Chapman v Luminis Pty Ltd (No 4)

[2001] FCA 1106

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)

1. 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. 

1. 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. 

1. 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.

1. 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.

1. 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 the Heritage Protection Act resulted in the acquisition of property belonging to Binalong.

1. The report prepared by Dr Fergie later became an attachment to a representation made by the ALRM to Professor Saunders.  Both Dr Fergie and Professor Saunders in their respective reports reported on the significance of the area according to Aboriginal tradition to Ngarrindjeri people.  That Aboriginal tradition was said to involve knowledge restricted to women.  It was identified in broad terms in their reports but more detail about it was contained in envelopes attached to Dr Fergie’s report marked “To be read by women only”.

1. Mr Tickner made the declaration to ban the bridge because of the spiritual and cultural significance of the area to Aboriginal people, particularly Aboriginal women, and because of the failure of the South Australian Government to adequately consult Aboriginal women as part of the decision making process relating to the grant of approvals permitting construction of the bridge.

1. The applicants’ case contends that if Mr Tickner, Professor Saunders, Luminis and Dr Fergie had carried out their respective tasks properly, the declaration would not have been made on these grounds and Binalong would not have suffered loss. 

1. The application alleges that Professor Saunders, Luminis and Dr Fergie are liable to pay damages under statutory remedies for conduct in the course of trade or commerce that was misleading or deceptive or likely to mislead or deceive because representations made in the Saunders Report and the Fergie Report were not correct.  Further, against these respondents and against Mr Tickner, it is alleged that they were negligent, that is, they were in breach of common law duties of care owed to Binalong not to cause it foreseeable loss.

1. Against Professor Saunders and Mr Tickner the applicants also allege that they were guilty of breaches of statutory duty arising under the Heritage Protection Act, and were guilty of misfeasance in public office.

1. At the commencement of the trial both the applicants and the respondents said that the Court could determine the case without deciding whether the restricted women’s knowledge identified in the Saunders and Fergie Reports was a genuine part of Aboriginal tradition. The Court was informed that the hearing would not be a re-run of the central issue considered by the South Australian Hindmarsh Island Bridge Royal Commission which concluded that “women’s business” had been fabricated for the purpose of obtaining a declaration under the Heritage Protection Act to prevent the construction of the bridge. However, as the case proceeded, a recurring issue canvassed in the evidence was whether the restricted women’s knowledge had been fabricated and whether female gender specific restricted knowledge could be a feature of traditional Ngarrindjeri culture. The applicants and the respondents called Ngarrindjeri people and anthropological evidence to support their respective cases. Late in the trial the applicants amended their pleadings to specifically allege that the restricted women’s knowledge, which they refer to as “women’s business”, was not a genuine Ngarrindjeri tradition.

1. As the Reasons for Decision explain, the evidence received by the Court on this topic is significantly different to that which was before the Royal Commission.  Upon the evidence before this Court I am not satisfied that the restricted women’s knowledge was fabricated or that it was not part of genuine Aboriginal tradition.

1. In my opinion, the claims based on the statutory remedies arising under the Trade Practices Act and the Fair Trading Acts for misleading or deceptive conduct fail for several reasons.  I consider that the impugned conduct of Professor Saunders, Luminis and Dr Fergie was not conduct in trade or commerce.  As I am not satisfied that the restricted women’s knowledge was not part of genuine Aboriginal tradition, I consider the applicants have not established that the Saunders and Fergie Reports when read and understood as a whole were misleading or deceptive, or likely to mislead or deceive those to whom they were directed.  I consider the statutory claims also fail as they are claims that could only be made by Binalong as the party who is said to have suffered loss, and by the time that Binalong was joined as a party to the action the statutory time limit of three years within which actions of this kind must be brought had expired. 

1. I consider the negligence claims must also fail. I hold that in the exercise of functions under the Heritage Protection Act neither Mr Tickner nor Professor Saunders owed a common law duty of care to Binalong. I also hold that Luminis and Dr Fergie in fulfilling their contractual retainer to the ALRM acted exclusively in the interests of the ALRM and its clients and did not owe a common law duty of care to Binalong. The negligence claims fail at the outset for want of a duty of care, but I consider they would also fail as the particulars of breach of duty are either not made out or have not been shown to be a cause of the loss alleged by Binalong.

1. I hold that the claims against Mr Tickner and Professor Saunders for breach of statutory duty fail because the Heritage Protection Act does not evidence an intention to create a private right of action for damages in favour of a person said to be aggrieved by a failure by the Minister or the reporter to meet procedural requirements of the Act.

1. The claims for misfeasance in public office must also fail as I reject completely the allegations that Mr Tickner and Professor Saunders knew that they were acting beyond power, or were reckless as to their power and acted in bad faith. 

1. I hold that the claim against the Commonwealth also fails. I consider that once the decision to make the declaration was set aside on judicial review, the event said to constitute the acquisition is to be treated as having not occurred. Further, I hold that the declaration even if it had been validly made would not have effected an acquisition of property within the meaning of s 28 of the Heritage Protection Act.

1. Finally, the Reasons for Decision address the question of loss and the assessment of damages. The applicants’ claim is that Binalong suffered an immediate loss in value of the marina when the declaration under s 10 of the Heritage Protection Act was made, and that in the events which followed the value did not return to the marina before it was sold by the Receivers and Managers in September 1997 to Kebaro Pty Ltd, a company that is the trustee of family trusts in favour of members of the family of Mr and Mrs Chapman. I hold that the evidence establishes that in September 1997 the marina was worth at least as much as it would have been worth in July 1994 had the declaration not been made by Mr Tickner. I also hold that there would have been delays in the sale of the marina even if the declaration had not been made, such that the making of the declaration has not caused Binalong to incur additional interest to its financiers that would have been avoided if the declaration had not been made. I therefore find that Binalong did not suffer any loss in consequence of the making of the declaration on 9 July 1994.

1. For these reasons the applicants’ claims fail and there will be judgment for the respondents. 

1. I will hear the parties on the question of costs at a date to be fixed when the parties have had the opportunity of considering the published Reasons for Decision.

1. The full text of the Court’s Reasons for Decision reported as Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 will shortly be available on the Federal Court’s website at align="center">FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106

Aboriginals – Heritage protection – declaration made preventing construction works to protect a significant Aboriginal area – declaration set aside on judicial review – whether civil liability attaches to the Minister and a reporter in respect of failures to comply with procedural requirements imposed by statute – requirements of a valid application for protection – discussion of meaning of Aboriginal tradition – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 9, 10, 28

Aboriginals – Heritage protection – declaration of significant Aboriginal area – Aboriginal tradition – requirement of antiquity of beliefs – whether beliefs held by only one person sufficient to constitute an Aboriginal tradition – whether use and treatment of an area in a manner inconsistent with traditional beliefs held by only one or a small number of Aboriginals can constitute injury or desecration – whether purpose of an application for protection may be ascertained from a series of written and oral communications with the Minister

Trade Practices – Misleading and deceptive conduct – report prepared by anthropologist for incorporation into a representation to the Minister – report prepared by a reporter under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – anthropologist and reporter each engaged under a contract for the supply of consultancy services – reporter supplying services to the Commonwealth - whether representations conveyed by the reports constitute conduct in trade or commerce – whether representations misleading or deceptive – whether an assignee can sue for damage suffered by the assignor by misleading or deceptive conduct of the respondent – whether proceedings brought within three years of the accrual of the cause of action – time when the cause of action accrues – whether time limit can be extended

Tort – Negligence – exercise by a public official of discretionary power arising under statute – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – declaration to protect a significant Aboriginal area – whether a common law duty of care owed by the respositories of power to those likely to suffer economic loss by the making of the declaration – whether the Minister and a reporter exercise powers and functions of a legislative or quasi-legislative nature – whether conduct alleged to be in breach of duty established – whether damage caused by the negligent acts alleged

Tort – Statutory duty – breach of statutory duty – elements – whether applicants within the class of person for whose protection or benefit the statute provides – whether the statute evidences an intention to create a ground of civil liability

Tort – Misfeasance in public office – elements – invalid exercise of powers conferred by the statute – whether respondents knew that they were acting beyond power or were recklessly indifferent as to whether they were so acting – whether respondents acted in bad faith

Acquisition of land – whether acquisition of property from a person otherwise than on just terms – whether declaration for protection of a significant Aboriginal area which prevented the construction of a bridge constituted an acquisition of property – declaration set aside on judicial review – whether an acquisition occurred – whether sterilisation of contractual rights affected by the declaration confers an identifiable and measurable advantage upon the Commonwealth or another relating to the ownership or use of property

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 7, 9, 10, 13, 14, 15, 22, 23, 27, 28
Aboriginal Heritage Act 1988 (SA) ss 7, 13, 23, 24, 35
Planning Act 1982 (SA) ss 40, 50, 51
Real Property Act 1886 (SA)
Trade Practices Act 1974 (Cth) ss 4, 6, 52, 53, 75B, 82
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) ss 39B, 79
Hindmarsh Island Bridge Act 1997 (Cth)
Fair Trading Act 1987 (SA) ss 55(i), 56, 84
Fair Trading Act 1985 (Vic) ss 11, 37
The Constitution, Ch III, ss 51(xxxi), 51(xxvi)
Fair Trading Act 1987 (NSW) ss 4, 42
Corporations Law s 477
Federal Court of Australia Act 1976 (Cth) ss 50, 59(2B)
Limitation of Actions Act 1936 (SA) ss 38A, 48
Limitation of Actions Act 1958 (Vic) s 34
Evidence Act 1995 (Cth) s 130
Royal Commissions Act 1917 (SA) ss 5, 6, 7, 8, 9

