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Federal Court of Australia |
Last Updated: 27 January 1999
Lawson v State of South Australia [1999] FCA 22
PRACTICE AND PROCEDURE - stay of proceedings for time being pending ascertainment of status of applications for Native Title determinations - consideration of transfer of proper place adjourned for further consideration.
Native Title Act 1993 (Cth) ss 23, 31, 84C, 232
Native Title Amentment Act 1998 (Cth) s 61A
Rivers and Foreshores Improvement Act 1948 (NSW) ss 4, 22B
Federal Court Rules Orders 1, 10, 30
Federal Court of Australia Act 1976 (Cth) s 48
Moore v Attorney General (Irish Free State) (1935) AC 484 applied
R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 applied
Brown v West [1990] HCA 7; (1990) 169 CLR 195 cited
American Cyanamid v Ethicon Ltd [1975] UKHL 1; (1975) AC 396 followed
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 followed
Tableland Peanuts Pty Ltd v Peanut Marking Board (1984) 52 ALR 651 followed
Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 54 ALR 730 followed
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 followed
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1991) 1 VR 386 cited
Fejo v The Northern Territory of Australia [1998] HCA 58; (1998) 156 ALR 721 followed
National Mutual v Sentry Corporation (1988) 83 ALR 434 followed
Cycles & Wheelman Pty Ltd v Beltech Corp Ltd (1988) 80 ALR 279 cited
PHILLIP MARK LAWSON v THE STATE OF SOUTH AUSTRALIA & ANOR
No. SG 1 of 1998
O'LOUGHLIN J
22 JANUARY 1999
ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant AND: Respondent JUDGE:
SOUTH AUSTRALIA DISTRICT REGISTRY SG 1 OF 1998
PHILLIP MARK LAWSON
THE STATE OF SOUTH AUSTRALIA & ANOR
O'LOUGHLIN J DATE OF ORDER: 22 JANUARY 1999 WHERE MADE: ADELAIDE
THE COURT ORDERS THAT:
1. The Notice of Motion filed herein on behalf of the applicant on 10 September 1998 be dismissed and that the applicant pay the taxed costs of each of the respondents.
2. On the Notice of Motion filed herein on behalf of the respondent, the State of South Australia:-
(a) these proceedings be stayed until the further order of the Court; that any party be at liberty, on seven days notice, to apply to the Court for an order varying or discharging this order; and that there be no order as to costs;
(b) consideration of the further application that these proceedings be transferred to the New South Wales Registry of the Court be adjourned for further consideration; that any party be at liberty, on seven days notice, to apply to the Court for an order varying or discharging this order; and that there be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| SOUTH AUSTRALIA DISTRICT REGISTRY | SG 1 OF 1998 |
|
BETWEEN: | PHILLIP MARK LAWSON
Applicant |
|
AND: | THE STATE OF SOUTH AUSTRALIA & ANOR
Respondent |
JUDGE:
O'LOUGHLIN J DATE: 22 JANUARY 1999 PLACE: ADELAIDE
1 The proceedings in this matter were commenced on 2 January 1998 when the applicant, Phillip Mark Lawson, an unrepresented litigant, filed a document entitled "Application" in the South Australian Registry of the Court. The party who was named as the original respondent in the application was "South Australian Water Corporation". At an early directions hearing the Court ordered that the State of New South Wales ("the State of NSW") be added as a litigant and, later, that the name of the original respondent be altered to the State of South Australia ("the State of SA").
2 The original application, which was prepared without legal assistance, contained the following endorsement:
"On the grounds appearing in the accompanying affidavit/statement of claim the applicant claims:3 The application contained an additional claim for interlocutory relief in the following terms:
1. Common law right to access and traverse area known as Lake Victoria as per Native Title Determination Application NC 97/18.
