FEDERAL COURT OF AUSTRALIA

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ applications seeking dismissal of the applicant’s claim pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) be dismissed.

2.    The respondents to pay the costs of the applicant, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1    Onslow Salt Pty Ltd (ACN 050 159 558) and the State of Western Australia (collectively, the respondents) seek the dismissal of the applicant’s claim pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). The applicant, Buurabalayji Thalanyji Aboriginal Corporation (BTAC), seeks damages against the respondents for a variety of reasons. Some of those reasons are undoubtedly novel.

2    Onslow Salt says BTAC’s claim fails because at the relevant time, pursuant to contractual relationships, the Thalanyji people, represented by BTAC, had surrendered their claim to native title. The State agrees and also asserts that the claim cannot be sustained for a variety of reasons referrable to State legislation. It is necessary to examine each of the arguments in turn, but before doing so, it is desirable to reiterate the relevant principles for the purpose of s 31A of the Federal Court Act.

Section 31A principles

3    Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

4    In the present case there has been no discovery, although BTAC has secured certain documents by way of subpoena. Pleadings have not been filed by the respondents in response to the current form of the substituted statement of claim, filed 22 December 2017 (SSOC).

The pleaded case

5    BTAC’s case is undoubtedly novel. In its SSOC, BTAC relevantly pleads:

(a)    that it holds certain native title rights pursuant to a 2008 Determination of the Court;

(b)    in 1992, before that 2008 Determination, Onslow Salt and the State entered into an agreement (the State Agreement), which is also the schedule to the Onslow Salt Solar Salt Agreement Act 1992 (WA) (the State Act);

(c)    Onslow Salt was required to submit proposals for approval by the responsible Minister of the State for the establishment and operation of a salt field on the Mining Lease under cl 5 of the State Agreement;

(d)    after all proposals had been approved or determined, the State agreed to grant a Mining Lease to Onslow Salt covering the Salt Mining Area for evaporites, which is defined in cl 1 of the State Agreement to mean, in essence, solids produced by evaporation of sea water and brine;

(e)    the Salt Mining Area is land wholly within the native title area. It is a condition of the Mining Lease that the development and operation of the project be carried out in such a manner as to create the minimum practicable disturbance to the existing vegetation and natural land form;

(f)    if it desired ‘to significantly expand or modify the Company’s operations beyond those specified by the approved proposals, or otherwise vary its activities carried on pursuant to this Agreement’, Onslow Salt was able to submit further ‘proposals’ for approval by the Minister under cl 7 of the State Agreement;

(g)    Onslow Salt could, in accordance with approved proposals for a Salt Mining Operation or construction of Ancillary Infrastructure (and the maintenance thereof) for the purposes of the State Agreement and without the payment of royalty, obtain stone, sand, clay and gravel from the Salt Mining Area by cl 10(9) of the State Agreement, but could not otherwise on-sell stone, sand, clay or gravel from the Salt Mining Area;

(h)    on 1 March 1996, Onslow Salt and BTAC entered into a Development Deed. Relevant terms of the Development Deed are set out in the SSOC and include:

(i)    the native title claimants consented to the doing of various matters provided for in cl 4.2(a)-(f) by Onslow Salt on the Salt Mining Area if permitted to be done by Onslow Salt pursuant to the Mining Lease or Related Interest (Application), including an Approval as defined by cl 4.2;

(ii)    Onslow Salt would consult the native title claimants concerning Onslow Salt’s compliance with the ‘Environmental Proposal’, as defined in cl 1.1, and the possible involvement of the Thalanyji people in safeguarding and monitoring the environment associated with the land in the Salt Mining Area, cl 11.2;

(iii)    the native title claimants agreed to the suspension of the operation and enjoyment (emphasis added) of the native title rights and interests over land within the Salt Mining Area for so long as such land was being used, or capable of being used for salt mining operations, or for construction or operation of ‘Ancillary Infrastructure’ required for salt mining operations, cl 2.5;

(iv)    Onslow Salt could not extract, remove or sell material from the Salt Mining Area, other than as authorised under the Mining Lease;

(i)    on 1 March 1996, the Thalanyji people, Onslow Salt, the State and the Minister entered into an agreement (the Future Act Agreement) which prevailed over the Development Deed to the extent of any inconsistency and provided, amongst other things, that:

(i)    the rights of the native title claimants in connection with their claimed native title to the subject land are not affected, except as provided in, and to the extent necessary to give effect to, the Future Act Agreement cl 10;

(ii)    Onslow Salt could not extract from, remove or sell material from the Salt Mining Area, other than as authorised under the Mining Lease;

(j)    Chevron Australia Pty Ltd (ABN 290 861 97757) has planned for, and since 2011 operated, the Wheatstone liquefied natural gas project (Wheatstone Project) adjacent to the Salt Mining Area;

(k)    on or about 18 January 2012, Onslow Salt submitted what it described as an Additional Proposal pursuant to cl 7 of the State Agreement. The Additional Proposal stated that Onslow Salt’s purpose in making the application was to mitigate flooding risks to its salt operations, but that purpose, BTAC contends in its SSOC, was ‘false and known to Onslow Salt to be false and was a pretext to conceal Onslow Salt’s actual purpose’. There was no rational relationship between the supposed flood mitigation works and the amount of fill to be removed;

(l)    the true purpose of the Additional Proposal, as stated in the SSOC, was to enable Chevron, as the appointed contractor of Onslow Salt, to remove up to 10 million cubic metres of fill, being soil, sand, clay, gravel and cap rock from the Salt Mining Area for Chevron’s use as fill in the Wheatstone Project in exchange for which Chevron would pay Onslow Salt a total of approximately $75 million plus GST;

(m)    the Minister was aware that Onslow Salt’s actual purpose in making the Additional Proposal was to enable Chevron’s true purpose and that Onslow Salt’s stated purpose in making the Additional Proposal (to mitigate flooding risks to its salt mining operation) was a pretext to enable Chevron to access the fill material from the Salt Mining Area ‘that was false and known by Onslow Salt to be false’;

(n)    the Minister purported to approve the Additional Proposal on 13 February 2012 (the Approval) and subsequently up to 10 million cubic metres of fill was removed from the Salt Mining Area, was deposited and used by Chevron in the Wheatstone Project in exchange for which Chevron paid Onslow Salt either $70 million or $75 million;

(o)    the removal of fill has caused damage to the landscape and permanent alteration of it, and has damaged the spiritual forces that are believed by the Thalanyji people to inhabit the land and that are reflected in the native title rights. BTAC has also lost the right to negotiate access to the Salt Mining Area under the Native Title Act 1993 (Cth) (NTA).

6    The causes of action by BTAC, consequent upon those asserted facts, are said to be as follows:

(a)    a claim with respect to the Minister’s Approval of the Additional Proposal, which was an exercise of public power for an improper purpose (or, alternatively, if the Minister was unaware of Onslow Salt’s real purpose, a failure to take into account a relevant consideration), and it failed to take into account a relevant consideration that the activity was contrary to the Mining Lease and is void;

(b)    the extraction of the fill material could not be validly authorised under cl 7 of the State Agreement, but could only be authorised by a mining lease granted under the Mining Act 1978 (WA);

(c)    Onslow Salt caused or permitted Chevron to take the fill material without lawful authority and thereby:

(i)    committed a tortious interference with the native title rights and interests; and

(ii)    removed the fill material without lawful authority;

(d)    the State and Onslow Salt reached an understanding to permit or allow conduct inconsistent with the native title rights, being removal of the fill material, and undertook unlawful acts or means to do so, amounting to an unlawful means conspiracy;

(e)    Onslow Salt did not consult with BTAC concerning the safeguarding and monitoring of the environment associated with the Salt Mining Area in breach of the Development Deed and of the Future Act Agreement; and

(f)    alternatively, if the Minister’s Approval was not void, it was a future act in respect of which BTAC has the rights provided for by s 24MD(6B) of the NTA and BTAC has a right to compensation pursuant to s 24MD(3) of the NTA.