Federal Court Rules O6 r 2, O13 r 2, O 34A

Chapman v Luminis Pty Ltd (1998) 86 FCR 513 referred to
Chapman v Tickner (1995) 55 FCR 316 referred to

Tickner v Chapman (1995) 57 FCR 451 referred to
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 referred to
Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337 referred to
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied
Prestia v Aknar (1996) 40 NSWLR 165 cited
The Queen v The Judges of the Australian Industrial Court;  Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 applied
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 distinguished
Durant v Greiner (1990) 21 NSWLR 119 distinguished
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272 applied
Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41 – 669 applied
Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 41 – 710 applied
Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 distinguished
Merman Pty Ltd v Cockburn Cement Ltd 1988 84 ALR 521 distinguished
Pacific Cole Pty Ltd v Idemitsu Queensland Pty Ltd (1992) ATPR 46 – 094 distinguished
Plimer v Roberts (1997) 80 FCR 303 applied
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited

Bowler v Hilda Pty Ltd (1998) ATPR 41 – 625 cited
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 cited
James v ANZ Banking Group Ltd (1986) 64 ALR 347 cited
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 cited
Park v Allied Mortgage Corporation Ltd (1993) ATPR 46 – 105 cited
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Fed C, Beaumont J, 7 November 1994, unreported) cited
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 considered
Brookfield v Davey Products Pty Ltd (Fed C, Branson J, 8 February 1996, unreported) cited
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 followed
Trendtex Trading Corporation v Credit Suisse [1982] AC 679 considered
Weldon v Neal (1887) 19 QBD 394 cited
Zoneff v Elcom Credit Union Ltd (1990) ATPR 41 – 058 cited
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 distinguished
Commonwealth of Australia v International Air Aid Pty Ltd (Fed C, Neaves J, 2 September 1994, unreported) cited
Liff v Peasley (1980) 1 WLR 781 cited
Brook v The Flinders University of South Australia (1987) 47 SASR 119 cited
John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 cited
Vink v Schering Pty Ltd (1991) ATPR 41 – 073 distinguished
Pyrenees Shire Council v Day (1998) 192 CLR 330 distinguished
Perre v Apand Pty Ltd (1999) 198 CLR 180 referred to
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 distinguished
Calveley v Chief Constable of Merseyside [1989] 1 AC 1228 cited
Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 cited
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 cited
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 considered
Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 cited
Anns v Merton London Borough Council [1978] AC 728 cited
Sutherland Shire Council v Heyman (1985) 157 CLR 424 distinguished
Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330 (Full Court - unreported) cited
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 cited
Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 distinguished
Caparo Industries Plc v Dickman [1990] 2 AC 605 cited
Hill v Van Erp (1997) 188 CLR 159 considered
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 distinguished
Tickner v Bropho (1993) 40 FCR 183 considered
The Commonwealth v Tasmania (1983) 158 CLR 1 cited
The Queen v Kirby;  Ex parte Boilermaker’s Society of Australia (1956) 94 CLR 254 cited
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
The Commonwealth v Grunseit (1943) 67 CLR 58 cited
Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 cited
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 cited
Foster v Mountford & Rigby Ltd (1976) 14 ALR 71 cited
Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 considered
Dunlop v Woollahra Municipal Council [1982] AC 158 cited
Kioa v West (1985) 159 CLR 550 cited
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 cited
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited
O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 cited
Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 cited

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 considered
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 followed
San Sebastian Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 followed
Tepko Pty Ltd v Water Board (2001) 75 ALJR 775 followed
Voli v Inglewood Shire Council (1963) 110 CLR 74 referred to
Bryan v Maloney (1995) 182 CLR 609 referred to

Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 referred to
Al-Kandari v J R Brown & Co [1988] 1 QB 665 referred to
Clarke v Bruce Lance & Co [1988] 1 WLR 881 referred to
White v Jones [1995] 2 AC 207 referred to
Ross v Caunters [1980] 1 Ch 297 considered
Sutherland v Public Trustee [1980] 2 NZLR 536 referred to
Chapman v Luminis Pty Ltd [No 2] [2000] 100 FCR 229 referred to
Western Australia v Ward (1977) 76 FCR 492 cited
David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 considered
Briginshaw v Briginshaw (1938) 60 CLR 336 referred to
Shaw v Wolf (1998) 83 FCR 113 cited
Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 cited
Rowling v Takaro Properties Ltd [1988] AC 473 considered
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 considered
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 considered
Tampion v Anderson [1973] VR 715 referred to
Sykes v Cleary (1992) 176 CLR 77 cited
Sanders v Snell (1998) 196 CLR 329 referred to
Northern Territory v Mengel (1995) 185 CLR 307 referred to
Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 considered
Minister of State for the Army v Dalziel (1944) 68 CLR 261 distinguished
Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330 applied
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 cited
First English Evangelical Lutheran Church v County of Los Angeles 482 US 304 (1987) distinguished
Loveladies Harbor Inc v The United States 28 F 3d 1171 (1994) distinguished
Clunies-Ross v The Commonwealth (1984) 155 CLR 193 referred to
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 referred to
Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 cited
The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 cited
The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 considered
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 distinguished
Commonwealth v Western Australia (1999) 196 CLR 392 referred to
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 followed
Smith v ANL Ltd (2000) 176 ALR 449 followed
Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 cited
Air Services Australia v Canadian Airlines International Ltd (1999) 167 ALR 392 cited
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 cited
Commonwealth v Western Mining Corporation Ltd (1996) 67 FCR 153 followed

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 cited
Bennett v Minister of Community Welfare (1992) 176 CLR 408 cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 cited
Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 332 cited
Midland Montagu Australia Ltd v Harkness (1994) 35 NSWLR 150 cited
Farrow Finance Co Ltd (in Liq) v ANZ Executors and Trustee Co Ltd [1998] 1 VR 50 cited
InreLines Bros Ltd (in Liq)(No 2) [1984] 2 WLR 905 cited
Graham v Baker (1961) 106 CLR 340 cited

Professor Bernard McCabe, “Re-visiting Concrete Constructions” (1995) 3 Trade Practices Law Journal 161
The Laws of Australia (LBC), Government 19.3 [34], Torts 33.8 [137] and Business Organisations 4.7 [182]
The Australian Oxford Dictionary 1999
The Macquarie Dictionary 3^rd ed. 1998
Report of the Hindmarsh Island Bridge Royal Commission (State Print, December 1995)
Dr Ron Brunton, Hindmarsh Island and the Hoaxing of Australian Anthropology (May 1995) Quadrant 11
R M and C H Berndt, A World That Was, The Yaraldi of The Murray River and The Lakes, South Australia (UBC Press, 1993)
D Bell, Ngarrindjeri Wurruwarrin:  a world that is, was, and will be (Spinifex Press, 1998)
G Jenkin, Conquest of the Ngarrindjeri (Rigby Ltd, 1979)
Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1984, p 2133

Matter No. SG 33 of 1997

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

von DOUSSA J
ADELAIDE
21 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 33 OF 1997

BETWEEN:

THOMAS LINCOLN CHAPMAN
FIRST APPLICANT

WENDY JENNIFER CHAPMAN
SECOND APPLICANT

BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)
THIRD 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 OF ORDER:

21 AUGUST 2001

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application against each respondent be dismissed.

2.The question of costs be adjourned to a 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
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 33 OF 1997

BETWEEN:

THOMAS LINCOLN CHAPMAN
FIRST APPLICANT

WENDY JENNIFER CHAPMAN
SECOND APPLICANT

BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)
THIRD 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:	21 AUGUST 2001
PLACE:	ADELAIDE

TABLE OF CONTENTS

SUBJECT  PARAGRAPH

1.        Introduction ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  1

The declaration ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  3
  The applicants ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....  8
  The respondents ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..  9

Factual background ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  13

2.        The Causes of Action ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........  149

Luminis and Dr Fergie

Misleading or deceptive conduct ........ ........ ........ ........ ........ ........ .  150

Negligence ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  151

Professor Saunders

Misleading or deceptive conduct ........ ........ ........ ........ ........ ........ .  152

Accessorial liability ........ ........ ........ ........ ........ ........ ........ ........ .....  153
  Negligence ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  154
  Breach of statutory duty ........ ........ ........ ........ ........ ........ ........ ......  155

Misfeasance in public office ........ ........ ........ ........ ........ ........ ........  156

Mr Tickner

Negligence ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  157
  Breach of statutory duty ........ ........ ........ ........ ........ ........ ........ ......  158

Misfeasance in public office ........ ........ ........ ........ ........ ........ ........  159

The Commonwealth

Acquisition of property other than on just terms ........ ........ ........ .  160

3.        Misleading or Deceptive Conduct Claims ........ ........ ........ ........ ........ ........ ......  161

Introduction ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....  161
  In trade or commerce ........ ........ ........ ........ ........ ........ ........ ........ ........ ......  165
  Misleading or deceptive conduct ........ ........ ........ ........ ........ ........ ........ ....  192

Limitation of action issues ........ ........ ........ ........ ........ ........ ........ ........ ......  201

