Buzzacott v Morgan No. Scgrg-99-356 Judgment No. S149

BUZZACOTT v MORGAN
[1999] SASC 149

Ruling on Application Re the Arabunna People
Nyland J

In this action, Kevin Buzzacott, as plaintiff, has issued a summons against Hugh Morgan as defendant. The inter party summons and statement of claim in support thereof are both dated 25 March 1999. On the same date, an application was issued seeking the following orders:
“1..... The filing fees and other court fees be waived for the plaintiff.
2.Service of court process by fax to 08 8405 8334 (or upon an adult employee at the premises of WMC Limited at Keswick during business hours) is sufficient service upon the defendant in the circumstances.
3..... This application be heard by the Chief Justice of South Australia.
4.A declaration that an act of genocide (within the meaning of the well-settled legal definition in the Schedule to the Genocide Convention Act 1949) is a civil wrong giving rise to a cause of action under the general law of South Australia.
5..... A declaration that an act having the foreseeable consequence of causing serious mental harm to the Arabunna People is an act of genocide.
6.A declaration that an act having the foreseeable consequence of imposing conditions of life likely to destroy the Arabunna People in whole or in part is an act of genocide.
7..... A declaration that nothing in section seven of the Roxby Downs Indenture (Ratification) Act 1982 [SA] either expressly or impliedly modifies the general law of South Australia to allow the parties to the indenture to commit acts of genocide with impunity or other immunity from civil suit of those parties from victims of such acts of genocide.
8.A preservation order be made for the lands of the Arabunna people.
9..... A preservation order be made for all other property of the Arabunna people including Arabunna laws, culture, religion, spirituality and life-ways.
10.An interim injunction restraining until further order the defendant, his servants agents or otherwise howsoever, from entering upon Arabunna lands and conducting mining and any other associated activities (including any expansion of those activities) upon Arabunna lands.
11..... An interim mandatory injunction compelling until further order the defendant, his servants agents or otherwise howsoever, forthwith to cease any mining and any other associated activities (including any expansion of those activities) upon Arabunna lands and immediately to leave Arabunna lands.”
The application is endorsed with a note that “This application is brought pursuant to the inherent ‘universal’ jurisdiction of this honourable Court to stop and prevent the crime of Genocide” and that it is to be served upon the defendant at “WMC Limited, A N House, 1 Richmond Road, Keswick, via fax 08 8405 8334”.
In his affidavit in support of the application the plaintiff states that he brings the proceedings on behalf of “all the Arabunna People”. Exhibit Arabunna 5 to that affidavit is a copy of a letter written to the listings co-ordinator of the court asking that the application be heard by the Chief Justice of South Australia. In accordance with the usual practice of the court, however, the application was listed for hearing before the chamber judge on Friday, 26 March 1999. At that time, Mr Lindon appeared for the plaintiff and Mr Swan, together with Mr Shortt Smith, appeared for the defendant. Mr Lindon indicated that, although admitted to practise in South Australia, he did not currently hold a Practising Certificate. He was, however, a member of the Victorian Bar and was on the High Court roll. The chamber judge then gave him leave to appear on that particular occasion.
The judge considered the issue of waiver of fees as set out in paragraph 1 of the application and in due course waived the fees in relation to the issue of the summons. He indicated, however, that the waiver of any other fees would have to be the subject of a further application to the court.
