OFFICE
691 Damages for misfeasance in public office are claimed against Professor Saunders and Mr Tickner. There is no dispute that Mr Tickner as a Minister held a public office. However, on behalf of Professor Saunders it is contended that whilst she carried out a public function under s 10 of the HPA, she was not the holder of a public office. It is submitted that she was a designated person nominated to perform a function, but there was no office held by her, in the sense of a continuing position from time to time held by different people, to which a holder is appointed. There is support for the view that there must be an “office” that subsists independently of the person concerned to which that person is appointed: Tampion v Anderson [1973] VR 715 at 720 – 722 where doubt was expressed whether a single member of an ad hoc Board of Inquiry set up by Order in Council was the holder of a public office for the purpose of this tort, and it was held that counsel assisting plainly was not. See also Sykes v Cleary (1992) 176 CLR 77 at 96; Calveley v Chief Constable of Merseyside at 1240; The Laws of Australia (LBC),Government, 19.3 [34], and Torts 33.8 [137]. On the other hand in Sanders v Snell (1998) 196 CLR 329 at 344 [37] Gleeson CJ, Gaudron, Kirby and Hayne JJ say that “[m]isfeasance in public office is concerned with misuse of public power” and at 345 [39] that “misfeasance in public office is concerned with performance of public duties”. The majority at 345 [38] also refer to Northern Territory v Mengel (1995) 185 CLR 307 where the majority in that case considered it sufficient to proceed on the basis that the tort requires an act which “the public official knows is beyond power”. These statements suggest that the public nature of the power and duties associated with it are more important than whether the repository of the power is appointed to an “office” that subsists independently of the person concerned. However, it is not necessary to decide this issue as I consider the claim based on misfeasance in public office must in any event fail.
692 In Sanders v Snell at 346 [42] Gleeson CJ, Gaudron, Kirby and Hayne JJ in considering the tort of misfeasance in public office said:
“Again it must be accepted that the precise limits of this tort are still undefined (Northern Territory v Mengel). It is an intentional tort. As was said in Mengel (at 345):
‘… the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.’” (Footnotes within the quotation omitted)
Their Honours had earlier said at 344 – 345 [38]:
“For present purposes it may be accepted that the tort of misfeasance in public office extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness (Mengel at 356 – 357). But to establish that tort, it is not enough to show the knowing commission of an act beyond power and resulting damage. As the majority said in Mengel (at 347):
‘The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.’ (References within the quotation omitted)
For the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm but noted also that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power (at 347).”
693 In Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 the House of Lords considered the scope of the tort of misfeasance in public office and followed Northern Territory v Mengel. Their Lordships held that the tort involved an element of bad faith and arose when a public officer exercised his power specifically intending to injure the plaintiff, or when he acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge of, or with reckless indifference to, the probability of causing injury to the plaintiff or persons of a class of which the plaintiff was a member; and that subjective recklessness in the sense of not caring whether the act was illegal or whether the consequences happened was sufficient.
694 Lord Steyn, with the agreement of Lord Hope and Lord Millett said (at p 1231):
“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injury a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”
695 Lord Hobhouse (who also expressed substantial agreement with Lord Steyn at p 1267) said at p 1269:
“The official concerned must be shown not to have had an honest belief that he was acting lawfully; this is sometimes referred to as not having acted in good faith. In the Mengel case, at p 546, the expression honest attempt is used. Another way of putting it is that he must be shown either to have known that he was acting unlawfully or to have wilfully disregarded the risk that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest.”
696 In the present case I consider the claims based on the tort of misfeasance in public office must fail if for no other reason because the applicants have not established bad faith. On the contrary I consider that both Professor Saunders and Mr Tickner held honest beliefs that they were acting lawfully at all times.
697 The relevant pleadings against Professor Saunders are at pars 50J to 50M of the statement of claim. Paragraph 50J pleads that she held a public office. Paragraph 50K pleads that she knew or ought to have known that if she failed to act within power loss would or might be caused to Binalong. Paragraphs 50L and 50M plead the acts of misfeasance alleged. Paragraph 50L alleges that Professor Saunders, was empowered and obliged under s 10 of the HPA to report to the Minister relating to “the particular significance of the area … to Aboriginals” and that she knew she was not acting within that power or alternatively was recklessly indifferent or wilfully blind as to whether or not she was so acting because:
· if beliefs were known or claimed by just one person that would be insufficient to constitute the area as “significant”;
· the terms of the s 10 application and/ or the notice did not permit her to report on women’s business and accordingly it was beyond power for her to report to the Minister that it was open to him to find that the area was significant in terms of the HPA; and
· the representations which she made in her report about the inadequacy of consultations with Ngarrindjeri women were to her knowledge wrong (or alternatively she was reckless as to their correctness).
698 Paragraph 50M alleges that Professor Saunders knew she was obliged to provide procedural fairness to Binalong and/or to the Chapmans as persons with a direct and material financial interest in whether or not any s 10 declaration was made, but she failed to do so, and acted contrary to assurances given to the Chapmans on 22 June 1994, that she would not obtain assistance from Dr Fergie (being in substance the allegation made in par 41(n) in the particulars of negligence).
699 Each of these allegations of misfeasance fails on the facts. I have already indicated that as a matter of fact it was not the case that the information available to Professor Saunders indicated that only one woman knew of the restricted women’s knowledge, and that she did not realise that the notice was deficient: see pars 446 and following, and 271 and 605 respectively. I have dealt with the question of consultation at par 504 and following. I find that the representations that she made on that topic were open on the information she had available to her. I accept her evidence that she thought she was expressing a proper evaluation of the material, and I reject the suggestion that she either knew of or was recklessly indifferent to the inaccuracy of her statements about inadequate consultation. On the question of procedural fairness, I accept Professor Saunders’ evidence that she believed that she had complied with the obligations resting on a reporter, and that her report in this regard accurately summarised her belief: see par 273. I am not satisfied that Professor Saunders and Dr Fergie conferred by telephone or otherwise for nearly two hours on the evening of 22 June 1994, or that Professor Saunders acted in any way unfairly to Binalong or the Chapmans in her dealings with Dr Fergie. I find that she did not act contrary to assurances given to the Chapmans on 22 June 1994: see pars 569 - 573. I have earlier concluded that procedural fairness was extended to Binalong and the Chapmans: see par 616 and following.
700 The relevant pleadings against Mr Tickner are at pars 50N to 50QA. Paragraph 50N pleads that he held a public office which is admitted. Paragraph 50O pleads that he knew or should have known Binalong would suffer loss if he failed to act within power. Paragraphs 50P to 50QA plead the acts of misfeasance alleged. Paragraph 50P pleads that Mr Tickner knew he was acting beyond power or was recklessly indifferent to the question because:
· Tickner v Bropho had ruled as to his obligation to consider representations;
· he had been advised of the necessity to receive and consider the representations by Professor Saunders and ATSIC;
· he was in Sydney from 7 to 9 July 1994 whereas the representations which he was required to consider were in Canberra, and he thus put himself in a position where he had no opportunity to consider the representations, and in any event allowed no time to do so.
701 Paragraph 50Q pleads that Mr Tickner was guilty of misfeasance in making the declaration when the Saunders Report had advised him that there was a “discrepancy” about the area potentially the subject of any declaration, and that there was a question whether the notice was adequate.
702 Paragraph 50QA raises an entirely new issue. It pleads that Mr Tickner was guilty of misfeasance because he knew the appointment of Professor Saunders was vitiated because Mr Tickner, Ms Kee or ATSIC had consulted the proponents for the s 10 declaration and/or Dr Kartinyeri as to who ought to be appointed as a reporter, but failed to disclose to Binalong and the Chapmans that the reporter was a nominee of the proponents.
703 The matters raised in par 50P I have considered at par 274 where I held that the applicants had not established that Mr Tickner knew that he was required in law to do more than he did in his consideration of the representations, or that he was reckless as to his responsibility to “consider” them.
704 As a matter of fact, the advice to Mr Tickner from ATSIC was that the representations had to be “received and acknowledged”, and the evidence does not establish that Professor Saunders gave any advice to Mr Tickner as to what was required of him when he “considered” the representations.
705 The topic of the notice and the area is discussed at par 271. I do not consider that upon reading and considering the Saunders Report, Mr Tickner should have been alerted that he could be acting beyond power in making a s 10 declaration because the published notice did not adequately describe the area in respect of which protection was sought, and did not specify the purpose of the application. The procedural steps, including the drafting of the notice, had been attended to by ATSIC who had experience with applications under the HPA and I accept that he would have relied on them to fulfil the procedural requirements.
706 I have accepted Mr Tickner’s evidence that he did not know or suspect that there was any doubt about his power to make the s 10 declaration which he did. The reference to a discrepancy about area in the Saunders Report directed his attention to the need to specify an area in any declaration he decided to make, but I do not accept that the report should have caused him to question his power to do that.
707 On the allegations raised in par 50QA, as a matter of fact, I find that Professor Saunders was not the nominee of any interested party. Internal memoranda between ATSIC and Mr Tickner’s office, and a communication from Dr Kartinyeri addressed to the Minister which he probably never saw, show that the proponents desired the appointment of a woman, and to have some say in that appointment. There was also discussion in ATSIC as to potentially suitable appointees, and enquiries were made with some of them as to their availability. However, I accept the evidence of Mr Tickner that the decision to appoint Professor Saunders was one made by him without any input in her selection either from the applicants for the declaration or from ATSIC or his ministerial advisers. The appointment was made without reference to the proponents for their approval of the Minister’s choice. It is therefore unnecessary on this allegation to consider the further issues that might otherwise arise, namely whether communications of the type alleged would vitiate the appointment and whether Mr Tickner knew of or was recklessly indifferent to that fact.
708 I consider all the allegations of misfeasance in public office against Professor Saunders and Mr Tickner fail for the above reasons. The claims under this head would also fail on the ground that the applicants have not proved that Binalong suffered damage in consequence of the making of the s 10 declaration which is said to be the consequence of the alleged misfeasance.
9. CLAIM AGAINST THE COMMONWEALTH
709 The sole claim against the Commonwealth is for compensation under s 28 of the HPA which reads:
“28. (1) Where, but for this section, the operation of a provision of this Act (except a provision of Part IIA) or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.
(2) In subsection (1), ‘acquisition of property’ and ‘just terms’ have the same respective meanings as in paragraph 51(xxxi) of the Constitution.”
710 The applicants contend that a temporary deprivation of property constitutes an “acquisition of property” within the meaning of s 51(xxxi) of the Constitution. The statement of claim pleads that the emergency declarations under s 9, and the declaration under s 10 whilst it was in force from 10 July 1994 until set aside, resulted in an acquisition of property. However, in the presentation of the case and in final submissions the claim was said by the applicants to rest on an acquisition of property resulting from the s 10 declaration. That the case was so confined is not surprising having regard to the applicants’ identification of the property which they contend was the subject of the acquisition. That property is said to have consisted of contractual rights, and statutory and proprietary rights. The contractual rights constituting property were the rights of Binalong under the Tripartite Agreement to require the construction of the bridge. The proprietary and statutory rights consisted of Binalong’s rights under the planning approval to proceed with Stages 2 to 6 of the marina, which were dependent on substantial commencement of the construction of the bridge. The applicants contend that the making of the s 10 declaration, even though later held to be invalid, frustrated the Tripartite Agreement so that the State was no longer obliged to construct the bridge, and also sterilised the planning consent. The compensation claimed is for the same sum sought as damages alleged to result from the wrongs pleaded against the other respondents. In short, it is alleged that the s 10 declaration had the immediate effect of causing a substantial capital loss, being a diminution in the value of the marina which value never returned.
711 The s 9 declarations ceased to have any further effect as soon as they expired. It is not suggested that the s 9 declarations had the effect of frustrating the Tripartite Agreement, and an allegation of an acquisition of contractual rights based on these declarations could not be sustained. The terms of the planning consent for Stages 2 to 6 were expressly conditioned on the substantial commencement of the bridge. The s 9 declarations once they expired also had no limiting effect on the further development of the marina. What would limit the further development would be a valid declaration under s 10 which had the effect of preventing construction of the bridge in the longer term. It was the potential for such a declaration which affected the marina’s value, not the emergency declarations which only had the short term effect of holding the status quo whilst the LMAHC’s application for long term protection under the HPA was under consideration. Thus the applicants’ case under s 28 of the HPA focussed on the s 10 declaration as the event which was said to bring about an acquisition of property.
