Robert Charles Bropho v F.A. Ball & Anor [1997] FCA 30 (1 February 1997)

C A T C H W O R D S

NATIVE TITLE - PRACTICE and PROCEDURE - application for interlocutory injunction to restrain pile-driving in riverbed - applicant's native title claim to waters and adjoining land pending before National Native Title Tribunal - site regarded as sacred by Aborigines - pile-driving considered to be violation of that sacredness - whether Federal Court has jurisdiction to grant interim injunctive relief - whether serious question to be tried - balance of convenience - pile-driving for purpose of jetty - jetty part of re- development of former brewery site - State of Western Australia leased site to developer - lease dated 18 June 1992 - condition in lease required developer to construct works, including jetty, by specified date - Jetty Licence issued by State to developer on 18 January 1993 authorising construction and use of jetty - lengthy history of previous proceedings in which applicant opposed this development work - applicant had been in possession for at least four years of copy lease in which obligation expressed on lessee's part to construct jetty of specified dimensions - applicant legally represented at relevant time - application lodged the day after pile-driving started - whether relevant delay on applicant's part.

Native Title Act 1993 (Cth) ss.7(2), 19, 23, 26, 227, 228(3), 228(9), 232, 233, 235(5), 238, 253

Titles Validation Act 1995 (W.A.) ss.4, 5, 9, 12

Wik Peoples v. State of Queensland & Ors (1996) 141 ALR 129

Mabo v. State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1

Djaigween & Ors v. Douglas [1994] FCA 951; (1994) 48 FCR 535

Carlton and United Breweries (NSW) Pty Ltd v. Bond Brewing New South Wales Ltd (1987) 76 ALR 633

ROBERT CHARLES BROPHO v. F A BALL and

BLUEGATE NOMINEES PTY LTD

No. WAG 16 of 1997

CARR J

PERTH

1 FEBRUARY 1997

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 16 of 1997

GENERAL DIVISION )

BETWEEN : ROBERT CHARLES BROPHO

Applicant

AND : F A BALL

First Respondent

and

BLUEGATE NOMINEES PTY LTD

Second Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 1 FEBRUARY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. Bluegate Nominees Pty Ltd be joined as the second respondent to this application.

2. The application for interlocutory relief be dismissed.

3. The applicant pay the respondents' costs of the application for interlocutory relief, to be taxed.

4. The directions hearing in this application take place at a time and date to be fixed.

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

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 16 of 1997

GENERAL DIVISION )

BETWEEN : ROBERT CHARLES BROPHO

Applicant

AND : F A BALL

First Respondent

and

BLUEGATE NOMINEES PTY LTD

Second Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 1 FEBRUARY 1997

REASONS FOR JUDGMENT

Introduction

In this matter the applicant, Mr Robert Charles Bropho seeks an interlocutory injunction to restrain certain pile-driving work ("the Work") which until very recently was being carried out from a barge on the Swan River. The Work started on 28 January 1997 (last Tuesday) for the purposes of the construction of a jetty. The jetty itself forms part of the re-development of a site adjacent to the Swan River on the outskirts of the City of Perth. The site is generally known as "the Old Swan Brewery site". Aboriginal people call that site "Goonininup". It is many years since it was last used as a brewery. The land is now vested in the State of Western Australia. The State has granted a lease dated 18 June 1992 ("the Lease") of that land to Bluegate Nominees Pty Ltd ("Bluegate"). Bluegate is in the course of re- developing the old brewery buildings into a complex of restaurants, offices and other like premises. In addition to the abovementioned lease, Bluegate also holds a licence, issued on 18 January 1993, under s.7 of the Jetties Act 1926 W.A. ("the Jetty Licence") to erect or construct the jetty and to maintain and use it. Bluegate also has a development approval from the Swan River Trust to carry out the Work which is authorised under the Jetty Licence. That approval was granted on 25 February 1994. A condition of the approval was that the Work must commence and be completed by 24 February 1997, just over three weeks hence. Bluegate has contracted the Work to its holding company, Multiplex Constructions Pty Ltd ("Multiplex") which in turn has sub-contracted the Work to the respondent Mr F.A.Ball.