The application for service of court process by fax was adjourned to a date to be fixed. The judge did not deal with the application for the listing of the matter before the Chief Justice as that appeared to have been resolved by the listing of the matter at short notice before the chamber judge.
In the course of the hearing, Mr Lindon raised the possibility of judicial bias on the part of the chamber judge. The judge, having given due consideration to that matter, finally decided that it was appropriate to disqualify himself from the further hearing of the application. He then adjourned the matter to the chamber list on 9 April 1999. As it happened, I became available to hear the matter at an earlier date, and the application was then set down for hearing before me on Tuesday, 30 March 1999.
On 26 March 1999, the plaintiff filed an application for leave to appeal to the Full Court against the orders of the chamber judge that:
“1. No other fees be waived.
2. The matter be adjourned to 9 April 1999.”
As I understand the matter, the plaintiff concedes that this application has become otiose and will not therefore be pursued. In any event, if I am wrong about that, I indicate that in view of the subject matter, I would not be prepared to give leave to appeal.
On 29 March 1999, the plaintiff filed an application for directions in which he sought the following further orders:
“1..... A direction that the hearing of this matter listed [at about 4.30 pm Friday 26 March 1999] for a one-day hearing before Justice Nyland on Tuesday 30 March 1999 at 10.15 am be held by the fire on the shores of ‘Lake Eyre’ near the Arabunna Going Home camp.
2.A direction, in accordance with the appropriate recognition of cultural differences and out of respect for the law of the Arabunna, that the plaintiff give oral evidence of the urgency of the matter and on the question of the balance of convenience.
3.A direction that the defendant at Roxby Downs and/or the South Australia Police at Maree facilitate the communication by telephone/video-link between the plaintiff and other Arabunna People and the Court [should the Court decline to hold the hearing at Lake Eyre on Tuesday 30 March as sought in paragraph 1 above].
4.A direction [should the Court decline to hold the hearing at Lake Eyre on Tuesday 30 March as sought in paragraph 1 above] that Justice Nyland will travel to Lake Eyre at Her Honour’s earliest convenience for the purpose of properly understanding the plaintiff’s evidence and submissions as to urgency and for the purpose of receiving further evidence and submissions from Arabunna People unable to leave Arabunna lands and/or unwilling to enter the Courts of the perceived Genocidist State after what the Courts have allowed to happen to the Arabunna People.
5.A direction that the question of urgency and the issue of whether genocide is an actionable civil wrong [as set out in the attached Reference] should be referred to the Full Court as a matter of urgency (so that, should the plaintiff be successful before the Full Court on the question of urgency, the plaintiff’s right to immediate and urgent relief is not rendered nugatory by the usual delay in Full Court matters) at a special sitting of the Full Court on Wednesday 1 April 1999 at 5 pm.
6.A direction that, given the gravity of the allegation of genocide and the apparent complicity of the State of South Australia (including the judiciary) in such genocide, the said Full Court be constituted by the entire Supreme Court of South Australia except for:
(i) the Chief Justice (against whom leave to appeal to the Full Court has been sought on the interlocutory question of urgency by application dated Monday 29 March 1999 concerning decisions made on Thursday 25 March and Friday 26 March 1999) and
(ii) Justice Wicks (who disqualified himself in this matter by his ruling made shortly after 2.15 pm on Friday 26 March 1999).
7.A direction that Justice Nyland prepare and deliver by 9 am on Wednesday 1 April 1999 a report to the Full Court of the hearing on Tuesday 30 March 1999 at Lake Eyre [should the direction in paragraph 1 be made] including provisional findings of fact on the balance of probabilities and attaching a transcript of the proceedings.”