2. Breach of fiduciary obligation by Crown on right of NSW and SA in relation to Aboriginal Protection Act 1908 (NSW)
3. Relief for stress and anguish over denial of common law native title rights."
"An order or declaration that native title rights and interests as listed in NC 97/18 (be) recognised."4 Notwithstanding the assertion in the application, neither an accompanying affidavit nor a statement of claim was filed with the application. Because of his unsuccessful attempts to obtain legal assistance, and for other reasons that are not clear, Mr Lawson did not serve a copy of his application on either the State of SA or the State of NSW for six months or so (both states ultimately filed their respective appearances on 19 August 1998). In the meantime, Mr Lawson filed an Amended Application on 31 July 1998. The relief now sought, although it still referred to the general area of Lake Victoria, was expressed quite differently:
"On the grounds appearing in the accompanying affidavit/statement of claim the applicant claims:5 The interlocutory relief now sought was also different. The applicant sought an order or declaration that:
1. Declaration that approval under s 4(1) NSW Rivers & Foreshores Act 1948 on November 27, 1997 for sandwinning proposal is invalid due to breach of s 29 of the Native Title Act 1993 (Cth)
2. Declaration that roadworks constructed as per REF is invalid due to breach of s 23(6) of Native Title Act 1993 (Cth)
3. Breach of fiduciary obligations owed by State of NSW to Marrawana Barkandji/Paakantji peoples in relation to grant in fee simple to South Australia in 1922
4. Unjust enrichment by State of New South Wales and South Australian Water Corporation at expense of native title holders."
". . . activities outlined in REF are invalid and all works should cease immediately"6 The acronym "REF" refers to a "Review of Environmental Factors", a report that was prepared by a business house trading under the name of "Molino Stewart" in October 1997. I will refer to it as "the Molino Stewart report".
7 Although no title was given to the document, there was an attachment of six pages to the amended application. Probably the applicant intended it to be his statement of claim. It does not fit the usual description of such a pleading in that it contains material that is more properly described as "submissions" or "arguments", yet on the other hand, there is sufficient information in the document by way of a narration of historical matters and assertions of facts to enable one to understand the nature of the applicant's claims.
8 What follows is a summary of those facts, augmented by additional facts that can be extracted from other material that has been filed in these proceedings. Where appropriate, a summary of the applicant's submissions is also included.
1. Lake Victoria is to the north of the River Murray, downstream from the junction of the Murray and Darling Rivers. Water is fed into the Lake through Frenchman's Creek and is released back into the Murray via the Rufus River; the Rufus joins the Murray just below Lock 7. Before European settlement the area of the Lake was a natural depression and only in recent times has it become public knowledge that it is the site of significant aboriginal burial grounds. The grounds are said to have great spiritual and cultural significance to Aboriginal People as well as being of substantial archaeological and anthropological interest. When the site was converted into a man-made lake the burial sites were covered with water. As I understand the position, the level of the Lake was recently lowered to allow for inspection and repairs and it was then that the burial sites were discovered. Subsequently, the authorities have said that they have taken action in the hope of protecting the burial sites. That action has entailed the removal of sand from the bed of the River Murray and the use of it, by various means, to protect the burial sites. Those means include the construction of roads that are necessary to cart the sand from the River to the Lake and the construction of further roads over the bed of the Lake.
2. On 21 July 1997, an application was lodged with the National Native Title Tribunal ("the Tribunal") for a determination of Native Title over "Land and Water known as Lake Victoria in the Local Government Area of Wentworth in the State of New South Wales". The reference number in the Tribunal is NC 97/18. A reference to that file number appears in the endorsement for interlocutory relief in the original application. The claimants in the Tribunal were five named persons (one of whom was the applicant, Mr Phillip Lawson) and it was stated in the application that they were acting on behalf of the Barkandji People. Elsewhere those People are described by differing names but I will retain the description "Barkandji People" for consistency. It is alleged in the application that was filed with the Tribunal that:
"The Native Title Rights and Interests held by the Barkandji People pursuant to their traditional laws and customs confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, subject to any rights or interests created by the State of New South Wales or the Commonwealth of Australia which are not inconsistent with the Racial Discrimination Act 1975 , or the Native Title Act 1993 or any other statute or law."3. On 25 August 1997, another application was lodged with the Tribunal; this application sought a determination of Native Title over land and waters in and about the Murray River, the Darling River, the Great Darling Anabranch and Tuckers Creek in south western New South Wales. The reference number in the Tribunal is NC 97/23. It is said that this claim covers various waterways from above the junction of the Darling and Murray Rivers downstream to the South Australian border. Three of the claimants in NC 97/23 were also claimants in the Lake Victoria application - NC 97/18. The fourth (and remaining) claimant was a Peggy Thomas; Mr Lawson was not an original applicant in application NC 97/23 but it is agreed that he has since been added. The claimants in that application alleged that they were acting on behalf of "the Barkandji (Paakantyi) People".
In both references, the respective claimants gave their address for service as:
C/- Mark DengateMr Dengate has appeared with Mr Lawson on every occasion that this matter has been called on; he has always spoken as an advocate for Mr Lawson.
