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Chapman v Luminis Pty Ltd (No 4)

Chapman v Luminis Pty Ltd (No 4)

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Case Copied 21 August 2001 75 min read

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FEDERAL COURT OF AUSTRALIA
THOMAS LINCOLN CHAPMAN
and
WENDY JENNIFER CHAPMAN
and
BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED)
(IN LIQUIDATION)
v
LUMINIS PTY LTD
and
DEANE JOANNE FERGIE
and
CHERYL ANNE SAUNDERS
and
ROBERT EDWARD TICKNER
and
COMMONWEALTH OF AUSTRALIA
(Action No SG 33 of 1997)
SUMMARY
(Judgment delivered 21 August 2001)
In accordance with the practice of this Court in cases where the Reasons for Decision are long, I propose to give a brief summary of the principal conclusions which underlie the Court’s judgment. This summary, however, forms no part of the Reasons for Decision.
The background to this case is summarised at the commencement of the reasons. The present applicants are Mr and Mrs Chapman and the company Binalong Pty Ltd (Binalong) which at material times was subject to the appointment of Receivers and Managers, and is now in liquidation. Mr and Mrs Chapman sue as assignees of Binalong’s rights, so the issues raised in the pleadings relate solely to the legal liability of the respondents to Binalong.
It is alleged that Binalong suffered a loss in the value of its marina development on Hindmarsh Island in consequence of the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, making a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Protection Act) on 9 July 1994. The declaration was made on an application by the Aboriginal Legal Rights Movement (the ALRM) on behalf of the Lower Murray Aboriginal Heritage Committee. By its terms the declaration banned the construction of a bridge from Goolwa to Hindmarsh Island for a period of twenty-five years.
That declaration was later set aside by a single judge of this Court on public law principles in an application for judicial review, and that decision was upheld by a Full Court in December 1995. It is common knowledge that the construction of the bridge was thereafter further delayed by another application by Ngarrindjeri people for protection under the Heritage Protection Act, by litigation, and by other matters. The construction of the bridge did not resume until late in 1999 and proceeded to completion as the trial of this action continued.
This action seeks damages for losses allegedly suffered by Binalong from five respondents. Mr Tickner is sued as the former Minister. Professor Cheryl Saunders is sued as the person nominated by Mr Tickner under the Heritage Protection Act to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection. Luminis Pty Ltd (Luminis) and Dr Deane Fergie are sued in respect of their provision of consultancy services to the ALRM including the preparation of a report containing an anthropological evaluation of the significance of secret women’s knowledge within Aboriginal tradition to the area where the bridge was to be constructed. The last respondent is the Commonwealth of Australia which is sued for compensation on the basis that the declaration under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1106
Decision Date: 21 AUGUST 2001

CaseChat Overview and Summary

The case of Chapman v Luminis Pty Ltd (No 4) involves a dispute regarding the protection of an Aboriginal area under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The primary parties involved are the Commonwealth of Australia, the Minister for Aboriginal Affairs, a reporter, and a developer, Binalong Pty Ltd. The dispute revolves around the declaration made by the Minister to protect a significant Aboriginal area, which prevented the construction of a bridge. The developer challenged the validity of the declaration and sought damages for the losses incurred due to the halted construction.

The court was required to address several legal issues, including the interpretation of the term "Aboriginal tradition" under the Act, the validity of the application for protection, and the existence of a common law duty of care owed by the Minister and the reporter. Additionally, the court examined whether the conduct of the reporter and the Minister constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), and if there was negligence or misfeasance in public office. The court also considered whether the declaration constituted an acquisition of property under the Constitution.

The court found that the applicants had not established the common law duties of care or the statutory duties upon which their claims rest, nor had they established loss. The court held that the beliefs held by only one person could not constitute an Aboriginal tradition. Furthermore, the court determined that the purpose of an application for protection could not be ascertained from a series of written and oral communications with the Minister. The court also found that the representations conveyed by the reports did not constitute conduct in trade or commerce and that the applicants could not sue for damages suffered by the assignor due to the time limitation under the Trade Practices Act. The court concluded that no common law duty of care was owed by the Minister and the reporter, and that there was no negligence or misfeasance in public office. Lastly, the court held that the declaration did not constitute an acquisition of property.

The court dismissed the application against each respondent and adjourned the question of costs to a later date.