712 The Commonwealth defends the claim on a number of grounds. It contends that a claim under s 28 of the HPA depends on there being a valid declaration; that for several reasons there was no “acquisition” by the Commonwealth, or alternatively there was no acquisition of “property”; that if there was an acquisition of property, it was not an acquisition of property under s 51(xxxi) of the Constitution; and in any event the applicants suffered no loss.
713 The applicants rely in particular on Minister of State for the Army v Dalziel (1944) 68 CLR 261 to support the contention that a temporary deprivation of property amounts to an acquisition of property within s 51(xxxi) of the Constitution. In that case a taking of exclusive possession of land under the National Security (General) Regulations for an indefinite period for war time purposes without just compensation was held to contravene s 51(xxxi). That the taking was temporary only did not mean that there was no “acquisition”: see at 285 - 287 per Rich J, at 290 per Starke J, at 295 per McTiernan J and at 299 per Williams J. In that case, the taking occurred pursuant to a power in reg 54. Other regulations made provision for the making of a claim for compensation, and reg 60H permitted the Minister to make orders regulating the assessment of compensation. Although it was held that reg 60H was invalid under s 51(xxxi) because it contemplated awarding compensation on the erroneous footing that the taking of possession of land did not amount to an acquisition of property, the taking under reg 54 was nevertheless valid. The decision is therefore distinguishable from the present case where the s 10 declaration effecting an alleged acquisition of property has been determined to be invalid.
714 In my opinion the Commonwealth is correct in its submission that the present case is governed by the principle recognised in Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330 at 335 where Sheppard and Wilcox JJ (Fox J agreeing) said:
“A decision made in purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid – at least in so far as substantive rights are concerned – as from the date upon which it was made.”
715 A similar principle applies where there is a setting aside or reversal of a judgment or conviction: “it is annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost”: see Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 227 - 228.
716 I consider that the effect in law of the judgments of O’Loughlin J and the Full Court was to set aside the s 10 declaration ab initio, and the position thereafter has been as if the s 10 declaration was never made. On this ground I consider that there was no acquisition of property that could attract the operation of s 28 of the HPA. Possibly the making of an invalid declaration could give rise to other civil remedies if during the period before the declaration were set aside a person affected suffered loss, but the remedy cannot arise under s 28.
717 This conclusion is also supported by the terms of s 28. The entitlement to compensation is said to arise where, but for the operation of s 28, the operation of “a declaration made under Part II” would result in an acquisition of property otherwise than on just terms. If the Minister purports to make a declaration in a way that does not fulfil the requirements of s 10 (which is in Part II), it is not “made under Part II”. That is the very reason why the s 10 declaration was set aside here: the process required by s 10 was not fulfilled. In the result a declaration was not made under Part II because the conditions precedent to the exercise of Mr Tickner’s power under s 10(1) were not met.
718 The applicants seek support for their claim under s 28 of the HPA from the decision of the United States Supreme Court in First English Evangelical Lutheran Church v County of Los Angeles 482 US 304 (1987) and earlier United States decisions discussed in that case. First English established that a temporary regulatory “taking” which has the effect of denying a landowner all the use of its property for a time is within the just compensation clause of the Fifth Amendment of the Constitution of the United States of America. In this respect the decision embraces a construction of the just compensation clause that is similar to the construction placed on s 51(xxxi) in Dalziel. However the applicants go further and contend that First English also holds that just compensation is payable where, in a case like the present one, an invalid regulation purports to deprive a person of property. It is contended that the decision recognises that a temporary “taking” is affected by the regulation during the time until the regulation is declared invalid by a court. In particular, a passage from the judgment of the majority (Rehnquist CJ, Brennan, White, Marshall, Powell and Scalia JJ) at 319 is relied upon:
“Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a ‘temporary’ one, is not a sufficient remedy to meet the demands of the Just Compensation Clause.”
719 However the decision does not have the meaning which the applicants seek to attribute to it. The notion of invalidation to which the Supreme Court refers is not the invalidity ab initio of a regulation irregularly made. The nature of the invalidity to which the Supreme Court refers is mentioned by the majority at 317 and is discussed in somewhat greater detail by Stevens J in his dissenting opinion at 328 and 335. The invalidity under consideration is that which arises where a court determines that the regulatory provision under consideration constitutes a “taking” that offends the Just Compensation Clause of the Fifth Amendment. Where such a determination is made, Stevens J explains at 328:
“… the government has a choice: it may abandon the regulation or it may continue to regulate and compensate those whose property it takes.”
720 It is clear from the opinions of the Court that during the period before the government elects to pursue one or other of these choices, the regulation is in force and remains in force up until the election is made. Thus the majority at 318 state the issue then before the Supreme Court as whether abandonment by the government requires payment of compensation for the period of time during which the regulations deny a landowner all use of the land, and Stevens J, at 331, refers to the effect of a finding that a “taking” has occurred as a “prospective invalidation”. These statements reflect the fact that the Fifth Amendment is a guarantee of just compensation, and not a limitation on legislative power – in contrast with s 51(xxxi) of the Australian Constitution. In Loveladies Harbor Inc v The United States 28 F 3d 1171 (1994) the United States Court of Appeals, Federal Circuit at 1177, summarised the result of First English as requiring “just compensation for a regulatory taking from the date it occurs until the date of the regulation’s recission or amendment”. In short, the US authorities upon which the applicants rely are distinguishable from the present case on the same grounds that Dalziel is distinguishable. They deal with situations where the regulatory provision has lawful effect during the period said to constitute a temporary “taking” or acquisition of property.
721 In the event that the above conclusion is wrong, the Commonwealth relies on an alternative submission that the s 10 declaration, assuming it is to be treated as having an operation for a time, did not affect an acquisition of property. The terms of the s 10 declaration are set out at par 122 above.
722 In Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201 - 202 Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said that the plenary grant of legislative power contained in s 51(xxxi) has assumed the status of a constitutional guarantee of just terms, and is to be given the liberal construction appropriate to such a constitutional provision. In keeping with this approach the notion of “property” in s 51(xxxi) has been broadly interpreted. In Dalziel Starke J at 290 described the term “property” as extending to every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and choses in action. See also Rich J at 285 and McTiernan J at 295. In the Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Dixon J at 349 said the notion of property extends to innominate and anomalous interests. This broad interpretation is now firmly entrenched: see Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 172 per Mason CJ and at 184 - 185 per Deane and Gaudron JJ.
723 On the assumption that the s 10 declaration had operation for a time, during that time it had the practical effect (see The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 90) of preventing the enjoyment by Binalong of its contractual rights to require the construction of the bridge under the Tripartite Agreement. These rights became effectively frozen unless the Minister were to grant written consent (cf Deane J in The Tasmanian Dam Case (1983) 158 CLR 1 at 286). It is less clear that the declaration had a similar operation in respect of the planning consent in relation to Stages 2 to 6, but on balance I accept that this would be the case. A sterilisation of rights to pursue otherwise lawful activities was recognised as constituting a deprivation of property in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 530 per Brennan CJ and at 635 per Gummow J. In Commonwealth v Western Australia (1999) 196 CLR 392 McHugh J at 421 considered a modification of contractual rights may effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution.
724 However the sterilisation or modification of contractual or other rights and interests, whilst amounting to a deprivation of property of the holder, is not sufficient to constitute an “acquisition” under s 51(xxxi). In the Tasmanian Dam Case Mason J at 145 said:
“The emphasis in s 51(xxxi) is not a ‘taking’ of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right than an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be.”
725 Brennan J at 247 said:
“Where neither the Commonwealth nor any other person acquires proprietary rights under a law of the Commonwealth, there is no acquisition upon which par (xxxi) may fasten.”
726 And Deane J at 283 said:
“The mere extinguishment or deprivation of rights in relation to property does not involve acquisition.
Difficult questions can arise when one passes from the area of mere prohibition or regulation into the area where one can identify some benefit flowing to the Commonwealth or elsewhere as a result of the prohibition or regulation. Where the benefit involved represents no more than the adjustment of competing claims between citizens in a field which needs to be regulated in the common interest, such as zoning under a local government statute, it will be apparent that no question of acquisition of property for a purpose of the Commonwealth is involved. Where, however, the effect of prohibition or regulation is to confer upon the Commonwealth or another an identifiable and measurable advantage or is akin to applying the property, either totally or partially, for a purpose of the Commonwealth, it is possible that an acquisition for the purposes of s 51(xxxi) is involved.”
727 Deane J considered that the prohibition imposed by the World Heritage (Western Tasmania Wilderness) Regulations 1983 (Cth) and the World Heritage Properties Conservation Act 1983 (Cth), s 11, constituted an acquisition of property being the benefit of the prohibition of the exercise of the rights to use and develop the land in question (at 287). However Mason and Brennan JJ were of the opinion that no benefit was acquired by the Commonwealth or others so as to constitute the necessary benefit (at 145 – 146 and 248 respectively). Murphy J considered there was no “acquisition of property” within the meaning of s 51(xxxi) but for different reasons (at 181 – 182).
728 In Mutual Pools & Staff Pty Ltd v The Commonwealth, Mason CJ at 172 – 173 said:
“… the mere extinguishment by the Commonwealth of a right enjoyed by an owner in relation to his or her property does not amount to an acquisition of property (Tasmanian Dam Case (1983) 158 CLR at 145); in the absence of an acquisition of a benefit or an interest in property, however slight or insubstantial it may be, the complete extinguishment of contractual rights does not constitute such an acquisition (Reg. v Ludeke; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 636 at 653).”
729 And Deane and Gaudron JJ at 185 said:
“Nonetheless, the fact remains that s.51(xxxi) is directed to ‘acquisition’ as distinct from deprivation. The extinguishment, modification or deprivation of rights in relation to property does not of itself constitute an acquisition of property. For there to be an ‘acquisition of property’, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property. On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result. Indeed, the extinguishment of a chose in action could, depending upon the circumstances, assume the substance of an acquisition of the chose in action by the obligee.” (Footnotes omitted.)
730 In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 the extinguishment of a vested cause of action was held to be an “acquisition of property”. Mason CJ, Deane and Gaudron JJ at 304 – 305 said:
“… ‘acquisition’ directs attention to whether something is or will be received. If there is a receipt, there is no reason why it should correspond precisely with what was taken. That is particularly so with ‘innominate and anomalous interests’ (Bank Nationalization Case (1948) 76 CLR at 349). Thus, the fact that neither Telecom nor any one else now has the cause of action which was previously vested in Mr Georgiadis is not conclusive of the question whether there has been an acquisition of property for the purposes of par (xxxi).
… Accordingly, ‘acquisition’ in s 51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction) and the cause of action is one that arises under the general law.”
731 The requirement of the acquisition of such a benefit was confirmed most recently in Smith v ANL Ltd (2000) 176 ALR 449 at 451 per Gleeson CJ, at 456 and 461 per Gaudron and Gummow JJ, and at 474 per Kirby J. Callinan J, in dissent, expressed reservations about the interpretation of “acquisition” adopted in earlier decisions of the High Court, at 489 – 490, but in my opinion this Court is bound to follow the interpretation established by the statements of other members of the High Court referred to above, as indeed it has in the past: see Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 at 585 – 587.
732 In the present case the applicants submit that there is a relevant receipt of a benefit by the Commonwealth, by the State, and by the Ngarrindjeri claimants.
733 The applicants contend that the Commonwealth in extending protection under the HPA gained a benefit arising out of non-use of Binalong’s land and contractual rights. In my opinion the prohibition on the construction of the bridge and associated earthworks did not result in the Commonwealth acquiring any identifiable proprietary interest under or as a result of the s 10 declaration, or any identifiable benefit or advantage relating to the ownership or use of property. This case is quite unlike Newcrest Mining (WA) Ltd v The Commonwealth where the Commonwealth received an identifiable benefit related to the use of its land or, it could be said, to the non-use of its land for mining purposes. The Commonwealth gained the undisturbed possession of the minerals on and under the land included in the Kakadu National Park. In The Tasmanian Dam Case Deane J “with some hesitation” (at 286) concluded that the Commonwealth gained a sufficient benefit from the prohibition of the exercise of rights of use and development of land for the purpose of carrying out Australia’s international obligations under the Convention for the Protection of the World Cultural and Natural Heritage, but that was not a view shared by the other judges who considered s 51(xxxi).