4.        Negligence Claims ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....  227

Professor Saunders and Mr Tickner – duty of care ........ ........ ........ ........ .  227

The Aboriginal and Torres Strait Islander Heritage Protection Act

(the HPA) ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 249

Other issues under the HPA ........ ........ ........ ........ ........ ........ ........ ........ .... 270

The notice ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  271

The application under the HPA, s 10 ........ ........ ........ ........ ........ .. 272

Natural justice issues ........ ........ ........ ........ ........ ........ ........ ........ ...  273

The Minister’s obligation to consider representations ........ .......  274

Aboriginal tradition ........ ........ ........ ........ ........ ........ ........ ........ .....  275

Luminis and Dr Fergie – duty of care ........ ........ ........ ........ ........ ........ .....  276

5.        Factual Issues ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  301

Evidence received in closed session ........ ........ ........ ........ ........ ........ .......  301
  Comment on some witnesses ........ ........ ........ ........ ........ ........ ........ ........ ..  310
  The Royal Commission ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  320
  Late emergence ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......  333
  Literature and expert evidence ........ ........ ........ ........ ........ ........ ........ ........  355
  Only one woman knew ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  382
  Irrationality of women’s business ........ ........ ........ ........ ........ ........ ........ ...  390
  Finding as to restricted women’s knowledge ........ ........ ........ ........ ........ ..  400
  Further comment on Dorothy Wilson’s evidence ........ ........ ........ ........ ...  401
  Mouth House meeting – 9 May 1994 ........ ........ ........ ........ ........ ........ ......  402
  The Graham’s Castle meeting – 19 June 1994 ........ ........ ........ ........ .......  404
  The Graham’s Castle meeting – 20 June 1994 ........ ........ ........ ........ .......  410

Further comment on Dr Kartinyeri’s evidence ........ ........ ........ ........ .......  425

6.        Particulars of Alleged Wrongful Conduct ........ ........ ........ ........ ........ ........ ......  439

Dr Fergie – Misleading or deceptive conduct and negligence ........ ........  441
  Professor Saunders – Particulars of misleading or deceptive conduct ....  542
  Professor Saunders – Particulars of negligence ........ ........ ........ ........ ......  589

Mr Tickner – Particulars of negligence ........ ........ ........ ........ ........ ........ ...  635

7.        Breach of Statutory Duty ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .  678

8.        Misfeasance in Public Office ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  691

9.        Claim Against the Commonwealth ........ ........ ........ ........ ........ ........ ........ ........ .  709

10.      The Question of Loss and the Assessment of Damages ........ ........ ........ ........ .  750

The applicants’ case ........ ........ ........ ........ ........ ........ ........ ........ ........ ........  750
  The respondents’ case ........ ........ ........ ........ ........ ........ ........ ........ ........ .....  777
  The applicants’ further evidence ........ ........ ........ ........ ........ ........ ........ .....  782
  Villas ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......  791
  Commercial and rental ........ ........ ........ ........ ........ ........ ........ ........ ........ ....  792
  Timeshare ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........  802
  Delay ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......  808
  Discount rate ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...  812
  Delay in effecting a sale ........ ........ ........ ........ ........ ........ ........ ........ ........ ..  820
  Valuation assuming a bridge after a delay ........ ........ ........ ........ ........ ......  826

A departure from the experts’ initial assumptions ........ ........ ........ ........ ..  830

11.      Conclusion ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .  852

List of Abbreviations

REASONS FOR DECISION

1.        INTRODUCTION

1. These proceedings seek to recover losses suffered by the developers of a marina complex known as The Marina Goolwa on Hindmarsh Island which followed the making of a declaration on 9 July 1994 by the Federal Minister for Aboriginal and Torres Strait Islander Affairs which had the effect of banning the construction of the bridge between Goolwa and Hindmarsh Island for twenty-five years.

2. The developer was Binalong Pty Ltd (Receiver and Managers appointed) (In liquidation) (Binalong).

   The declaration

3. 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.”

4. For an area to qualify for protection under s 10 of the HPA it must be “a significant Aboriginal area”: s 10(1)(b)(i). Such an area is defined in s 3 of the HPA as an area of “particular significance to Aboriginals in accordance with Aboriginal tradition”. Section 3 defines “Aboriginal tradition” to mean:

   “The body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships”.

5. Section 13(2) of the HPA provides that the Minister shall not make a declaration in relation to an area in a State unless he has consulted with the appropriate Minister of that State as to whether there is, under a law of that State, effective protection of the area from the threat of injury or desecration. However s 13(4) provides that a failure to comply with this requirement does not invalidate the making of a declaration.

6. A declaration made by the Minister under s 10 has the same status as a regulation. It must be laid before both Houses of Parliament and is liable to be disallowed. This is the effect of s 15 of the HPA.

7. The declaration under s 10 was made on the application of the Lower Murray Aboriginal Heritage Committee (the LMAHC), a committee of Ngarrindjeri people established for the purpose of the Aboriginal Heritage Act 1988 (SA) (the AHA). Lands traditionally occupied by the Ngarrindjeri people before European contact included lands around the Lower Murray, Lakes Alexandrina and Albert and the Coorong. The township of Goolwa and Hindmarsh Island are within this area.

   The applicants

8. The first and second applicants, Mr and Mrs Chapman (the Chapmans) own 50 per cent of the shares in Binalong.  Mr Chapman was a director of Binalong from 16 December 1966 to 11 February 1993, and was reappointed as a director on 7 November 1996.  Mrs Chapman was a director from 8 May 1969 to 7 November 1996.  On 4 September 1998 this Court authorised the Chapmans at their own expense and risk as to costs to use the name of Binalong as joint applicant with them in this action: see Chapman v Luminis Pty Ltd (1998) 86 FCR 513. Binalong was thereafter joined as the third applicant. The Chapmans had pleaded that they brought the action as assignees of the causes of action which Binalong had against the respondents. Binalong was joined after the respondents alleged that the purported assignments relied upon by the Chapmans were not in law assignments and, for that reason, that the Chapmans did not have standing to enforce the rights of action alleged by them against the respondents.

   The respondents

1. The first respondent, Luminis Pty Ltd (Luminis) is a duly incorporated company carrying on business in South Australia as a provider of consultancy services. Luminis is the consultancy company of the University of Adelaide. The second respondent, Dr Deane Fergie, is an anthropologist who at material times was employed by the University as a lecturer in the Department of Anthropology. Luminis was engaged on 17 June 1994 by the Aboriginal Legal Rights Movement (ALRM) in South Australia on behalf of the LMAHC to provide consultancy services in connection with the application made for a s 10 declaration, and Dr Fergie was in turn engaged by Luminis to provide those services. The services ultimately included the preparation of a report containing an anthropological evaluation of the significance of restricted women’s knowledge within Aboriginal tradition upon which the LMAHC was relying in support of its application. Dr Fergie’s report (the Fergie Report) became an annexure to a submission made by the ALRM to the reporter nominated by the Minister under s 10(1)(c) of the HPA.

2. The third respondent, Professor Cheryl Saunders, is a Professor of Law who was nominated by the Minister to prepare a report in accordance with s 10(4) of the HPA. She is also the Director of the Centre for Comparative Constitutional Studies at the University of Melbourne. Professor Saunders submitted a report (the Saunders Report) to the Minister on 7 July 1994.

3. The fourth respondent, the Hon Mr Robert Edward Tickner, was at the relevant time the Federal Minister for Aboriginal and Torres Strait Islander Affairs.

4. The fifth respondent is the Commonwealth of Australia (the Commonwealth).

   Factual background

5. 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. 

6. 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.

7. 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.

8. 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.

9. 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. 

10. As part of the preparation of a draft SDP the Aboriginal Heritage Branch of the DEP instructed an archaeologist, Ms Vanessa Edmonds, to carry out an Aboriginal archaeological survey in the area of Hindmarsh Island including the marina and the Hindmarsh Island approach to the ferry.  Ms Edmonds identified various archaeological sites (middens and burial sites) in that area in her report (the 1988 Edmonds Report). 

11. In late 1988, before the draft SDP had been prepared, another land owner on Hindmarsh Island lodged a planning application for a competing development.  This caused Binalong to lodge its already prepared planning application on 18 November 1988.

12. Submissions from the public on these two planning proposals were sought and obtained.  Many submissions expressed a desire for better access to Hindmarsh Island.  Binalong’s planning consultants also made submissions suggesting improved ferry access.  However, the South Australian Government (the State) expressed a preference for a bridge.  On 2 June 1989 Binalong offered to the State Minister for Environment and Planning (the EP Minister), and to the Council, to build a bridge.

13. On 20 June 1989 at a public meeting held at the Hindmarsh Island Hall, the majority of those present expressed a desire for better access to the Island, with a bridge being the favoured option.

14. On 8 August 1989 Binalong was advised by the EP Minister that it was likely that Binalong’s planning application would be classed as a major project under s 50 of the Planning Act, and as such would be dealt with by Cabinet rather than the South Australian Planning Commission. For the application to be dealt with in this way, Binalong would be required to follow an Environmental Impact Statement (EIS) process. Binalong was later advised on 26 October 1989 that Cabinet would recommend to the Governor that the marina and bridge proposals be dealt with under s 50 of the Planning Act, and that the Department of Road Transport would contribute either one half of the cost of the bridge or $3 million whichever was the lesser sum.  This contribution reflected, in part, savings to the State in not running the ferry.