PO Box 1593
MILDURA VIC 3502
4. On 27 November 1997, the New South Wales Department for Land and Water Conservation approved a proposal for the extraction of sand from below Lock 7. That proposal was based on the Molino Stewart report. According to the Molino Stewart report, the Murray Darling Basin Commission requested the New South Wales Department of Land and Water Conservation to organise the stock piling of sand for potential use in the protection of the aboriginal burial sites at Lake Victoria and the construction of haulage roads to be used to transport the sand to the required locations. The sand was to be extracted from two existing sandbars in the River Murray immediately below Lock 7. One of those sandbars was adjacent to the riverbank on the northern side of the river and the other was in a navigation channel of the river immediately downstream from Lock 7 and closer to the southern bank.
The Molino Stewart report continued:
"The principle reason for disassociating the two projects, namely winning sand and placing it on the islands, is timing. The timing of any EIS (Environmental Impact Statement) approval will impact on the lake being used again as a regulated storage. The MDBC (Murray Darling Basin Commission) wants to be in a position to operate the lake as soon as possible after any such approval. If sand extraction, stockpiling and road construction were delayed until any EIS approval were obtained, the MDBC would take longer to be in a position to operate the lake."This was the only evidence to which Mr Dengate could point on Mr Lawson's behalf in support of an allegation that there was some element of bad faith on the part of the Murray Darling Basin Commission. In response to a proposition that the performance of the road works and the sand extraction included a benefit for the aboriginal people by affording protection to the burial sites, Mr Dengate maintained that the bona fides of the Commission were not accepted. From the bar table he asserted that the conduct of the various government authorities was directed only towards their intentions to improve the operation of the water storage and regulation of Lake Victoria. In the absence of appropriate evidence I could not make any finding of bad faith against any of the authorities.
As I understand the position, Lake Victoria has not at any stage been completely drained. Rather, by the use of regulators, its level has been lowered. The roads to which reference has been made, have been constructed above that waterline but, in some cases, below the higher level at which water can be stored. According to the Molino Stewart report the roads are only two hundred millimetres high and will be covered by water about half the time. The report states that the roads will replace "an array of existing tracks". The report elsewhere described the routes of the haulage roads as having been selected with the assistance of a consultant archaeologist so as to avoid damage to any heritage areas. These factual assertions were challenged by Mr Dengate but, again, no evidence was led in support of his challenge. I cannot, at this stage, do other than proceed on the factual assertions that are contained in the Molino Stewart report. That situation might, of course, change if, at some later stage, credible evidence to the contrary is put before the Court.
5. Mr Lawson in his statement of claim refers to passages from Molino Stewart's report in which it was claimed that the purpose of the sand extraction was to protect these aboriginal burial sites; the following extract was quoted by Mr Lawson:
"The 10,000 cubic metres of sand to be placed over the burial sites would be carted onto the sites using 30 tonne, 6 wheel drive dump trucks. As shown by the Gecko Island trial, the surface of the Lake bed is such that specially constructed haulage roads would be required to overcome the poor bearing capacity of the Lake bed."As I understand his submissions, his purpose in quoting this passage was to highlight the fact that it was the subject of his challenge to the bona fides of the authorites.
6. In 1996, the Lake Victoria Advisory Committee was established. According to the affidavit of Mr Brenton Roger Erdmann, an employee of the South Australian Water Corporation for some twenty-three years, the committee was established for the purposes of consultation and information sharing about strategies, plans and work at Lake Victoria. Members of the committee originally included thirteen Barkandji Aboriginal Elders together with local land owners and representatives of the New South Wales Aboriginal Land Council, the New South Wales Department of Land and Water Conservation, the Murray Darling Basin Commission, the New South Wales National Parks and the South Australian Water Corporation. Ex A1 is a document entitled:
"Determination of Sandwinning proposal from within the Murray River, near Lock 7 under the Rivers and Foreshores Improvement Act (1948)."That is an Act of the Parliament of the State of NSW. The document states that Geoffrey Allan Wise, as the delegate of the Minister for Land and Water Conservation, approved the sandwinning, storage and removal as proposed within the Molino Stewart report, subject to various conditions, one of which required that prior to the construction of roads on Lake Victoria:
"... there is to be consultation with the Lake Victoria Advisory Committee ...".