On 29 March 1999, the appellant also filed an application for leave to appeal “from the interlocutory decisions of the Chief Justice”. This relates to the manner of listing of the application dated 25 March 1999.
On 30 March 1999, the various applications came on for hearing before me. The plaintiff appeared in person. Mr Lindon also attended and pursuant to leave, acted as amicus curiae. Mr Swan and Mr Shortt Smith again appeared for the defendant. Mr Swan indicated that he took no point in relation to the service of the various documents upon the defendant and indicated that he would in due course file a notice of address for service. As presently framed, the pleadings constitute an allegation of genocide against the defendant. Mr Swan foreshadowed an application to strike out the proceedings as disclosing no cause of action.
The application dated 25 March 1999, in addition to seeking (inter alia) a declaration that an act of genocide is a civil wrong, giving rise to a cause of action under the law of South Australia (which is the matter upon which the plaintiff seeks an urgent referral to the Full Court in the application dated 29 March 1999), seeks orders by way of interim injunction against the defendant. The crux of the application for injunction is the perception by the plaintiff that there is an urgent need for the cessation of all mining operations currently being carried out at Roxby Downs and Olympic Dam (which includes the pumping of water from the Lake Eyre Basin).
The plaintiff in his affidavit in support of the application, sets out matters of significant concern to the Arabunna nation arising out of those mining operations. He states (inter alia):
“11... This area is full of Arabunna secret sacred sites. On top of all the previous irreparable destruction, this ‘expansion’ is the last straw and is causing the Arabunna People serious mental harm. And it is continuing and terminally exacerbating the imposition of conditions of life that are destroying us in whole or in part. Both of these acts are acts of genocide within the well-settled legal definition which was confirmed by Australia and many other UN Member States on 17 August 1998 at Rome - the International Criminal Court Statute.
12.A lot of our old people have died since the Aboriginal Legal Rights Movement began assembling information on boundaries and bloodlines back to the Arabunna territory. And yet our land still has not been given back whilst at the same time the Roxby Downs uranium mine is allowed to expand, Western Mining Corporation overrides everything and nuclear waste dumping is being ‘negotiated’ in the region.
13.... The Arabunna are concerned that this situation is one more act whose foreseeable consequences are to impose conditions of life upon the Arabunna which will destroy us in whole or in part, contrary to the well-settled legal definition of genocide [Convention on the Prohibition and Punishment of Genocide, 1948; Genocide Act, 1968, UK; Yugoslavia v Bosnia-Herzogovina, ICJ, 1996; Statute of the International Criminal Court, 17 August 1998].
14..... The whole situation is causing us serious mental harm, and such mental harm is the foreseeable consequence of the defendant’s practices and processes toward the Arabunna and our land and our law. This is also an act of genocide under the well-settled legal definition referred to in paragraph 13 above.”
The plaintiff elaborated on these various matters in the course of his submissions in addition to which he provided me with a number of other documents. Mr Swan, although contesting their relevance, did not object to me receiving them for the purposes of this application. Those documents consisted of:
(P1)... a copy of an affidavit of the plaintiff affirmed by him on 17 July 1998 with respect to proceedings in the Supreme Court of the Australian Capital Territory. The matters set out in that document, to a large extent, mirror the issues raised by the plaintiff in these proceedings.

