Aerolite Quarries Pty Ltd v Secretary, Department of Premier and Cabinet

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 05984

AEROLITE QUARRIES PTY LTD (ACN 074 629 137)	First plaintiff
- and -
DELACOM PTY LTD (ACN 074 629 897)	Second plaintiff
v
SECRETARY TO THE DEPARTMENT OF PREMIER AND CABINET	Defendant

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 NOVEMBER 2014
DATE OF JUDGMENT:	21 NOVEMBER 2014
CASE MAY BE CITED AS:	Aerolite Quarries Pty Ltd v Secretary, Department of Premier and Cabinet
MEDIUM NEUTRAL CITATION:	[2014] VSC 616

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PRACTICE AND PROCEDURE – application for interlocutory injunction – balance of convenience where action sought to be restrained would not result in peril feared by plaintiffs – application dismissed – Aboriginal Heritage Act 2006 (Vic), ss 186, 187.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Ms M Quigley QC and Mr I Munt	Equipe Lawyers Pty Ltd
For the defendant	Ms K Judd QC and Ms M O’Sullivan	DPC Legal Branch

HIS HONOUR:

The plaintiffs in this application for an interlocutory injunction are engaged in quarrying activities in an area of land in Anakie and propose to engage in different but related quarrying activities on nearby land.
In the course of preparing proceedings in the Victorian Civil and Administrative Tribunal regarding the proposed quarrying activities, the plaintiffs discovered that the Registered Aboriginal Party under Part 10 of the Aboriginal Heritage Act 2006 (Vic), the Wathaurung Aboriginal Corporation, had sought registration of much of the land concerned as an Aboriginal place under that Act.
Fearing prosecutorial and other consequences of that registration and believing that the land concerned was not an Aboriginal place, the plaintiffs sought from the Secretary to the Department of Premier and Cabinet an undertaking not to so register the land and to give the plaintiffs an opportunity to be heard on the question. The Secretary has not given those undertakings although certain undertakings have been given to the court on an interim basis.
It is well established that, when applying for an interlocutory injunction, the plaintiff must establish three main things. First, that there is a serious question to be tried as to the plaintiff's entitlement to relief. Second, that the balance of convenience favours the granting of an injunction. Third, that damages would not be an appropriate remedy.
The serious questions to be tried upon which the plaintiffs rely are (in summary) threefold: (1) that registration would be a breach of the rules of natural justice; (2) that it would be contrary to the Act because, objectively, the land is not an Aboriginal place; and (3) that the remedies of prohibition and declaration would be available by way of judicial review on those grounds.
In my view, the plaintiffs have established serious questions to be tried in all three of these categories. I think it is reasonably arguable that the plaintiffs should be given a reasonable opportunity to be heard in relation to whether the land should be registered, that the land could only be registered when, objectively, it was an Aboriginal place and that judicial review would be available in relation to the grounds I have just mentioned, if ultimately established. Of course it is not my responsibility to determine whether those grounds are actually established, only whether there is a serious question to be tried in relation to them. I am also of the view that in the present case damages would not be an appropriate or adequate remedy.
It follows that the outcome of the application for an interlocutory injunction turns entirely on the balance of convenience. The central question in my view is: what are the legal consequences of registration and how do those consequences affect the plaintiffs’ businesses?
There was substantial debate in the submissions made by senior counsel (which were of the highest quality on both sides) about the consequences of registration. Having considered those submissions, I am of the view that it is not registration itself that exposes the plaintiffs to potential prosecution for harming an Aboriginal place, but the objective fact, if it be the fact, that the land concerned is an Aboriginal place. It follows that, if a prosecution were to be brought following the registration of the land as an Aboriginal place, the plaintiffs would be free to challenge the status of the land as such a place even though it had been so registered.
The evidentiary provisions in s 187 do not stand in the way of the plaintiffs so doing. I think the Act has been carefully designed to protect the rights of landowners and those undertaking activities on land, particularly those where, like the present, the status of the land is controversial. For the purposes of such a prosecution, only the court and not the Secretary can finally determine the status of the land in legal terms.
The plaintiffs fear that registration would increase the peril of prosecution in relation to the existing quarrying activities. It was submitted that, if registration were to go ahead, they would have to cease those activities. The evidence is that the cessation of those activities would substantially harm the plaintiffs in terms of their legitimate commercial interests and also their employees. There will likely be downstream negative consequences as well. These matters weigh heavily on the plaintiffs’ side when assessing the balance of convenience. By reason of these and other matters, I can see why, from the plaintiffs’ point of view, this application for an interlocutory injunction simply had to be made.
However, it will be for the plaintiffs to determine, after participating in the hearing today, whether, if registration were to occur following the refusal of this injunction, the existing quarrying activities really would need to cease. The Wathaurung Aboriginal Corporation is not seeking that and the Secretary is not seeking that. Under s 186(2), any prosecution would have to be authorised by the Director of Public Prosecutions and that authority would only be given after principled consideration of all of the circumstances. Private prosecution of offences under the Act is not permissible; only the Secretary and the police have that power: see s 186(1). I think the plaintiffs and their legal advisers should take these matters into account when determining whether a decision should be made to cease the existing quarrying activities.
I do not accept the Secretary's submission that the plaintiffs have alternative legal means of challenging the status of the land. The Act establishes a number of legal processes and avenues of appeal to the tribunal in relation to land that is an Aboriginal place. None of these processes allow any challenge to the status of the land as such. On the other hand the plaintiffs could participate in such processes without prejudice to their legal rights and without prejudice to their right in this or other proceedings to pursue such a challenge.
In relation to the proposed activities on nearby land, these activities (if permitted under the planning processes) are some way off. The mere need to prepare a management plan or to obtain a permit are in themselves not sufficient to warrant the granting of an interlocutory injunction.
In refusing the application for the injunction I am making no comment upon the underlying legal and factual issues. Objectively the land concerned may or may not be an Aboriginal place. If a prosecution were to be issued, I am sure that this question would be hotly contested. As I said in argument, I encourage the parties and other interested parties to try to resolve the underlying issues by way of negotiation and full disclosure of relevant material. I note the Secretary has offered to facilitate that process.
I also make clear that, in refusing this application, I am not intending to interfere in any way with the hearing of the tribunal next week. As I understand it, the question of fact whether the land is an Aboriginal place is in issue in those proceedings. Despite the refusal of this injunction, that is a matter for the tribunal to determine as it sees fit.
As I announced when coming on to the Bench this morning, I had by then read the affidavits and submissions of the parties which were carefully prepared and I take all of that fully into account. I also take fully into account the submissions made by senior counsel this morning. However, in all the circumstances I do not consider that the jeopardy feared by the plaintiffs would actually flow from the registration sought to be restrained by injunction. In all of the circumstances the application is accordingly dismissed.
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[2014] VSC 616

21 NOVEMBER 2014