Mr Lawson submitted that on 11 August 1997, over three months before the signing of Ex A1, five persons, all members of the Barkandji People, resigned from the Lake Victoria Advisory Committee. However, there is other evidence pointing to the fact that there were thirteen representatives of the Barkandji People on the advisory committee; in other words despite the resignation of the five, eight members of the Barkandji People remained on the advisory committee and, there being no evidence to the contrary, were presumably available to engage in consultation with respect to the construction of the roads.
7. Mr Erdmann stated in his affidavit (par 27(a)) that road construction in and over Lake Victoria was completed on 27 July 1998; that assertion has not been challenged. He also deposed (par 34) that sand that had been stock piled below Lock 7. It was transported to Lake Victoria to provide a reserve of sand for remedial protection work until Monday 7 September 1998, on which date transportation stopped.
8. The correspondence that was exhibited to the affidavit of Douglas Alan Campbell, a senior executive officer of the New South Wales Department of Land and Water Conservation, asserts that the sand extraction process below Lock 7 was completed in late July 1998. Advice from the operations engineer of SA Water Corporation to that effect was forwarded to the New South Wales Department of Land and Water Conservation on 29 July 1998. In reply, the Department of Land and Water Conservation wrote Mr Erdmann of SA Water Corporation stating that, as the work is now completed "I advise that I now revoke the approval made on 7 July 1998. Should any further sand be required from this area, a fresh application should be made."
This letter is significant in that it puts to rest any suggestion that there might be imminent ongoing activities in and about the area. There is no evidence of any other activities that are contemplated or intended by any government authority in the rest of the land and waters that are encompassed by either of the native title applications. Furthermore, there is no evidence presently before the Court that puts in issue the assertion that the sand extraction process has been completed. For the purposes of determining the preliminary issues that are presently before the Court, I therefore proceed upon the premise that this assertion is a fact.
9. According to the statement of claim, the importance to the Barkandji People of the Lake Victoria area and the surrounding lands and rivers has been recognised in a formal agreement to which they and representatives of both governments are parties. For example, it is pleaded that s 3.1 of the agreement states that the parties agree that "the Barkandji People have occupied Lake Victoria and its environs and have maintained a cultural affiliation to the area."
10. Mr Lawson's claim is that both South Australia and New South Wales have failed to comply with subs 23(6) of the Native Title Act 1993 (Cth) ("the NT Act"). That section dealt with permissible future acts and subs (6) gave certain procedural rights to native title claimants. That section did not survive the Native Title Amendment Act 1998 (Cth) ("the Amendment Act") which came into force on 30 September 1998. Nonetheless it is Mr Lawson's claim that the government approval for the sand winning exercise and the subsequent constructions of the works in and over Lake Victoria were and are invalid. Mr Lawson further claimed that the extraction of sand was covered by the definition of the word "mine" in s 232 of the NT Act. Whether that assertion was or was not initially correct, it is now clearly incorrect for the Amendment Act has made it clear that the word "mine":
"...does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:Mr Lawson's complaint is that the respondent governments have ignored the existence of the two native title applications, the rights of the native title applicants and, in particular the right to expect of the two government parties that they would negotiate in good faith with the native title claimants: see s 31 of the NT Act. That provision, in a modified form has been retained by the Amendment Act.
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means."
11. Over and above his claims that the respondents have breached various statutory obligations under the NT Act, Mr Lawson has also alleged a breach of a fiduciary duty on the part of the New South Wales Government to the Barkandji People arising out of the alleged grant in 1922 of an estate in fee simple to South Australia of the bed of Lake Victoria and its environs and the subsequent construction by one or other of the governments of various public works.
12. On 10 September 1998 the applicant filed a document in court; I will deal with it as if it were a Notice of Motion. He sought by way of additional interlocutory relief, an order or declaration prohibiting "the use of any constructed roadworks that relate to this matter".
13. On the same day, 10 September, the Crown Solicitor for the State of SA filed a Notice of Motion seeking an order that the relief sought by Mr Lawson be adjourned pending the determination of the two Native Title Applications or, alternatively, the completion of the registration process under the Amendment Act when it came into force.
14. Later however, on 21 October 1998, the State of SA filed a second Notice of Motion, this time seeking an order that the application be dismissed on the grounds that:
"a) no reasonable cause of action is disclosed;An order was also sought in the same Notice of Motion that the Native Title application (reference NC 97/18) be struck out for failure to observe the provisions of s 61A(2) of the NT Act as amended, or, in the alternative that the Native Title application be stayed. When the matter was called on for hearing on 2 November 1998, counsel for the State of SA applied to vary the orders sought in the notice of motion of 21 October. He informed the court that his client no longer sought summary dismissal; instead, the State of SA now sought an order that the application be stayed pending the final determination of the native title claims in the two native title applications. Because those native title applications had now been transferred into the Federal Court in its New South Wales Registry, counsel for the State of SA also sought an order that these present proceedings be transferred to that Registry. Counsel for the State of NSW supported the applications made by the State of SA.
b) the proceeding is frivolous or vexatious; or
c) the proceeding is an abuse of the process of the Court."