734 To establish that the Commonwealth obtained an identifiable benefit or advantage relating to the ownership or use of land, it is not sufficient, in my opinion, to show merely that the Commonwealth law in question was applied to achieve what the applicants describe as its “own political purposes”. Nor in my opinion is it sufficient that the law was applied “in the public interest” (if this submission made by the applicants is in substance any different from the submission based on the Commonwealth’s “own political purposes”). In Bienke the Northern Prawn Fishery Management Plan could be said to have implemented the political objective of the Minister, and was to have been made in the public interest to protect the resources of the fishery, yet these factors were held by the Full Court not to be sufficient to constitute the receipt of a benefit by the Commonwealth (at 586 – 587). See also Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 at 192 per Lockhart J.
735 I do not consider the power or ability of the Commonwealth to act in the public interest or for its own political purposes was enhanced in any way that could be described as a benefit to the Commonwealth by the making of the s 10 declaration (cf The Commonwealth v WMC Resources Ltd at 38 per Gaudron J).
736 The applicants contend that the State relevantly received an identifiable and measurable benefit in the form of Binalong’s contractual rights. They submit “the State’s liability to build the bridge (costing it several million dollars) was brought to an end without being required to make the payment or other satisfaction to Binalong”. The difficulty with this submission is that the evidence does not address the question of benefit or detriment that may have been suffered by the State by reason of the s 10 declaration. This is hardly surprising as the reality of the situation is that in the events which happened the contractual position of the parties under the Tripartite Agreement ultimately did not change. Binalong and the Chapmans continued to assert against the State a continuing obligation under the Tripartite Agreement to build the bridge (and Westpac/PPL were also threatening action against the State if the bridge did not go ahead). At the end of the day the State constructed the bridge. The submission that the State gained a benefit invites consideration of the total consequences that would follow on the hypothesis that the s 10 declaration brought the Tripartite Agreement to an end by frustrating it. Amongst benefits and detriments to the State would be factors such as the cost of designing the bridge and acquiring materials that could no longer be used, the cost of continuing to operate the ferry that it was proposed the bridge would replace, the impact of monies to be recovered from the Council from proposed levies on Hindmarsh Island landowners and the impact of the bridge on the future development of the southern Fleurieu Peninsula. These matters are not the subject of evidence. The evidence does not support a finding of monetary benefit to the State, nor a finding that the State gained some other countervailing benefit as a result of the extinguishment or termination of Binalong’s contractual rights.
737 Then it is said by the applicants that the Ngarrindjeri people also acquired a benefit from the non-use of Binalong’s land and contractual rights. In support of this contention the applicants refer to the observation of French J in Tickner v Bropho at 223 that the HPA “was enacted for the benefit of the whole community” and to the statement of the Minister for Aboriginal and Torres Islander Affairs in the Second Reading Speech for the Bill to enact the HPA that when protection by a declaration is granted (Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1984 at 2133):
“… the benefit will not be confined to those local Aboriginals and Islanders whose areas and objects receive the direct protection of the law. In a wider and very real sense, the benefit will be felt by the whole community.”
738 To say that the benefit is not confined to the Ngarrindjeri people but is a benefit to the whole community is to say that the declaration is made in the public interest. As Bienke indicates, if the only benefit that is identified is one generally enjoyed by the whole community in the public interest, that is not a benefit sufficient to support a finding of “acquisition of property” within the meaning of s 51(xxxi). But a Commonwealth law made to benefit the community at large may also bestow particular benefits on identifiable people or the Commonwealth itself sufficient for a taking of a proprietary interest from its holder to constitute an “acquisition of property” within the meaning of s 51(xxxi). Newcrest Mining (WA) Ltd v The Commonwealth provides an example. To establish such a case the recipient of a particular benefit over and above that received generally by the community must be identifiable, as must be the particular benefit or advantage relating to the ownership or use of the property that is said to have been acquired. Merely to assert the Ngarrindjeri claimants received a benefit from the non-use of Binalong’s land and contractual rights in my opinion is not sufficient.
739 It is significant that in the present case there was no transfer of any interest in land or of contractual rights to any person who is said to be a recipient of a benefit.
740 Insofar as the alleged benefit is said to arise from the non-use of Binalong’s land, that land is a considerable distance from the corridor area the subject of protection prescribed in the s 10 declaration, and has never been the subject of any claim for protection by any Aboriginal group under the HPA. There is no evidence that suggests that any member of the Ngarrindjeri people would gain a benefit if the development of Stages 2 to 6 of the marina did not go ahead.
741 Insofar as the benefit is said to arise from the non-use of Binalong’s contractual rights under the Tripartite Agreement, the submission in my opinion fails for two reasons. First it is not possible to sufficiently identify those who are said to benefit. The claimant for protection was the Lower Murray Aboriginal Heritage Committee. Under the AHA, s 7(1), the Aboriginal Heritage Committee is established. The LMAHC is a sub-committee established by the Aboriginal Heritage Committee with the approval of the State Minister for Aboriginal Affairs under s 7(5) of the AHA. The function of such a sub-committee is “to investigate and report to the Committee on any matter”. The evidence does not indicate whether the LMAHC has a constitution which gives it a wider function or existence independent of its establishment under s 7(5) of the AHA. On what authority and on whose behalf the LMAHC corresponded with Mr Tickner and his office leading up to the making of the s 10 declaration is not clear. The evidence before this Court suggests there is a significant section of the Ngarrindjeri community who deny the significance of the area to the Ngarrindjeri and disclaim any suggestion that a benefit to anyone could result from the s 10 declaration. Who is said to have obtained a particular benefit is therefore uncertain.
742 Secondly, the Saunders Report and the press statement of Mr Tickner issued on 10 July 1994 made it plain that the aspect of the Aboriginal traditions and beliefs relied on was within the restricted women’s knowledge “which concerns the life force itself”. That knowledge concerned spiritual beliefs that relate to the reproduction of Ngarrindjeri people vital to their continued existence. I understand this to mean that the protection of the area was sought because the bridge would, according to the asserted Ngarrindjeri traditions and beliefs, lead to the demise of the culture and traditions of Ngarrindjeri people as a discrete Aboriginal community. The protection was being sought for future generations rather than for existing members of the Ngarrindjeri people. The benefits which would flow from protection under a s 10 declaration would concern spiritual aspects of Ngarrindjeri tradition to be enjoyed by future generations. Benefits of this kind are not proprietary in nature and are too nebulous to constitute an identifiable and measurable countervailing benefit or advantage which has any correspondence with the contractual rights which Binalong would lose under the operation of the s 10 declaration (if valid).
743 In my opinion the applicants have not established that the s 10 declaration, if it had operative effect for a time, resulted in an acquisition of property within the meaning of s 51(xxxi).
744 The Commonwealth has advanced a further alternative submission which assumes that the s 10 declaration effected an acquisition of property (contrary to the finding I have made). The Commonwealth argues that the HPA and the s 10 declaration made under it, are not the laws “with respect to” such an acquisition. Rather they are laws made under s 51(xxvi) being the power to make laws with respect to the peace, order and good government of the Commonwealth with respect to “the people of any race for whom it is deemed necessary to make special laws”. It is said that s 10 of the HPA, and the declaration in question here, constitute no more than “the means appropriate and adapted to the achievement of an objective falling within [s 51(xxvi)] where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed”: see Mutual Pools & Staff Pty Ltd v The Commonwealth at 179 per Brennan J and Air Services Australia v Canadian Airlines International Ltd (1999) 167 ALR 392 at 415 [98] per Gleeson CJ and Kirby J.
745 It is submitted by the Commonwealth that nothing is more appropriate and adapted to the task of preservation of heritage than the prohibition of acts which tend to destroy or reduce the significance of the area or object intended to be protected under the HPA. Further, it is submitted that the nature of the power in s 51(xxvi) inevitably requires an adjustment of the competing rights, claims and obligations of people of the race for whom the special laws are made and those of the rest of the community. A law directed towards achieving that end is unlikely to be susceptible of legitimate characterisation as a law with respect to the acquisition of property for the purpose of s 51(xxxi) of the Constitution: see Georgiadis v Australian and Overseas Telecommunications Corporation at 305 – 308 per Mason CJ, Deane and Gaudron JJ and Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 161 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
746 In response, the applicants contend that no characterisation question of this type arises under the HPA as s 28 is a self contained provision entitling any person whose property is acquired as a result of a s 10 declaration to compensation. That submission overlooks the opening words of s 28 – “Where, but for this section …”. Section 28 only operates where there would otherwise be an acquisition of property under a Commonwealth law with respect to the acquisition of property from any State or person for any purpose in respect of which the Parliament has power to make laws. Unless the law is of that character the requirement of just terms does not arise. The reasoning of Cooper J in the Full Court of this Court in Commonwealth v Western Mining Corporation Ltd (1996) 67 FCR 153 at 200, with which I respectfully agree, explains the operation and purpose of a provision like s 28 of the HPA in a Commonwealth statute.
747 Were it necessary to decide the applicants’ claim under s 28 of the HPA on the characterisation point, I would hold that the s 10 declaration in this case was not an exercise of legislative power pursuant to s 51(xxxi) of the Constitution and was not a law “with respect to” the acquisition of property; and accordingly that s 28 of the HPA had no application. I would do so for the reasons advanced in the Commonwealth submissions.
748 Finally, for reasons given under the section of this judgment dealing with “The question of loss and the assessment of damages”, I consider the claim under s 28 of the HPA must fail in any event as the s 10 declaration – even if it had an operative effect until it was set aside – resulted in no loss to Binalong.
749 The applicants’ claim against the Commonwealth therefore fails.
10. THE QUESTION OF LOSS AND THE ASSESSMENT OF DAMAGES
The applicants’ case
750 The applicants’ case on liability asserts that the wrongful conduct of the respondents (apart from the Commonwealth) led Mr Tickner to make the s 10 declaration on 9 July 1994, whereas he would not have made the declaration had the allegedly wrongful conduct not occurred. The applicants’ case on loss and damages is that the making of the s 10 declaration caused Binalong an immediate, substantial and ongoing capital loss, being a diminution in the value of the marina. The applicants contend that the capital loss was at no time alleviated before the sale of the marina to Kebaro on 30 September 1997 by any of the events which occurred in the meantime. The possibility of value to Binalong being restored disappeared when the sale to Kebaro took place.
751 The applicants contend that until the s 10 declaration was made, the State had a determination to build the bridge in accordance with the Tripartite Agreement, and but for the declaration would have resumed construction within days after 9 July 1994. The declaration however was an event that frustrated the Tripartite Agreement, and relieved the State of any obligation to continue with the bridge construction. The losses thereby suffered by Binalong were precisely the losses which could be foreseen if the bridge construction did not go ahead.
752 The applicants argue that the events which happened attract the legal principle that once a breach of duty is established and a loss of the kind that was foreseeable occurred, the court should infer as a matter of common sense and experience that the breach of duty has caused the injury unless there is evidence that the breach had no effect or that the loss would have occurred in any event: see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 519 per Mason CJ and 522 per Deane J, and Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412 - 413 per Mason CJ, Deane and Toohey JJ, 418 – 420 per Gaudron J and 428 per McHugh J.
753 That the State did not resume construction shortly after the s 10 declaration was set aside is said to be a consequence of uncertainty on the part of the State caused by the fact that Mr Tickner had made an invalid s 10 declaration on 9 July 1994. The uncertainty, and the making of a further application under the HPA by Ngarrindjeri men and women in December 1995, are said not to constitute new causes which break the chain of causation as they are not “events unrelated to the situation created by the earlier” wrongful conduct (relying on a passage from the judgment of McHugh J in Bennett v Minister for Community Welfare at 430). The diminution in the value of the marina after the s 10 declaration was set aside is said to continue due to the fact that the s 10 declaration was made in the first place.
754 The applicants quantify the loss to Binalong under two broad heads. The first head of loss is for the alleged diminution in value of the marina, being the difference between the proceeds of sale which the Receivers and Managers of Binalong were likely to have received had the s 10 declaration not been made, and the sale price to Kebaro on 30 September 1997. The pleadings allege that if the s 10 declaration had not been made, construction work on the bridge would have resumed shortly after 9 July 1994 and proceeded expeditiously, and that the Receivers and Managers would have entered into a contract of sale for the marina in about December 1994 at a sale price of $16.8 million (that being the fair value of the marina taking into account potential future development, and assuming the imminent completion of the bridge). Settlement would have occurred by 25 February 1995 providing net proceeds of sale after expenses of $16.582 million. At the most under the formula regulating the sale price to Kebaro, the proceeds of sale would not exceed $2.54 million discounted back to a present value at the date of sale. The second head of loss claimed is for the extra interest liability incurred by Binalong to Westpac/PPL in consequence of the assumed proceeds of sale not being credited against Binalong’s liability to Westpac/PPL, then standing at $18,495,828.14, on 25 February 1995.