7    BTAC also seeks damages for the loss and damage suffered, including exemplary damages for the causes of action in intentional interference with native title rights, trespass and tortious conspiracy; damages and restitutionary damages for breach of contract; and compensation on just terms pursuant to Div 5 of Pt 2 of the NTA.

Onslow Salt’s contentions

8    Onslow Salt relies on the contractual relationships between the parties. It submits that the parties’ rights are controlled by various instruments. It argues that BTAC’s proceedings against Onslow Salt relate solely to its interest as the body holding the Thalanyji people’s native title interests in trust.

9    Onslow Salt contends that the Thalanyji people, by cl 2.5 of the Development Deed, agreed to the suspension of the operation and enjoyment of native title over the Salt Mining Area. By other clauses of the Development Deed and the Future Act Agreement, the Thalanyji people agreed that Onslow Salt could be granted mining leases or related interests and consented to the doing of all acts in relation to such tenements. They agreed not to oppose any related interests applications. By the Future Act Agreement, the Thalanyji people agreed to the grant of the tenement (ML 700273) to Onslow Salt and to it exercising its rights and discharging its obligations under the tenement. The parties acknowledged that the provisions of the Future Act Agreement would prevail over the provisions of any ancillary agreement, including the Development Deed, to the extent of any inconsistency.

Native title rights

10    Each claim depends on damage to native title. The native title rights and interests are those identified in the 2008 Determination. Onslow Salt contends that the parties’ rights and obligations are not to be determined by reference to whether physical or cultural impact may have occurred because of the fill removal. The NTA and High Court decisions emphasise, Onslow Salt argues, that the existence of native title, and any entitlement to compensation for impact upon it, is determined by the legal rights and not the ‘use’ ‘… of the relevant area. Onslow Salt contends that even if …’ the particular use is unlawful, its interaction with native title is still determined by the legal rights which each party has in the land. The majority of the High Court said in Western Australia v Ward (2002) 213 CLR 1 per Gleeson CJ, Gaudron, Gummow and Hayne JJ (at [78]):

The cases often refer to the need for those who contend that native title has been extinguished to demonstrate a “clear and plain intention” to do so. That expression, however, must not be misunderstood. The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title. It follows that referring to an “expression of intention” is apt to mislead in these respects. As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. Any particular use of land is lawful or not lawful. If lawful, the question is what is the right which the user has. If it is not lawful, the use is not relevant to the issues with which we must deal in these matters.

(Emphasis added, citations omitted.)

11    In Western Australia v Brown (2014) 253 CLR 507 (at [37]), the High Court (French CJ, Hayne, Kiefel, Gageler and Keane JJ) said:

The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests? As these reasons will later demonstrate, to the extent to which the decision in De Rose [No 2] countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted), it is wrong and should not be followed. In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important only to the extent to which it directs attention to the nature and content of the rights which were granted.

(Emphasis added, citations omitted.)

12    Onslow Salt argues that the Thalanyji people’s native title rights have been circumscribed as against Onslow Salt in two significant ways. First, by virtue of the Development Deed and the Future Act Agreement (in which the Thalanyji people agreed to the grant of ML273SA) which provides that the Thalanyji people’s native title rights are suspended for the duration of the State Agreement. Secondly, by the 2008 Determination, which specified that the native title rights held by the Thalanyji people were subject to Onslow Salt’s rights.

13    Reference is made by Onslow Salt to the ‘non-extinguishment principle’ under s 238 of the NTA, which enables the suspension of native title (rather than its extinguishment, which occurs at common law) and its revival after the cessation of inconsistent rights. Onslow Salt argues that the NTA applies this non-extinguishment principle to various types of grants, being future grants of native title, which would otherwise extinguish native title: ss 24AA(6), 24HA(3) and 24GB(5) of the NTA. Onslow Salt says that objectively viewed, the parties were seeking to implement a contractual equivalent to the non-extinguishment principle, noting that at the time of the Development Deed, even pastoral leases were considered to extinguish native title: see, for example, Wik Peoples v Queensland (1996) 63 FCR 450 per Drummond J. Onslow Salt contends that the construction of the Development Deed’s ‘suspension’ provision should be informed by reference to the NTA’s non-extinguishment principle which implements a form of suspension.

14    When the Development Deed was entered into, the NTA relevantly provided that any native title rights and interests had no effect in relation to any act to the extent of the inconsistency, but that when the act or its effect are later wholly removed, or otherwise wholly cease to operate, the native title rights and interests again have full effect: s 238 of the NTA (as it was at 1996). Onslow Salt says that objectively viewed, this is what the parties should be deemed to have envisaged in 1996, a situation further reinforced by the terms of the 2008 Determination. It would follow that the legal effect of suspension would be that there would be no extant native title rights ‘in the Project Area’, being Onslow Salt’s tenure for the duration of the State Agreement. Or at least, this is the way Onslow Salt argued the matter initially, but it appeared to move away from the ‘no extant native title rights’ contention. Originally, Onslow Salt argued that there were no native title rights which could be ‘affected’ by Onslow Salt’s tenure or activities pursuant to the 2008 Determination or the State Agreement. Onslow Salt seems to argue now that although there are rights, they are ‘in suspension’.

15    As far as I am aware, there is no authority examining the purported effect of a contractual agreement to suspend native title and no analysis of precisely what this means.

16    In this matter, what is significant is that 10 million cubic metres of fill material is a very substantial amount. Even if native title rights could not be exercised or enjoyed in respect of the Project Area during the period in which they were ‘suspended’, the removal of such a large amount of soil (apparently, effectively Horseshoe Island) within the relevant area, means at least arguably, not only that native title rights are suspended during the operation of the Development Deed, but they are forever lost in respect of that location. This material was not merely moved from one location within the site to another, but removed well off the site. It is at least arguable that native title rights have been permanently affected in respect of the excavated area. In my view, that is sufficient for the matter to go to trial rather than to be summarily dismissed. This is a potentially significant question of law and fact to be decided at trial and falls within the principles enunciated in Cassimatis, cited above.

17    No defences have been filed to the current form of the pleading and it is unclear whether it will be necessary to resort to extrinsic evidence about the factual matrix existing at the time of entry into the agreements. That cannot be done on a summary basis if it is necessary and, having regard to the potential ambiguity within the clause, the possibility of extrinsic evidence cannot be ruled out. Taken within the context of the Development Deed as a whole, meaning must also be afforded to cl 2.4 of the Development Deed which provides:

Onslow [Salt] does not admit that Native Title exists over the Claim Area, but agrees that (if it does exist), this [Development] Deed will not operate to extinguish Native Title.

18    Clause 2.5 provides:

In light of the prospective benefits and opportunities afforded by the Salt Project to the Native Title Claimants, the Thalanyji People and the Local Community and in consideration of the benefits and opportunities contained in this Deed, the Native Title Claimants agree to the suspension of the operation and enjoyment of Native Title over the Project Area, whether currently the subject of the Claim or not, for the duration of the Salt Project and the Agreement and until such time as Onslow [Salt] declares in writing to the Native Title Claimants that the Project Area is no longer required by it for the Salt Project or any related reason.

19    It is at least arguable that the words of cl 2.5 do not effect any change to the underlying native title rights themselves, let alone, remove them. What is suspended is the operation and enjoyment of those rights on the Project Area for the relevant period. It is also arguable that the Thalanyji people’s consent to the grant of the mining leases and related interests does not require that their native title rights be negated as such, but rather, that their consent was needed precisely because their native title rights were not extinguished but continued to exist, albeit that operation and enjoyment of them was limited during the period of operation of the Development Deed.

‘Other Interests’

20    Onslow Salt also says BTAC gave up its rights in the 2008 Determination. In that Determination, various ‘Other Interests’ were identified, including the ‘rights and interests comprised in, conferred under or in accordance with or pursuant to’ the State Agreement, including the relevant Mining Lease. Onslow Salt contends that the Other Interests have priority over the Thalanyji people’s native title in the manner set out in the 2008 Determination, which makes it clear that:

… The relationship between the native title rights and interests … and the Other Interests … is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

21    Onslow Salt says, in other words, where there is no inconsistency (for example, a native title right to hunt in an area, and a miner’s right to excavate that area) the native title right would continue, but where there is an inconsistency (for example, a native title right to protect an area from harm, and a miner’s right to excavate that area) then the rights of Onslow Salt will prevail. This consequence applies similarly to activities occurring pursuant to the Additional Proposal as approved.