In his principal application filed in this Court last Wednesday (29 January 1997) Mr Bropho originally sought a determination of native title. The application was amended by leave earlier this afternoon by deleting that application, substituting a reference to the fact that Mr Bropho has made an application to the National Native Title Tribunal for such a determination and reconstituting the relief sought as being a final injunction and an interlocutory injunction in the following terms:

"An injunction restraining the Respondent from excavating, driving piles into or altering the land comprising the river bed the subject of the Application for Native Title adjacent to the Old Swan Brewery building."

The matter came before me on an urgent basis last Thursday afternoon. Counsel for Bluegate sought leave to be joined as a respondent to the proceedings. That application was opposed by the applicant. However, there was no objection to Bluegate having leave to intervene. On that occasion I made orders that Bluegate have leave to intervene in the application to make submissions in relation to the question of interlocutory relief, to file and serve any affidavits relating to that matter and to be served with all documents filed or to be filed in the application. Bluegate's application to be joined as a respondent to the application was adjourned to a time and date to be fixed. Bluegate has filed certain affidavits since which satisfy me that it has a sufficient interest to contest the application as would justify joining it as a respondent. In due course, subject to hearing further from the applicant's counsel I propose to make such an order.

I must stress that today's proceedings do not decide any final rights. If a Court action can be compared to a book or a war, this is only one chapter in the book or one battle in the war. What happens in one chapter of a book can often be very different to its ending. Many a victor in a war has previously lost a battle. Nothing which is said in the course of giving these reasons should be regarded as anything more than a preliminary or provisional view formed solely for the purposes of deciding whether, on the application of the traditional tests, it is in the interests of justice at this stage of the proceedings to restrain the proposed construction of the jetty.

The Applicant's Case for Interlocutory Relief

The applicant contends that he has a prima facie case in respect of his claim to a determination of native title. That application is expressed as being made on behalf of the Swan Valley Nyungah Community. In view of the amendment to the application (referred to above) it is not necessary for present purposes to explore that issue further. In essence, the application can be seen as one by which the applicant seeks to protect any native title rights which he may have, pending the determination of those rights. In relation to the grant of the Jetty Licence, the applicant's position is that it does not contest the validity of the Jetty Licence. Mr G McIntyre, who appeared for the applicant, said that there were various possibilities. The first was that the jetty authorised by the Jetty Licence might be constructed in a certain way which would not conflict with the rights of his client. In that event, the Jetties Act 1993 (enacted in 1926), being a clearly valid exercise of State legislative power, authorised the grant of the Jetty Licence. However, as I understood the submission, it was possible that the grant of the Jetty Licence, although falling within the definition of a "past act" in the Native Title Act (Cth) ("the Act") might be invalid by reason of the Racial Discrimination Act 1975 (Cth) but be validated by the Act - see, for example, s.7(2) and s.19 of the Act. In relation to the activities of pile-driving, the applicant says that there are several possible characterisations of this conduct under the Act. First, it may be what is termed a "future act" i.e. so far as is here relevant, an act occurring after 1 January 1994. The applicant further contends that the relevant act is not the granting of the Jetty Licence but the actions of performing the activities authorised by the Jetty Licence. That includes carrying out the Work.

The applicant says that this conduct falls within the definition of a future act contained in s.233 of the Act being an act which is taking place after 1 January 1994 and which affects native title. The applicant says that in those circumstances the act (i.e. carrying out the Work) is invalid. For this proposition the applicant relies upon certain statements made by members of the majority of the High Court of Australia in Wik Peoples v. State of Queensland & Ors (1996) 141 ALR 129 at pp. 218 and 247, to the effect that the performance of the conditions of a grant rather than their imposition by the grant extinguishes native title. Thus, so it is put, whether a person may lawfully engage in an act must be judged at the time when the act is done. Mr McIntyre submitted that the Work "affects" his client's native title in that it is wholly or partly inconsistent with enjoyment of that native title within the meaning of s.227 of the Act and for that reason falls within s.233 as being an act which validly affects native title [see s.233(1)(c)(i )]. Alternatively, the Work constitutes a future act which is invalid by reason of the effect of the Racial Discrimination Act 1995 on the operation of the Jetties Act.

Counsel for the applicant then considered whether the Work might be a "permissible future act", also defined in the Act. The scheme of the Act is that anything which is not a "permissible future act" is an "impermissible future act".