755 Undoubtedly the potential value of the marina lay with the construction of the bridge. Not only were Stages 2 to 6 dependent on the substantial commencement of the construction of the bridge, but the successful promotion and marketing of the earlier stages would be much improved by the completion of the bridge. But the question of loss is not simply a black and white question of bridge or no bridge. The question is quite different, and complex. The emergence of claims by the Ngarrindjeri community through the LMAHC that the area had a special significance to them gave rise to the possibility of intervention by the Federal Minister under the HPA, and the growing opposition to the bridge in sections of the non-Aboriginal community gave rise at the least to real possibilities of delay that would severely affect the value of the marina if it were placed on the market. The respondents contend that these matters had arisen before 9 July 1994 and had devalued the marina independently of, and before, the s 10 declaration. The respondents also allege that the marina was worth approximately the same amount, or slightly more, in September 1997 than it would have been worth in the latter half of 1994 had the s 10 declaration not been made. For these reasons the respondents challenge whether Binalong suffered any loss at all.
756 The respondents challenge the assumptions on which the applicants’ alleged losses are calculated, and in particular assumptions about the timing of the resumption of construction work on the bridge, about the timing of a likely sale by the Receivers and Managers had the s 10 declaration not been made, and about the value of the marina at relevant dates. The respondents contend that construction work would not have resumed shortly after 9 July 1994, but at the least would have been long delayed by ongoing protests, likely legal challenges by those opposed to the bridge, and likely legal difficulties arising under the Tripartite Agreement following a sale by the Receivers and Managers. Further, the respondents say that finding a buyer for the marina in late 1994 and 1995 would have been a long, slow and difficult process, that the potential of the marina was not as favourable as the applicants contend, and that the true value was far less than the pleaded value of $16.8 million at that time.
757 In the determination of a claim for damages in a case like the present, it is necessary first to consider whether the applicants have established causation, that is whether they have proved that the wrongful conduct alleged has caused any damage. If some damage is proved, then it is necessary in the assessment of the amount of the loss to consider what would or may have been the applicants’ position had the loss not occurred: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 and Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 332. On the first issue, the applicants carry the onus of proving on the balance of probabilities that the alleged wrongful conduct of the respondents caused some damage, the happening of damage being an essential ingredient of the causes of action pleaded. On the second issue the object is to return the applicants to the position they would have been in had loss not occurred. The estimation of their position had the loss not occurred is likely to require the court to evaluate the probability of the occurrence of events which did not happen, or which lie in the future. In this exercise, the hypothetical happening of these events is not to be found according to the balance of probabilities. In Malec v J C Hutton Pty Ltd, Deane Gaudron and McHugh JJ, in the context of a claim for damages for personal injuries described the evaluation process which arises on the assessment of the quantum of damages in the following way, at 643:
“The future may be predicted and the hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 percent – or very low – 0.1 percent. But unless the chance is so low as to be regarded as speculative – say less than 1 percent – or so high as to be practically certain – say over 99 percent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 percent probability of occurring, but to ignore altogether a prediction which has a 49 percent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
In Sellars v Adelaide Petroleum Pty Ltd these principles were held to apply to claims for damages for misleading or deceptive conduct under the Trade Practices Act, and to claims in tort for deprivation for commercial opportunity.
758 The application of these principles in the assessment of damages is sometimes said to involve the evaluation of a lost chance, where the happening of the hypothetical or future events cannot be said to be a certainty. In the course of submissions on the question of loss and the assessment of damages, counsel at times said that the court was required to evaluate chances according to the principles discussed in Malec v J C Hutton Pty Ltd. It was said that the evaluation of whether Westpac Pty Ltd would have gone into possession soon after 9 July 1994, whether the Receivers and Managers could have negotiated a sale late in 1994, whether settlement would have occurred by 25 February 1995, and whether bridge construction would have recommenced quickly had a s 10 declaration not been made, all involve elements of uncertainty and chance the degree of probability of which had to be assessed.
759 I think that these submissions tend to obscure the questions which the court is required to decide. Those questions, at least at the outset when deciding whether the applicants have suffered any loss at all, concern the values which third parties namely, hypothetical purchasers, would have placed on the marina at critical dates in the past.
760 The applicants’ case that the making of the s 10 declaration caused a capital loss requires findings on the evidence about the market value of the marina on 9 July 1994 and in the months thereafter had the s 10 declaration not been made, and as to the market value of the marina at 30 September 1997 when it was sold. In each instance, the valuation is to be made according to the state of knowledge and the facts as they would have appeared to a hypothetical purchaser at the time when the value is to be assessed. Those are facts which must be found on the balance of probabilities. Included in the state of knowledge and the facts that would influence a hypothetical purchaser would be the likelihood at that time of events occurring in the future. Forecasts of the likelihood of those events, as they would have been made at that time, are historical facts which must be found on the balance of probabilities. That is so, even though the finding might be that a potential purchaser would have forecast that the risk of an event which would in the future impinge on the success of the marina had a very low probability of happening, or some other event had a high probability of happening. Findings about the assumptions on which a hypothetical purchaser on the valuation dates would have proceeded, including assumptions about future risks and contingencies, are findings that must be made on the balance of probabilities.
761 At the outset it is important to recognise that the losses alleged by the applicants are not concerned with losses that may have been suffered by the Chapman family as a result of them continuing to support Binalong during the years that it struggled to maintain the development in the period leading up to 1994. The claim concerns only losses allegedly suffered by Binalong as a result of the making of the s 10 declaration on 9 July 1994. At that time Binalong was a hopelessly insolvent company in the hands of Receivers and Managers, about to have its assets taken from it by a secured creditor, and about to be placed in liquidation. Notwithstanding these circumstances, it is alleged that Binalong’s plight was made worse by the imposition of the s 10 declaration.
762 Evidence received from Mr A G Ayre, the General Manager, Asset Management, of Westpac establishes that Westpac/PPL had by May 1994 the intention to take the necessary steps to enter into possession as mortgagee of the marina, and to put the marina up for sale at the earliest opportunity. That intention however was frustrated first by the s 9 interim declarations, and then by the s 10 declaration. Had the s 10 declaration not been made Mr Ayre says that Westpac/PPL would have placed the marina on the market as soon as possible after the interim declarations expired, and hopefully would have achieved a sale during the latter half of 1994. However, when the s 10 declaration was made, whilst it was still the intention of Westpac/PPL in due course to put the marina up for sale, Westpac/PPL decided to defer that step until after the resolution of the proceedings instituted by the Chapmans and others for judicial review. Then followed a long period of uncertainty and quandary on the part of Westpac/PPL as to the course of action it should adopt as later events unfolded. Westpac/PPL recognised that the future stages of the marina development were dependent on the construction of the bridge, and the value of the marina would increase considerably if the bridge construction went ahead. Westpac/PPL throughout this period maintained the position in its discussions with the State that the State was obliged to construct the bridge, and that failure to do so would entitle Westpac/PPL to damages from the State. By September 1996, although the State maintained that it intended to build the bridge if and when all legal impediments to doing so were finally removed, Westpac/PPL decided that it should proceed to sell the marina, and to proceed with legal action against the State.
763 Westpac/PPL concluded that its interests would be best served by selling the marina to the Chapman family who, it was anticipated, would be well placed to pursue compensation claims against the State and the Commonwealth, and who would be prepared to agree to the bank receiving a percentage, possibly up to 50 per cent, of any compensation payments they might achieve from the State or the Commonwealth. Factors which influenced the decision to sell the marina, apart from the prospect of an agreement with the Chapmans as to the division of any compensation recovered, were that by this process Westpac/PPL would limit holding costs and shorten considerably the time they would be required to continue funding the Receiver and Manager for costs being incurred in running the marina, that significantly less due diligence would be required in preparing the marina for sale, that any attempt to sell to any interest other than the Chapman family would lead to applications for injunctions and other attempts by the Chapman family to stop the sale process resulting in additional legal and holding costs, and that Westpac/PPL would obtain a full release extending also to the Receivers and Managers against damages claims threatened by the Chapmans.
764 Westpac/PPL had been advised by Jones Lang Wootten in August 1996 that the marina then had a value in the range of $1 million to $1.2 million, and Westpac/PPL intended to negotiate for a sale price to the Chapman family above this figure.
765 Westpac/PPL entered into negotiations with the Chapmans. The negotiations were protracted, ultimately leading to the Deed of Sale dated 25 September 1997: see par 144 above. As part of the negotiated transaction, full releases were received by Westpac/PPL and by the Receivers and Managers and liquidator of Binalong, and the liquidator of Binalong agreed to assign Binalong’s causes of action against respondents in these proceedings to Mr and Mrs Chapman. A term of the assignment requires a percentage of any damages recovered to be paid to Binalong.
766 I accept the evidence of Mr Ayre as to the intentions of Westpac/PPL. I consider that his evidence shows that the consideration for the sale of the marina to Kebaro in 1997 was influenced by many considerations besides the fair market value of the marina at the time. The monetary consideration stated in the Deed of Sale should not be treated as a fair market value negotiated between parties at arm’s length.
767 The expert witnesses who have given valuation evidence are agreed that an appropriate method of valuation is to assume the hypothetical development of the marina, and then to discount future cash flows to arrive at a “present value” for the marina as an ongoing project. On this basis potential purchasers would be developers prepared to take over the marina development. The opinions of the experts differ however as to the appropriate values. The differences result from different input assumptions they were instructed to make or made as to establishment and operating expenses, future revenue flows, the timing of outgoings and income, the discount rate, and the form of the development.
768 In the statements filed before trial, the applicants based their claim as pleaded upon a report of Mr J L Kenny from Knight Frank (SA) Pty Ltd. His valuation assumed that the physical construction of the bridge would have recommenced in mid 1994 had the s 10 declaration not been made; that Westpac/PPL would have entered into possession of the marina shortly thereafter; that construction of the bridge would continue to completion without delay; that BFC would have joined with Westpac/PPL in putting the marina up for sale so that the total area, the subject of approval for later stages of the development, could be sold as one; and that income generated from businesses, existing or planned, carried on in conjunction with the marina by MSC would pass on sale with the land.
769 Mr Kenny accepted for the purposes of his valuation information provided to him by a number of other witnesses. Mr E J Bray, a director of Walter Brooke & Associates Pty Ltd, architects, provided estimates for the cost of buildings proposed in the various stages of the development. Mr M G Barnhurst, managing director of Bardavcol Pty Ltd, and officers of PPK Environment and Infrastructure Pty Ltd provided cost estimates for site works and infrastructure development of the remaining stages. Mr P D H Hill, a chartered accountant, provided estimates of ongoing operating expenses for various business activities of MSC, both existing and planned for the future. Mr R G Pride, director of Robert Pride Consultants Pty Ltd, provided market information as to likely future demand for wet berths and residential allotments in the marina. His evidence, together with that from Mr R D Harcourt, general manager of PRD Realty Pty Ltd which had conducted the sale of Stage 1 of the marina for Binalong, provided forecasts of the likely timing and amount of revenue from future residential allotment sales. Mr R J Martini, then the director of Business Development of RCI Australasia Inc, a large timeshare operator, also provided information regarding the proposed timeshare component of the development. These witnesses gave their opinions on the assumption that the construction of the bridge would have recommenced in about mid 1994 and proceeded to timely completion had the s 10 declaration not been made. In preparing his valuation, information from these sources was discussed by Mr Kenny with Mr Chapman who contributed additional information about many aspects of the proposed development and associated business opportunities for MSC. Messrs Kenny, Bray, Barnhurst, Harcourt and Hill had been engaged by Binalong in earlier stages of the development of the marina and were familiar with it in 1994.
770 In his first valuation report prepared in March 1999 Mr Kenny concluded that the property would have achieved a gross sale price of $16.8 million, and that the net sale price after selling expenses would be $16.582 million. Mr Kenny considered that if the marina had been placed on the market in July 1994 it is probable that a contract could have been concluded by December 1994 with settlement on 25 February 1995. Mr Kenny considered that the timeframe for the development and realisation of all stages of the marina would be twelve years, and that a purchaser’s cash flow would commence in the March 1995 quarter. Mr Kenny’s calculations had three main revenue streams which may conveniently, although loosely, be described as “residential land”, “commercial and rental” and “timeshare”.
771 The revenue from the “residential land” comprises income from the sale of subdivided allotments of land including villa allotments, and seventy-five proposed villas to be constructed at a cost of $100,000 each.