15. Binalong immediately commenced the preparation of an EIS.  By 3 November 1989 a draft EIS had been completed by Binalong, and was put on public display.  Public comment was invited.  A public meeting was held in Goolwa on 5 December 1989 by the Major Projects and Assessment Branch of the DEP.  About 300 people attended.  Whilst there was objection to the proposed alignment of a bridge along Chrystal Street on the Goolwa side there was apparently little objection expressed to the bridge proposal itself.  Mr Chapman does not recall any Aboriginals being present at that meeting.  Following the meeting and the receipt of public responses a supplement to the draft EIS was prepared proposing an alternative bridge alignment along Brooking Street. 

16. In the course of discussion with DEP personnel on the requirements of the EIS, Binalong had been advised that it would need to deal with Aboriginal heritage matters.

17. Following the meeting the DEP prepared a preliminary assessment of the draft EIS which pointed out that the section on Aboriginal heritage was based solely on the 1988 Edmonds Report.  The DEP said that a comprehensive archaeological survey was needed for both the bridge site and the marina site by a consultant acceptable to the Aboriginal Heritage Board and “the appropriate Aboriginal Heritage Committee”.  The preliminary assessment continued:

    “Similarly, although the EIS makes reference to discussions with the Point McLeay Community Council, any consultations with the Aboriginal traditional owners and any anthropological study should be carried out by a suitably qualified and experienced anthropologist.  This anthropologist should be acceptable to the Aboriginal Heritage Branch which can also advise on the brief for such a study.”

18. Two surveys were to be conducted at the expense of the developer.  Binalong through Mr and Mrs Chapman arranged for the archaeological survey to be conducted by Ms Edmonds, and for the anthropological survey to be conducted by Mr Rod Lucas.

19. The further report from Ms Edmonds, completed on 23 January 1990 (the 1990 Edmonds Report), identified several new archaeological sites comprising midden scatters, one associated with a burial site.  The sites on Hindmarsh Island were close to the shoreline and not within areas proposed to be subdivided.

20. Although the DEP required surveys covering both the bridge site and the marina, there is doubt about the scope of the survey conducted by Mr Lucas.  In his letter to Mr Chapman confirming his instructions he agrees to provide Binalong with a report on anthropological issues “relating to Hindmarsh Island in the Murray Mouth.  The report … will assess the historical and contemporary significance of the island to Aboriginal people”.  In terms his report (the Lucas Report) is confined to anthropological issues relating only to Hindmarsh Island.  The Lucas Report completed on 30 January 1990 included the following statements:

21. “MYTHOLOGICAL ASSOCIATIONS

    Although a large body of Ngarrindjeri myths, legends, stories and songs has been published, a comprehensive search of this material has failed to find any specific reference to Hindmarsh Island.

    Moriarty (1879:51) notes the ‘Goolwa’ clans’ knowledge of Ngurunderi mythology – the epic story of discovery and creation which was of paramount importance to the Ngarrindjeri.  He also records their myth of Wyungare (Tindale’s ‘Waijungari’), a mythic being who climbed into the sky to become the bright planet Mars (Moriarty, ibid:51-2).  Neither of these myths specify sites on Hindmarsh Island.  Details of the island’s mythic geography are, therefore, probably lost to us now.”

    and under CONCLUSIONS:

    “There is no extant mythology which specifies mythological sites on Hindmarsh Island.”

22. On 16 March 1990 an Assessment Report on the draft EIS and the supplement to it was released by the DEP.  The Assessment Report recommended approval, subject to certain conditions set out in Section 7.4 of the report relating to Aboriginal heritage matters.  Conditions of these kinds had been recommended in the Lucas Report.

23. The proposed conditions in due course became part of the planning approval given to Binalong on 12 April 1990, and included the following:

    “•Binalong should consult directly with the relevant Aboriginal representative bodies identified herein, and with any other Aboriginal persons chosen by those bodies.  The expense of such consultations in respect of time and travel on the part of the Aboriginal representatives to be borne by the developer.

    •All relevant Aboriginal representative bodies should be notified immediately and fully consulted concerning any possible skeletal material revealed by survey of the development of the site.

    •Binalong and all subsequent agents such as construction crews, etc should be fully conversant with the provisions of the Aboriginal Heritage Act, 1988, particularly in respect of skeletal material.

    •Binalong and all subsequent agents, should be fully acquainted with the procedures of the Aboriginal Heritage Branch in respect of Aboriginal skeletal material.

    •Binalong should forward a full report of any action taken in respect of Aboriginal skeletal material revealed as a consequence of survey or development activity on the Hindmarsh Island site, to the relevant Aboriginal representative bodies, at this point identified as the Ngarrindjeri Tendi, Raukkan Community Council, Ngarrindjeri Lands and Progress Association and the Lower Murray Heritage Committee.”

    The Raukkan Community Council is otherwise known as the Point McLeay Community Council, and the reference to the Lower Murray Heritage Committee is to the LMAHC. 

24. It is the case of the applicants that during the EIS process both the State and Binalong dealt with Aboriginal heritage issues in an orderly and comprehensive manner during which appropriate consultation with Aboriginal organisations occurred.  The topic of consultation is discussed in more detail later in these reasons:  see par 504 and following. 

25. In March 1990 a formal planning application for approval of Binalong’s proposed marina extensions and the bridge as a major project was lodged.  On 12 April 1990 the Governor in Executive Council granted consent to the proposal subject to a number of conditions, including the above conditions reflecting Section 7.4 of the Assessment Report relating to Aboriginal heritage matters.  Other conditions provided that Stages 2 to 6 of the marina extensions were not to proceed until the practical completion of the bridge.  Authorisation was also given under the AHA to proceed with the marina extensions and the bridge “as no Aboriginal sites of archaeological or anthropological significance will be affected by such a development”. The State confirmed its commitment to pay Binalong the lesser of 50 per cent of the total construction costs of the bridge or $3 million towards the construction cost of the bridge, payment to be made within seven days of practical completion of the bridge. 

26. The formal approval under s 51 of the Planning Act was later reconfirmed in relation to Stages 2 to 6 by the Executive Council on 26 August 1992 as the approval of 12 April 1990 was expressed to lapse if the bridge was not substantially completed within two years, but on this occasion the conditions attached to the approval made no reference to the conditions in Section 7.4 of the Assessment Report relating to Aboriginal heritage matters.  By this time the AHA had come into force, and it seems that the conditions were omitted as the AHA was thought to provide adequately for consultation with relevant Aboriginal interests:  see the AHA, s 13.

27. The procedure followed by the State under ss 50 and 51 of the Planning Act bypassed the restrictions imposed by the then existing Development Plan, and was not dependent on the promulgation of an SDP.

28. On 18 October 1990 a draft SDP for Hindmarsh Island, which included a bridge, was put on public exhibition.  Submissions were called for, and on 14 February 1991 a public meeting was held at the Council Chambers in Goolwa to discuss the draft SDP.  Fifty to sixty people were present.  Mr Chapman says two Aboriginal men were present, and did not express objection to the SDP.  Processing thereafter of the draft SDP was protracted.  It was not finally approved and gazetted until 9 December 1993.

29. At this point it is necessary to refer to Binalong’s financiers, and financial position. Prior to 1987 Binalong had been involved with another entity, not associated with the Chapman family, in joint venture projects trading as Key Chapman & Co. Partnership Pacific Limited (PPL) was the financier of the joint venture. When the joint venture ceased in 1987 the assets and liabilities were divided between the joint venturers and Binalong assumed an obligation to PPL of approximately $6 million secured, in part, by a debenture charge and first mortgage over the marina. On 30 June 1989 Binalong also became the owner of another quite separate marina development at Wellington East. This development had been financed by Beneficial Finance Corporation Ltd (BFC). The developer had failed, and BFC had entered into possession as mortgagee. Binalong considered that there could be an advantage in operating both the Goolwa marina and the Wellington marina. Binalong agreed to purchase the Wellington marina from BFC with BFC lending $5 million to Binalong to be used as to $3 million to acquire the land and water rights, $200,000 to settle on the purchase of Sections 14 and 15 in the Hundred of Nangkita (being part of the land adjoining the Goolwa marina which Binalong had agreed to buy but could not otherwise finance) and the balance to be applied to developing the Wellington marina. BFC took a second debenture charge over Binalong and a first mortgage over Sections 14 and 15. Binalong was later to allege that as part of the transaction with BFC, BFC agreed that it would re-finance the Goolwa marina.

30. Binalong’s debt to PPL fell due for repayment in July 1989.  By this time PPL had been taken over by Westpac Banking Corporation Ltd (Westpac).  Future dealings, it seems, were conducted by Westpac, but at times in the name of PPL.  It is therefore convenient to refer to “Westpac/PPL” as financier of the marina.

31. Binalong was unable to repay Westpac/PPL, but was granted time to arrange alternative finance.  By September 1990 alternative finance had not been obtained and Westpac/PPL was demanding payment.  Binalong nevertheless made application to Westpac/PPL for additional finance to develop Stage 1 of the Goolwa marina extensions.  Binalong argued that revenue generated from Stage 1 would alleviate its financial position and enable re-financing then to be arranged.