Mr McIntyre submitted that the Work is not a permissible future act because it could not be done if Mr Bropho, as a native title party, had held ordinary title to the land adjoining or surrounding the waters into which the piles are being driven. Mr McIntyre contended that, on the assumption that Mr Bropho held freehold title to that adjoining land, it would not be permissible to drive piles into the land submerged by the Swan River without his permission. Alternatively, Mr McIntyre contended that s.235(5) should be construed as if the word "land" in s.235(5)(b)(i) included a reference to the bed or subsoil under the waters into which the respondent wishes to drive the piles. As will be seen, the respondent and Bluegate (jointly represented at these proceedings by Mr P Van Hattem) strenuously contend that the mutually exclusive definitions of "land" and "waters" in s.253 make such a construction untenable. The logical conclusion, so it was put on behalf of the applicant, was that the Work cannot be a permissible future act.

Alternatively, Mr McIntyre submitted that even if the Work were a permissible future act then the provisions of s.23 of the Act would apply. The Work did not constitute a "low impact future act". Accordingly, so it was submitted, s.23(6) requires those who are about to engage in the conduct comprising the Work to give notice to the holders of native title. The applicant contended that this was one of the common law procedural rights to which he was entitled and which are referred to in s.23(6). Another right was said to be the right to object. Neither Bluegate nor the respondent had given any such notice. Mr McIntyre surmised that this was possibly because Bluegate feels that it has all the necessary licences.

All of the above was directed to the question whether there was a serious question to be tried, which is generally regarded as the first stage in the assessment by a Court of whether an applicant should be granted an interlocutory injunction.

At the next stage of his argument, Mr McIntyre referred to what he described as the "irreparable harm" which would flow from the carrying out of the Work as deposed to in Mr Bropho's first affidavit, to which I now turn. In his first affidavit, Mr Bropho says that:

"3. The activity of driving piles into the river bed for the purpose of constructing a jetty adjacent to the Old Swan Brewery is damaging a site of particular traditional significance in accordance with the customs and traditions of the Nyungah People. My concerns are detailed in the Statement marked "RB2" and exhibited hereto."

I set out in full below the statement which comprises Exhibit "RB2".

"Statement - Jetty at Goonininup - 28.1.97

We don't want those piles going in to the Riverbed, ramming them into the ground because it is disturbing the Riverbed and it is interfering with out Sacredness.

We say the Sacred Spring is still running under that brewery and we as Aboriginal people say these things because we as Aboriginal people are the only ones that understand it and believe it. It is not the religious belief of the white people.

It is important that the white people consider what we are saying and listen to what we talk about.

The reason we want this work to stop is it is interfering with our religion and our culture and it is disturbing all the sacredness that is in and around and under the riverbeds.

We ask that this interference with putting piles down in to the that (sic) riverbed, ramming them down be automatically stopped until full consultation takes place because it is under Native Title Claim.

We don't want our religion and our culture disturbed.

The effect that that development is having, it has already taken toll with Aboriginal people dying through the tampering by development there and work continuing on. They're digging there. They are poking at our Spiritual Belief of the Waugal, which is our Religion and Culture and the Religion and Culture of all Nyungah people who still respects their grassroots and their Ancestors Beliefs handed down to them from generation to generation.

Our Spiritual Belief is within the River. It is under the brewery. It is in and around the foreshores of the river. It is at the embankment of Kings Park.

We haven't been consulted about piles being driven in to the riverbed.

Our Native Title Claim says that we have got to be consulted which we have not been consulted and it is hurting us. It is worrying us because our Religion and Culture is being tampered with and disturbed again with no consideration in ways of consultation by the people doing the development.

Our Native Title Claim says that we have got to be consulted. This Native Title Claim is on behalf of all Aboriginal people because it is the Belief of all our Ancestors. We are duty-bound to protect it. That is what our Native Title Claim is all about, protecting areas that are sacred to us. It is still our Place of Worship and where we take and teach our kids and pass it on from one generation to another.

(signed) Robert C Bropho

Swan Valley Nyungah Community"

Bluegate's Contentions

The Native Title Act

Bluegate has exhibited to an affidavit a copy of a deed dated 18 January 1993 made between the authorised delegate of the Minister responsible for the Jetties Act and Bluegate, which I have described above as the Jetty Licence. Bluegate says that the Jetty Licence authorises it to erect, maintain and use the jetty.