15. On the morning of the hearing, the New South Wales Aboriginal Land Council ("NSWALC") applied to be joined as a party to the proceedings. It was explained that the reason for the NSWALC's concern was that any proposal to strike out application NC 97/18 under s 84C of the NT Act may have consequences beyond those affecting the parties presently before the Court and may operate against the interests of native title holders, whoever they may be, without their knowledge and without their having had an opportunity to be heard. However, when it became clear, as a result of the amendments to the orders sought by the State of SA in its notice of motion, that such an application would not be pursued, the NSWALC took no further part in the proceedings.
9 There was some difficulty in ascertaining the detail of the interlocutory relief that Mr Lawson was seeking. Earlier, on 17 September 1998, the Court had ordered that he file and serve by 1 October a statement setting forth in detail:
"1. the orders that he is seeking against the States of South Australia and New South Wales;He did not comply with those orders and when questioned on 2 November, Mr Dengate explained on Mr Lawson's behalf that it was his opinion that the material earlier filed by Mr Lawson prior to 17 September was sufficient to comply with the orders made on that date. That was not the case as is evident from the fact that during the course of the proceedings on 2 November Mr Lawson gave oral evidence about the spiritual connection and affiliation of the Barkandji People to Lake Victoria and about the harm that construction of the roads had caused to his people. Mr Lawson described it as a disfigurement - drawing the analogy of a scar to the body - adding that every time a vehicle passed over the roads it was like a knife being inserted in the scar.
2 the evidence in support of the orders that he seeks;
3. his arguments and submissions in support of those orders..."
10 Ultimately, the orders by way of interlocutory injunctive relief that were sought by Mr Lawson were identified as follows:
-- an order that neither respondent should use or cause to be used any of the roads built over the bed of Lake Victoria
-- an order that neither respondent perform any works (other than those of an urgent nature) on or over the land and waters that are the subject of claims in NC 97/18 and NC 97/23 without first giving appropriate notice thereof to the applicant, Mr Lawson.
11 Mr Lawson submitted that the approval that had been given for the sandwinning proposal pursuant to the provisions of the Rivers and Foreshores Improvement Act (1948) was said to have been given under s 4(1) of that Act. He claimed that that particular provision did not apply to the removal of sand from the bed of the River Murray below Lock 7 and that any authorisation in respect of such works should have been given under s 22B of that Act. Even if Mr Lawson is correct (as to which I express no opinion) I fail to see how his case for interlocutory injunctive relief can be assisted by the government parties having operated under the wrong section. The incontrovertible fact remains that the sandwinning exercise has been completed and there is no evidence before the court of any proposal to resume this activity. Independently of this conclusion, there is also the likely application of the principle that the validity of a tribunal's determination is unaffected by mistaking the source of the power to make it: Moore v Attorney General (Irish Free State) (1935) AC 484; R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 at 487; Brown v West [1990] HCA 7; (1990) 169 CLR 195 at 203.
12 I turn now to a consideration of the various orders that have been sought by the parties. I will deal first with Mr Lawson's application for injunctive relief. I will then deal with the orders sought by the State of South Australia.
13 It is now accepted that an applicant for an interlocutory injunction must establish that there is "a serious question to be tried": American Cyanamid v Ethicon Ltd [1975] UKHL 1; (1975) AC 396 at 407; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 at 653; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 54 ALR 730 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 per Mason ACJ.
14 In Castlemaine Tooheys, Mason ACJ said at p 154 that where the public interest would be adversely affected by the grant of an injunction "the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction." It need hardly be said that the operation of the waters of the River Murray, and the regulation of those waters through the use of Lake Victoria, is a matter of public interest - especially to the people of South Australia. The River Murray represents a lifeline for this state. For over seventy years Lake Victoria has played an integral part in the supply of water to South Australia and in the quality of that water.