(P2)a portion of transcript taken on 14 September 1998 in proceedings in the Supreme Court of the ACT before Crispin J. In a judgment delivered on 18 December 1998 Crispin J concluded that the offence of genocide was not known to the domestic law of Australia. His reasons for decision and the notice of appeal against his judgment are included in annexure “Arabunna 8” to the plaintiff’s affidavit in these proceedings.

(P3)... a copy of the speech made by Alexander Downer MP, the Australian Minister of Foreign Affairs on 15 June 1998 with respect to the establishment of an International Criminal Court.

In addition to these various documents I was also provided with an affidavit of Professor Dennis Matthews, affirmed in these proceedings on 29 March 1999 annexed to which are a series of documents or reports of which he is the author dealing with the environmental impact of uranium mining at Roxby Downs.
Annexure 4 to his affidavit is an eight page lift-out from The Advertiser newspaper dated 26 March 1999, which refers to “A New Age Olympic Dam” and announces a $1.94 billion expansion of the Olympic Dam mining and processing operation. The article mentions the opening of the expansion by the Prime Minister, Mr Howard, on the same day. This appears to have been the catalyst for the institution of these proceedings.
It is quite clear from the submissions and all the documentary information provided in the course of this hearing that the plaintiff has a genuine and urgent desire to bring these mining operations to an end. He perceives that they are causing irreparable damage to his nation’s land and people. Thus it is claimed that those activities amount to an act or acts of genocide being committed by the defendant.
There are, however, a number of difficulties with respect to the proceedings as they stand, most of which were identified by Mr Swan in the course of his submissions. The plaintiff is claiming that he brings the action in a representative capacity for all the Arabunna people. The defendant does not accept, however, that the plaintiff is entitled to sue in that capacity in view of other litigation brought by other persons also purporting to represent the Arabunna people. This is an issue which requires clarification and further particularity in order to comply with SCR 34. If the matter is to proceed as a representative action this will be relevant to the claim for waiver of all fees in this matter, as well as any possible undertaking or order as to damages arising out of any order with injunction which may be made. As to this matter, it is appropriate to mention that in the course of argument, I raised the issue of an undertaking as to damages should the order with injunction be made. Mr Lindon indicated, however, that this was a case in which an undertaking would, or should, not be required. He said, in any event, that the defendant could not give any undertaking that further “irreparable and incompensable (sic) damage” would not be caused to the Arabunna nation. Accordingly, the damage to the plaintiff far outweighed any possible damage that might be incurred by the defendant.
A further problem arises with respect to the area of land which is the subject of the application for injunction as the documents filed by the plaintiff do not specify the precise area of land which is involved in these proceedings. The applications simply refer to “Arabunna lands”. They are not further described or delineated. Mr Lindon acknowledged that the subject matter of the application, that is, “the Arabunna lands”, was problematical for the court, because the white legal system had not yet resolved the exact boundaries of the land. He submitted, however, that in the circumstances it was sufficient for the plaintiff, as a member of the Arabunna, to come to this court and say that these activities were, in fact affecting “our land”. In the course of the debate as to this matter, I was eventually provided with a map produced by the Department for Environment, Heritage and Aboriginal Affairs, delineating native title claimant applications within South Australia, as at October 1998 (D1). The Arabunna land is delineated on that map in an area numbered SC98/002 and includes the whole of Lake Eyre. There appear, however, to be competing claims with respect to portions of the same land by the Kuyani(SC95/004), the Antakirinja Mutuntjarra (SC95/007), Barngarla (96/94), and perhaps most significantly for present purposes the Dieri Mitha (SC95/002) as the Dieri Mitha claim appears to completely overlap the Arabunna land claim with respect to Lake Eyre. Significantly, neither Olympic Dam nor Roxby Downs, is included in the Arabunna land claim area. The plaintiff pointed out, however, that water being pumped from the Lake Eyre Basin was being used at Olympic Dam and Roxby Downs and the Arabunna land area was therefore affected.
The proceedings as they stand seek orders against the defendant only. The only connection between the defendant and Roxby Downs in the documents is the statement in paragraph 6 of the statement of claim, that he “signed the Roxby Downs Indenture in 1982 and his name appears as signatory in the Schedule to the Roxby Downs Indenture (Ratification) Act 1982”. The indenture is annexed to the Act. There is no dispute that the defendant’s signature appears on that document. The relevant execution clauses state that Roxby Mining Corporation Pty Ltd signed, sealed and delivered the indenture in Adelaide by “its Attorney under Power”, ie, the defendant. A similar execution clause appears with respect to Western Mining Corporation Limited.