32. On 30 October 1990 Westpac/PPL declined to finance Stage 1, and sought repayment of Binalong’s outstanding debt.

33. On 12 October 1990 Binalong had also requested the State to lend half the cost of the bridge up to a maximum of $3 million.  After Westpac/PPL declined to finance Stage 1, the State had discussions with Westpac/PPL to which Binalong was not a party.  The State agreed with Westpac/PPL that it would undertake construction of the bridge provided that Westpac agreed to finance Stage 1 of the marina extensions.  In March 1991 Binalong was advised by an officer of the Premier’s Department that the State would take over responsibility to build the bridge, with Binalong to reimburse the State for costs over $3 million, and that a contract recording the terms of this proposal would be drawn up between the State, the Council and Binalong.  It took time for this to happen.  The draft heads of agreement were circulated by the State Crown Solicitor on 4 November 1992, and it was not until 31 March 1993 that a tripartite agreement between the State Minister for Transport Development, the Council and Binalong was executed (the Tripartite Agreement).  Under this agreement the State Minister was obliged to procure the construction of the bridge.

1. On 15 May 1991 Westpac/PPL offered Binalong new finance facilities to enable Binalong to compromise existing debts and to construct Stage 1 of the marina.  To meet the conditions imposed by Westpac/PPL, Binalong entered into a scheme of arrangement with its existing creditors on 17 May 1991.  Under the scheme the creditors of the company were classified as either Scheme Creditors, Remaining Unsecured Creditors or Deferred Creditors.  The Scheme Creditors, totalling eleven in number, were owed in aggregate $1.38 million and received a payment of $25,000 or 25¢ in the dollar whichever was the greater, plus an allotment of preference shares for the balance. The Remaining Unsecured Creditors, many in number, each of which were owed less than $25,000 and were owed in aggregate $492,804, were paid in full.  The Deferred Creditors, five in number (and three of which were members of the Chapman family and one of which was a related company) were owed in aggregate $4.43 million and received only an allotment of preference shares.  Westpac/PPL advanced approximately $860,000 to enable the scheme of arrangement to be carried out.  The scheme deed recites that Binalong was unable to pay its debts as and when they fell due.  Binalong was plainly insolvent before the scheme took effect.

2. As part of the restructuring of Binalong, Binalong entered into a licence agreement with another Chapman family company, Marina Services Co Pty Ltd (MSC) whereby Binalong licensed all its plant and equipment to MSC for a fee of $1.00 per annum.  MSC thereafter undertook the management and operation of the marina, leaving Binalong in the sole role as holder of the title to the marina and developer of the proposed subdivision of land.  This arrangement apparently had the effect that MSC also took over the management and operation of the Wellington marina.

3. This restructuring of Binalong enabled work on Stage 1 of the marina extensions to proceed.  On 6 October 1991 Stage 1 was opened by the Premier of South Australia, the Hon Mr John Bannon.  The Premier announced that the bridge would be completed by 1993.

4. In January 1992 core drilling along the alignment of the bridge was carried out from a barge in the river.  There is no evidence that any complaint was received from any Aboriginal person about this drilling which was well publicised in the local press.  No skeletal remains or objects of archaeological significance were discovered by the drilling engineers in the cores.  On 8 May 1992, in reply to a request from the project engineers for clearance of the bridge under the AHA the Aboriginal Heritage Branch raised no objection to the proposed realignment along Brooking Street.  However the Aboriginal Heritage Branch advised that it was concerned about the uncovering of any sub-surface archaeological features such as burials or occupation deposits during construction and urged that contractors be made aware of the reporting requirements under the AHA.

5. By early 1993 approximately 90 per cent of the allotments in Stage 1 had been sold. As noted, the Tripartite Agreement was executed on 31 March 1993.  On 1 May 1993 the Department of Road Transport called for tenders for the construction of the bridge.  Tenders closed on 8 June 1993 and on 20 September 1993 the tender from Built Environs Pty Ltd (Built Environs) was accepted, the tender price for the bridge being approximately $4.1 million.  With design costs and other allowances the total cost of the bridge for the purposes of the Tripartite Agreement was agreed between Binalong and the Department of Road Transport at $4.99 million.

6. On 1 July 1993 the terms of the planning consent for Stages 2 to 6 were varied by the Executive Council to allow Binalong to make application under the Real Property Act 1886 (SA) to deposit a plan of subdivision once the bridge had been “constructed to the point of substantial commencement”. This amendment allowed for Binalong to apply for and obtain titles for Stage 2 ahead of the completion of the bridge.

7. In November 1991 and October 1992 petitions against the bridge had been tabled in Parliament, but, generally speaking, there had not been much public opposition to the construction of the bridge.  However, from early 1993 onwards opposition grew.  In February 1993 a group of local residents and holiday home owners opposed to the bridge formed the Friends of Hindmarsh Island.  In about October 1993 the Friends of Hindmarsh Island became incorporated as the Friends of Goolwa and Kumarangk Inc (the Friends).  Kumarangk is a recognised Ngarrindjeri name for Hindmarsh Island.  As 1993 progressed, other organisations joined the Friends in opposing the bridge, including the Conservation Council of South Australia Inc and the Construction, Forestry, Mining and Energy Union (the CFMEU), the Goolwa Residents and Ratepayers Association and, in October 1993 the LMAHC and Greenpeace.

8. In March and April 1993 Legislative Council members of the Liberal Party, then in opposition, made statements in the South Australian Parliament opposing the arrangement under which the State was to contribute to the cost of the bridge.  On 21 April 1993 the Legislative Council resolved that the Parliamentary Environment, Resources and Development Committee (the ERD Committee) should hold an inquiry into issues relating to the funding of the bridge.  The ERD Committee tabled its report in Parliament on 6 October 1993 recommending that the bridge proposal be reassessed and that the review consider better access by way of a second ferry.  The terms of reference in the inquiry by the ERD Committee related solely to the financial aspects of the bridge.  Even though the ERD Committee broadened the scope of its inquiry to encompass environmental issues that featured in much of the public response, the report did not extend to an assessment of Aboriginal issues.

9. Prior to October 1993 no statement had come into the public domain that identified objections by Aboriginal people to the construction of the bridge.

10. It became public knowledge that work on the construction of the bridge was to commence at about the end of October 1993.  On 8 October 1993 a public meeting was held at Goolwa arranged by the Friends, the Conservation Council of South Australia and the CFMEU protesting against the bridge.  The Friends held two further public meetings at Amelia Park, which is immediately adjacent to, and to the north of the Goolwa ferry terminal on 16 and 23 October 1993.  By late October protesters had commenced to maintain a picket at the bridge site.

11. In the latter part of October 1993 the LMAHC expressed concern about the impact of the proposed bridge on Aboriginal sites to the Department of State Aboriginal Affairs (DOSAA).  That Department had taken over responsibility for Aboriginal heritage issues arising in planning and development matters from the Aboriginal Heritage Branch of DEP in about February 1993.  On 20 October 1993 DOSAA wrote to the State Office of Planning and Urban Development saying that issues concerning Aboriginal heritage sites and their environmental associations, and consultation with Ngarrindjeri people needed to be considered in the assessment of the draft SDP that was still under consideration.

12. Similar concerns were also expressed by the LMAHC to the State Minister for Aboriginal Affairs.

13. On 23 October 1993 the LMAHC wrote to Mr Tickner as the Federal Minister for Aboriginal and Torres Strait Islander Affairs expressing grave concern at the proposed construction of the bridge; the approaches were near Aboriginal sites of significance; Binalong and the State had not consulted with the LMAHC about the effects of the bridge on those sites; and the LMAHC had concern about other sites on Hindmarsh Island and the ecology of the region, the northern end of the Coorong, being sacred to the Ngarrindjeri people.

14. Work on the bridge commenced on 27 October 1993.  Late that day the contractor was told to cease work by an inspector under the AHA as there was concern that the grading of a diversion road adjacent to Amelia Park could damage an Aboriginal heritage site which had been identified in the 1990 Edmonds Report.  Nonetheless a picket was maintained at the site by protesters, and issues concerning the bridge became regular stories in the electronic and print media. 

15. On 2 November 1993 the State Minister for Transport Development announced that the Department of Transport would provide $20,000 to fund a study of the Aboriginal heritage of Hindmarsh Island by Dr Neale Draper, in conjunction with the LMAHC.  This grant was made in response to a request from DOSAA to fund a comprehensive Aboriginal heritage survey of Hindmarsh Island and Goolwa. Dr Draper was at the time an archaeologist and anthropologist employed by DOSAA.  The survey commenced early in November 1993.  By late December 1993 it was partially performed, but further funding was required to enable completion.  The survey to that point had discovered a number of new sites of significance.

16. Further correspondence from the LMAHC to Mr Tickner’s office followed, and on 23 December 1993 the LMAHC made a specific request to Mr Tickner to consider using his powers under s 10 of the HPA -

    “to protect the two major camp Site areas adjacent to the bridge approaches, and the Sites on Hindmarsh Island as a whole, which are significant to Aboriginal persons and which are under the threat of injury and desecration by the construction of the proposed Hindmarsh Island Bridge”

    should the State Minister for Aboriginal Affairs not take action to grant protection under the AHA.  In this respect the request was clearly conditional.

17. On 23 December 1993 the LMAHC also requested the State Minister of Aboriginal Affairs to exercise power under s 24 of the AHA to protect Aboriginal sites which could be affected by the bridge construction. That section empowers the Minister to give directions prohibiting or restricting access to and activities on areas surrounding an Aboriginal site where such directions are necessary for the protection or preservation of the site.