772 The “commercial and rental” revenue comprises rental and other income to be received over the twelve year development period from a variety of businesses associated with the development, and from the sale of those businesses as going concerns at the end of the twelve year period. Those businesses included a plant nursery, a marina construction and operations workshops, an earth moving facility and workshop, a heliport, income from managing the timeshare units, boat repair and construction workshops, a fuel dock, a tavern, a convention centre, a retail shop, a slipway, marine dry stand servicing workshops, dry stand rent, undercover boat storage and lockers, a valet service for boats, boat sales, the rental of marina berths, wood lot sales, sewerage charges, a yacht club, a long term boat storage facility, a marine retail sale outlet, water sales, a security service, boat chartering, a property maintenance service, and a weather reporting service. Mr Kenny accepted information given to him by Mr Chapman that the net annual income from such of those businesses as were in existence in mid 1994 was then $100,000 per annum. The only accounts produced to Mr Kenny to support this estimate were trading accounts for MSC for the year ended 30 June 1993 which purported to show an operating profit before tax of $59,538, following an operating loss in the preceding year to 30 June 1992 of $63,359. Partly from his own estimate of rental income for some of the business premises, and partly on information supplied by other witnesses including Mr Chapman, Mr Kenny assumed that the net income at the end of the twelve year period from these businesses would be $2.286 million per annum. He assumed a uniform “straight line” increase in the income to that figure throughout the twelve year period. At the end of the twelve year period Mr Kenny assumed that all these commercial activities would be sold to third parties, and he brought to account anticipated revenue from these sales.
773 Revenue from “timeshare” was anticipated from the development of sixty timeshare apartments that would be constructed and sold in conjunction with the various stages of the development, each apartment leading to the sale of fifty-one separate contracts (shares) entitling one week’s accommodation per annum (the remaining week each year being set aside for maintenance).
774 Against these income streams Mr Kenny’s calculations set off development and operating costs as and when it was estimated that they would be incurred. The cash flow forecast assumed that the marina basin would be extended in logical stages as demand required. The proposed development allowed lagoon excavation to be undertaken in stages, each stage providing an economical number of allotments for sale and not being dependent upon the next stage being developed for access or services. It is not clear on the evidence whether an outgoing was included in respect of the obligations to the State arising under the Tripartite Agreement for the cost of construction of the bridge.
775 The future cash flows were discounted at a rate of 22.5 per cent, and purchase costs of 4.5 per cent were then deducted. It is possible to extract from the calculations that the net present value of the three components computed as follows:
$’000
Residential land 11,556
Commercial and rental 659
Timeshare 4,585
16,800
776 On the basis that there was in place a s 10 declaration banning the construction of the bridge for twenty-five years Mr Kenny valued the marina at July 1994 at $1.85 million being the discounted future value of net income from the existing operations ($500,000), the sale of remaining allotments in Stage 1 ($850,000), and the balance of the land not utilised by Stages 2 to 6 being sold at farmland value of $2,000 per hectare ($500,000). On the same assumption that a ban was in place, Mr Kenny valued the marina at 30 September 1997 at $1.21 million. He arrived at this figure by assuming that the rental income from the MSC businesses would have substantially reduced, thereby reducing their net present value ($285,000), the remaining allotments of land (none having been sold since 1994) would have reduced in value as there would no longer be in place a marketing structure ($425,000), with the balance of the land still being suitable only for rural purposes ($500,000). It is to be noted that at 30 September 1997 there was not a ban in place, but the challenge to the validity of the Hindmarsh Island Bridge Act in the High Court was still to be argued, and whilst the State was asserting that it had a continuing intention to proceed with the bridge it would not do so until the High Court challenge was determined.
The respondents’ case
777 Pre-trial valuation reports were filed by the respondents from Mr D J McArdle, a certified practising valuer, and from Mr W Lonergan, a chartered accountant with PricewaterhouseCoopers who has extensive experience valuing large development projects. Business records of Westpac/PPL admitted into evidence also included a number of letters from Mr R J Aschberger, a licensed valuer with Jones Lang Wootten, which contained valuation advice on aspects of the marina development from time to time, but Mr Aschberger was not called by any party to give evidence. Mr Aschberger’s letters provide part of the background against which the actions and intentions of Westpac/PPL must be assessed.
778 Mr McArdle valued the marina as at July 1994 on the hypothesis that a s 10 declaration had not been made, at $4.5 million. This valuation reflected his opinion that the appropriate discount rate should be in the order of 30 per cent; that allowance should be made for obligations arising under the Tripartite Agreement in respect of the cost of the bridge; that the risks associated with the proposed timeshare component of the marina development was such that potential revenue from that source added no value to the project and should be ignored; and that the infrastructure costs on the residential land components of the development were underestimated. Mr McArdle noted that the “commercial and rental” component of Mr Kenny’s valuation was not supported by appropriate evidence to substantiate forecasted revenue and expenses. Mr McArdle subjected the input data used by Mr Kenny to a range of variations in a “sensitivity analysis”, which gave a median net present value as at 8 July 1994 to the marina development at a 30 per cent discount rate of $4.142 million. On a similar analysis using discount rates varying between 27.5 per cent and 32.5 per cent, the median net present value was only marginally higher. These calculations excluded the proposed timeshare scheme. The valuation of $4.5 million, which exceeds the median net present value calculations, takes into account the underlying potential of the land otherwise committed to the timeshare.
779 Mr McArdle considered that in the economic climate in 1994, and having regard to the barriers which the construction of the bridge would have faced from opponents in the community even if no s 10 declaration had been made, the marina would have been difficult to sell. He considered that the vendor would have needed to allow six months implementing a range of actions to prepare for sale, and a further twelve months to achieve a sale. Even then, he thought a sale would have been difficult and the marina could have remained unsold after two years.
780 Mr McArdle considered the marina development at 30 September 1997 was worth more than the hypothetical value in July 1994. As at 30 September 1997 he valued the marina at $5 million. The difference in value in his opinion was due to an improved economic climate and escalation in land prices and costs that had occurred in the meantime. His valuation at both these dates assumed that the bridge would be constructed but that a purchaser in choosing a discount rate would allow for the possibility that construction might be delayed for a time by the actions of those opposed to the bridge.
781 Mr Lonergan undertook a critical review of the valuation reports of Mr Kenny and Mr McArdle, and also considered the action which Westpac/PPL had taken leading up to July 1994 in light of Mr Aschberger’s advice. On the assumption that the s 10 declaration had not been made, he agreed with Mr McArdle that the valuation of the marina in the period July to December 1994 was $4.5 million. He considered a sale within six months was unlikely. As I understand his evidence, he considered that the marina had the same value at 30 September 1997, there being no material change in circumstances in the meantime. He too gave his estimates of value on the assumption that a hypothetical developer considering purchase would value the marina at each of these times on the basis that after a period of delay a bridge would be built.
The applicants’ further evidence
782 As the applicants’ witnesses in support of Mr Kenny’s input assumptions were cross-examined, it became clear that many of the infrastructure items were seriously under-costed, or had been omitted from the cost estimates, and that there was no solid basis for many of the estimates of revenue and expenses relating to the commercial and rental components of the development.
783 The applicants then sought to support their damages claim with an opinion on value from Mr B Ellery, a chartered accountant. Mr Ellery adopted for his net present value calculations much of the information used by Mr Kenny, but endeavoured to make adjustments that reflected the additional infrastructure costs disclosed by the oral evidence of the applicants’ witnesses. Mr Ellery reached the conclusion that the capital costs of a number of the ventures included in the commercial and rental component exceeded likely returns and should be eliminated in the valuation exercise. For the remaining proposed ventures that were incorporated into his cash flow calculations, Mr Ellery made a number of adjustments to the estimates of revenue and expenses used by Mr Kenny. Further, for sales of residential land Mr Ellery incorporated information which he had received as to likely sale prices and to the timing of sales from Mr B P Martin, who in due course the applicants called as a witness. Mr Martin is a former managing director of the Delfin Property Group (Delfin) that has successfully carried out major urban development projects in Australia, and in particular the Westlakes and Mawson Lakes projects in South Australia. He is presently deputy chairman of that company. Mr Martin, in the course of obtaining information to give advice to Mr Ellery, discussed land prices and a sales program with Mr Harcourt. The proposed sale prices ultimately adopted by Mr Ellery are significantly above those used by Mr Kenny, and the rate of sales is slightly quicker. The number of allotments also differs in Mr Ellery’s calculations from those of Mr Kenny, as he has included extra allotments likely to have been contemplated by a new developer in 1994 to reflect design concepts that had emerged since the planning application for the marina had been lodged.
784 Mr Ellery omitted the proposed seventy-five villas from his calculations as the construction costs were not economically feasible. He included the allotments that would have been used for this purpose in the land sales.
785 Mr Ellery adopted a discount rate of 25 per cent, again relying on advice given to him by Mr Martin, and also used escalating cash flows to reflect estimated inflation of 2 per cent per annum and increasing sale prices for allotments as each stage of the development reached maturity.
786 Mr Ellery’s calculations produced the following results:
|
| $’000 |
| Residential land | 9,461 |
| Commercial and rental | (440) |
| Timeshare | 5,061 |
| | 14,081 |
787 Allowing for the 4.5 per cent purchaser costs estimated by Mr Kenny, Mr Ellery therefore arrived at a provisional valuation for the marina as at late 1994 of $13.45 million.
788 Mr Ellery noted as “surprising” the negative value attributed to the commercial and rental component. He considered that it was unlikely that a developer considering the purchase of the marina would pay nothing for “assets” included in that component of the development. Rather he thought a developer would redesign the project to allow for some value from assets such as the existing tavern, the 320 existing marina berths, and the established sewerage plant which earned rates revenues. Accordingly, he thought the negative value should be removed from the calculations thereby increasing his valuation to $13.89 million.
789 The Commonwealth respondents responded to Mr Ellery’s valuation with one from another chartered accountant, Mr R M Kennedy who critically analysed each of the reports from the above witnesses, and the input assumptions adopted by them. Mr Kennedy considered the discount rate adopted by Mr Ellery was significantly too low and should be in the order of 35 per cent to 40 per cent depending on what assumptions were made about the risks of the construction of the bridge being delayed. He also considered anticipated revenue from the timeshare was not supported by the evidence on which it was said to rest. He therefore made a number of adjustments to Mr Ellery’s calculations. He considered that in the period July to December 1994 a developer would pay between $3.3 million and $4.2 million for the marina if it were expected that the bridge would be built without there being substantial delays. This opinion was based on calculations assuming a discount rate of 35 per cent.
790 On the other hand, if the developer knew of a range of matters disclosed in the evidence before the Court that suggested delays could occur, Mr Kennedy considered a developer would use a discount rate of 40 per cent to pay between $2.5 and $3 million for the marina. If the developer considered that a bridge would not be built he valued the land at $1.35 million.
Villas
791 In reaching his opinion Mr Kennedy agreed with Mr Ellery that it was not economically feasible to construct the proposed seventy-five villas, and agreed with him that the valuations should be carried out on the basis that all villa allotments would be sold without improvements. This became a common position amongst the valuers. I accept that valuations should be made on this assumption.
Commercial and rental
792 As noted above, Mr Kenny put a positive value on these components, but the basis of his calculations were undermined by underestimates or omissions in the capital costs for developing the infrastructure necessary to support them. Calculations by Mr Ellery and Mr Kennedy adjusted to reflect more realistic cost estimates produced negative values.
793 However all these results were based on the common assumption that net income from the commercial and rental components would steadily escalate from a rate of $100,000 per annum in mid 1994. If the real rate of income were significantly less at that time, the negative value attributed to the commercial and rental components would be much greater. In my opinion the evidence does not establish that the income of MSC by mid 1994 for the commercial and rental operations was $100,000.
794 The only accounts that have been produced for MSC are for the year ended 30 June 1993. In that year the accounts show a net profit of $59,538, but of that $57,487 was income from a once-off project that was not part of the ongoing operation. That item should not be taken into account in forecasting future income. In the year ended 30 June 1992 the MSC operations made a loss of $63,359. In both years however it seems that fuel purchases were included as a cost item without an adequate corresponding revenue item. It seems fuel was simply taken from the stocks to drive machinery engaged in infrastructure development without appropriate accounting records being maintained. In this respect the accounts for the year ended 30 June 1993 underestimate the net income.
795 There are no accounting records thereafter for MSC. I am not prepared to act on the evidence of Mr Chapman as to the rate of net income by June 1994 in the absence of any supporting documentary evidence. Moreover, the paucity of records, and the information in the MSC accounts to 30 June 1993 give me no confidence in the estimates of future revenue and expenses made by Mr Chapman. The applicants argue that the expense items at least have the expert support of Mr Hill. However Mr Hill was himself largely dependent upon information given to him by Mr Chapman.