22    Again, there are difficult factual and legal questions to resolve. BTAC argues that the actions of which it complains, namely, the removal of 10 million cubic metres of fill, being soil, sand, clay, gravel and cap rock from the Salt Mining Area, was not permitted under the Mining Lease, which permitted only the mining of evaporites as specified in the Schedule to the State Agreement.

23    BTAC argues that the conditions and the stipulations attached to the Mining Lease do not authorise the removal of the fill material, or its sale to Chevron, but they do require the ‘development and operation of the project being carried out in such a manner so as to create the minimum practicable disturbance to the existing vegetation and natural landform’ (by condition 12 of the Mining Lease) and that ‘[a]ll top soil being removed ahead of all mining operations … be stockpiled for later respreading or immediately respread as rehabilitation progresses’ (by condition 13 of the Mining Lease). There is no suggestion of any compliance with these provisions. Although Onslow Salt contends that the works were also authorised by the Additional Proposal, BTAC contends otherwise because cl 7(1) of the State Agreement thereof provides that:

If the Company at any time during the continuance of this Agreement desires to significantly expand or modify the Company’s operations beyond those specified by the approved proposals or otherwise vary its activities carried on pursuant to this Agreement beyond those activities specified in any approved proposals including development of the area coloured red on the said plan marked “A” referred to in subclause (2)(a) of Clause 10, then it shall give notice of such desire to the Minister and within 2 months thereafter shall submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (n) of subclause (1) of Clause 5 as the Minister may require.

24    BTAC contends that the extraction and removal of fill material on a commercial one off basis for sale to Chevron is not within the range of activities that could be approved via the cl 7 process. This is expressly pleaded by BTAC in the SSOC, where it contends that the extraction of fill material from the Salt Mining Area needed to be (but was not) authorised by a mining lease permitting the extraction of the fill material, which is a ‘mineral’ for the purposes of the Mining Act as defined in s 8(d). As cl 10(1)(a) of the State Agreement provides, the lease is subject to the Mining Act and Onslow Salt needed (but did not have) the rights granted by a mining lease under s 85(1) of the Mining Act in order to mine the fill material.

25    I consider BTAC’s position supporting this claim, and the claim itself, is arguable in relation to these issues. There are additional arguments on this topic, which do not require consideration at this juncture, including BTAC’s assertion that either the power was exercised for an improper purpose, or was made without considering a relevant consideration. I will turn to some of these topics in more detail when considering the State’s application.

Interference with native title rights

26    Onslow Salt also contends that the notion of a claim of interference with native title is without foundation. More specifically, it argues that the assertion of a ‘tortious interference with the native title rights and interests held by BTAC’ is a cause of action that does not exist in law. Of course there is a well-recognised cause of action for interference with contractual relations, but that is not the pleaded cause of action.

27    There are numerous difficulties with this novel cause of action, according to Onslow Salt. Not only are many of the necessary elements which would support a tortious interference with contractual relations not present, but the loss and damage said to flow from the interference with the native title rights and interests is also said to be unsustainable. One head of loss identified in the SSOC, for example, is an alleged ‘denial of the right to negotiate access to the Salt Mining Area’. This aspect of BTAC’s claim is ‘confused (at best)’, according to Onslow Salt, because:

(a)    the SSOC earlier defined ‘the Salt Mining Area’ as the entire Mining Lease and specifically noted that the Thalanyji people had the native title right to access that Area, meaning that BTAC need not negotiate access for the Thalanyji people;

(b)    any Thalanyji people access is restricted where that would interfere with activities of rights specified in, and prioritised by, the 2008 Determination and is therefore not a matter the law enables for ‘negotiation’;

(c)    other than that restriction, the Thalanyji people’s right to access the broader Salt Mining Area was not legally prevented and the fill arrangements made no change to that; and

(d)    the Thalanyji people do not have a native title right to control others’ access to the Salt Mining Area and so could not negotiate about such access.

28    In any event, this claim, according to Onslow Salt, depends on an impact upon native title rights that are capable of being presently asserted. Onslow Salt submits there are no native title rights capable of being presently asserted for the contractual reasons contended above.

29    BTAC accepts that the pleaded tort is novel, but makes the point that this is unsurprising since native title itself was only recognised in 1993 and given legislative effect in 1996. It is argued that the claim proceeds according to the incremental and analogical development of the common law as discussed in Perre v Apand Pty Ltd (1999) 198 CLR 180 per McHugh J (at [93]-[94]), Gummow J (at [199]), and Hayne J (at [333]).

30    BTAC argues that for the purposes of a s 31A application it is sufficient to note that:

(a)    the gist of a tortious act, in deriving from an action on the case, is damage. While that for a tortious action deriving from trespass, is that the consequences of the act were direct. BTAC pleads it suffered loss and damage on three bases and that loss and damage is the direct consequence of the removal of the fill material. To the extent that the tort is to be analysed on those bases, the requisite elements are pleaded;

(b)    when allowance is made for the fact that the pleaded tort arises from the recent recognition of native title rights, it is appropriate to proceed by analogy with existing principles of tort law that focus on the right or interest being protected, rather than the historical exegesis of torts as received from English law. The rights of BTAC do have the character of an infringement of proprietary or possessory interests in property, namely, the rights with respect to the land and waters of the 2008 Determination Area. The holder of a right or interest in real property can prevent interference with the enjoyment of rights arising from occupation of tenures, such as a fee simple: Marsh v Baxter (2015) 49 WAR 1 per McLure P (at [243]), and Newnes and Murphy JJ (at [765]-[774]). This falls within the passage set out in Nichol v Discovery Africa Ltd where the Full Court (Greenwood, McKerracher and Moshinsky JJ) said (at [134]):

… where there is a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel, it is not appropriate to determine the question of law summarily and give summary judgment …

(c)    BTAC claims that the interference was done wrongfully without legal authority. There is no dispute as to the removal of the fill material. The question of the legal consequences of that removal involves construction of the 2008 Determination, construction of the contracts and documents discovered by Onslow Salt by way of preliminary discovery and should be resolved at trial.

31    Finally, in relation to the contention that the ‘right to negotiate claim’ is a confused claim for loss and damage, it must be noted that it is at least arguable that the pleaded conduct of Onslow Salt in the removal of the fill material, and causing or enabling Chevron to remove the fill material for reward, infringed the native title rights and interests because the removal of such a vast body of material is inconsistent with present, but also any future enjoyment of, native title rights and interests. The nature of the conduct of Onslow Salt, as pleaded in the SSOC, was what enabled Chevron to remove the fill material, but precluded BTAC, as holders of the native title rights and interests, from prohibiting that action or negotiating with Chevron to enable Chevron to remove the material. It is arguable, in my view, that, as such, a measure of the loss caused was the value of this lost opportunity to bargain for access to the land and the removal of the material. This concept of loss of opportunity is comparable to that recognised in Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332 per Mason CJ, Dawson, Toohey and Gaudron JJ (at 348). There may be a number of hurdles to overcome before BTAC could ultimately succeed on this contention, but it should have the opportunity to advance the argument.

Trespass

32    Onslow Salt also contends that the claim regarding trespass is ‘short and ambiguous but foredoomed to fail’. These arguments, turn on the same contentions in relation to the existence or suspension of native title. The allegation is that Onslow Salt unlawfully permitted Chevron to remove the fill, which harmed BTAC through physical and cultural impacts and a denial of the right to negotiate access to the Salt Mining Area.