18. On 11 December 1993 parliamentary elections were held in South Australia.  There was a change of government and the Liberal Party came to power.

19. On 20 December 1993 the new Government through the Crown Solicitor appointed the Hon Mr S J Jacobs QC to investigate and report on the State’s contractual obligations regarding the bridge.

20. On 4 February 1994 Mr Jacobs reported to the State.  On 15 February 1994 the State Minister of Transport made a Ministerial Statement that the State was contractually obliged to build the bridge but that work would remain suspended until the possibility of converting the Goolwa barrage to a bridge link was investigated.  On 15 March 1994 the State Minister announced that a bridge on the Goolwa barrage was impracticable and that the bridge work at the existing site would recommence. 

21. In the course of his report to the Government Mr Jacobs said that he had consulted with two representatives of the Aboriginal community (Mr George Trevorrow and Mr Douglas Milera) who raised objection to the bridge on three broad grounds: first, that the site works associated with the construction of the bridge on the mainland will intrude upon Aboriginal sites of archaeological significance; secondly, that there is some concern of the same kind with respect to site works associated with the development work on the island;  and thirdly:

    “It is claimed as a fundamental objection to the bridge itself that it will change the visual and physical character of the locality by linking the island to the mainland.  It is said that the character of the island as an island will thus be lost by reason of its linkage to the mainland and that is said to be an unacceptable affront to the spiritual identity which the Aboriginal community has with the land of its forebears.”

    Mr Jacobs in his inquiry had access to documents in departmental files relevant to Aboriginal issues.  Mr Jacobs could find no reference to the third of these objections being raised by or on behalf of the Ngarrindjeri people with any Government department prior to this.  He therefore asked Messrs Trevorrow and Milera: “You have not raised this before.  Why not?” and they said words to the effect “We thought that when the bridge was constructed we would be consulted”.

22. Public demonstrations in opposition to the bridge continued.  On 24 March 1994 there was a large rally in North Terrace outside Parliament House in Adelaide.  Aboriginal people were included among the protesters.  There was another demonstration outside a Westpac bank on 24 March 1994 where a representative of the CFMEU was prominent. 

23. On 24 March 1994 the Department of Road Transport (the successor to the Department of Transport) approved a further grant of $35,000 to complete the survey of Aboriginal heritage being conducted by Dr Draper.

24. On 30 March 1994 Binalong sought and obtained an ex parte injunction in the Federal Court under s 45D of the Trade Practices Act1974 (Cth) (the TPA) against various persons and entities involved in picketing bridge work. On 18 April 1994 a judge of the Federal Court continued interlocutory injunctions against seven of the ten respondents named by Binalong in those proceedings.

25. Binalong was again in severe financial difficulties.  In May 1993 Binalong had applied to Westpac/PPL for finance to develop Stage 2.  This application was refused and Binalong was given until 15 December 1993 to find another financier to repay Westpac/PPL.  On 8 October 1993 Westpac/PPL served a notice of default on Binalong, the outstanding debt then being close to $16 million.  Representations by Binalong about prospects of finding another financier led to an extension of the time for repayment to 28 February 1994.  Binalong could not find another financier.

26. On 30 March 1994 Westpac/PPL served a demand for payment on Binalong, and as the demand was not met on 8 April 1994 Westpac/PPL appointed Mr R H Heywood-Smith and Mr J M Morgan as Receivers and Managers of both Binalong and its related company MSC.  The directors of Binalong challenged the appointment of the Receivers in the Supreme Court and sought a stay of the receivership.  The stay was refused and no appeal was lodged.  Mr and Mrs Chapman and their children were retained for a short time on contract by the Receivers and Managers to continue running the marina.

27. In early April 1994 Mr Tickner’s office inquired what action the State Minister for Aboriginal Affairs would take on the LMAHC’s request for protection under s 24 of the AHA.

28. On 6 April 1994 the State Minister for Aboriginal Affairs wrote to Mr Tickner saying:

    “The South Australian Government has reluctantly announced that, pursuant to contracts entered into by the previous Government, construction of the Hindmarsh Island Bridge will proceed in order to avoid significant legal penalties.  The South Australian Government has found this situation most distressing but is advised that it is legally bound.
    …

    I am informed that the application made by the [LMAHC] for a halt to bridge construction under the terms of section 24 of the Aboriginal Heritage Act (1988) will not be supported by the relevant Minister.”

    DOSAA was advised of this decision the same day.

29. On 7 April 1994 the ALRM wrote to Mr Tickner saying no response had been received to their letter to the State Minister for Aboriginal Affairs dated 23 December 1993, and reporting a radio news item that the State was sticking with its decision to build the bridge. The letter requested Mr Tickner to make an emergency declaration under s 9 of the HPA whilst obtaining a report pursuant to s 10(4) of the HPA. This letter altered the description of the area in respect of which protection was sought from that given in the ALRM’s letter of 23 December 1993. The letter said the significance of the area to the Ngarrindjeri Aboriginal people had been more fully revealed in a briefing paper from Dr Draper to the LMAHC, a copy of which was enclosed. The letter now specified the two camp sites previously described and added the Goolwa Channel between them which together were said to constitute a single site of cultural significance. The letter did not explain the reason why the single site had that cultural significance.

30. On 14 April 1994 the State Minister for Transport sought an authorisation under the AHA from the State Minister for Aboriginal Affairs to allow the bridge construction to proceed.  That authority was needed under s 23 of the AHA which prescribes that a person must not damage, disturb or interfere with any Aboriginal site without the authority of the Minister.  The bridge works would damage or disturb a known Aboriginal site recorded in the 1990 Edmonds Report.On 15 April 1994, the State Minister for Aboriginal Affairs met with officers of DOSAA and representatives of the LMAHC and the Ngarrindjeri community for the purpose of consultation as required by s 13 of the AHA as a precondition to the grant of authorisation under s 23 of the AHA.  Those officers included the Chief Executive Officer of DOSAA, Mr David Rathman, and Dr Draper.  The Aboriginal participants in the meeting included both men and women.  There were some twenty-five people present in person or by telephone.  The Minister said that the State was contractually bound to construct the bridge, but the State desired to limit the damage to Aboriginal sites.  He said he would seek a two week deferral of the decision under s 23 from Cabinet on 18 April 1994.  Shortly afterwards the Minister agreed to defer the grant of authorisation to enable Dr Draper’s survey to be completed.  Dr Draper was instructed to continue the survey. 

31. On 20 April 1994 the ALRM again wrote to Mr Tickner seeking protection under the HPA. The letter referred to the meeting between the State Minister for Aboriginal Affairs and the LMAHC, and reported on the application by the State Minister for Transport for an authority under s 23. The letter then added a most important new dimension to the reason why protection was sought. The letter said:

    “In the course of the past four days my client’s have reluctantly divulged some secret/sacred information about the Hindmarsh Island, the Lakes and Coorong area including the sea, in an attempt to more clearly show the effect of the bridge upon their cultural integrity and tradition.  They have given me instructions to disclose this information to you to assist your assessment of the importance of this matter for aboriginal people and in particular the Ngarrindjeri people.

    ‘Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong.  The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life.  The Goolwa Channel is the ‘Meeting of the Waters’, and is of crucial importance in these terms.

    Consequently, the bridge proposal is culturally destructive.  It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People.

    The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the ‘meeting of the waters’.  The bridge would also create a permanent physical connection between Kumarangk and the Mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture.’”

    The letter concluded by saying that the ALRM request for an emergency declaration made on 7 April 1994 still stands, and is needed whilst a report under s 10(4) is prepared.

32. Dr Draper made a preliminary report to the State Minister on 29 April 1994.  It will be necessary later in these reasons to refer in greater detail to this report.  At this point it is sufficient to note that his preliminary report said that three Aboriginal sites of great cultural and heritage significance would be directly impacted by the construction of the bridge.  The first was the archaeological site of the original Aboriginal township, Katunkald, extending along the Goolwa foreshore.  The second archaeological site was Rawaldarang, a former township site on the Hindmarsh Island side of the Goolwa Channel.  The third site, said by Dr Draper to be the most important site, was described as the “‘Meeting of the waters’, the Goolwa Channel around Goolwa, and the Murray Mouth”.  In respect of this site Dr Draper said:

    “This area represents a crucial part of Ngarrindjeri cultural beliefs about the creation and constant renewal of life along the lower Murray lakes, the Murray Mouth and the Coorong. …

    The cultural traditions concerning this ‘site’, and its relationship to the surrounding lakes and Coorong, are highly confidential, and only their very general nature is documented in this report. …From the Ngarrindjeri perspective, the bridge approaches and piles would damage the physical structure of the channel, and further disturb the natural flow of the life-giving waters of the Murray Mouth.  It would also permanently join Kumarangk to the mainland in a way that is repugnant to Ngarrindjeri cultural traditions.  There is no way to both build a bridge at this location and avoid this form of disturbance to the Aboriginal site.”

1. I think these matters would have substantially delayed the placement of the marina onto the market.  Then, once this occurred, I accept the evidence of Mr McArdle and Mr Lonergan that finding a purchaser would have been a slow process.

