FEDERAL COURT OF AUSTRALIA
and
WENDY JENNIFER CHAPMAN
and
BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED)
(IN LIQUIDATION)
v
LUMINIS PTY LTD
and
DEANE JOANNE FERGIE
and
CHERYL ANNE SAUNDERS
and
ROBERT EDWARD TICKNER
and
COMMONWEALTH OF AUSTRALIA
(Action No SG 33 of 1997)
SUMMARY
(Judgment delivered 21 August 2001)
1 In accordance with the practice of this Court in cases where the Reasons for Decision are long, I propose to give a brief summary of the principal conclusions which underlie the Court’s judgment. This summary, however, forms no part of the Reasons for Decision.
2 The background to this case is summarised at the commencement of the reasons. The present applicants are Mr and Mrs Chapman and the company Binalong Pty Ltd (Binalong) which at material times was subject to the appointment of Receivers and Managers, and is now in liquidation. Mr and Mrs Chapman sue as assignees of Binalong’s rights, so the issues raised in the pleadings relate solely to the legal liability of the respondents to Binalong.
3 It is alleged that Binalong suffered a loss in the value of its marina development on Hindmarsh Island in consequence of the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, making a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Protection Act) on 9 July 1994. The declaration was made on an application by the Aboriginal Legal Rights Movement (the ALRM) on behalf of the Lower Murray Aboriginal Heritage Committee. By its terms the declaration banned the construction of a bridge from Goolwa to Hindmarsh Island for a period of twenty-five years.
4 That declaration was later set aside by a single judge of this Court on public law principles in an application for judicial review, and that decision was upheld by a Full Court in December 1995. It is common knowledge that the construction of the bridge was thereafter further delayed by another application by Ngarrindjeri people for protection under the Heritage Protection Act, by litigation, and by other matters. The construction of the bridge did not resume until late in 1999 and proceeded to completion as the trial of this action continued.
5 This action seeks damages for losses allegedly suffered by Binalong from five respondents. Mr Tickner is sued as the former Minister. Professor Cheryl Saunders is sued as the person nominated by Mr Tickner under the Heritage Protection Act to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection. Luminis Pty Ltd (Luminis) and Dr Deane Fergie are sued in respect of their provision of consultancy services to the ALRM including the preparation of a report containing an anthropological evaluation of the significance of secret women’s knowledge within Aboriginal tradition to the area where the bridge was to be constructed. The last respondent is the Commonwealth of Australia which is sued for compensation on the basis that the declaration under the Heritage Protection Act resulted in the acquisition of property belonging to Binalong.
6 The report prepared by Dr Fergie later became an attachment to a representation made by the ALRM to Professor Saunders. Both Dr Fergie and Professor Saunders in their respective reports reported on the significance of the area according to Aboriginal tradition to Ngarrindjeri people. That Aboriginal tradition was said to involve knowledge restricted to women. It was identified in broad terms in their reports but more detail about it was contained in envelopes attached to Dr Fergie’s report marked “To be read by women only”.
7 Mr Tickner made the declaration to ban the bridge because of the spiritual and cultural significance of the area to Aboriginal people, particularly Aboriginal women, and because of the failure of the South Australian Government to adequately consult Aboriginal women as part of the decision making process relating to the grant of approvals permitting construction of the bridge.
8 The applicants’ case contends that if Mr Tickner, Professor Saunders, Luminis and Dr Fergie had carried out their respective tasks properly, the declaration would not have been made on these grounds and Binalong would not have suffered loss.
9 The application alleges that Professor Saunders, Luminis and Dr Fergie are liable to pay damages under statutory remedies for conduct in the course of trade or commerce that was misleading or deceptive or likely to mislead or deceive because representations made in the Saunders Report and the Fergie Report were not correct. Further, against these respondents and against Mr Tickner, it is alleged that they were negligent, that is, they were in breach of common law duties of care owed to Binalong not to cause it foreseeable loss.
10 Against Professor Saunders and Mr Tickner the applicants also allege that they were guilty of breaches of statutory duty arising under the Heritage Protection Act, and were guilty of misfeasance in public office.