33    Onslow Salt argues that the Thalanyji people’s native title rights are insufficient to base any claim in trespass and, even if native title rights could ground a trespass claim, the actions said to constitute the trespass were legally authorised and therefore cannot found any claim of tortious interference. Onslow Salt argues that native title rights, in general, are insufficient to found a trespass claim, because trespass to land entails interference with possession and is maintainable only by someone who has the right of possession (Georgeski v Owners Corporation SP 49833 (2004) 62 NSWLR 534 per Barrett J (at [95])) or, at least, a possessory right better than those being sued for trespass: Newington v Windeyer (1985) 3 NSWLR 555 per McHugh J (at 563) and with whom Hope JA agreed (at 557). At common law, trespass is an action where the plaintiff holds exclusive possession or analogous rights. There has not yet been a case in which an Australian court has ruled that native title rights have been trespassed and Onslow Salt cites Commonwealth v Yarmirr (1999) 101 FCR 171, where Merkel J (at [604]) (Beaumont and von Doussa JJ not commenting on this aspect) indicated that absent a right to exclusive possession, the suggestion of trespass against traditional or native title rights is misconceived.

34    Further, Onslow Salt says the fact that the authorisation was lawful prevents any trespass claims. It is argued that there can be no nuisance, nor related tortious claims such as trespass, where the action complained of was authorised: Coco v The Queen (1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron and McHugh JJ (at 436).

35    Onslow Salt points out that the activities complained of were authorised by law. The State Agreement was approved by Parliament and enabled Onslow Salt to submit proposals for consideration by the Minister. When a proposal was approved by the Minister, as it was here, Onslow Salt was to implement that approved proposal in accordance with its terms, with the only exception being anything required under the Environmental Protection Act 1986 (WA). Onslow Salt was legally required to undertake that which it had proposed and the State had approved. As noted in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 by the Full Court (Besanko, McKerracher and Beach JJ) (at [232]), approval of a proposal under a State agreement results in the company being ‘legally obliged … to implement the Approved Proposals in accordance with [its] terms’. In Mineralogy, the State agreement clause was on identical terms to the State Agreement in this matter.

36    As indicated earlier in these reasons, there is a debate about the lawfulness of the removal of the fill material. BTAC contends that the removal of the material, being non-evaporites, without authority constituted an offence under s 155(1) of the Mining Act. Section 155(3) provides that any conviction under that section does not relieve a person from any other obligation or liability that may have been incurred by reason of having carried on unauthorised mining. Section 160(1) provides that:

(1)    Subject to section 40G, nothing in this Act shall prejudice, abridge or take away and right of action that any person may have in respect of any act or omission of another unless that act or omission occurs in pursuance of any authority lawfully given under this Act.

(Emphasis added.)

37    Section 40G provides:

40G     Limitation on actions in tort

(1)        In this section –

permit means a permit issued under section 40E;

permit land means land that is the subject of both the permit and the exploration licence concerned.

(2)    The holder of a permit cannot bring an action in tort against the holder of an exploration licence for injury, loss or damage suffered by the holder of the permit as a result of –

(a)    the condition of the permit land; or

(b)    a thing that the holder of the exploration licence has done on the permit land under the authority of that licence.

(3)    Nothing in subsection (2)(b) prevents the bringing of an action in tort if the thing was done –

(a)    with the deliberate intent of causing injury, loss or damage to the holder of the permit; or

(b)    with reckless disregard for the presence of the holder of the permit on the permit land.

(4)    In this section a reference to the doing of a thing includes a reference to an omission to do a thing.

38    BTAC says while s 40G of the Mining Act does not apply in this case, it is of assistance as it illustrates the contemplation of the existence of an action in tort by the holder of the permit against the holder of an exploration licence and conditions it can exercise. That is consistent, BTAC argues, with the existence of civil actions by other persons against an unlawful miner. BTAC has expressly pleaded and argued for the unauthorised removal of fill material resulting in loss and damage, setting up an orthodox claim in tort for damage arising from contravention of statute: Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 per Kitto J (at 404-405). Whether there is a cause of action is a matter of statutory interpretation and a triable issue for the purpose of s 31A of the Federal Court Act. As a matter of public policy, BTAC argues, there is nothing untoward in a person who knowingly conducts unlawful mining from being liable in damages to the holders of native title over that land resulting from damage caused by that unlawful mining.

39    In my view, the native title contentions of BTAC are arguable and the claim is arguable if BTAC can establish that the mining is unlawful. While I have some reservations, there is no good reason BTAC should be shut out from contending this issue at trial.

Conspiracy

40    Once again, the claim here is framed solely in relation to impact on native title. Again, in my view, to the extent that the complaint about this claim turns on Onslow Salt’s native title contentions, I am unable to accept those contentions on a summary basis. A more difficult problem for BTAC, however, is the requirement of an intent to injure. As Onslow Salt points out, this Court has set out the grounds of tortious conspiracy in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 per Hely J ([60]-[64]) as follows:

60    Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Historically, there are two kinds of conspiracy, the elements of which are distinct:

(1)    an ‘unlawful means’ conspiracy in which the participants combine together to perform acts which are themselves unlawful; and

(2)    a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant.

See Bullen & Leake & Jacob’s Precedents of Pleadings, Vol 2, 15th edn, Sweet & Maxwell, London, 2004, at [50-01]; McKellar v Container Terminal Management Services Ltd (supra) at [135] – [154].

61    Bullen & Leake identifies the necessary elements in an action in conspiracy at [50-01.1]:

‘The claimant must plead and prove the following necessary elements:

(i)    a combination or agreement between two or more individuals (required for both types of conspiracy);

(ii)    an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type (2) above);

(iii)    pursuant to which combination or agreement and with that intention certain acts were carried out;

(iv)    resulting loss and damage to the claimant.’

62    A conspiracy can be proved without evidence of an express agreement. A court is entitled to have regard to the overt acts pleaded, and to infer from those acts that there was an express agreement to further the common object of the combination. All of those said to be parties to the conspiracy should be sufficiently aware of the surrounding circumstance, and share the same object, for it properly to be said that they are acting in concert.

63    ‘Unlawful means’ includes crimes and tort and breaches of statutory provisions: Trindade & Cane, The Law of Torts in Australia, 3rd edn, Oxford University Press, Melbourne, 1999 at p 230. A person is using unlawful means if they are doing an act which they are not at liberty to commit: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169. It is not open to a party to plead as an alternative to a substantive cause of action already pleaded the tort of conspiracy to commit the substantive wrong, nor can there be a common law conspiracy to contravene the TPA outside the form of conspiracy expressly provided for in s 75B(1)(d) of the TPA: McKellar (supra) at [195] and [197]. But the first respondent has not taken any objection to the ASC on this account, hence these matters can be put to one side.

64    The tort requires an intention to injure. As Kiefel and Jacobson JJ observed in Dresna Pty Ltd v Misu Nominees Pty Ltd (supra, at [7]) an agreement to do an unlawful act that results in damage to another party is not the same as a conspiracy to injure that party. In order to prove a conspiracy a claimant must show that the wrongful act complained of was done with a design of injuring the claimant and that it did so. According to their Honours, a conspiracy could be directed not only at a particular individual, but also at a class, in the sense of all members of the class. Their Honours went on to say (at [123]) that the test for an action in conspiracy is: ‘what was the object of those combining when they acted as they did’. They must have acted in order that, not with the result that, the claimant should suffer damage.

(Emphasis added.)

41    These passages would suggest that for BTAC’s claim to be made out, Onslow Salt must have acted with ‘the sole or predominant purpose of injuring the claimant’ and that they did so act in order that, not with the result that, the claimant should suffer damage. These matters are not pleaded, nor is it apparent on the materials presently before the Court, that there was such intent or purpose. However, whilst BTAC has not (and presumably cannot) pleaded such an intent, the tortious conspiracy claim could survive only if it is shown that the relevant acts were unlawful. Onslow Salt says it has established that this cannot be so. Onslow Salt also relies upon the observation in Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307 per Hely J (at [71]), to the effect that it is not open to a party to plead as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that same substantive wrong.

42    Such appellate jurisprudence on conspiracy does require an unlawful purpose. For example, the elements of an unlawful means conspiracy were described in Tallott v City of Stirling [2017] WASCA 126 per Buss P, Murphy and Mitchell JJA (at [229]) as follows:

As to the latter [‘conspiracy by unlawful means’], the elements are:

(a)    a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;

(b)    the purpose of that combination or agreement was to injure the plaintiff;

(c)    the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and

(d)    those unlawful acts caused damage to the plaintiff.