2. At one point in the case it was suggested that delay might also occur because BFC would not agree to participate in a mortgagee sale of lots 14 and 15.  There is no evidence to support this suggestion.  I accept that as a matter of probability BFC would have joined with Westpac/PPL in a mortgagee sale.

3. On the assumption that Westpac/PPL would have entered into possession of the marina shortly after 9 July 1994 had a s 10 declaration not been made, and thereafter placed the marina on the market, I consider the probability established by the evidence is that a contract for sale with a purchaser would not have been effected until at least the second quarter of 1996 with settlement occurring some weeks thereafter.

   Valuation on the assumption that after a period of delay construction of the bridge would occur

4. On the assumption that in about July 1994 potential developers would understand that construction of the bridge would occur, although with the possibility of delay, I hold that a developer would have paid a price based on the developer’s assessment of the net present value of the residential land component of the marina development (including the land set aside for the timeshare resort) but would have made no additional allowance for the villas, for timeshare or for the commercial and rental components included by Mr Kenny.  On the contrary, I find that the notional developer would include in the net present value calculations a negative figure for the cost of maintaining some parts of the commercial and the rental activities. 

5. In conducting its calculations to arrive at a purchase price, I consider a notional purchaser would have adopted somewhat lower anticipated sale prices for the residential allotments than are assumed in Mr Ellery’s calculations.  I have earlier noted that Mr Ellery’s assumed prices are higher than those adopted by Mr Kenny which in turn were based upon advice received from Mr Harcourt.  Mr Harcourt was the primary witness called by the applicants to give evidence about sale prices.  In particular Mr Harcourt confirmed advice that he had earlier given to Westpac/PPL as to the likely revenue from the sale of allotments in Stage 2.  That estimate was for a gross realisation for 205 residential allotments of $8.72 million, or on average $42,500 per allotment.  That estimate was confirmed again in his oral evidence.  Although he said that he had spoken with Mr Martin and discussed the spread sheets which later became part of Mr Ellery’s report, he did not depart from this evidence, or offer any reason in support of a higher figure.  In these circumstances I am not prepared to proceed on the general statements of Mr Martin to find that Mr Ellery’s assumed return of $60,000 for each of these allotments reflected likely market prices.  I accept Mr McArdle’s evidence that these estimates are too high.

6. The conclusions which I have reached, on the basis of the stated assumptions, are, I think broadly in line with the conclusions of Mr McArdle.  On those assumptions I would therefore hold, that the marina in 1994 had a market value of $4.5 million, and that selling expenses of $175,000 would have been incurred on a sale. 

7. On the evidence of Mr Lonergan and Mr McArdle I also hold that at 30 September 1997 the market value of the marina was not less than $4.5 million.  On these findings, the making of the s 10 declaration would not have caused an immediate substantial capital loss.  On the contrary, it would have caused no capital loss to Binalong. 

   A departure from the experts’ initial assumptions

8. I have so far proceeded on the assumptions stated.  I have noted on the one hand the assumption accepted by Mr Kenny and Mr Martin that as at July 1994 construction of the bridge was about to, or had, recommenced and that construction would proceed to completion without significant delay.  I have noted on the other hand the assumption made by the respondents’ experts in their reports that there were likely to be delays in the construction of the bridge, but that the bridge would be built.  The extent of the increase in discount rates proposed by them bears out my impression from the balance of their evidence that they were not envisaging delays that would adversely affect cash flows by more than a year or two at the most.

9. In the last days of the trial the applicants filed a supplementary statement from Mr Martin directed to the value of the marina at 30 September 1997.  Mr Martin said at pars 3, 4 & 5:

   “I consider that a reasonable developer contemplating a purchase of the marina project in September 1997 would conclude that securing the construction of the bridge could not be left to chance because it was infrastructure which was fundamental to the marina project, not only because of the terms of the planning approval, but also because it was a commercial imperative to the success of the marina project.  For example, a ‘commitment deed’ for the provision of infrastructure was signed between the S.A. Government and the other parties before the Mawson Lakes contracts were completed.  In the same way, Indenture Deeds were in place before the commencement of both West Lakes and Golden Grove.  It is impossible to market a development and promise performance to customers unless developers have certainty that they can deliver the critical components.  In this situation, I believe that the provision of the bridge was a critical component.

   I consider that, in the circumstances appertaining at 30^th September 1997 … although there is a chance that a bridge would ultimately be built, a reasonable developer would have concluded that there was too much risk that it would not be.

   Accordingly, given the bridge’s importance to the marina project, I consider that no reasonable developer would have been prepared to purchase the marina project in September 1997 except on the basis of a price which assumed there would be no bridge built.”

10. This supplementary statement makes explicit what was already hinted at in parts of Mr Martin’s earlier cross-examination about the marina as at 1994: the bridge was fundamental to the further development of the marina and unless the bridge was certain, a reasonable developer would not be prepared to buy the marina.  In answer to a question in cross-examination about what his view would be as at July 1994 if there were no reasonable likelihood of a bridge being built in the foreseeable future Mr Martin had earlier said:

    “Well, if the bridge wasn’t going to be built, I wouldn’t have been a buyer but someone else might have been.  That is all I can say.  It makes a significant difference to the project.”

    Mr Martin spoke as a reasonable and very experienced developer.

11. A similar view was expressed by Mr McArdle towards the end of his cross-examination when he was asked questions about the value of the marina in September 1997.  He said:

    “Q.  Isn’t it in fact more likely that the position expressed by Mr Martin in his supplementary statement – that is basically as a developer he wasn’t going to punt against the risk of the outcome of the High Court case – is more likely to be the position that a reasonable developer would adopt?---What we have here is it’s an either/or.  What I believe is that you would endeavour to mitigate your risks.  Your negotiations would be on the basis of ‘subject to’ or something to that effect, and it’s a similar environment.  You see, you could argue – if Mr Martin argues that in 97 you would argue that in 94.

    Q.  That’s right.  What you’re saying is that a developer then wouldn’t commit himself until after the decision in the High Court case was made?---I would argue that a developer probably wouldn’t commit himself until he knew a bridge was being built at any time.”

    Similar views were also expressed by Mr Ellery, Mr Kennedy and Mr Lonergan in the course of their participation in the joint evidence of the experts given in accordance with the procedure permitted under O 34A of the Federal Court Rules.

12. This is a significant departure from the assumptions previously adopted by the experts for the purposes of giving their opinions in their written reports.

13. In my opinion the evidence indicates that if the s 10 declaration had not been made on 9 July 1994, there would have remained from that time up to and beyond September 1997, a very real risk that a bridge would not proceed.  Moreover, I consider that the risk was of such a degree that, to use the expressions of Mr Kennedy and Mr Lonergan in their oral evidence, a reasonable developer considering the possible acquisition of the marina in that time frame would “walk away” from the development.  If a sale were to occur, it would be at a price which reflected the marina as it then stood with no additional amount for the potential value of Stages 2 to 6.

14. The evidence clearly establishes that Aboriginal opposition to the bridge would not have disappeared in the event that Mr Tickner declined to make a s 10 declaration on or about 9 July 1994. Had this event occurred, likely grounds for refusal of the declaration would have been that claims based on restricted women’s knowledge, or on the significance of the Goolwa Channel, were not within the scope of the application treated as being made on 23 December 1993 and not authorised by the notice published on 26 May 1994. The Ngarrindjeri people could then have made another application, as some of them did in late December 1995. Such an application would have triggered the appointment of a reporter, and lengthy delays whilst processes under the HPA were completed, and dissatisfied parties sought judicial review, and pursued thereafter appeals against unfavourable findings. Another possibility is that before taking action of this kind the LMAHC may have sought judicial review of Mr Tickner’s unfavourable decision, and it would have taken twelve to eighteen months for those proceedings to be resolved, or longer if an application for special leave to appeal were to be made to the High Court. If the application for a judicial remedy failed, a fresh application under the HPA could then be made.

15. Whilst the outcome of an application under the HPA remained unresolved or uncertain, there remained the prospect that ultimately a s 10 declaration would be made preventing the bridge.

16. I reject the submissions of the applicants that the evidence does not raise beyond the level of speculation either the prospect of the LMAHC or any other group of Ngarrindjeri people challenging the decision of Mr Tickner had it gone against making a s 10 declaration in July 1994, or the further prospect of another application for protection under the HPA. It was contended that no such action would have been taken unless the ALRM had first received a favourable opinion from counsel and a source of funding, and it was said that there was no proof that either of these prerequisites had been or could be fulfilled. Moreover, it was contended that there were no grounds upon which either a challenge under the ADJR Act or a new application could be mounted. These submissions fail to give a realistic, common sense interpretation to the evidence. The ALRM was only acting for the LMAHC. There were numerous other parties with sufficient interest and standing to challenge a decision not to make a s 10 declaration. There is evidence, for instance, that Mr Owen, a prominent member of the Friends was seeking advice on legal avenues to challenge decisions that permitted the construction of the bridge. The evidence gives no reason to think funds would not have been available to challenge such a decision. The amount of litigation by interested parties challenging procedures and decisions concerning the bridge since July 1994 suggests funding would not have been an obstacle.