15 One would normally set about investigating the probability of Mr Lawson's success in establishing native title in respect of the two native title applications. However, having regard to the unusual circumstances of this case and bearing in mind that he was not legally represented, the Court proceeded, without objection from counsel, to consider whether injunctive relief was appropriate on an assumption (made solely for the purposes of this application) that native title might exist. This procedure gave Mr Lawson the best opportunity of presenting his claim that there was information before the Court of sufficient quality to justify injunctive relief. Thus the matter proceeded as if it had been established that there is a serious question to be tried.
16 Mr Lawson proffered no undertaking as to damages in the event of the court acceding to his request for injunctive relief; he explained to the court that his only income is a carer's pension. Hence any undertaking that he might have given would have been of the little value. Although there are occasions when it might not be appropriate to seek from an applicant an undertaking as to damages, normally such an undertaking is common place. As Kaye J observed in National Australia Bank Ltd v Bond Brewing Holdings Ltd (1991) 1 VR 386 at 576:
"It is therefore clear from the authorities to which I have referred that the practice followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking as to damages has been based on the view that otherwise the defendant would be without remedy in the event of the order having been improperly made."
17 Mr Lawson's inability to give an undertaking as to damages is not fatal to his application but it is to be taken into consideration when weighing up the competing issues; the fact that no such undertaking is forthcoming does not assist his cause in a case such as this where there is such a strong competing public issue element.
18 In evaluating the balance of convenience, I take into account the evidence that was given without challenge by Mr Lawson. Thus his evidence of the spiritual concerns of his people and the hurts that they suffer as a result of the usage of the roads are to be weighed in the balance against the interests of the public (including aboriginal people) and the benefits that are derived from the utilisation of Lake Victoria. So expressed, I am compelled to the conclusion that the public interest must overwhelm the hurt and anguish that will be suffered by the Barkandji People as a result of my refusal to grant the interlocutory injunctive relief that is sought. There is sufficient material before the Court to give to the Court a measure of confidence that no future works are intended save only for the use of the roads over the bed of Lake Victoria. As to that usage, and not withstanding the suggestions of bad faith that were advanced, there is evidence from which I can draw the inference that the usage of those roads will - at the least - include a usage aimed at protecting the burial sites. I decline therefore to restrain the respondents from using the roads over the bed of Lake Victoria. The applicant's Notice of Motion is dismissed.
19 Evidence was lead that pointed to the ongoing involvement of the Barkandji People in the future operations of and regarding Lake Victoria. Exhibit A3 suggests that the Murray Darling Basin Commission is required:
* To formalise the role of the Barkandji Community Elders in decision-making about the protection and management of their heritage and of the Lake's landscape, and the carrying out of associated management and protection works;
* To formalise the role of the Lake Victoria Advisory Committee, including Barkandji planning and management of the Lake;
* To prepare a Cultural Landscape Management Plan, including a Vegetation Strategy and a Conservation Strategy, for approval by the end of June 1999, which has as a major focus ensuring revegetation of the Lakeshore to protect the Aboriginal cultural heritage by stabilising the soil surface and preventing ongoing erosion;
* To significantly change the operation of Lake Victoria from previous operating regimes in accord with the approved Vegetation Strategy and to enable the use of the Lake for the essential storage of water where this is not incompatible with protection of the Aboriginal cultural heritage through revegetation;
* To establish a comprehensive survey, research and monitoring program and annual reporting mechanism to various bodies including the Aboriginal community, the Lake Victoria Advisory Committee and relevant government authorities.
20 In assessing the balance of convenience one cannot overlook the huge size of the area of land and waters that is the subject of the application for a determination of native title in NC 97/23. As has been earlier stated, it extends from about the junction of the Darling and Murray Rivers down to below Lock 7. Although the submissions of Mr Lawson and counsel centred upon sand extraction from the sandbars immediately below Lock 7, there was no suggestion that the injunctive relief that was sought on behalf of Mr Lawson was limited merely to those sandbars. If Mr Lawson is to succeed in an application of this nature, there is a need for him to identify, with detailed particularity, the area of land and water that is to be the subject of the order of the Court; he must also identify the activities that are to be proscribed:-
"In our view, it is desirable that an interlocutory injunction restrain, in explicit terms, a particular activity so that parties can be under no misapprehension as to what is intended, rather than be framed in terms which reflect the general language of the statute . . ."
Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No 2) at 741 (see above).