Although the defendant executed the document on behalf of each of those companies, there is no evidence that he was personally a party to the indenture, nor is there any evidence as to his present status in either company, nor his capacity to perform any act which would be legally binding on, or enforceable against, either of them.
In the course of argument, I raised with the plaintiff, the possible difficulty of making an enforceable order against Western Mining Corporation requiring it to shut down its entire operation when it was not a party to the proceedings before the court. The plaintiff, however, took the view that the defendant does, in effect, control the company. In any event, he considered that Western Mining would not operate in defiance of a court order.
Nevertheless, in my view there is a real difficulty about this aspect of the matter although, as Mr Swan correctly pointed out, this problem could not simply be cured by joining Western Mining Corporation as a party, given that the principal claim against the defendant is an act of genocide. There would therefore need to be some positive pleading or allegation about what Western Mining Corporation had done as opposed to the defendant. In any event, the plaintiff ultimately did not seek leave to join Western Mining Corporation as a defendant and appeared content not to further pursue that matter.
There is a further problem with respect to the making of the injunction order on the basis of the documents before the court. The affidavit in support of the application raises significant issues with respect to the crime of genocide and the alleged breach by Australia of its international obligation to enact necessary genocide legislation. It fails, however, to specify the specific act or acts alleged to have been committed by the defendant. Allegations are, however, set out in the statement of claim as follows:
“6....... The defendant signed the Roxby Downs Indenture in 1982 and his name appears as signatory in the Schedule to the Roxby Downs Indenture (Ratification) Act 1982.
6(a)Since at least that time, the defendant has sought to impose the uranium mine and workers and others upon the lands and people of the Arabunna.
6(b).... The defendant has notoriously made false and vilificatory and racially discriminatory statements about Aborigines and Aboriginal Rights.
6(c)The defendant has pursued a ‘divide and rule’ policy of deliberately and mischievously causing divisions within the Arabunna and with Aboriginal Peoples of lands adjacent to the Arabunna lands resulting in physical and mental harm to the Arabunna and other Aboriginal Peoples.
7......... The defendant has never accepted that the Arabunna People have a right to say NO to non-Arabunna people entering Arabunna lands and carrying on mining activities.
8.The defendant has used duress, undue influence and misrepresentation as to our true legal rights to attempt to obtain our consent to such entry and such activities.
9......... The foreseeable and intended consequence of the defendant’s actions and omissions has caused, and is continuing to cause, us serious mental harm, thus constituting an act of genocide within the well-accepted legal definition.
10.The foreseeable and intended consequence of the defendant’s actions and omissions has effectively imposed upon us conditions of life calculated to destroy us in whole or in part, thus constituting an act of genocide within the well-accepted legal definition.
11...... The defendant has caused, and will unless restrained by this honourable Court, continue to cause irreparable and incompensible (sic) harm to our lands, laws, culture, religion, spirituality and life-ways.
12.The defendant was instrumental in the decision of the Australian Minister for the Environment not to proceed with World Heritage Listing of Arabunna Lands.
12(a).. The cumulative effect of the defendant’s ‘war’ on the Arabunna People has left us vulnerable to further serious mental harm.
13.The defendant’s ‘expansion’ of the Roxby Downs Uranium Mine has been widely announced as commencing on Friday 26 March 1999.
14...... This announcement and the imminent ‘expansion’ has caused us serious mental harm as the defendant well knew or ought to have known.
15.The defendant has acted with bad faith towards the Arabunna at all material times.
16...... The defendant has incited, and conspired with certain politicians, miners and pastoralists, to commit acts of genocide against the Arabunna.
17.The defendant is complicit in acts of genocide, both past and continuing, committed against the Arabunna People.
18...... In the circumstances, the defendant owes a duty of care to all of the Arabunna people.
19.In the circumstances, the defendant has a fiduciary obligation to all of the Arabunna people.
20...... The defendant, by the ‘expansion’, both announced and imminent, has breached the said duty of care and the said fiduciary obligation.
21.The defendant has continually demonstrated, by his words and actions, that he will continue such breaches and such acts of genocide unless restrained by force of law.
22...... We are fearful that our people, lands, laws, culture, religion, spirituality and life-ways will be destroyed and extinguished.
23.This fear about the lack of a future for Arabunna land and law is itself causing us serious mental harm or exacerbating the previous serious mental harm.
24...... Our people, land and law are dying.”