Bluegate's primary submission is that if the waters in question are now the subject of native title then the grant of the Jetty Licence is a "past act". The Jetty Licence, so it was put, was always valid, notwithstanding the possible existence of native title and its possible effect on that title because either there was no native title or no inconsistency between the grant and the native title rights or what was said to be the common law principle that a statutory grant extinguishes such a right. Alternatively if the Jetty Licence was invalid due to the existence of native title, it was what is termed a "category D past act" and must be taken always to have been valid under s.19 of the Act when read with s.5 of the Titles Validation Act (W.A.). The primary submission continued with the assertion that if the Jetty Licence was always valid then it extinguished or at least prevailed over any native title rights to the extent of any inconsistency. The respondent and intervenor relied upon Mabo v. State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 and Wik for that proposition. In those circumstances, so it was submitted, the Jetty Licence, on that assumption being invalid but validated, the "non-extinguishment principle" applies to it - see s.9 of the Titles Validation Act 1984 . The result was, so it was contended, that the native title (if any) continues to exist in its entirety, but is of no effect in relation to the Jetty Licence to the extent of any inconsistency - see s.4 of the Titles Validation Act and ss.232 and 238 of the Act. The essence of this part of the submission was that the Jetty Licence expressly authorised the Work, Bluegate had a statutory right to carry out the Work, that right was inconsistent with any native title right to prevent or inhibit the Work and the statutory right must prevail over the native title right. If Mr Bropho had any remedy, so it was submitted, in relation to the grant of the Jetty Licence and the carrying out of the Work, his remedy was compensation under s.12 of the Titles Validation Act. Next Mr Van Hattem dealt with the applicant's submission that the Work itself is the relevant act for the purposes of the Act. Assuming, contrary to Bluegate's primary submission, that the physical activity of pile-driving is a future act, Bluegate says that if the Jetty Licence were validated as a category D past act, the Work is also a category D past act. This was said to be through the operation of s.228(3) when read with s.228(9). In summary, s.228(9) relevantly extends the definition of a "past act". The extension applies where an earlier past act contained an authority under which the whole or part of the land or waters to which the earlier act related is to be used at a later time for a particular purpose and the later act is done in good faith under or in accordance with that authority.

Alternatively, Bluegate submitted that if the Work amounted to a future act (which was in dispute) it constituted a permissible future act under s.235(5)(b)(ii) of the Act. The submission ran along the following lines:

1. The Work is an act in relation to "waters" as defined in s.253 of the Act. That definition relevantly includes a river or the bed or subsoil under any waters.

2. The applicant could not rely on the intrusion of piles into the subsoil because the definition of "land" expressly excludes "waters" which definition (i.e. the definition of "waters") includes that subsoil.

3. The definition of "permissible future act" in s.235(5) of the Act was carefully drawn to distinguish the test applicable to "the land concerned" from the test applicable to "the waters concerned".

4. Where waters are concerned the test is whether the act could be done in relation to the waters if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters.

5. If Mr Bropho held ordinary title (defined in s.253 as being a freehold estate in fee simple in the land) to the land adjoining or surrounding the waters there was nothing to prevent the Work being carried out.

The submission continued that as the Work amounted to a permissible future act the result is that it is valid under s.23(2) of the Act subject only to Subdivision B of Part 2 ("Subdivision B"). Mr Van Hattem submitted that Subdivision B had no application because [see s.26(1)] the Subdivision was expressed to apply only if the Commonwealth, a State or a Territory proposed to do any permissible future act. In the present circumstances it was Bluegate and the respondent who intended to do the permissible future act. In the alternative, Mr Van Hattem referred to s.26(2) as exhaustively setting out the acts which fall within Subdivision B. None of the proposed acts, so it was submitted, fall within the five categories contained in s.26(2) of the Act. The first three sub-categories relate to rights to mine, the fourth relates to compulsory acquisition under a Compulsory Acquisition Act (a defined term) and the final category is an act approved by the Commonwealth Minister.

