Chapman v Luminis Pty Ltd (No 2)

Case [2000] FCA 1010

FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010

Matter No. SG 33 of 1997

THOMAS LINCOLN CHAPMAN & WENDY JENNIFER CHAPMAN & BINALONG PTY LTD v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

von DOUSSA J
4 AUGUST 2000
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 33 OF 1997

BETWEEN:

THOMAS LINCOLN CHAPMAN and WENDY JENNIFER CHAPMAN and BINALONG PTY LTD (Receivers and Managers Appointed) (In Liquidation)
APPLICANT

AND:

LUMINIS PTY LTD
FIRST RESPONDENT

DEANE JOANNE FERGIE
SECOND RESPONDENT

CHERYL ANNE SAUNDERS
THIRD RESPONDENT

ROBERT EDWARD TICKNER
FOURTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
FIFTH RESPONDENT

JUDGE:

von DOUSSA J

DATE:

4 AUGUST 2000

PLACE:

ADELAIDE

CORRIGENDUM

Please note the following changes in the reasons for evidence ruling published 28 July 2000.

1.        Add to page 2 of the Orders the following:

“5.       Liberty to apply.”

2.        Paragraph 58, page 25 – replace the sentence beginning “It is a further requirement of the law…” with “It is a further requirement of the law that before the Minister makes a declaration that will adversely affect interests of the State or Territory in which the area is located, and property interests of individuals, the holders of those interests are to be accorded procedural fairness.”

Associate:
Dated:


FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010

Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice – Evidence Act 1995 (Cth), s 130

Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109

Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79

Constitution of Australia, ss 76(ii), 77, 109

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 9, 10, 28
Aboriginal Heritage Act 1983 (SA), ss 3, 35
Judiciary Act 1903 (Cth), ss 39B, 78B, 79
Evidence Act 1995 (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142
Trade Practices Act 1974 (Cth), ss 52, 75B, 82, 86
Administrative Decisions (Judicial Review) Act1977 (Cth)
Hindmarsh Island Bridge Act 1997 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 17(4), 19(1), 50

Tickner v Bropho (1993) 40 FCR 183 referred to
Tickner & Others v Chapman & Others (1995) 57 FCR 451 referred to
Chapman & Others v Tickner & Others (1995) 55 FCR 31 referred to
Wilson & Others v Minister for Aboriginal and Torres Strait Islander Affairs & Another (1996) 189 CLR 1 referred to
Kartinyeri and Another v The Commonwealth of Australia (1998) 195 CLR 337 referred to
Maks v Maks (1986) 6…

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Details
AGLC
Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010
Case
[2000] FCA 1010
Decision Date

CaseChat Overview and Summary

Chapman, the plaintiff, brought proceedings against Luminis Pty Ltd, the defendant, in the Federal Court of Australia, regarding the defendant's proposed development of a quarry on land in the vicinity of Ngarrindjeri land. The case involved the protection of Aboriginal heritage and the application of the Aboriginal Heritage Act 1983 (SA) and the Evidence Act 1995 (Cth) in relation to restricted women's knowledge. The plaintiff sought a declaration that certain provisions of the Aboriginal Heritage Act 1983 (SA) did not apply to witnesses giving evidence in the trial and sought to exclude information about restricted women's knowledge from the evidence.

The court was required to decide whether section 35 of the Aboriginal Heritage Act 1983 (SA) applied to witnesses whilst giving evidence, whether section 130 of the Evidence Act 1995 (Cth) should exclude information about restricted women's knowledge, and whether the evidence about the restricted women's knowledge should be adduced in camera. The court also had to consider the implications of section 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) in relation to the adduction of evidence.

The court found that section 35 of the Aboriginal Heritage Act 1983 (SA) did not apply to witnesses giving evidence in the trial. The court held that the section was not intended to apply to the giving of evidence in court proceedings and that it would be inappropriate to apply it in that context. The court also found that section 130 of the Evidence Act 1995 (Cth) should not exclude information about restricted women's knowledge from the evidence. The court held that the interests of justice required that the evidence be adduced and that the protection of the knowledge was not sufficient to outweigh the public interest in the fair administration of justice. The court directed that the evidence be adduced in camera in the presence of one female legal practitioner representing each group of parties in the proceedings and that the evidence received not be disseminated without further order of the court.

The court made a declaration that section 35 of the Aboriginal Heritage Act 1983 (SA) did not apply to witnesses whilst giving evidence in the trial of this action. The court also directed that evidence about restricted women's knowledge be adduced in camera and that the evidence received not be disseminated without further order of the court. The court did not exclude information about restricted women's knowledge from the evidence and held that the interests of justice required that the evidence be adduced.

Orders

Orders of the court

1. Declare that s 35 of the Aboriginal Heritage Act 1983 (SA) does not apply to witnesses whilst giving evidence in the trial of this action.

2. In relation to the restricted women’s knowledge the subject of Appendices 2 and 3 to the report of the respondent Deane Joanne Fergie there will be no direction under s 130 of the Evidence Act 1995 (Cth) that information about the restricted women’s knowledge not be adduced as evidence.

3. Direct pursuant to ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth) that evidence about the restricted women’s knowledge be adduced in camera in the presence of only one female legal practitioner representing each group of parties in the proceedings, and that the evidence received not be disseminated without further order of the Court.

4. Direct that insofar as it may become necessary to put information about the restricted women’s knowledge to the respondent Robert Edward Tickner in the course of his oral evidence the above directions will apply to that part of Mr Tickner’s evidence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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