(Emphasis added, citations omitted.)

43    As indicated above, while the unlawfulness may not be BTAC’s strongest point, it should certainly not, at this point, be a basis on which summary judgment is given against it. The unlawfulness is arguable. Mining the fill material without a mining lease authorising that specific activity, and under the pretext of the Additional Proposal for flood prevention, has been pleaded and I have been taken to evidence capable, on one view, of supporting the pleading. There was clearly a combination or agreement between Onslow Salt and Chevron from the documents to which I was taken in the course of the hearing. There is also, at least at a prima facie level, material which suggests Onslow Salt and Chevron’s true purpose (being for Chevron to obtain suitable fill). There is documentation showing Onslow Salt’s calculations that by Chevron obtaining fill from the Salt Mining Area it would save an estimated $340 million. Costs Chevron would save by not having to incur costs of long distance haulage. There appears at this point to be evidence of the final payment of $75 million plus GST from Chevron to Onslow Salt. These matters may have been kept confidential from the Thalanyji people or BTAC (an issue which is yet to be determined) but on its face, at least at this stage, this appears to be so.

44    As against cases such as Tallott, BTAC relies upon Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403, where Pritchard J (at [723]) observed that the element of causing injury requires evidence showing that ‘each defendant intended to cause loss’ to the plaintiff as an end in itself, but that it was relevant if the evidence established that causing loss to the plaintiff was the means by which the defendant achieved the end of enriching itself. What her Honour said at that passage was as follows:

It is also necessary for HFC to establish that each defendant intended to cause loss to HFC. Having regard to the opinions expressed by Lord Hoffman and Lord Nicholls in relation to intention, it is necessary to consider:

(i)    whether the evidence establishes that the defendant actually intended to cause loss to HFC - that is whether causing loss to HFC was an end in itself;

(ii)    if not, whether the evidence establishes that causing loss to HFC was the means by which the defendant achieved the end of enriching himself or itself. In other words, was this a case where the defendant sought to advance his or its own business by pursuing a course of conduct which he or it knew would, in the very nature of things, necessarily be injurious to HFC, so that HFC's loss and the defendant's gain can be considered different sides of the same coin?; and

(iii)    if not, whether the evidence establishes that causing loss to HFC was neither the end desired by the defendant, nor a means of attaining that end, but merely a foreseeable consequence of his or its actions (in which case the element of intention to cause loss to HFC will not be established).

(Emphasis added.)

45    It is, in my view, at least arguable that it was inevitable that the highly profitable activity for Onslow Salt, and the clear benefit to Chevron, could only possibly result in injury to BTAC by the removal of such a vast volume of material where BTAC was without opportunity to negotiate in respect of the same and left, arguably, with a permanent consequence to its native title irrespective of that land.

46    Finally, in relation to Onslow Salt’s submission concerning Newkirk (No 2), assuming for the sake of argument the correctness of that decision, BTAC has not committed that error in this instance. The conspiracy pleaded in the SSOC at paras 59-64 is not to commit the torts pleaded in the SSOC at paras 50-54 and 55-58. The difference may be technical, but they are not, by any means, identical.

47    I would not strike out this plea.

Breach of contract

48    The key paragraphs concerning the breach of contract claim are in paras 68-70 of the SSOC, which are in these terms:

68.    By reason of this up to 10 million cubic metres of fill has been removed from the Salt Mining Area and to thereby damage the landscape and permanently alter it. By reason of such breach BTAC as holder of the Native Title Rights and Interests on behalf of the Thalanyji people has suffered loss and damage being the matters pleaded at paragraph 53.

69.    Further, or in the alternative, in breach of the term of the Development Deed pleaded in paragraph 17.7 and in breach of the term of the Future Act Agreement pleaded in paragraph 18.4, Onslow Salt extracted, removed and sold material, being the Fill Material, from the Salt Mining Area that was not authorised by the Mining Lease.

70.    By reason of such breach:

70.1    BTAC as holder of the Native Title Rights and Interests on behalf of the Thalanyji people has suffered loss and damage being the matters pleaded at paragraph 53;

70.2    Onslow Salt has made a profit.

49    As Onslow Salt points out, these claims also turn on the native title contention which I am not prepared at this stage to summarily dismiss. Onslow Salt’s argument is that cl 4.2(a) of the Development Deed documents the Thalanyji people’s consent to ‘all acts in relation to those Mineral Leases [which includes ML273SA, the Mining Lease] … including … mining’. That is exactly what occurred here, it is argued. The permission or authority to move the fill was in relation to the Mining Lease and Onslow Salt as the owner agreed to it. It is, thus, an act in relation to ML273SA and thereby something to which the Thalanyji people had earlier consented. Onslow Salt asserts that the contractual claim has no reasonable prospects as the native title rights were ‘in abeyance’ and Onslow Salt’s rights have priority.

50    Once again, not only do I consider that the native title argument should go to trial, but I also consider that the debate about whether the removal of the fill material was authorised by the Mining Lease should go to trial. The contention is that Onslow Salt promised by contract to consult with BTAC, but failed to do so. Therefore, BTAC lost the ability to negotiate for the protection of the land. BTAC pleads an implied term in the Development Deed and the Future Act Agreement that Onslow Salt would not remove and sell material from the Salt Mining Area other than material authorised to be removed and sold by the Mining Lease. That contention is arguable.

51    For those reasons, I would dismiss Onslow Salt’s s 31A application.

The State’s contentions

52    The State adopts all arguments advanced by Onslow Salt. As I have rejected those arguments, it is unnecessary to say more about them.

53    There are four claims addressed by the State, being the totality of the claims against it by BTAC:

(a)    the claim for a declaration that the Approval (of the responsible Minister of the State) of the Additional Proposal submitted by Onslow Salt to the Minister on 18 January 2012 is void and of no effect at law;

(b)    the claim for damages for an alleged tortious conspiracy;

(c)    the claims for damages for valid acts, otherwise than under Div 5 of Pt 2 of the NTA; and

(d)    the alternative claim for BTAC against the State pursuant to Div 5 of Pt 2 of the NTA.

The claim that the Approval is void

54    The SSOC contends by paras 43 and 44 that the Approval was for an improper purpose and in making the Approval the Minister failed to take into account relevant considerations. The State describes these as being the ‘judicial review pleas’. The SSOC seeks a declaration that the Approval is void and of no effect at law.

55    The State notes that an administrative decision is merely voidable until declared void by a court: New South Wales v Kable (2013) 252 CLR 118 per French CJ and Hayne, Crennan, Kiefel, Bell and Keane JJ (at [22]), where their Honours said:

The difficulties associated with using words like “void” and “voidable” in connection with administrative actions have long been recognised. Writing in 1967, H W R Wade said that:

“[T]here is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy. If and when that remedy is taken away, what was void must be treated as valid, being now by law unchallengeable. It is fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning. However destitute of legitimacy at its birth, it is legitimated when the law refuses to assist anyone who wants to bastardise it. What cannot be disputed has to be accepted.”

Although directed to administrative actions, these statements may find some reflection in connection with the acts of courts and judges. If a curial decision cannot be disputed, it must be accepted. To the extent to which the orders of a superior court are valid until set aside, there seems little point in attempting to classify those orders as void or voidable. But it is not necessary to pursue those analogies to their conclusion. It is enough to notice that the legal system provides (and must provide) the rules which govern what legal effect is to be given to the decisions of, and the orders made by, courts. And, as later explained, those rules are more complex than the central proposition which underpinned Mr Kable's arguments: that want of jurisdiction for constitutional reasons necessarily entails the complete invalidity for all purposes of whatever is done in purported exercise of that jurisdiction.

(Emphasis added, citations omitted.)