21 The High Court has commented upon the availability of injunctive relief in native title matters in its recent decision in Fejo v The Northern Territory of Australia [1998] HCA 58; (1998) 156 ALR 721 at 735. Six of the justices in their joint judgment had this to say:
"That is not to say that an injunction could be granted to a registered native title claimant only if it could be shown that the right to negotiate or other procedures required by the Act were at issue. Whether an injunction should be granted will depend upon the facts and circumstances of each particular case and much may turn upon the nature of the conduct that is threatened. If the conduct amounts to an impermissible future act it will be invalid. But the fact that the conduct is invalid and would not affect the native title that is claimed would very likely not be a sufficient answer to a claim for injunction to restrain conduct that would, for example, work irreparable damage to the rights and interests claimed."
22 It is apparent from what has been said to date that there is no evidence of any threatened conduct nor can it be suggested that there is any evidence of future work which would cause irreparable damage to the rights and interests that have been claimed by Mr Lawson on behalf of the Barkandji People. My refusal to grant injunctive relief at this stage is not of course the end of the matter. If, at some later date Mr Lawson (or indeed any other person on behalf of the Barkandji People) is of the opinion that impermissible future acts are about to be performed that person has every right to approach the Court and upon satisfying the Court that there is a substantial question to be tried and that the balance of convenience favours the applicant, injunctive relief might well be available.
23 I turn now to consider the orders that have been sought by the State of South Australia.
24 Certain of the causes of action that have been raised by the applicant in these proceedings may well be resolved in the final determination of the applications for Native Title. For example, Mr Lawson wishes to challenge the validity of the alleged grant of an estate in fee simple in the bed of Lake Victoria from the New South Wales government to the South Australian Government in 1922. It might be that this issue would best be resolved in the Native Title proceedings, although I do not express a concluded view on that subject. On the other hand there are causes of action which, although they are sourced in what I call the Native Title issues, would not necessarily be resolved in the Native Title determinations. Examples are the allegation that there have been breaches of fiduciary duty by the respondents and allegations of unjust enrichment on the part of the respondents. Even so, it seems to me that these issues cannot be resolved until there has been a resolution of the Native Title determinations. It seems to me therefore that there is a case for staying these current proceedings for the time being. However, the stay should not be a permanent stay; on the contrary any party should be at liberty to approach the court on seven days notice in the event that there have been developments which render the operation of the stay inappropriate. There will be an order accordingly.
25 It remains, finally, to consider whether or not an order should be made transferring these proceedings to the New South Wales Registry of the Court. Mr Lawson opposed this application. Mr Dengate said that he and Mr Lawson were impecunious and that it was a great effort for them to have to travel the 400 kilometres to Adelaide from their home in Buranga upon the occasions when this matter is called on for hearing. To have to travel 1200 kilometres to Sydney would, he said, be beyond their financial means. This is a curious submission bearing in mind that Mr Lawson is one of the claimants in the two Native Title applications which, presumably, will require his attendance in Sydney. I asked Mr Dengate to reconcile this issue but his response was only to say that he no longer had any faith "in the mediation process". It is clear to me that, at some stage, it will be desirable for all three matters to be within the same Registry and, perhaps, under the case management control of one judge. However, I do not know the status of the two Native Title applications at this stage and in particular I do not know that there is any urgency for me to address the situation.
26 Order10 r 1(2)(f) of the Rules of Court gives to the Court the discretionary power to:
"Direct that the proceedings be transferred to a place at which there is a Registry other than the then proper place."27 The expression "the proper place" is defined in O 1 r 4 as meaning "the place at which the proceeding was commenced" or, where there has been a transfer, "the place to which the proceeding was transferred." At this stage, Adelaide is the "proper place" and, unless there is an order to the contrary, Adelaide will remain the "proper place" and the trial of these proceedings will be held in Adelaide.
28 At this stage neither of the respondents has sought to invoke the provisions of O 30 r 6 which states:
"6(1) Subject to sub-rules (2) and (3), unless the place of trial has been fixed by the Court, the trial of a proceeding shall be at the proper place.29 The heading that precedes rule 6 of O 30 is "Change of Venue"; in my opinion, that heading is significant to the outcome of these proceedings, for it emphasises that there is a difference in purpose and objective between O 10 r 1(2)(f) and O 30 r 6. The meaning and effect of "proper place" was explained by the Full Court in National Mutual v Sentry Corporation (1988) 83 ALR 434 in these terms:
(2) The Court on the application of a party or of its own motion may direct that the trial of a proceeding be fixed at a place other than the proper place.
(3) In this rule a reference to the trial of a proceeding shall include a reference to any interlocutory hearing in the proceeding."