Turning to the matter of procedural rights in relation to the Work, as referred to in s.23(6), Mr Van Hattem submitted that the holder of a freehold title to any land adjoining the site of the Work did not have any procedural rights in relation to that Work. I was referred to various provisions in the Jetties Act which, so it was submitted, provided an exhaustive code of procedural rights such as the rights to receive notice and make objections. As a further alternative, Bluegate and the respondent contended that even if there were such procedural rights, the applicant has had notice for some four years that a jetty was to be constructed and in any event the validity of the permissible future act (the Work) did not depend upon compliance with s.23(6). That is, if notice was required and had not been given, so it was put, this did not affect the validity of carrying out the Work. For all of the above reasons, Bluegate and the respondent submitted that there was no serious question to be tried.

On the question of the balance of convenience Bluegate made the following submissions:

1. The completion of the jetty is a condition of the Lease.

2. Unless the jetty is constructed the Lease is subject to termination.

3. Bluegate has expended approximately $19 million on re-development work on the site to date.

4. The total cost of the jetty is approximately $300,000 and its construction will take a period of 3-4 weeks. The pile-driving will take about 10-14 days. Thirty piles are to be put in place of which 13 are already in place.

5. Unless the jetty is completed by 24 February 1997 Bluegate will be in breach of the condition of the approval granted by the Swan River Trust. There could, so it was put, be "no certainty" whether there would be another approval or extension.

6. If the approval were not renewed or extended then Bluegate would be unable to comply with the conditions in the Lease. The Lease has some 63 years of its term unexpired.

7. It was not possible to calculate the amount of the loss which would flow from Bluegate being deprived of its Lease, but it would be very substantial indeed.

8. Bluegate also raised the question whether, if an interlocutory injunction were granted and Mr Bropho were found at the eventual hearing not to be entitled to the principal relief which he seeks, he would have the means of satisfying the usual undertaking as to damages which he has given. The state of the evidence to date is that Mr Bropho was made bankrupt on 22 June 1993 on Bluegate's petition. Bluegate says it has received no dividend in that bankruptcy. Mr Bropho's evidence is that he was discharged from bankruptcy on 20 July 1996. There is no evidence contradicting that assertion on Mr Bropho's part.

Some Historical Background

This is not the first occasion upon which Mr Bropho has approached a Court to prevent the re-development of the old brewery site. There is no need to trace in detail the history of those efforts. However, I think it is relevant to give a very short summary of that history, which is derived from a series of decisions in the High Court of Australia, the Supreme Court of Western Australia and in this Court. It is as follows:

(a) On 12 April 1989 Mr Bropho filed an application under ss.9 and 10 of the Aboriginal & Torres Strait Islander Heritage Protection Act ("the Commonwealth Heritage Act 1972 ").

(b) On 19 December 1990 in proceedings in the Supreme Court of Western Australia, Mr Bropho obtained a declaration from Rowland J sitting at first instance that the procedure followed by the State Minister under the Aboriginal Heritage Act (W.A.) ("the State Heritage Act") was such that it denied him procedural fairness when the State Minister consented to the proposed redevelopment.

(c) On 15 May 1991 the Full Court heard the State of Western Australia's appeal from that judgment and on 14 October 1991 allowed that appeal and dismissed Mr Bropho's claim.

(d) In early February 1993 Mr Bropho filed two applications in this Court in respect of the manner in which the Commonwealth Minister had dealt with his applications under ss.9 and 10 of the Commonwealth Heritage Act. He was successful at first instance in that application and on appeal. The Court ordered the Minister to reconsider the application.

(e) On 30 April 1993 a Full Court of this Court dismissed the Commonwealth Minister's appeal.

The Tests to be Applied

The principles applicable to the grant of an interlocutory injunction are well-settled. However, it is appropriate to summarise them for the benefit of those who are not lawyers. The grant of an interlocutory injunction is essentially a matter of discretion but the discretion must be exercised judicially. I propose to consider the following matters:

A. Whether there is a serious question to be tried?

B. If there is a serious question to be tried, whether the balance of convenience as between the respective parties points in favour of or against the granting of interlocutory relief.

C. Whether there are any other discretionary factors which might be relevant to the grant or refusal of an interlocutory injunction. Those matters would include any delay, whether any harm can be repaired if the applicant is successful, whether damages would be a sufficient compensation if the applicant is eventually successful at trial and whether, if the applicant is unsuccessful at trial, he will be able to satisfy his undertaking to pay to the respondents or any other party affected by an interlocutory injunction, damages for their loss. I now proceed to consider those matters.