56    The State makes the point that the Additional Proposal was submitted by Onslow Salt pursuant to cl 7(1) of the State Agreement and the Approval given in accordance with cl 6(1)(a) of the State Agreement under a contractual obligation and power (cl 6 and cl 7), not pursuant to any statutory obligation or power. The Minister’s contractual power to make the Approval was contained within the State Agreement which was ratified by Parliament. It does not have the force of law and does not create statutory powers, duties or obligations. The terms, including cl 6 and cl 7 of the State Agreement, operate contractually, binding only the parties to the State Agreement: Kidd v Western Australia [2014] WASC 99 per Beech J (at [112]-[113]) where his Honour said:

112     These provisions operate to ensure the effective operation of the contractually agreed provisions. The agreement does not have the force of law and does not create statutory duties and obligations. The purpose of these provisions is to ensure that the general body of law in the State does not 'stand in the way' of implementation of the agreements.

113     The terms of the Casino Agreement operate contractually, binding only the parties to it.

(Citations omitted.)

In Re Michael; Ex parte WMC Resources Ltd (2003) 27 WAR 574, Parker J (Templeman and Miller JJ agreeing) said (at [26] and [30]):

26    I am not able to see that s 4, in particular s 4(3), of the Agreement Act has the effect that the provisions of the State Agreement have the force of law or that they create statutory duties and obligations. Although the State Agreement is scheduled to the Agreement Act its terms are not thereby given statutory force. While the Agreement has been ratified, and its implementation is authorised, and it operates and takes effect despite any other Act or law, the terms of the State Agreement remain contractual terms with force and effect as a contract. As such it is binding on the parties to the contract and not on others.

…

30    Thus, in my view, the effect of s 4(3) of the Agreement Act and s 3 of the GA Act, separately and in combination, is not to give to the provisions of the State Agreement the force of law. They are contractual provisions, binding, insofar as their terms create binding legal obligations, as such on the parties to the State Agreement by the force of the common law, and having no binding legal force on those who are not parties.

(Emphasis added.)

57    The State contends that s 3(4) of the State Agreement has the effect that the State Agreement operates and takes effect notwithstanding any other act or law. Similarly, pursuant to s 3(a) of the Government Agreements Act 1979 (WA), which also applies to the State Agreement, each provision of the State Agreement operates and takes effect according to its terms, notwithstanding any other act or law. The purpose of these provisions is to eliminate sovereign risk, namely, the risk that domestic politics or law can disturb commercial enterprise after large investments are made. The underlying policy is that the State Agreement, including the Minister’s powers and obligations are first subject to Parliamentary scrutiny. Judicial review does not lie in respect of government performance under a government contract, where the contract is protected by statute from challenge under any law.

58    BTAC points to the fact that at the time of the Approval, administration of the State Agreement was under the administration of the Minister for State Development. That Minister was nominated as the decision-maker in his capacity as ‘the Minister of the Government of the State for the time being responsible for the administration of the Act to ratify this Agreement … and includes the successors in office of the Minister’. BTAC points out that the Minister’s decision-making power depends on his holding of the office of the Minister of State and is exercised in that capacity on behalf of the State. The power to decide is delegated to the Minister.

59    BTAC says it is arguable that an exercise of power by a minister pursuant to a state agreement, annexed to an act of Parliament is a public power in the relevant sense amenable to judicial review. More specifically, an exercise of power by a Minister pursuant to a state agreement annexed to an act of Parliament to grant a mining title, otherwise granted pursuant to legislation, is a public power in the relevant sense and amenable to judicial power. Further, BTAC argues that the relief sought is a declaration in the nature of equitable relief ‘to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto’ in the sense discussed in City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (at [17]-[21]), where the High Court (Gleeson, Gummow, Kirby and Hayne JJ) said:

17    Significant questions of public law, including those respecting ultra vires activities of public officers and authorities, are determined in litigation which does not answer the description of judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 [sic] (Cth). Examples of other vehicles are the actions for recovery of moneys exacted colore officii or paid by mistake, and those for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious act.

18    No such common law action was in issue in this litigation. Nor was the proceeding instituted by Enfield one to which r 98 of the Rules applied. The jurisdiction of the Supreme Court which Enfield invoked was its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto.

19    The nature of this jurisdiction was explained by Bray CJ in Attorney-General (SA) v Huber. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, Gaudron, Gummow and Kirby JJ referred to the part played by the declaration and the injunction in the shaping of modern administrative law and continued:

“In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.”

20    The authorities supporting the use of equitable remedies to restrain breaches of prohibitions imposed by or pursuant to planning laws were discussed by Menzies J in Cooney v Ku-ring-gai Corporation. That case and Morris v Woollahra Corporation show that it is open to the defendant in such a proceeding to contend that the application for equitable relief should be dismissed on the ground that the ordinance or proclamation is invalid and so ineffective to impose the prohibition the defendant is said to contravene. The term “invalid” tends to be the preferred expression in these authorities. In Baxter v New South Wales Clickers' Association, Isaacs J said:

“Now, ‘validity’ is a well known technical expression, and is equivalent to legality or not being ultra vires. If without jurisdiction, a decision is certainly invalid.”

21    That is the sense in which “invalid” is used in the present litigation. The substance of the matter is that Enfield asserts apprehended breach by Collex of the statutory provisions which forbid the proposed development without the approval of the relevant authority (the Commission) together with the concurrence of Enfield. Enfield seeks a declaration as to the invalidity of the approval upon which Collex relies as establishing the legality of its development. The cast of the litigation thus resembles that in authorities such as Thompson v Randwick Municipal Corporation, Marsh v Shire of Serpentine-Jarrahdale, City of Port Melbourne v Hamer, Electronic Industries Ltd v City of Oakleigh and Wingecarribee Shire Council v Minister for Local Government. In his oral submissions in this Court counsel for Collex did not dissent from this understanding of the nature of the proceedings. However, he rightly pointed out that Enfield itself had tended to confuse matters in its notice of appeal by categorising the Full Court as having dealt with the litigation as an application for “judicial review”.

(Emphasis added, citations omitted.)

I consider that by determining the claim for declaratory relief, the jurisdiction of the Court is invoked via its accrued jurisdiction as a court of equity: see City of Enfield (at [18] above).

60    The State is correct, in my view, in submitting that the exercise of a right or power under a contract is not generally a decision made under an enactment. However, exceptions to this may arise under statutory agreements. The yardstick appears to be the source of the power. So in Australian National University v Burns (1982) 64 FLR 166, it was held that exercising a contractual power to dismiss was not amendable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was said that the decision to terminate a contract for breach or any other contractual right is referrable purely to private law and therefore, the source of the power was found in the contract and not in the Act, which arguably enabled the contract to be made in the first place. Insofar as I understand it, BTAC does not challenge that well established principle.

61    Generally speaking, if a decision made under a contract is not amenable to review through public law remedies, then it will be open to the complaining party to use ordinary private law remedies according to Aronson et el, Judicial Review of Administrative Action and Government Liability (6th ed, 2017) (at [3.180]) where the authors say:

English judicial review’s general abstention from government’s ‘private’ (usually commercial) functions preceded Datafin, but that decision’s distinction between public and private functions has provided a convenient rationale. The principal alternative rationale is that the power which judicial review supervises must be non-consensual, or ‘coercive’ if that is different.

Just as in England, Australia’s judicial review has also shown a marked aversion to supervising government’s decisions as to whether (and with whom) it will contract, and an even greater aversion to decisions made under contracts. However, that aversion has not become judicial abstention.

Two issues were at stake in Victoria v Master Builders’ Association of Victoria [[1995] 2 VR 121]. A shadowy government taskforce had not observed the dictates of procedural fairness when it drew up a blacklist of builders who may have cheated the government in the past. The Court of Appeal granted a declaration as to the breach of natural justice. However, it said that it could not grant relief regarding the government’s decision not to contract with any of those builders in the future unless they confessed and repaid the money dishonestly obtained.