Mr Swan complained that each of these paragraphs lacked particularity. Whilst acknowledging the plaintiff may have a genuine fear as described in paragraph 22 of the statement of claim, Mr Swan submitted that the matters pleaded did not, in their present form, translate into any cause of action. Further, none of the articulated concerns was linked with any conduct on the part of the defendant which could be identified by and dealt with by him. Furthermore, a number of the orders sought were not directed towards any specific act, activity or person, in a way which could be the subject of equitable relief. For example, the order sought in paragraph 5 of the statement of claim (and repeated in paragraph 8 of the application dated 25 March 1999), seeks “a preservation order be made for the lands of the Arabunna people” and would appear to be meaningless and totally unenforceable.
The plaintiff, however, disputed the complaint as to lack of particularity. Mr Lindon submitted that the specific claim against the defendant was that of genocide. He asserted that the pleadings, as they stood, specified in some detail the areas and the topics upon which evidence would be presented of the defendant’s act of genocide, namely, “signing the indenture, being head of this company, making vilificatory statements, imposing his mind upon the - of other people and acting devisively (sic) with other people, the divide and rule thing and the - his key role in the halting of the world listing process”. The matters set out in the statement of claim therefore constituted sufficient particulars in support of that matter to enable the defendant to understand the cause of action against him. Mr Lindon suggested that any lack of particularity could be cured, either by a request for further and better particulars from the defendant, or by the giving of evidence in court. That issue should therefore not stand in the way of the relief being sought.
The plaintiff’s submissions as to the matter, however, overlook the provisions of SCR 46 as to the requirement for pleadings. The function and role of pleadings is conveniently summarised in Lunn (at 8506):
“[R 46.00.15] The function of pleadings
There are four functions which are:
(1).... To define what are the matters in dispute: Thorp v Holdsworth (1876) 3 Ch D 637 at 639; Banque Commerciale SA v Akhil Holdings Ltd (1990) 92 ALR 53. It is on the basis of the issues defined by the pleadings that relevance is assessed for the purposes of discovery of documents, interrogatories, admissibility of evidence and the like.
(2)To show the parties what facts they will have to prove at the trial. If justice is to be done a party should not be taken by surprise at the trial about what he should be in a position to prove: Bruce v Odhams Press Ltd [1936] 1KB 697 at 712. It also avoids delay and expense at the trial in saving a party from having to prove what his opponent is prepared to admit.
(3).... They enable the nature of the trial to be determined. It is only on the basis of the pleadings that a party can raise a point of law, seek the determination of a preliminary issue or possibly apply for summary judgment.
(4)They provide a record of the matters which have been before the court for determination in the action. If in subsequent proceedings pleas of res judicata or issue estoppel are raised, the court must look to the pleadings in the previous action to determine what was properly before the court for determination in that action: Hoystead v Commissioner of Taxation [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Khan v Goleccha International Ltd [1980] 2 All ER 259. See generally Williams v Australian Telecommunications Commission (1988) 52 SASR 215; 148 LSJS 168.
[R 46.00.20] Role of pleadings
Prima facie a party is confined at the trial to raising those issues which are identified by his pleadings: Official Receiver v Feldman (1972) 4 SASR 246 at 280; Blay v Pollard & Morris [1930] 1 KB 628 at 634; Bell v Lever Bros Ltd [1932] AC 161 at 216; Esso Petroleum Co Ltd v Southport Corp [1956] AC 218 at 238; RAA v Polomka (No.2) (SC(SA), Perry J Jud No S4158, 10 September 1993, unreported). However, this is subject to the wide power of amendment which the court can exercise, even after evidence has been led: see [R 53.01.45]. While the court may not always strictly enforce adherence to the pleadings where it would be unfair to do so (Leotta v Public Transport Commission (1976) 9 ALR 437), nevertheless the primary rule is that the court will confine a party to his pleadings if there would otherwise be injustice to another party: Miller v Cameron (1936) 54 CLR 572; Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1; Fookes v Slaytor [1979] 1 All ER 137; Water Board v Moustakas (1988) 77 ALR 193, but these authorities must now be read subject to R 46.04(4). The adequacy of a pleading is to be considered from the answer to the question, ‘Does the pleading give fair notice of the case to be made against the other party at trial thereby minimising the risk of injustice resulting from surprise?’: Arthur Young & Co v Tieco International (SC(SA), Lander J, Jud No S5173, 19 July 1995, unreported). Where a defect in the pleadings is not raised by a party adversely affected it may be taken to have consented to the trial being conducted other than in accordance with proper pleadings on that point: O’Keefe v Australian Trencher Co Pty Ltd (1991) 56 SASR 370; 161 LSJS 300. (emphasis added)