796 The evidence of Mr R Boorman, the general manager, South Australia, of Baulderstone Hornibrook Pty Ltd, who supervised the management of the commercial operations of the marina for the Receivers and Managers from 16 July 1994 suggests that the operations of the marina at that time were barely profitable, although at that time he considered that by reorganising the operations of the marina a small profit could be made. However during the management of the marina by the Receivers and Managers the operations did not return a profit.
797 I am left with the impression that the operations of MSC in July 1994 were at best only marginally profitable. It follows that I consider the calculations made by the witnesses overstate the value of the commercial and rental operations.
798 In assessing what a developer considering the purchase of the marina in late 1994 would be prepared to pay, I consider that the absence of reliable accounts and paperwork about the operations of MSC would cause the developer to be very cautious about the risks associated with that part of the development. As the estimates of Mr Kenny and Mr Ellery show, even taking the optimistic starting point of a net rate of income of $100,000 per annum, the outgoings to support these aspects of the operation in the early years are very considerable. If the discount rate is increased from 25 per cent (the Ellery rate) to 35 to 40 per cent (the Kennedy rate) the negative value of the commercial and rental operations increases to above $2 million. At para 4.36 of Mr Kennedy’s main report he observed:
“It can be seen from the above that the commercial and rental activities have a NPV of between $(0.579) million and $(2.025) million. The commercial and rental activities are an integral part of the development. A portion of the value attributable to the residential land and the timeshare facility would relate to the existence of the commercial activities. That is, the income from the residential land and timeshare facilities would be less if the commercial activities were not undertaken. I am not in a position to determine the extent to which the negative NPV’s of the commercial activities are offset by increases in the positive NPV’s of the residential land and timeshare facility. For the purposes of this report I have assumed that a developer would accept a negative NPV on the basis that it would be more than offset by an increase in the overall value of the development.”
799 Later in his main report Mr Kennedy expressed the view that a purchaser would not allow any value for the timeshare component of the development. To a degree, that conclusion impacts on the above observation. The exclusion of the timeshare means that there would be considerably fewer people in residence from time to time in the marina, and that would itself have an adverse impact on revenues.
800 I accept Mr Kennedy’s opinion that at least some aspects of the commercial and rental businesses would have a significant impact on the price at which allotments of land could be sold, and that a developer would feel compelled to maintain them to support favourable land sales. Moreover, once land has been sold upon representations as to the facilities of the marina, obligations would rest on the developer to maintain those facilities.
801 I consider it is likely that the price which a developer would have paid in late 1994 would have been determined by including a negative amount for the commercial and rental component at least as high as the estimate made by Mr Ellery, and possibly significantly more. I so find.
Timeshare
802 Mr Kenny assumed that the timeshare contracts would be sold at the rate of eight per week at $12,000 each. The rate of sale was based on Mr Kenny’s understanding that the Marine Cove Resort development on the mainland side of the Goolwa Channel – directly opposite the marina – promoted by another developer from October 1991, had achieved sales at that rate. The assumed price of $12,000 was, I find, also largely based on Mr Kenny’s understanding that sales had been effected at prices between $10,000 and $12,000 at the Marine Cove Resort.
803 Mr Bond, a director of Burke Bond Securities Ltd, the trustee of the Marine Cove Resort timeshare units gave evidence for the applicants. Whilst maintaining a general assertion he had earlier made to Mr Martini that the Marine Cove Resort contracts were sold at a price between $11,000 and $13,000, his original estimate that the sale of the contracts was complete within two years, expanded to a duration of three to four years. I am satisfied that the more reliable evidence is to be found in the Marine Cove Resort share register and the prospectuses issued by Marine Cove Resort Club Trust These have been analysed by Mr Kennedy and show an average sale price of just under $9,700 and sales at a rate of about four contracts per week.
804 Obviously any attempt to apply the sales experience of timeshare units in one development to another must be undertaken with care. But it seems that the basic requirements for timeshare resorts are fairly similar, and that the sale price of timeshare units reflects in part the value which purchasers pay for access to the international timeshare community, rather than the value of a one week share in a particular resort. In using Marine Cove Resort as a source of information, Mr Kenny sought to apply that Resort’s sales experience directly to the marina proposal. Whilst there is an assertion in the evidence that the concept plans for the marina timeshare development are indicative of a higher quality development than the Marine Cove Resort, I am not satisfied that a reasonable developer would assume a higher sales price than had been achieved at the Marine Cove Resort. I adopt Mr Kennedy’s calculation of the present value of the timeshare proposal, namely that adjustments to Mr Kenny’s figures to reflect the actual rates and sales prices achieved by the Marina Cove Resort and to bring to account various expenses omitted by Mr Kenny produces net present value calculations which range from $534,000 at a 25 per cent discount rate to $11,000 at a 35 per cent discount rate. These calculations assume a selling commission of 30 per cent, which on the evidence is a low rate. If the selling commission is increased, or a higher discount rate adopted the timeshare project moves into a negative present value. Mr Kennedy’s calculations, like those of Mr Kenny and Mr Ellery, spread the costs of establishing and maintaining support facilities such as spas, saunas, a swimming pool, tennis courts, a games room and an adult lounge across the progressive development of the project over six years. Mr Bray’s cost estimates allowed $1.8 million for constructing these facilities, and once constructed maintenance costs would then start. I accept the evidence of Mr McArdle that to successfully market shares in the proposed timeshare development the promoter would have to construct at least the major part of the amenity facilities at the outset. This would have the result of accelerating the outlay on construction and maintenance costs, and further reduce the net present value in the calculations.
805 I therefore accept Mr Kennedy’s view that a developer considering the purchase of the marina in late 1994 would not have allowed anything for the timeshare component. But it follows from this conclusion that prime land that is set aside in the original concept plans for the timeshare resort becomes available for other use. That is recognised by Mr McArdle who has factored into his calculation the potential development of this land for a motel and villa allotments. His calculations assign a net present value to this potential of about
$600,000 – an amount that exceeds Mr Kennedy’s adjusted value of the timeshare component using a 25 per cent discount rate.
806 Mr Ellery in par 12.2 of his main report says a higher value was suggested to him by Mr Martin for similar alternate uses. However I am unable to accept those figures, first as Mr Martin had not given evidence to support them, and secondly no attempt has been made to analyse the costing or timing of the development of a motel, or the necessary redesign and planning approvals for villa style units. The asserted values are not the subject of discounted cash flow calculations.
807 I consider the approach and evidence of Mr McArdle to this aspect of the marina’s value is to be preferred.
Delay
808 I consider there are two quite separate aspects to the arguments advanced by the expert witnesses, and by counsel, on the issue of delay. These two aspects have different consequences, and at times have not been treated as separate. These aspects are, first, the likelihood that Westpac/PPL would have experienced delay in entering into a contract with a purchaser, and secondly the likelihood of delay in the construction of the bridge.
809 The likelihood of delay of the second kind has been asserted by the respondents and their witnesses as one of the reasons for the application of a discount rate above that recommended by Mr Martin, and adopted by Mr Ellery. However, reference has also been made to the difficulties in effecting a sale as a reason for applying a higher discount rate. In this respect matters such as the absence of buyers in the prevailing economic climate, the lack of success in attempts which the Chapmans had made to find a purchaser in late 1993 and early 1994, and the likelihood that the Chapmans would take every possible step through the courts to prevent a sale were mentioned. In my opinion these matters are of little or no relevance to the discount rate which should be applied to arrive at a valuation of the marina. Those are matters which could delay a contract of sale. However, once the contract was completed, they would have no influence on the rate at which the development occurred. As Mr Kenny in his re-examination pointed out, those factors may delay making the contract, but, when the contract is made, they would not have any significant bearing on the price. All the cash flow predictions upon which the price would be based would simply be deferred until the contract was completed, but would then occur in the same time frame relative to the completion date.
810 In terms of the assessment of damages in this case, delay of the first kind could, however, be relevant to the applicants’ claim for additional interest. A delay in the completion of a contract of sale would mean that credit for the sale price against the debt due to Westpac/PPL would be correspondingly delayed, but the amount of the price to be credited would not be significantly influenced by that delay.
811 In considering the evidence of the experts as to discount rates, it is important to ensure that risks of delay, said to influence the value of the marina, are risks of delay in the construction of the bridge after completion of a contract, and not delays which might postpone the entry into a contract.
Discount rate
812 Mr Kenny’s adoption of a rate of 22.5 per cent assumed no inflation factor in future cash flows. That rate represented a discount of about 25 per cent if a growth rate of about 2 per cent to 3 per cent for both income and expenses was incorporated. Thus, the discount rate adopted by Mr Ellery does not vary greatly from that used by Mr Kenny. Mr Ellery has relied for that rate on the advice of Mr Martin.
813 Mr Martin was an impressive witness with vast experience in South Australia with major urban and waterfront development. He explained that Delfin would conduct early feasibility studies in a project of this kind using a discount rate of about 29 per cent. However to conduct a valuation on the assumptions that he was asked to make, he recommended a rate of 25 per cent. Those assumptions are critical. They appear at par 67 of his witness statement which reads:
“In assessing the IRR [the internal rate of return] for this development at that time [in July 1994] it is important, in my view, that the bridge is assumed to be under construction and it is also critical to note that a marina basin was already established, core infrastructure such as the marina office and marina services and tavern facility were in place and Stage 1 had already been completed and largely sold.”
814 As Mr Martin explained in his oral evidence, on those assumptions, the development had by then reached a stage where many of the potential risks which would be taken into account at earlier stages had disappeared. Planning approval had been obtained. Much of the infrastructure was in place. The first stage had occurred and many land sales had occurred.
815 This is the same basis upon which Mr Kenny approached his task. He made it clear in his oral evidence that he proceeded on the assumption that the construction of the bridge was “a certainty”.
816 The respondents’ witnesses, who have argued for a higher discount rate, prepared their reports on a significantly different assumption. Quite apart from any impediment to construction arising because of the HPA, they have assumed that the timing of the construction of the bridge would have been clouded with uncertainty in and after July 1994, and the uncertainty would have caused a potential purchaser to apply a higher discount rate. On a hypothetical sale in these circumstances in my opinion the use of a discount rate considerably higher than 25 per cent would be required.
817 As earlier indicated, Mr Kennedy considered a discount rate of 35 per cent should be applied if it were expected that the Hindmarsh Island bridge would be built and there would be no significant delays whereas he thought the rate should be 40 per cent if a number of delaying factors were taken into account. Those factors were itemised by him at par 6.1 of his main report. In my opinion a number of those factors are not ones which should be taken into account. Mr Kennedy refers to evidence given by the Attorney-General, the Hon Mr K T Griffin. Mr Griffin referred to a number of delays which occurred in late 1993 and early 1994, and to the Liberal Government’s concern to explore ways out of the Tripartite Agreement. However those matters were past history by July 1994. Questions arose as to the enforceability of the Tripartite Agreement on the appointment of the Receivers and Managers. A question also arose as to the State’s obligations under the Tripartite Agreement on the liquidation of Binalong. However the State took the view that it was obliged to build the bridge and has consistently maintained that position. Whatever legal arguments might now be advanced by the respondents on those questions, since the Ministerial statement on 15 February 1994 that the State was obliged to build a bridge, the State has never indicated an intention to disclaim the Tripartite Agreement. I accept however that there may have been some delay, mainly leading up to the completion of a contract of sale, while the State and a prospective purchaser re-negotiated the provisions of the Tripartite Agreement that were personal to Binalong.
818 Some matters referred to by Mr Kennedy are however directly relevant to the question of risk at July 1994 including the risk of ongoing obstruction to the bridge construction by non-Aboriginal protest and by union action. Mr McArdle added another contingency that he considered should be reflected in the discount rate. As the cash flow projection for the marina extended over twelve years, and land sales could take even longer, he considered the risk of competition from other developments and subdivisions in the general locality should be recognised.
819 I consider the evidence establishes that there were significant risks that the construction of the bridge would have been delayed after July 1994, quite apart from any action by the Minister under the HPA. I consider that the risks warrant a discount rate of at least 30 per cent.
Delay in effecting a sale
820 I think that the only relevance of this question is to the timing of when the proceeds of a hypothetical sale would have been credited against the Westpac/PPL debt.