Griffith University v Tang [(2005) 221 CLR 99 at 128-129] contains strong dicta seeking to resolve a long-running debate as to the scope of AD(JR) coverage of government’s contracting decisions. As explained in [2.560], Tang said that AD(JR) has no coverage of decisions on whether to award a contract, nor on decisions under a contract. In saying that, Tang endorsed the main thrust of the Federal Court’s decision in General Newspapers Pty Ltd v Telstra Corporation [(1993) 45 FCR 164]. However, Tang failed to address some dicta in General Newspapers to the effect that AD(JR) might yet apply if the contract was awarded for an improper purpose in violation of a relevant statutory restriction. If General Newspapers was wrong in this last regard and AD(JR) has no coverage in the situation it supposed, one would then have to ask whether there might be a remedy under the general law. And even if the common law’s judicial review procedures and remedies would not be available, one would surely expect a court to be able to grant declaratory or injunctive relief as appropriate.

(Footnotes omitted.)

62    In respect of this, the authors cite, amongst others, Finn J in Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 (at 180, 195-196, 261 and 264). In MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120 per Higgins J (at [212]-[220]), in allowing a challenge to a statutory authority’s decision to lease land after a deeply flawed tender process, the Court stressed that the authority had chosen to act on public interest grounds; it said the review would have been unavailable if the lease had been awarded on purely commercial grounds.

63    In CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555, Kyrou J held (at [100]) that the ‘Datafin principle’ (referring to R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] QB 815), that a decision of a private body which was not made in the exercise of a statutory power may be amenable to judicial review if the decision is, in a practical sense, made in performance of a ‘public duty’ or in the exercise of a power which has a ‘public element’, was applicable in the State of Victoria. His Honour decided it was not applicable to the case under consideration, but his endorsement of Datafin was based on the constitutional principle of ‘protecting citizens from abuses in exercises of powers which are governmental in nature’ (at [99]).

64    Having regard to the factors to which BTAC points, particularly the governmental functions, the governmental letterhead, a statutory authority, the power contained under the Mining Act and having regard to the fact that declaratory relief is sought, while the State’s submission may ultimately succeed at trial, there is considerably more unpacking required of the facts and circumstances in this developing area of the law. It is not appropriate for summary judgment.

Collateral challenge

65    The State submits that whether a collateral challenge to an administrative decision will be allowed is determined under the following principles set out in Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568 per Besanko J (Duggan, Vanstone and Layton JJ agreeing) (at [93]):

I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, “Criteria for Restricting Collateral Challenge” (1998) 9 Public Law Review 237 and Professor Enid Campbell, “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272. The factors identified include the following:

1.    Are the grounds of challenge likely to involve the adducing of substantial evidence?

2.    If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?

3.    In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?

4.    Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?

5.    Is the issue raised by the collateral challenge clearly answered by authority?

6.    Are there other cases pending which raise the same issue?

7.    (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?

66    The State contends that the judicial review pleas in the SSOC are impermissible as a collateral challenge under the criteria in Jacobs because:

(a)    substantial evidence is already in prospect (as evidenced by, amongst other things, the volume of material produced so far);

(b)    the relief should not be given to BTAC because it may affect a third party, namely, Chevron, whom BTAC has not joined to the proceedings. It will also affect the respondents;

(c)    the relief sought will bypass all the usual procedures associated with judicial review of administrative actions of an office of the State, including, for example:

(i)    delay of about six years, when judicial review should be brought within six months, absent the Court’s leave to proceed with an application outside the limitation period under the Rules of the Supreme Court 1971 (WA), O 56 r 1 and r 2(4);

(ii)    prejudice to affected parties, including the respondents and Chevron by reason of delay;

(iii)    BTAC, having no subsisting native title rights or interests at risk, as all native title was suspended; and secondly no right of native title could have been affected, even if native title was not suspended;

(iv)    there is no utility in a declaration that the Approval is void because the Approval has already been entirely executed; and

(v)    all other discretionary considerations are disregarded (for example, public interest and statutory protection of the State Agreement), including no explanation on affidavit for the delay.

67    Moreover, there is a statutory provision which the State points out precludes collateral challenge. By s 3(4) of the State Agreement Act, the State Agreement operates and takes affect notwithstanding any other act or law, including any law of the Minister. (See also s 3(a) of the Governments Agreement Act). The object and purpose of those provisions are to ensure that large projects are protected from sovereign risk through challenge under other laws. For example, the application of failure to take into account of relevant considerations and the like has potential to cause exactly the disruption that s 3(4) excludes in the performance of the State Agreement.

68    The State accepts that there is a difficult and currently controversial debate about the extension of judicial review from its traditional field of statutory powers and its non-statutory powers discussed in Aronson (at [3.130]-[3.150]), including Datafin, however, the SSOC seeks to ‘further extend judicial review into contract performance, at the suit of a non-party to the contract, despite the protection of the [State] Agreement Act on an extremely unexplainedly delayed application, amounting to an impermissible collateral attack’. The State says the ramification of non-parties being able to seek a judicial review of government contract performance on grounds such as those pleaded would be significant. It is argued that the Supreme Court of Western Australia is better equipped to deal with the matter, particularly in light of:

(a)    the irrelevance of judicial review pleas to the substantive relief sought;

(b)    the standing of BTAC; and

(c)    the discretionary aspects of relief.

69    In my view, the challenge is not collateral. As noted by Besanko J in Jacobs (at [71]), citing McHugh J in Ousley v The Queen (1997) 192 CLR 69 (at 98-98), a collateral attack on an act or decision occurs when the act or decision is challenged in proceedings where the primary object is not the setting aside or modification of that act or decision. However, in this instance, the decision of the Minister is squarely attacked and appropriate equitable relief is sought. The challenge is not collateral. In contrast, in Jacobs, the collateral attack was not to challenge the tribunal’s decision applying the rules, but to challenge the validity of the rules themselves.

70    Equally, I conclude that the other factors do not support summary dismissal. Substantial evidence may be a consideration, but it is by no means decisive, nor was it so in Jacobs. It would be curious if improper decisions of complexity would be immune from review when simple decisions were not. It is not apparent to me how Chevron will be affected as suggested.

71    The issue of delay is relevant, but not decisive. More importantly, in evidence before me on this application was material which, at a prima facie level, suggests that BTAC did not become aware of the true purpose of the removal of the material until 2017. An exchange of letters did take place in 2015, but Onslow Salt, on 29 April 2015, stated that it engaged Chevron to carry out the work under the Additional Proposal and Onslow Salt did not receive any financial remuneration from Chevron. It was not until BTAC brought an action for preliminary discovery and obtained documents from Onslow Salt in 2017, following which it commenced this proceeding, that, at least on the pleaded case, the true position became apparent. Of course, there may well be further explanations, which it has not been necessary to raise at this stage.

72    Insofar as prejudice is concerned, no particular prejudice has been articulated or identified.

73    To the extent that the standing issue raises the native title argument, this has been disposed of in relation to Onslow Salt’s contentions.

74    Finally, it is necessary to deal with the statutory provisions precluding collateral challenge. In relation to this contention, BTAC asserts that neither the ratification of the State Agreement, nor s 3(a) of the Government Agreements Act, immunises decisions made by the Minister pursuant to the terms of the State Agreement from judicial scrutiny. The effect of those provisions, BTAC asserts, is to make performance of the State Agreement by the State lawful where there would otherwise be authority lacking. Additionally, the grant of Onslow Salt’s Mining Lease is itself ‘subject to the Mining Act’ by reference to cl 10(2)(a).

75    I am not persuaded for the purposes of granting summary judgment that there are statutory provisions precluding the argument that BTAC seeks to raise.

Tortious conspiracy

76    Although the State has adopted Onslow Salt’s submissions on s 31A of the Federal Court Act, it also makes its own further submissions on tortious conspiracy. It repeats the argument of there being an absence of a plea or evidence of a predominant purpose of injuring BTAC. The State relies on Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 99 LGERA 263, where Drummond J (at 277, quoting Vol 33, The Laws of Australia, subtitle 33.8 ‘Intentional Torts’) said the tort of conspiracy may take two forms:

(1)    an agreement or combination between two or more persons to commit a lawful act with the predominant purpose of injuring or damaging the plaintiff, and the act is carried out and the purpose achieved; or

(2)    an agreement or combination between two or more persons to commit an unlawful act with an intention to injure the plaintiff and the act is carried out and the intention achieved.