The generality of the matters pleaded in this case is obvious. The need for proper particulars is not met by detailing a long list of general allegations, nor is it appropriate to cure a defect in pleading by casting the onus upon the defendant to seek further and better particulars or simply to leave the matter to be dealt with by evidence at a later date. The problem with respect to these pleadings in their present form is highlighted by Mr Lindon’s submissions with respect to the allegation in paragraph 6(c) of the statement of claim that the defendant has pursued a policy of “divide and rule”. Although the documents do not plead the specific acts of the defendant with respect to that matter, Mr Lindon asserted from the bar table that one of the matters to be proved in evidence “is that the Dieri Mitha received a significant amount of money in the order of a million dollars through Western Mining, and that certain things have happened as a result of that. We say that falls into proving that divide and rule allegation made in paragraph 6(c)”. If that is the basis of the allegation it is an important matter and it should be properly pleaded. According to D1, however, the Dieri Mitha has a competing claim with the Arabunna with respect to Lake Eyre. On the basis of the assertion made on behalf of the plaintiff, the Dieri Mitha seem to be aligned with the mining operations being carried out by Western Mining Corporation at Roxby Downs. They may well, therefore, have an interest in, and possibly a contrary attitude to, the order being sought by the plaintiff.
I am conscious of the fact that the plaintiff believes the situation with respect to the Arabunna lands is so critical that it is inappropriate for the court to delay making the orders sought by him for any reason, let alone matters of a procedural nature. But in my view, quite apart from the merits of the matter, I believe that nothing would presently be achieved by making the orders sought as they would be completely unenforceable. Furthermore, given the seriousness of the allegations against the defendant, which amount to an accusation of the most serious crime that one can possibly imagine, the defendant is entitled to proper notice of the specific acts upon which the allegations are based and sufficient time within which to respond to those matters.
The orders sought in paragraphs 4-7 inclusive of this application repeat the claims as to genocide, which is the claim for principal relief. I consider that it is inappropriate to deal with such a serious matter as part of this interlocutory application, particularly when the defendant has not had a reasonable opportunity to file a defence or take such other proceedings as he may be advised.
The orders sought in paragraphs 8 and 9 are framed so generally that, in my view, there is no basis to justify making an order for equitable relief.
I have already mentioned, a number of impediments which preclude the making of the orders with injunction as sought in paragraphs 10 and 11. Those applications are therefore refused.
That leaves paragraphs 1, 2 and 3 of the application. I consider that the appropriate order with respect to the waiver of fees is to leave that matter adjourned to a date to be fixed. It can then be dealt with as appropriate by any judge having the conduct of the matter. There is no need to make any order as to service in terms of paragraph 2 in view of Mr Swan’s admission as to service. I consider it unnecessary to make any order as to paragraph 3 although I understand that the plaintiff may pursue this matter as part of his application for leave to appeal.
I now turn to the application for directions dated 29 March 1999. Paragraphs 1 to 4 of that application are concerned with the plaintiff’s request for evidence to be taken at Lake Eyre or in the alternative by video link. The plaintiff has made forceful submissions to the effect that it would not be possible for the court properly to understand the issues before it without attending at Lake Eyre and seeing the situation for itself. I have borne those submissions in mind when considering the application dated 25 March 1999. I understand the plaintiff’s attitude and I appreciate that there may well be a need for such an attendance to take place in order finally to resolve these proceedings. I believe, however, that it is premature to make such an order. When the plaintiff has provided better particulars as to his claim against the defendant and when the issues in dispute are clearly defined, the court can re-consider those applications. I therefore adjourn these applications to a date to be fixed.
Paragraphs 5, 6 and 7 of the same application require an urgent referral of this matter to the Full Court, to be constituted by the entire Supreme Court of South Australia, except for the Chief Justice and Justice Wicks. Special convening of Full Courts will, however, only be done sparingly and in exceptional circumstances. Once the claim against the defendant is properly formulated and the defendant has had the opportunity of responding, this may be an appropriate matter for referral to the Full Court. If that situation were to arise, the number of judges required to comprise the Full Court would then be a matter for the Chief Justice, given that the Full Court is usually constituted by three judges. As matters stand, however, I see no basis to depart from the usual procedures of the court with respect to the conduct of litigation before it. Those applications are therefore refused.
In so far as the application for leave to appeal is concerned, I indicated in the course of the hearing on 30 March 1999, that I did not consider this was an appropriate matter for the granting of leave as the decisions of the Chief Justice as to the listing of the matter are clearly administrative and not subject to appeal.

In summary, the orders are as follows:

Application dated 25 March 1999:
1.     Adjourned sine die.
2.     No order.
3.     No order.
4.     No order.
5.     No order
6.     No order.
7.     No order.
8.     Application refused.
9.     Application refused.
10.    Application refused.
11.    Application refused.
Application for directions dated 29 March 1999
1. Application adjourned sine die.

2. Application adjourned sine die.

3. Application adjourned sine die.

4. Application adjourned sine die.

5. Application refused.

6. Application refused.

7. No order.

Application for leave to appeal dated 29 March 1999:
1. Leave refused.
2. Leave refused.

[1999] SASC 149

14 April 1999