821 I consider the timeframe for the notional sale proposed by Mr Kenny is far too short. I accept the evidence of Mr Boorman as to the state of the marina operation when the Receivers and Managers entered into possession on 16 July 1994. Mr Boorman had a wealth of experience in managing developments of this kind, and I accept his assessment as an objective one. Further, Mr Boorman was advising the Receivers and Managers, and through them, Westpac/PPL. It is probable that had Westpac/PPL decided to put the marina up for sale at that time, at least his recommendations as to the management of the marina and commercial businesses to ready them for sale would have been heeded. That work would have taken many months.
822 The actions of the Chapmans in relation to the receivership, and also the action which they had earlier taken against BFC in an attempt to frustrate the sale of the Wellington marina, lead me to conclude that they would have carried out their threats to Westpac/PPL to take all possible legal action to prevent the sale of the marina to a third party. The evidence indicates that they would have taken every step possible to remain involved in the marina and its future development.
823 I think these matters would have substantially delayed the placement of the marina onto the market. Then, once this occurred, I accept the evidence of Mr McArdle and Mr Lonergan that finding a purchaser would have been a slow process.
824 At one point in the case it was suggested that delay might also occur because BFC would not agree to participate in a mortgagee sale of lots 14 and 15. There is no evidence to support this suggestion. I accept that as a matter of probability BFC would have joined with Westpac/PPL in a mortgagee sale.
825 On the assumption that Westpac/PPL would have entered into possession of the marina shortly after 9 July 1994 had a s 10 declaration not been made, and thereafter placed the marina on the market, I consider the probability established by the evidence is that a contract for sale with a purchaser would not have been effected until at least the second quarter of 1996 with settlement occurring some weeks thereafter.
Valuation on the assumption that after a period of delay construction of the bridge would occur
826 On the assumption that in about July 1994 potential developers would understand that construction of the bridge would occur, although with the possibility of delay, I hold that a developer would have paid a price based on the developer’s assessment of the net present value of the residential land component of the marina development (including the land set aside for the timeshare resort) but would have made no additional allowance for the villas, for timeshare or for the commercial and rental components included by Mr Kenny. On the contrary, I find that the notional developer would include in the net present value calculations a negative figure for the cost of maintaining some parts of the commercial and the rental activities.
827 In conducting its calculations to arrive at a purchase price, I consider a notional purchaser would have adopted somewhat lower anticipated sale prices for the residential allotments than are assumed in Mr Ellery’s calculations. I have earlier noted that Mr Ellery’s assumed prices are higher than those adopted by Mr Kenny which in turn were based upon advice received from Mr Harcourt. Mr Harcourt was the primary witness called by the applicants to give evidence about sale prices. In particular Mr Harcourt confirmed advice that he had earlier given to Westpac/PPL as to the likely revenue from the sale of allotments in Stage 2. That estimate was for a gross realisation for 205 residential allotments of $8.72 million, or on average $42,500 per allotment. That estimate was confirmed again in his oral evidence. Although he said that he had spoken with Mr Martin and discussed the spread sheets which later became part of Mr Ellery’s report, he did not depart from this evidence, or offer any reason in support of a higher figure. In these circumstances I am not prepared to proceed on the general statements of Mr Martin to find that Mr Ellery’s assumed return of $60,000 for each of these allotments reflected likely market prices. I accept Mr McArdle’s evidence that these estimates are too high.
828 The conclusions which I have reached, on the basis of the stated assumptions, are, I think broadly in line with the conclusions of Mr McArdle. On those assumptions I would therefore hold, that the marina in 1994 had a market value of $4.5 million, and that selling expenses of $175,000 would have been incurred on a sale.
829 On the evidence of Mr Lonergan and Mr McArdle I also hold that at 30 September 1997 the market value of the marina was not less than $4.5 million. On these findings, the making of the s 10 declaration would not have caused an immediate substantial capital loss. On the contrary, it would have caused no capital loss to Binalong.
A departure from the experts’ initial assumptions
830 I have so far proceeded on the assumptions stated. I have noted on the one hand the assumption accepted by Mr Kenny and Mr Martin that as at July 1994 construction of the bridge was about to, or had, recommenced and that construction would proceed to completion without significant delay. I have noted on the other hand the assumption made by the respondents’ experts in their reports that there were likely to be delays in the construction of the bridge, but that the bridge would be built. The extent of the increase in discount rates proposed by them bears out my impression from the balance of their evidence that they were not envisaging delays that would adversely affect cash flows by more than a year or two at the most.
831 In the last days of the trial the applicants filed a supplementary statement from Mr Martin directed to the value of the marina at 30 September 1997. Mr Martin said at pars 3, 4 & 5:
“I consider that a reasonable developer contemplating a purchase of the marina project in September 1997 would conclude that securing the construction of the bridge could not be left to chance because it was infrastructure which was fundamental to the marina project, not only because of the terms of the planning approval, but also because it was a commercial imperative to the success of the marina project. For example, a ‘commitment deed’ for the provision of infrastructure was signed between the S.A. Government and the other parties before the Mawson Lakes contracts were completed. In the same way, Indenture Deeds were in place before the commencement of both West Lakes and Golden Grove. It is impossible to market a development and promise performance to customers unless developers have certainty that they can deliver the critical components. In this situation, I believe that the provision of the bridge was a critical component.
I consider that, in the circumstances appertaining at 30th September 1997 … although there is a chance that a bridge would ultimately be built, a reasonable developer would have concluded that there was too much risk that it would not be.
Accordingly, given the bridge’s importance to the marina project, I consider that no reasonable developer would have been prepared to purchase the marina project in September 1997 except on the basis of a price which assumed there would be no bridge built.”
832 This supplementary statement makes explicit what was already hinted at in parts of Mr Martin’s earlier cross-examination about the marina as at 1994: the bridge was fundamental to the further development of the marina and unless the bridge was certain, a reasonable developer would not be prepared to buy the marina. In answer to a question in cross-examination about what his view would be as at July 1994 if there were no reasonable likelihood of a bridge being built in the foreseeable future Mr Martin had earlier said:
“Well, if the bridge wasn’t going to be built, I wouldn’t have been a buyer but someone else might have been. That is all I can say. It makes a significant difference to the project.”
Mr Martin spoke as a reasonable and very experienced developer.
833 A similar view was expressed by Mr McArdle towards the end of his cross-examination when he was asked questions about the value of the marina in September 1997. He said:
“Q. Isn’t it in fact more likely that the position expressed by Mr Martin in his supplementary statement – that is basically as a developer he wasn’t going to punt against the risk of the outcome of the High Court case – is more likely to be the position that a reasonable developer would adopt?---What we have here is it’s an either/or. What I believe is that you would endeavour to mitigate your risks. Your negotiations would be on the basis of ‘subject to’ or something to that effect, and it’s a similar environment. You see, you could argue – if Mr Martin argues that in 97 you would argue that in 94.
Q. That’s right. What you’re saying is that a developer then wouldn’t commit himself until after the decision in the High Court case was made?---I would argue that a developer probably wouldn’t commit himself until he knew a bridge was being built at any time.”
Similar views were also expressed by Mr Ellery, Mr Kennedy and Mr Lonergan in the course of their participation in the joint evidence of the experts given in accordance with the procedure permitted under O 34A of the Federal Court Rules.
834 This is a significant departure from the assumptions previously adopted by the experts for the purposes of giving their opinions in their written reports.
835 In my opinion the evidence indicates that if the s 10 declaration had not been made on 9 July 1994, there would have remained from that time up to and beyond September 1997, a very real risk that a bridge would not proceed. Moreover, I consider that the risk was of such a degree that, to use the expressions of Mr Kennedy and Mr Lonergan in their oral evidence, a reasonable developer considering the possible acquisition of the marina in that time frame would “walk away” from the development. If a sale were to occur, it would be at a price which reflected the marina as it then stood with no additional amount for the potential value of Stages 2 to 6.
836 The evidence clearly establishes that Aboriginal opposition to the bridge would not have disappeared in the event that Mr Tickner declined to make a s 10 declaration on or about 9 July 1994. Had this event occurred, likely grounds for refusal of the declaration would have been that claims based on restricted women’s knowledge, or on the significance of the Goolwa Channel, were not within the scope of the application treated as being made on 23 December 1993 and not authorised by the notice published on 26 May 1994. The Ngarrindjeri people could then have made another application, as some of them did in late December 1995. Such an application would have triggered the appointment of a reporter, and lengthy delays whilst processes under the HPA were completed, and dissatisfied parties sought judicial review, and pursued thereafter appeals against unfavourable findings. Another possibility is that before taking action of this kind the LMAHC may have sought judicial review of Mr Tickner’s unfavourable decision, and it would have taken twelve to eighteen months for those proceedings to be resolved, or longer if an application for special leave to appeal were to be made to the High Court. If the application for a judicial remedy failed, a fresh application under the HPA could then be made.
837 Whilst the outcome of an application under the HPA remained unresolved or uncertain, there remained the prospect that ultimately a s 10 declaration would be made preventing the bridge.
838 I reject the submissions of the applicants that the evidence does not raise beyond the level of speculation either the prospect of the LMAHC or any other group of Ngarrindjeri people challenging the decision of Mr Tickner had it gone against making a s 10 declaration in July 1994, or the further prospect of another application for protection under the HPA. It was contended that no such action would have been taken unless the ALRM had first received a favourable opinion from counsel and a source of funding, and it was said that there was no proof that either of these prerequisites had been or could be fulfilled. Moreover, it was contended that there were no grounds upon which either a challenge under the ADJR Act or a new application could be mounted. These submissions fail to give a realistic, common sense interpretation to the evidence. The ALRM was only acting for the LMAHC. There were numerous other parties with sufficient interest and standing to challenge a decision not to make a s 10 declaration. There is evidence, for instance, that Mr Owen, a prominent member of the Friends was seeking advice on legal avenues to challenge decisions that permitted the construction of the bridge. The evidence gives no reason to think funds would not have been available to challenge such a decision. The amount of litigation by interested parties challenging procedures and decisions concerning the bridge since July 1994 suggests funding would not have been an obstacle.
839 The suggestion that there were no grounds upon which a decision of Mr Tickner against making a declaration could be challenged sits oddly with the successful grounds relied on by the Chapmans in the ADJR litigation. Defects in the notice given under s 10(3) of the HPA, and Mr Tickner’s failure to read the submissions were grounds equally open to those on the other side of the matter. Moreover, as already noted, likely grounds for a refusal to make a declaration would have been that claims based on restricted women’s knowledge, or on the significance of the Goolwa Channel were not within the scope of the application which was treated by Mr Tickner and Professor Saunders as having been made in the letter from the ALRM dated 23 December 1993. If that were so, the situation would have invited another application to raise the grounds which the LMAHC sought to advance.
840 By July 1994 the assertion that the area of the proposed bridge had spiritual significance to the Ngarrindjeri was receiving wide prominence, and had gained the support of sections of the community including some of the non-Aboriginal people who were actively campaigning against the construction of the bridge. At that time, indeed for months thereafter, there was no dissenting voice in the Ngarrindjeri community. In the events that happened, dissension emerged, and received publicity following the debates in the Federal Parliament on motions to disallow the s 10 declaration. Had the s 10 declaration not been made the circumstances which influenced people to make and to publicise the dissent are likely to have been different. There is no certainty that the dissent would have emerged when it did, and perhaps it would not have emerged at all unless and until a s 10 declaration was made on a fresh application to the Federal Minister. The considerations which influenced the State to appoint a Royal Commissioner to investigate the allegations of secret “women’s business” could then have been very different. Absent such an inquiry, and a finding of fabrication, the community support for the Ngarrindjeri contention that the bridge area was sacred might have continued.
841 What may have happened had there been no s 10 declaration in July 1994 is a matter of conjecture, but in my opinion the probabilities are high that the uncertainties and the continuing risk of intervention by the Federal Minister under the HPA would have been more than sufficient to deter a reasonable developer otherwise interested in undertaking Stages 2 to 6 of the marina proposal.