77    It is said that the SSOC relies only on Chevron’s purpose and does not include a plea that the purpose was to injure the holders of native title rights and interests, and on allegations that the acts were unlawful. It is assumed, therefore, that it is the second form of the tort discussed in Gold Coast City Council on which reliance is based. The State argues that in relation to the second form of the tort, the position was set out by Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 (at [421]), citing various authorities as follows:

To establish the tortious conspiracy pleaded by the applicants, it is for the applicants to prove the following matters:

(a)    each of the alleged three co-conspirators were a party to an agreement or combination with either of the other two co-conspirators;

(b)    the purpose of that agreement or combination was to injure the applicants by unlawful means;

(c)    the agreement or combination was carried into effect by the commission of agreed unlawful acts; and

(d)    those unlawful acts caused damage to the applicants.

(See, generally, Clerk & Lindsell on Torts (17th ed, 1995), pars 23-76 to 23-90; Trindade & Cane, The Law of Torts in Australia (2nd ed, 1993), pp 222-231; and Fleming, The Law of Torts (9th ed, 1998), pp 771-777.)

(Emphasis added.)

78    The State takes issue, for the purpose of s 31A of the Federal Court Act, with the pleaded tort in four respects:

(1)    The purpose of injuring BTAC.

(2)    The unlawfulness of the means.

(3)    Agreement or combination.

(4)    Damage.

79    In relation to the purpose of injuring BTAC, the State says there is no relevant pleading. Rather, it is pleaded that the respondents intended to ‘permit or allow’ conduct inconsistent with BTAC’s native title rights and interests. It is also pleaded elsewhere in the SSOC that the State’s purpose was to assist Chevron and that Onslow Salt’s purpose was to obtain money from Chevron’s removal of fill. The State says that those paragraphs of the SSOC plead that any injury to BTAC was incidental to the alleged purposes of the respondents and that this does not plead the requisite purpose for the tort.

80    Secondly, in relation to unlawful means, no relevant unlawfulness has been pleaded in the SSOC, as the supposed unlawfulness is torts or breaches of statutes. The tort would potentially arise whenever an application for judicial review invoked a decision of the decision-maker that benefited a person to the disadvantage of a third person. Reliance on the excavation being unauthorised is inadequate. This relies on legal arguments that no source of authority existed because the Mining Lease did not authorise the excavation. But those matters, the State argues, could not render the acts or the Approval unlawful in the requisite sense in order to establish the tort.

81    In relation to agreement or combination, the State contends there is no agreement pleaded and, therefore, the SSOC must rely on ‘combination’. The difficulty is that there is no pleading of any combination to injure the Thalanyji people by way of the supposedly unlawful purpose. The pleading does not allege, and does not plead, facts that support an allegation that there was any such combination. At most, it pleads a combination to a pretext that the excavation complied with the agreement. Each of the two parties to the alleged combination were party to a binding agreement with the Thalanyji people under which native title was suspended for the term of the State Agreement and no right of native title held by the Thalanyji people could be affected by the excavation. There is, therefore, not even a pleading alleging combination to injure the Thalanyji people in any respect.

82    In relation to damage, the State argues that it is essential to the tort that damage be caused. This is established by Maritime Union of Australia, but also from Lord Diplock’s dicta in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 (at 188). The consequential injury or damage pleaded by BTAC as a result of the alleged agreement to injure BTAC and the overt acts of the respondents is said to be the damages articulated in the SSOC, namely, damage to the landscape, damage to spiritual forces and denial of the right to negotiate. These damages are unsustainable as, first, under the Development Deed, the claim of injury or damage to the pleaded native title rights or interests is inconsistent with cl 2.5 of the Development Deed. Further, under the State Agreement, such injury or damage is inconsistent with the terms of the State Agreement between Onslow Salt, the Thalanyji people, the State and the Minister. Under the State Agreement, the Thalanyji people agreed to grant the relevant tenement and acknowledged that the State Agreement was an agreement for the purposes of ss 28(1), 31(1)(b) or 32(5) of the NTA, as the case may be, and s 34. The State says that an action under an agreement, which agreement is for the purposes of s 28(1)(f) and of the kind in s 31(1)(b) of the NTA, cannot be invalid by reason of native title and, therefore, anything done on the State Agreement is not invalid by reason of native title. The excavation cannot be invalid by reason of native title, say the State.

83    Further, the State Agreement and rights and interests comprised in, and conferred under, or in accordance with, or pursuant to the State Agreement, included the Additional Proposal which took precedence over native title rights and interests. This meant that the State Agreement and anything done under it could not be invalid by reason of native title. For all those reasons, the State argues, the excavation was valid vis-à-vis native title, therefore compensation is a matter of application under Div 5 of Pt 2 of the NTA. None of the pleas in the SSOC relating to impropriety of acts and the Approval being void is relevant to such a claim.

84    The remaining matters are peripheral.

85    The State says there is no right in relation to damage to landscape. The State stresses that the purpose of a determination in the form required by s 225 of the NTA is to precisely set out the extant rights. There is no plea that those specified rights have been extended to landscape protection or are otherwise an inadequate articulation.

86    The State says that none of the rights as specified in the 2008 Determination involve a right or interest to ‘protect spiritual forces’. This, the State says, is not maintainable at law in any event and could not form part of a determination.

87    The SSOC does not clearly specify, the State says, whose access is the subject of the claim and on what basis. These matters being ambiguous it is sufficient, the State contends, to strike out para 53.3 of the SSOC. Assuming it is intended to relate to access by someone other than the Thalanyji people, no ‘right’ to negotiate access in the Salt Mining Area can possibly exist because the Thalanyji people have suspended all rights of native title and no other source of a ‘right’ is pleaded. Further, it is argued by the State that the 2008 Determination is such that BTAC does not hold a native title right to control access, by reference to para 7 of the 2008 Determination. The State argues that there cannot be a cause of action for denial of a right to negotiate access by Onslow Salt or Chevron when there is no basis on which BTAC could oppose such access. Alternatively, if there is a basis, it must be pleaded. Therefore, in the SSOC, even if native title had not been suspended, the determined rights cannot support the cause. Assuming the ‘right’ is a ‘right to negotiate’, that right is not a right of native title, rather it is a statutory right arising only if native title is to be affected by a proposed act. The State also argues the SSOC itself is contradictory, in that a right to negotiate under the NTA applies only in relation to future acts (s 25 and s 29 of the NTA), whereas it is pleaded that the Approval is not a future act: para 48 and para 49 of the SSOC. Finally, the State argues that subdiv P of the NTA, of which s 29 is a part, concerns only the categories of future acts set out in s 25 of the NTA and excavation is not within and is not pleaded to be within such a category.

88    To the extent these submissions depend upon the contention that there is no capacity to sue in respect of interference with native title rights, this has been rejected for summary judgment purposes above. I am not satisfied for the purposes of summary judgment that this argument should be shut out. Paragraph 5 of the 2008 Determination expresses the rights as being rights and interests in relation to the Determination Area and they include to:

… care for, maintain and protect from physical harm, particular sites, areas and ceremonial or other sacred objects connected with the land and waters of the Determination Ares which are of significance to the Native Title Holders.

That is a very broad description. I consider that it is sufficient to cover the matters pleaded, at least at a summary judgment level.

89    In addition, the cause of action is based upon rights to ‘travel over and visit any part of the land and waters of the Determination Area’ and ‘engage in ritual and ceremony on, and in relation to, the land and waters of the Determination Area’. The BTAC case, whether it succeeds or not, is that those rights have been permanently impaired by virtue of a very substantial portion of land being totally removed. This claim is arguable.

90    The State stresses that the proper claim should be a claim for compensation under the NTA, if such a claim is maintainable. But as it recognises, there is a plea in the alternative for compensation.

91    None of the remaining complaints by the State raise matters which are not dependent on those arguments I have already rejected above.

Conclusion

92    For these reasons, I am not prepared to dismiss the whole or any part of the SSOC or the proceedings instituted by BTAC. The two interlocutory applications will be dismissed with costs.

Associate:

Dated:    28 June 2018