Orders

Orders of the court

1. The application against each respondent be dismissed.

2. The question of costs be adjourned to a date to be fixed.

Background

Background to the litigation

The fifth respondent is the Commonwealth of Australia (the Commonwealth).Factual background The following factual summary draws largely on evidence about which I do not understand there to be any significant dispute. Later in the reasons it will be necessary to return to many of the events mentioned in the background to consider other evidence where there is dispute either as to detail or the significance of what occurred. In about 1977 Binalong acquired a parcel of farming land in the south-west portion of Hindmarsh Island, opposite South Goolwa. Between 1981 and 1984 Binalong progressively obtained planning and other approvals for the establishment of a marina complex comprising 561 marina berths, a 200 berth hardstand and carpark area, associated jetties and boat ramps, a par three golf course, a forty room motel, restaurant and conference centre, eleven cabin style accommodation units and various administration and workshop buildings. It is convenient to refer to the overall development as proposed from time to time as “the marina”. The zoning of the land was changed to “tourist/recreation”. By 1985 Binalong had substantially completed the first marina basin and created 320 wet berths and supporting infrastructure. In the 1980s, and for decades before, the only vehicular access to Hindmarsh Island was by a ferry that crossed the Goolwa Channel between the township of Goolwa and Hindmarsh Island. With increasing development on Hindmarsh Island the ferry had become a traffic bottleneck where delays of several hours could occur at peak traffic times on public holidays. In March 1981 the local council, the District Council of Port Elliot and Goolwa (now the Alexandrina Council) (the Council), approached the South Australian Government seeking better access by way of duplicating the ferry or constructing a bridge. In 1983 a larger ferry was installed but at times traffic delays continued. Public meetings of local residents called for the construction of a bridge, and in November 1987 the Council sent a deputation to the South Australian Minister for Transport seeking the construction of a bridge. The Council continued thereafter to press for a bridge. Notwithstanding the difficulties with access to Hindmarsh Island, Binalong continued to develop the marina complex for which it had approval. In the first half of 1988 additional building approval was obtained for a tavern and restaurant and for twenty-four villas. The tavern (with bottle shop) and restaurant opened in 1989, and seven of the villas were subsequently constructed. In early 1988 Binalong decided to significantly expand the marina. For this purpose, Binalong entered into agreements to purchase some 280 hectares of additional land on the eastern boundary of its then current landholding on Hindmarsh Island (being portions of Sections 2 and 6 and Sections 3, 7, 10, 11, 14 and 15 in the Hundred of Nangkita). Numerous consultants were engaged to undertake the design work and to put together a planning application. By July 1988 the planning application had been prepared. It provided for the construction of marina extensions of 590 additional wet berths (to give a total capacity, rounded off in various reports, of 1150 berths); an additional 300 dry stand berths; the creation of 876 residential allotments; additional boat ramps; a tourist development including forty timeshare units, a 100 bed motel, club facilities, a heliport and a charter boat facility; and associated infrastructure including water and sewage facilities, waste water disposal and a wood lot, and a site nursery. The development was programmed to occur progressively in six stages. However, the application was not lodged at that time as the Department of Environment and Planning (DEP) requested that its lodgment be deferred until a draft Supplementary Development Plan (SDP) for Hindmarsh Island had been prepared and put on public display. At that time the planning approval for developments was based on a Development Plan under s 40 of the Planning Act 1982 (SA). The proposed bridge and marina extensions were not permitted uses under the then current Development Plan and the DEP, it seems, desired to have a SDP made which would recognise and permit those uses. The process leading to the making of an SDP was prescribed by s 41 of the Planning Act, and required an extensive process of public consultation and hearings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In summary, I find that the applicants have not established that Binalong suffered loss and damage caused by the making of the invalid s 10 declaration on 9 July 1994. On this ground all the causes of action alleged against the respondents must fail in any event. 11. CONCLUSION At par 309 I said that at the end of the judgment I would give my reasons for not disclosing to Mrs Chapman the evidence given in closed session about the contents of the secret envelopes, or the findings made on that evidence. Sufficient reason for not doing so, in my opinion, lies in the fact that the applicants have not established the common law duties of care or the statutory duties upon which their claims rest, nor have they established loss. In these circumstances, even if there were otherwise a natural justice requirement to reveal the information, the requirement becomes irrelevant to the outcome of the case as the claims must fail in any event. However, if duties of care had been established, I would nevertheless withhold the evidence and findings on the ground that I do not consider that their disclosure would in any way assist the applicants’ case. I have discussed the question of procedural fairness at pars 615 and following. The evidence and findings do not raise issues upon which the applicants have not already made answer, save for the cultural reason why, as a matter of spiritual belief, the proposed construction of the bridge constituted a threat of injury or desecration. I have given my reasons at pars 390 and following as to why that is not a topic upon which a non-Aboriginal person not holding the belief could usefully comment and, in any event, an alleged want of rationality according to the way of thinking of those who are not believers is not a relevant issue under the HPA. The HPA is concerned with the existence, as a matter of fact, of an Aboriginal tradition in accordance with which an area is of particular significance to Aboriginals and whether a proposed use or treatment of the area in question is inconsistent with Aboriginal tradition, not with an analysis and understanding of the supernatural or spiritual concepts of the tradition. In my opinion, the applicants’ claims fail in their entirety. I will hear the parties on the question of costs when they have had the opportunity to consider these reasons.

Ratio Decidendi

Legal Principle Established

The developer was Binalong Pty Ltd (Receiver and Managers appointed) (In liquidation) (Binalong).The declaration The declaration was made under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the HPA) following two emergency declarations under s 9 of the HPA. The purposes of the HPA are set out in s 4, namely:“The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.”Sections 9 and 10 provide:“9. (1) Where the Minister:(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and(b) is satisfied:(i) that the area is a significant Aboriginal area; and (ii)that it is under serious and immediate threat of injury or desecration;he may make a declaration in relation to the area.(2)Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.(3)The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.10. (1) Where the Minister:(a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;(b) is satisfied:(i) that the area is a significant Aboriginal area; and(ii) that it is under threat of injury or desecration;(c)has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and (d) has considered such other matters as he thinks relevant;he may make a declaration in relation to the area.(2)Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.(3)Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:(a)publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:(i)stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;(ii)inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and(iii)specifying an address to which such representations may be furnished; and(b)give due consideration to any representations so furnished and, when submitting the report, attach them to the report.(4)For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:(a)the particular significance of the area to Aboriginals;(b)the nature and extent of the threat of injury to, or desecration of, the area;(c)the extent of the area that should be protected;(d)the prohibitions and restrictions to be made with respect to the area;(e)the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);(f)the duration of any declaration;(g)the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;(h) such other matters (if any) as are prescribed.”