842 In considering the value of the marina as at 30 September 1997 it is necessary to have regard to the facts as they actually existed at that time. By that time the s 10 declaration made by Mr Tickner had been set aside, and the decision upheld by the Full Court. The Royal Commission had been completed, and there was a public finding that the alleged secret “women’s business” was a fabrication. The principal informant, Dr Kartinyeri, had by the findings of the Royal Commissioner been publicly declared to be a fabricator. Another application under s 10 had been considered by Justice Mathews and her report tabled in Federal Parliament. The proponents of the restricted women’s knowledge had not relied on that knowledge before Justice Matthews. Whilst Justice Mathews found that areas of archaeological significance would be affected by the bridge, and that the waters surrounding Hindmarsh Island were of significance to the Ngarrindjeri people in accordance with their traditions, she found there was insufficient material on which the Minister could be satisfied that the building of the bridge would desecrate the area according to those traditions. The State, and both major political parties at the Federal level had expressed support for the construction of the bridge. In these circumstances, even though the Hindmarsh Island Bridge Act was under challenge in the High Court, I consider that a reasonable developer would have considered the prospects of there being a bridge constructed in due course to be much more favourable than in July 1994. Nevertheless, with the challenge to the Hindmarsh Island Bridge Act outstanding, it is the opinion of Mr Martin that a reasonable developer would not accept the risk of purchasing the marine – a view which I think is in accordance with the evidence of Mr McArdle, Mr Kennedy and Mr Lonergan. I think it is also the proper conclusion to be drawn on the evidence and I so hold.
843 On the basis that a developer would not contract to buy the marina for the potential development of Stages 2 to 6 at any time in the period between July 1994 and 30 September 1997, a reasonable purchaser would pay only the appropriate value for the marina as it then stood. As earlier noted, Mr Kenny placed a value of $1.85 million on the marina as at July 1994, and $1.21 million as at 30 September 1997 on this basis. Mr Kennedy considered the value of the marina on this basis was $1.35 million – at both dates as I understand his evidence. Mr Kenny’s figures however included a significant allowance for future income from the commercial operations. I have already indicated that I think that his valuation in this respect started from a false premise as to the earnings of those operations at July 1994. Perhaps on a sale on the basis now being contemplated something should be allowed for the commercial and rental component, but there is no reason in my view why whatever a potential purchaser would have allowed in 1994 would be any different from what a potential purchaser would allow in September 1997. Further, I do not think the discounts made by Mr Kenny on the value of the remaining developed allotments as at 30 September 1997 are justified. There were few allotments to be sold and sales could have been carried out without a major marketing campaign. If it were necessary to determine a precise valuation for the marina, on the assumptions now under consideration, I would adopt Mr Kennedy’s valuation for the marina through the period from July 1994 to 30 September 1997 at $1.35 million. This value is fairly close to Mr Aschberger’s advice to Westpac/PPL given in 1996. The more important finding however, which I make, is that the marina had at least the same market value on 30 September 1997 as it had on 9 July 1994. As the value did not drop between 9 July 1994 and 30 September 1997, there can be no loss due to diminution in value caused by the events of July 1994.
844 Against these findings I return to the applicants’ submissions summarised at the commencement of this section of the judgment. The findings negate the assertion on which those submissions rest, namely that the making of the s 10 declaration caused Binalong an immediate, substantial and ongoing capital loss being a diminution in the value of the marina. Further, I reject the submission that uncertainty whether construction of the bridge could proceed after the s 10 declaration was set aside was caused by the fact that Mr Tickner had made an invalid declaration on 9 July 1994. Uncertainty beyond that date was not because Mr Tickner had made an invalid declaration but because of the fear that a Federal Minister could in the future make a valid declaration that prevented the construction of the bridge.
845 It is certainly the case, as the applicants contend, that from May through to 9 July 1994 the State was expressing a determination to construct the bridge, and to that end State Ministers had given all approvals needed under the AHA. But the application by the LMAHC for protection under the HPA enlivened for the first time the prospect that all the consents and authorisations given by the State could be rendered of no effect by a valid declaration under s 10, and the construction of the bridge rendered unlawful. It was that prospect which caused Binalong an immediate, substantial and ongoing capital loss. That occurred in May 1994 at the latest. The making of an emergency declaration under s 9, premised on Mr Tickner as the Federal Minister being satisfied that the area was a significant Aboriginal area, served to emphasise to everyone that until protection issues under the HPA were finally resolved there existed a significant prospect that further construction of the bridge would be banned by a s 10 declaration.
846 It is notable that even when the Full Court upheld the decision to set aside the s 10 declaration in December 1995, the State considered the continuing uncertainty about Federal action under the HPA was such that the State would not proceed with construction. The evidence of the Attorney General, Mr Griffin, reflects what I consider to be the effect of the other evidence: the uncertainty which would have surrounded the future of the bridge at 10 July 1994 even if Mr Tickner had not made the s 10 declaration would have been somewhat greater than it was by December 1995.
847 Whatever the Premier, Mr Brown, said to Mr Tickner on 9 July 1994 about the State’s intentions, had a s 10 declaration not been made the reality of the situation would have been as Mr Griffin has summarised it. I find on the evidence that if a s 10 declaration had not been made, the continuing uncertainty would have caused the State not to proceed with the construction of the bridge until the uncertainty was removed.
848 There remains the second limb of the applicants’ claim, the interest claim, which alleges loss caused by delay in the sale of the marina during which time Westpac/PPL continued to accrue interest on Binalong’s indebtedness. It is contended that Binalong suffered a loss equal to interest accruals which would not have been made by Westpac/PPL if the net purchase price of the marina had been credited to Binalong’s account on 25 February 1995. I have found that a sale would not have occurred at that date, and would not have been completed until about June 1996. The delay to that date I have held was due to factors other than the making of the s 10 declaration. The claim for interest before June 1996 must therefore fail on that ground.
849 In my opinion, for reasons already given, delay in the sale after June 1996 (indeed after December 1995) was not caused by the invalid s 10 declaration, but by the ongoing uncertainty whether a Federal Minister might by another declaration, validly made, prevent the construction of the bridge. On this ground I consider the interest claim must also fail in respect of the period after 30 June 1996.
850 In my opinion the interest claim should also fail on another ground. Throughout the period to which this claim relates Binalong was in liquidation. The debt due to Westpac/PPL, even on the most optimistic view of the value of the assets of Binalong, exceeds by a considerable margin the value of Westpac/PPL’s security which included a charge over all the assets of Binalong. In addition Binalong at the date of liquidation was indebted to BFC for a sum exceeding $11 million. Whilst the provisions of the Corporations Law, Div 6 of Part 5.6, preclude a creditor from proving in a liquidation for post-liquidation interest on an interest bearing debt, those provisions do not affect the company’s continuing liability for that interest: see Midland Montagu Australia Ltd v Harkness (1994) 35 NSWLR 150 at 164 – 165 and Farrow Finance Co Ltd (in Liq) v ANZ Executors and Trustee Co Ltd [1998] 1 VR 50 at 60. However that interest can only be recovered by the creditor in the event that the provable debts of the company are paid in full. If and when this occurs the creditors revert to their contractual rights against the company to the extent of the surplus in the hands of the liquidator: see In re Lines Bros Ltd (in Liq) (No 2) [1984] 2 WLR 905 and The Laws of Australia, (LBC), Business Organisations, 4.7 [182]. In the present case there is no prospect of this happening. The purpose of an award of damages is to place the applicant as nearly as possible in the same position as the applicant would have been had the respondent’s wrongful conduct not occurred. As Binalong will never be called upon to pay the interest which Westpac/PPL has accrued in its books since the date of liquidation, the theoretical possibility of a liability to pay interest will not be productive of a financial loss to Binalong which sounds in damages: see Graham v Baker (1961) 106 CLR 340 at 347.
851 In summary, I find that the applicants have not established that Binalong suffered loss and damage caused by the making of the invalid s 10 declaration on 9 July 1994. On this ground all the causes of action alleged against the respondents must fail in any event.
11. CONCLUSION
852 At par 309 I said that at the end of the judgment I would give my reasons for not disclosing to Mrs Chapman the evidence given in closed session about the contents of the secret envelopes, or the findings made on that evidence. Sufficient reason for not doing so, in my opinion, lies in the fact that the applicants have not established the common law duties of care or the statutory duties upon which their claims rest, nor have they established loss. In these circumstances, even if there were otherwise a natural justice requirement to reveal the information, the requirement becomes irrelevant to the outcome of the case as the claims must fail in any event. However, if duties of care had been established, I would nevertheless withhold the evidence and findings on the ground that I do not consider that their disclosure would in any way assist the applicants’ case. I have discussed the question of procedural fairness at pars 615 and following. The evidence and findings do not raise issues upon which the applicants have not already made answer, save for the cultural reason why, as a matter of spiritual belief, the proposed construction of the bridge constituted a threat of injury or desecration. I have given my reasons at pars 390 and following as to why that is not a topic upon which a non-Aboriginal person not holding the belief could usefully comment and, in any event, an alleged want of rationality according to the way of thinking of those who are not believers is not a relevant issue under the HPA. The HPA is concerned with the existence, as a matter of fact, of an Aboriginal tradition in accordance with which an area is of particular significance to Aboriginals and whether a proposed use or treatment of the area in question is inconsistent with Aboriginal tradition, not with an analysis and understanding of the supernatural or spiritual concepts of the tradition.
853 In my opinion, the applicants’ claims fail in their entirety. I will hear the parties on the question of costs when they have had the opportunity to consider these reasons.
LIST OF ABBREVIATIONS
| 1990 Edmonds Report | See par 27 |
| 1988 Edmonds Report | See par 18 |
| ADJR Act | Administrative Decisions (Judicial Review) Act 1977 (Cth) |
| ADJR Litigation | See par 130 |
| AHA | Aboriginal Heritage Act 1988 (SA) |
| ALRM | Aboriginal Legal Rights Movement |
| ATSIC | Aboriginal and Torres Strait Islander Commission |
| BFC | Beneficial Finance Corporation Ltd |
| Binalong | Binalong Pty Ltd (Receiver and Manager appointed) (In liquidation) |
| Built Environs | Built Environs Pty Ltd: see par 46 |
| CFMEU | Construction, Forestry, Mining and Energy Union of Australia |
| Council | District Council of Pt Elliot and Goolwa (now the Alexandrina Council) |
| DEP | State Department of Environment and Planning |
| DOSAA | The Department of State Aboriginal Affairs |
EIS | Environmental Impact Statement: see par 22 |
| EP Minister | State Minister for Environment and Planning |
| Friends | The Friends of Goolwa and Kumarangk Inc: see par 48 |
| HPA | Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) |
| LMAHC | Lower Murray Aboriginal Heritage Committee: see par 7 |
| Marina | See par 14 |
| MSC | Marina Services Co Pty Ltd: see par 43 |
| PPL | Partnership Pacific Ltd |
| SDP | Supplementary Development Plan: see par 17 |
| Secret envelopes | See par 109 |
| The Lucas Report | See par 28 |
| The State | South Australia, and includes the Government of South Australia |
| TPA | Trade Practices Act 1974 (Cth) |
| Tripartite Agreement | See par 41 |
| Westpac | Westpac Banking Corporation Ltd |
I certify that the preceding eight hundred
and fifty-threenumbered paragraphs are a
true copy of the Reasons for Judgment
herein of the Honourable Justice von Doussa.
Associate:
Dated:
Counsel for the Applicants: Ms M E Shaw QC and Mr D J Meyer
Solicitors for the Applicants: Lynch Meyer
Counsel for the 1st and 2nd Respondent: Mr T R Anderson QC, Ms E F Nelson QC
and Mr K G Nicholson
Solicitors for the 1st and 2nd Respondent: Thomson Playford
Counsel for the 3rd, 4th and 5th Respondent: Mr D M Quick QC, Mr M A Frayne
and Ms D S Mortimer
Solicitors for the 3rd, 4th and 5th Respondent: Australian Government Solicitor
Dates of Hearing: 13, 14 December 1999; 31 January 2000; 1-4 February 2000; 7-10 February 2000; 14-17 February 2000; 21-24 February 2000; 28, 29 February 2000; 1, 2 March 2000; 6-9 March 2000; 13-15 March 2000; 21-23 March 2000; 27-30 March 2000; 4-6 April 2000; 10, 11, 19 April 2000; 16-18 May 2000; 22-25 May 2000; 5-7 June 2000; 14, 15 June 2000; 19-21 June 2000; 26-29 June 2000; 3-6 July 2000; 10, 12, 13 July 2000; 17-20 July 2000; 24, 25, 28, 31 July 2000; 1-3 August 2000; 7, 8, 10 August 2000; 14-18 August 2000; 21-23 August 2000; 28-31 August 2000; 4-6 September 2000; 11-13 September 2000; 18-20 September 2000; 25-29 September 2000; 3-6 October 2000; 9, 10, 12 October 2000; 6-9 November 2000; 13-15 November 2000; 20, 21, 23 November 2000; 27-29 November 2000; 5-9 February 2001; 12-16 February 2001; 19-21 February 2001; 23, 27, 28 February 2001; 1 March 2001.