"The purpose of the provision in the rules of a "proper place" is to ensure the orderly and efficient conduct of the court's business by requiring all documents filed in a proceeding to be in the custody and charge of the registry where the matter is then proceeding."30 Immediately following this passage, the Full Court went on to consider the provisions of s 48 of the Federal Court Act; it provides:
"The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes."31 The Full Court explained at page 441 that:
"The power conferred on the Court or a Judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court was to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a Judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases.32 Hence it is necessary to emphasise that the matter presently before the Court is not the determination of the ultimate venue or venues for the trial of this action but rather, the identification of that "place" which, consistent with the Rules of Court, is the "proper place" for the orderly and efficient conduct of the Court's business. There is presently a need, as a consequence of the respondents having invoked the provisions of O 10 f 1(2)(f) to determine, whether the South Australia Registry (being the Registry in which the applicant commenced its proceedings) or the New South Wales Registry (being the Registry to which the State of SA seeks to have the proceedings transferred) is the appropriate Registry for the filing of pleadings and other documents, for the control of interlocutory processes, for the conduct of future directions hearings and, generally, for the preparation for trial.
The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances."
33 The Full Court in National Mutual v Sentry Corporation (see above) has now authoritatively laid down the test to be applied in evaluating the competing claims of parties to an action:
"Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court? It cannot and should not, in our opinion, be defined more closely or precisely."(p442)34 In that case (where proceedings had originally been commenced in Melbourne) the respondent had sought not only an order that the trial be fixed at Sydney (which effectively would have meant a change of venue) but also an order that Sydney be the "proper place" of the proceedings. Nevertheless, as Gummow J pointed out in Cycles & Wheelman Pty Ltd v Beltech Corp Ltd (1988) 80 ALR 279, (on a motion to direct the transfer of a proceeding from the New South Wales Registry to the Western Australia Registry) the consequence of an order that the further conduct of the proceedings be at the Western Australia Registry would be that Perth would be the "proper place" within para (b) of the definition of that term in O 1 r 4. In turn, that would mean that under O 30 r 6 the trial of the proceedings would be in Perth unless fixed elsewhere. Thereafter, Gummow J proceeded to express his views on the test to be applied; those views, which were approved by the Full Court in National Mutual v Sentry Corporation, were as follows:
"It is not, in my view, simply a question of the Court locating the balance of convenience, because the Court must be satisfied by the applicant that there be a change in the status quo and in the identity of the "proper place" and that transfer be ordered. Nor, contrary to some of the submissions made this morning, is much guidance to be derived from cases in other jurisdictions, particularly those jurisdictions lacking the national character of this court, and those providing for trial by jury of civil claims."35 At this stage it should be remembered that there are factors that favour retention of the proceedings in the South Australian Registry. Those factors include such matters as it was the applicant's Registry of choice; initially the only respondent was, effectively, the State of SA; and although Lake Victoria is situated in New South Wales, it and its surrounding land is owned by the State of SA. Finally, as yet, the status of the two Native Title Determination applications has not been ascertained and so, there is no immediate need to bring these proceedings and the two Native Title proceedings into the same registry and before the same Judge.
36 In coming to the conclusion that, at this stage, no order should be made or directions given on the application made by the State of SA, I believe that I am following the guidelines laid down by the Full Court in National Mutual v Sentry Corporation (see above) at p 442:
"There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.37 However I wish it to be understood that I do not regard the decision that I have reached as creating some form of "estoppel" against the respondents should they or either of them, at a later stage, seek an order by way of change of venue or an order that the trial of the action be conducted in whole or in part at a place or at places in lieu of or in addition to Adelaide. I therefore adjourn this issue with liberty to any party to bring the matter back on for hearing on seven days notice.
The balance of convenience is important, but its weight must vary from case to case."
|
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice O'Loughlin. |
Associate:
Dated: 22 January 1999
|
The Applicant appeared in person assisted by a friend | |
| Solicitor for the State of South Australia: | Crown Solicitor for the State of South Australia |
| Counsel for the State of South Australia: | Mr M D Walter |
| Solicitor for the State of New South Wales: | Crown Solicitor for the State of New South Wales |
| Counsel for the State of New South Wales: | Dr J G Renwick |
| Counsel for the New South Wales Aboriginal Land Council (seeking leave to intervene) | Mr J Kildea |
| Date of Hearing: | 2 November 1998 |
| Date of Judgment: | 22 January 1999 |
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