11 At the commencement of the trial both the applicants and the respondents said that the Court could determine the case without deciding whether the restricted women’s knowledge identified in the Saunders and Fergie Reports was a genuine part of Aboriginal tradition. The Court was informed that the hearing would not be a re-run of the central issue considered by the South Australian Hindmarsh Island Bridge Royal Commission which concluded that “women’s business” had been fabricated for the purpose of obtaining a declaration under the Heritage Protection Act to prevent the construction of the bridge. However, as the case proceeded, a recurring issue canvassed in the evidence was whether the restricted women’s knowledge 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 people and anthropological evidence to support their respective cases. Late in the trial the applicants amended their pleadings to specifically allege that the restricted women’s knowledge, which they refer to as “women’s business”, was not a genuine Ngarrindjeri tradition.
12 As the Reasons for Decision explain, the evidence received by the Court on this topic is significantly different to that which was before the Royal Commission. Upon the evidence before this Court I am not satisfied that the restricted women’s knowledge was fabricated or that it was not part of genuine Aboriginal tradition.
13 In my opinion, the claims based on the statutory remedies arising under the Trade Practices Act and the Fair Trading Acts for misleading or deceptive conduct fail for several reasons. I consider that the impugned conduct of Professor Saunders, Luminis and Dr Fergie was not conduct in trade or commerce. As I am not satisfied that the restricted women’s knowledge was not part of genuine Aboriginal tradition, I consider the applicants have not established that the Saunders and Fergie Reports when read and understood as a whole were misleading or deceptive, or likely to mislead or deceive those to whom they were directed. I consider the statutory claims also fail as they are claims that could only be made by Binalong as the party who is said to have suffered loss, and by the time that Binalong was joined as a party to the action the statutory time limit of three years within which actions of this kind must be brought had expired.
14 I consider the negligence claims must also fail. I hold that in the exercise of functions under the Heritage Protection Act neither Mr Tickner nor Professor Saunders owed a common law duty of care to Binalong. I also hold that Luminis and Dr Fergie in fulfilling their contractual retainer to the ALRM acted exclusively in the interests of the ALRM and its clients and did not owe a common law duty of care to Binalong. The negligence claims fail at the outset for want of a duty of care, but I consider they would also fail as the particulars of breach of duty are either not made out or have not been shown to be a cause of the loss alleged by Binalong.
15 I hold that the claims against Mr Tickner and Professor Saunders for breach of statutory duty fail because the Heritage Protection Act does not evidence an intention to create a private right of action for damages in favour of a person said to be aggrieved by a failure by the Minister or the reporter to meet procedural requirements of the Act.
16 The claims for misfeasance in public office must also fail as I reject completely the allegations that Mr Tickner and Professor Saunders knew that they were acting beyond power, or were reckless as to their power and acted in bad faith.
17 I hold that the claim against the Commonwealth also fails. I consider that once the decision to make the declaration was set aside on judicial review, the event said to constitute the acquisition is to be treated as having not occurred. Further, I hold that the declaration even if it had been validly made would not have effected an acquisition of property within the meaning of s 28 of the Heritage Protection Act.
18 Finally, the Reasons for Decision address the question of loss and the assessment of damages. The applicants’ claim is that Binalong suffered an immediate loss in value of the marina when the declaration under s 10 of the Heritage Protection Act was made, and that in the events which followed the value did not return to the marina before it was sold by the Receivers and Managers in September 1997 to Kebaro Pty Ltd, a company that is the trustee of family trusts in favour of members of the family of Mr and Mrs Chapman. I hold that the evidence establishes that in September 1997 the marina was worth at least as much as it would have been worth in July 1994 had the declaration not been made by Mr Tickner. I also hold that there would have been delays in the sale of the marina even if the declaration had not been made, such that the making of the declaration has not caused Binalong to incur additional interest to its financiers that would have been avoided if the declaration had not been made. I therefore find that Binalong did not suffer any loss in consequence of the making of the declaration on 9 July 1994.
19 For these reasons the applicants’ claims fail and there will be judgment for the respondents.
20 I will hear the parties on the question of costs at a date to be fixed when the parties have had the opportunity of considering the published Reasons for Decision.
21 The full text of the Court’s Reasons for Decision reported as Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 will shortly be available on the Federal Court’s website at www.fedcourt.gov.au.