Is there a Serious Question to be Tried?

Bluegate, in its written submissions, contended that the principal application in this matter (which when both its written and oral submissions were made was for a determination of native title) is incompetent and should be struck out. In view of the amendments to the principal application it is not necessary to deal fully with those submissions. I do not think that it is appropriate to consider whether the underlying or principal application should be struck out at this stage. I have already held that this Court has jurisdiction to grant interlocutory injunctions in relation to land which is the subject of a native title claim. For the reasons which I gave in that case [Djaigween & Ors v. Douglas [1994] FCA 951; (1994) 48 FCR 535] I would, for the time being in this matter, treat the application as being in substance an application to preserve the subject matter of Mr Bropho's application to the National Native Title Tribunal. Accordingly, this Court has jurisdiction to grant the interlocutory relief sought. There was no argument about its power to do so in those circumstances.

On a provisional basis, I must say that I see considerable merit in Bluegate's submissions particularly, and at the very least, those submissions which are based upon s.19 of the Act when read with ss.5 and 9 of the Titles Validation Act.

In making that observation I should not be taken as indicating an opinion that the primary arguments put forward by Bluegate and the respondent in relation to the validity of the Jetty Licence and in the alternative the legal entitlement to carry out the Work lack merit. On the contrary, I can see (again on a provisional basis) considerable merit in those various primary and alternative submissions. However, at least some of them raise matters of construction. In that category I refer to the application of the statutory definition of "land" and "waters" in s.253 of the Act, discussed above. Then there are potential factual matters - see the argument that the Jetty Licence must be taken to have been always valid. If the Work is a future act, legal issues arise as to the extent of any procedural rights which may be conferred under s.23(6) of the Act. If there has not been compliance with s.23(6) the question arises - what is the effect of such non-compliance? Bluegate and the respondent contend that non- compliance has no effect on the validity of the Work, but I regard that as a question which is entitled to be dealt with at trial.

While I am prepared to say that I consider that there is considerable merit in the submissions made on behalf of Bluegate in respect of the interaction of the Native Title Act and the Titles Validation Act, I cannot say that there is no arguable question. I cannot say that there is no serious question to be tried. The law relating to native title in this country is still in its infancy. For example, there is as yet no certainty about the extent of common law native title rights.

My conclusion on the question of whether there is a serious question to be tried is that there are some serious questions to be tried, but that a provisional assessment of the legal merits suggests to me that the applicant's case is not particularly strong. I must emphasise that this is only a provisional assessment for the purposes of today's application. I now turn to the other tests to be applied.

Balance of Convenience

On the one hand I take into account the evidence from the applicant about the serious spiritual and religious impact of the Work. For present purposes, I accept that the driving of these piles into the riverbed may constitute serious interference with the spiritual and sacred beliefs of the applicant and his fellow Aboriginal people. I accept further that part of those beliefs is that if every step is not taken to prevent such interference, then those responsible among the Aboriginal people may suffer in one way or another.

On the other hand, if Mr Bropho is eventually successful, then I consider that the probabilities are that the respondents would be made to remove the piles. In oral argument, Mr Van Hattem accepted that this would be the outcome if Mr Bropho is successful with his native title application and in these or any related proceedings. I make no pre-judgment in that regard, but whoever decides the eventual remedies to be applied in those circumstances may care to take into account the fact that I made such an assessment when reaching my decision today. The respondents have been put on notice of the applicant's claim and, doubtless with legal advice, have decided to proceed with the Work. If these actions are at a later date found by the Court after a full trial in these or any other proceedings to constitute something in the nature of what we call a trespass, then their advisers well know the usual remedies for such a civil wrong. I make no further comment in that regard.

I take into account the potentially quite substantial loss which the respondents may incur if an injunction is granted today. I think it is possible to overstate that loss because I note in the Lease that Bluegate's obligations are suspended if it is prevented from carrying out work by "force majeure". That term is defined as including the granting of an injunction or other Court order. On the other hand, Mr Van Hattem argued, fairly convincingly, that the "force majeure" clause did not preclude his clients from the risk of substantial loss, including the loss of the Lease. I have also had regard to the loss referred in the affidavit sworn by Mr Trevor Finerty and filed on behalf of the respondent. My assessment is that the balance of convenience lies with Bluegate. In other words, I consider that the consequences to Bluegate of the grant of an interlocutory injunction in this matter would be more detrimental than the consequences to the applicant if such an injunction is denied. I take into account, in reaching that assessment, all of the matters to which I have referred above. I also take into account the fact that if the applicant is ultimately successful then the piles and the jetty can be removed. Indeed the provisions of the Jetty Licence itself contemplate removal of the jetty upon termination of the Jetty Licence (see clause 2 of the Jetty Licence). Mr McIntyre submitted that even those circumstances, involving a temporarily limited presence of the piles in the subsoil, would amount to a substantial denial of the spiritual and religious beliefs of the applicant and the other native title parties. I accept that submission. But in the weighing process I have attached more importance to the potential loss to Bluegate and the respondent and the absence of any evidence that Mr Bropho would be able to compensate them for those losses if he eventually loses this case and were called upon to honour his undertaking.

Whether Damages Would be an Adequate Remedy?

My impression is that damages would not be an adequate remedy in lieu of an interlocutory injunction. I refer to my comments in respect of the spiritual and religious beliefs of the applicant and his fellow Aboriginal people.

Delay

In Carlton and United Breweries (NSW) Pty Ltd v. Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at p.638 a Full Court of this Court confirmed that delay in seeking an interim injunction is an important discretionary consideration. I refer to the short history of Mr Bropho's involvement with this development above. By short I mean the recitation which I gave of it, not necessarily the history itself. There is evidence that at least by August 1992 Mr Bropho was in possession of a copy of the Lease. Mr Bropho has at all material times been legally represented. Even a cursory examination of the terms of the Lease shows that a jetty was contemplated by its terms - I refer to clause 4.2(d) and Item 2 of Schedule 3. In my view, Mr Bropho was put on notice as from August 1992 that this jetty was to be constructed. A copy of the Lease was annexed to Mr Bropho's affidavit of 24 August 1992 filed in Supreme Court of Western Australia Action No. 2043 of 1992. Mr McIntyre says that before the jetty could be built there had to be the grant of the Jetty Licence and the approval from the Swan River Trust, being matters of which Mr Bropho had no notice. That may be true, but there is no evidence that Mr Bropho made any inquiry of Bluegate on the matter of whether the jetty was proceeding and whether it would involve pile-driving. Nor is there any evidence that Mr Bropho approached the Department of Marine and Harbours for information about whether a Jetty Licence had or was to be granted. Nor was there any evidence of such an approach by Mr Bropho to the Swan River Trust. Mr Bropho can be seen to have elected to stand by and await developments. In my view, given the clear notice in the Lease that there was to be a jetty he was not entitled to stand by and wait. The Lease describes the jetty as being "... in the shape of a "T" with a frontal dimension of not less than 25 metres and protruding sufficiently into the waters of the Swan River to allow berthing of vessels of a draft not exceeding 4 metres at low tide on any given day." The matter of obtaining necessary approvals is also referred to in the Lease. If Mr Bropho had chosen, say, 12 months ago, to come to this or any other appropriate Court seeking the relief which he now seeks, the situation concerning this aspect of the exercise of the discretion might have been very different. For reasons similar to those discussed in the Carlton and United Breweries case, I would, on the grounds of delay alone, have dismissed the present application for interlocutory relief. However, I take that course not only for that reason but because although there may be serious questions to be tried, I consider that the balance of convenience weighs against the applicant for the reasons which I have explained above. Furthermore, I do not consider that the serious questions to be tried had sufficient prima facie merit to outweigh the matter of the balance of convenience.

Conclusion

For the above reasons, the application for interlocutory relief will be dismissed. The principal application will be listed for directions at a time and date to be fixed.

I certify that this and the preceding nineteen

(19) pages are a true copy of the Reasons for

Judgment of Justice Carr.

Associate:

Date: 5 February 1997

Counsel for the Applicant: Mr G.M.McIntyre

Solicitors for the Applicant: Newton Vincent

Counsel for the Respondent: Mr P.C.Van Hattem

Solicitors for the Respondent: Freehill Hollingdale & Page

Date of Hearing: 1 February 1997

Date of Judgment: 1 February 1997