17. The suggestion that there were no grounds upon which a decision of Mr Tickner against making a declaration could be challenged sits oddly with the successful grounds relied on by the Chapmans in the ADJR litigation. Defects in the notice given under s 10(3) of the HPA, and Mr Tickner’s failure to read the submissions were grounds equally open to those on the other side of the matter. Moreover, as already noted, likely grounds for a refusal to make a declaration would have been that claims based on restricted women’s knowledge, or on the significance of the Goolwa Channel were not within the scope of the application which was treated by Mr Tickner and Professor Saunders as having been made in the letter from the ALRM dated 23 December 1993. If that were so, the situation would have invited another application to raise the grounds which the LMAHC sought to advance.

18. By July 1994 the assertion that the area of the proposed bridge had spiritual significance to the Ngarrindjeri was receiving wide prominence, and had gained the support of sections of the community including some of the non-Aboriginal people who were actively campaigning against the construction of the bridge.  At that time, indeed for months thereafter, there was no dissenting voice in the Ngarrindjeri community.  In the events that happened, dissension emerged, and received publicity following the debates in the Federal Parliament on motions to disallow the s 10 declaration.  Had the s 10 declaration not been made the circumstances which influenced people to make and to publicise the dissent are likely to have been different.  There is no certainty that the dissent would have emerged when it did, and perhaps it would not have emerged at all unless and until a s 10 declaration was made on a fresh application to the Federal Minister.  The considerations which influenced the State to appoint a Royal Commissioner to investigate the allegations of secret “women’s business” could then have been very different.  Absent such an inquiry, and a finding of fabrication, the community support for the Ngarrindjeri contention that the bridge area was sacred might have continued.

19. What may have happened had there been no s 10 declaration in July 1994 is a matter of conjecture, but in my opinion the probabilities are high that the uncertainties and the continuing risk of intervention by the Federal Minister under the HPA would have been more than sufficient to deter a reasonable developer otherwise interested in undertaking Stages 2 to 6 of the marina proposal.

20. In considering the value of the marina as at 30 September 1997 it is necessary to have regard to the facts as they actually existed at that time.  By that time the s 10 declaration made by Mr Tickner had been set aside, and the decision upheld by the Full Court.  The Royal Commission had been completed, and there was a public finding that the alleged secret “women’s business” was a fabrication.  The principal informant, Dr Kartinyeri, had by the findings of the Royal Commissioner been publicly declared to be a fabricator.  Another application under s 10 had been considered by Justice Mathews and her report tabled in Federal Parliament.  The proponents of the restricted women’s knowledge had not relied on that knowledge before Justice Matthews.  Whilst Justice Mathews found that areas of archaeological significance would be affected by the bridge, and that the waters surrounding Hindmarsh Island were of significance to the Ngarrindjeri people in accordance with their traditions, she found there was insufficient material on which the Minister could be satisfied that the building of the bridge would desecrate the area according to those traditions.  The State, and both major political parties at the Federal level had expressed support for the construction of the bridge.  In these circumstances, even though the Hindmarsh Island Bridge Act was under challenge in the High Court, I consider that a reasonable developer would have considered the prospects of there being a bridge constructed in due course to be much more favourable than in July 1994.  Nevertheless, with the challenge to the Hindmarsh Island Bridge Act outstanding, it is the opinion of Mr Martin that a reasonable developer would not accept the risk of purchasing the marine – a view which I think is in accordance with the evidence of Mr McArdle, Mr Kennedy and Mr Lonergan.  I think it is also the proper conclusion to be drawn on the evidence and I so hold.

21. On the basis that a developer would not contract to buy the marina for the potential development of Stages 2 to 6 at any time in the period between July 1994 and 30 September 1997, a reasonable purchaser would pay only the appropriate value for the marina as it then stood.  As earlier noted, Mr Kenny placed a value of $1.85 million on the marina as at July 1994, and $1.21 million as at 30 September 1997 on this basis.  Mr Kennedy considered the value of the marina on this basis was $1.35 million – at both dates as I understand his evidence.  Mr Kenny’s figures however included a significant allowance for future income from the commercial operations.  I have already indicated that I think that his valuation in this respect started from a false premise as to the earnings of those operations at July 1994.  Perhaps on a sale on the basis now being contemplated something should be allowed for the commercial and rental component, but there is no reason in my view why whatever a potential purchaser would have allowed in 1994 would be any different from what a potential purchaser would allow in September 1997.  Further, I do not think the discounts made by Mr Kenny on the value of the remaining developed allotments as at 30 September 1997 are justified.  There were few allotments to be sold and sales could have been carried out without a major marketing campaign.  If it were necessary to determine a precise valuation for the marina, on the assumptions now under consideration, I would adopt Mr Kennedy’s valuation for the marina through the period from July 1994 to 30 September 1997 at $1.35 million.  This value is fairly close to Mr Aschberger’s advice to Westpac/PPL given in 1996.  The more important finding however, which I make, is that the marina had at least the same market value on 30 September 1997 as it had on 9 July 1994.  As the value did not drop between 9 July 1994 and 30 September 1997, there can be no loss due to diminution in value caused by the events of July 1994. 

22. Against these findings I return to the applicants’ submissions summarised at the commencement of this section of the judgment.  The findings negate the assertion on which those submissions rest, namely that the making of the s 10 declaration caused Binalong an immediate, substantial and ongoing capital loss being a diminution in the value of the marina.  Further, I reject the submission that uncertainty whether construction of the bridge could proceed after the s 10 declaration was set aside was caused by the fact that Mr Tickner had made an invalid declaration on 9 July 1994.  Uncertainty beyond that date was not because Mr Tickner had made an invalid declaration but because of the fear that a Federal Minister could in the future make a valid declaration that prevented the construction of the bridge.

23. It is certainly the case, as the applicants contend, that from May through to 9 July 1994 the State was expressing a determination to construct the bridge, and to that end State Ministers had given all approvals needed under the AHA. But the application by the LMAHC for protection under the HPA enlivened for the first time the prospect that all the consents and authorisations given by the State could be rendered of no effect by a valid declaration under s 10, and the construction of the bridge rendered unlawful. It was that prospect which caused Binalong an immediate, substantial and ongoing capital loss. That occurred in May 1994 at the latest. The making of an emergency declaration under s 9, premised on Mr Tickner as the Federal Minister being satisfied that the area was a significant Aboriginal area, served to emphasise to everyone that until protection issues under the HPA were finally resolved there existed a significant prospect that further construction of the bridge would be banned by a s 10 declaration.

1. It is notable that even when the Full Court upheld the decision to set aside the s 10 declaration in December 1995, the State considered the continuing uncertainty about Federal action under the HPA was such that the State would not proceed with construction. The evidence of the Attorney General, Mr Griffin, reflects what I consider to be the effect of the other evidence: the uncertainty which would have surrounded the future of the bridge at 10 July 1994 even if Mr Tickner had not made the s 10 declaration would have been somewhat greater than it was by December 1995.

2. Whatever the Premier, Mr Brown, said to Mr Tickner on 9 July 1994 about the State’s intentions, had a s 10 declaration not been made the reality of the situation would have been as Mr Griffin has summarised it.  I find on the evidence that if a s 10 declaration had not been made, the continuing uncertainty would have caused the State not to proceed with the construction of the bridge until the uncertainty was removed. 

3. There remains the second limb of the applicants’ claim, the interest claim, which alleges loss caused by delay in the sale of the marina during which time Westpac/PPL continued to accrue interest on Binalong’s indebtedness.  It is contended that Binalong suffered a loss equal to interest accruals which would not have been made by Westpac/PPL if the net purchase price of the marina had been credited to Binalong’s account on 25 February 1995.  I have found that a sale would not have occurred at that date, and would not have been completed until about June 1996.  The delay to that date I have held was due to factors other than the making of the s 10 declaration.  The claim for interest before June 1996 must therefore fail on that ground.

4. In my opinion, for reasons already given, delay in the sale after June 1996 (indeed after December 1995) was not caused by the invalid s 10 declaration, but by the ongoing uncertainty whether a Federal Minister might by another declaration, validly made, prevent the construction of the bridge.  On this ground I consider the interest claim must also fail in respect of the period after 30 June 1996.

5. In my opinion the interest claim should also fail on another ground. Throughout the period to which this claim relates Binalong was in liquidation. The debt due to Westpac/PPL, even on the most optimistic view of the value of the assets of Binalong, exceeds by a considerable margin the value of Westpac/PPL’s security which included a charge over all the assets of Binalong. In addition Binalong at the date of liquidation was indebted to BFC for a sum exceeding $11 million. Whilst the provisions of the Corporations Law, Div 6 of Part 5.6, preclude a creditor from proving in a liquidation for post-liquidation interest on an interest bearing debt, those provisions do not affect the company’s continuing liability for that interest: see Midland Montagu Australia Ltd v Harkness (1994) 35 NSWLR 150 at 164 – 165 and Farrow Finance Co Ltd (in Liq) v ANZ Executors and Trustee Co Ltd [1998] 1 VR 50 at 60. However that interest can only be recovered by the creditor in the event that the provable debts of the company are paid in full. If and when this occurs the creditors revert to their contractual rights against the company to the extent of the surplus in the hands of the liquidator: see InreLines Bros Ltd (in Liq)(No 2) [1984] 2 WLR 905 and The Laws of Australia, (LBC), Business Organisations, 4.7 [182]. In the present case there is no prospect of this happening. The purpose of an award of damages is to place the applicant as nearly as possible in the same position as the applicant would have been had the respondent’s wrongful conduct not occurred. As Binalong will never be called upon to pay the interest which Westpac/PPL has accrued in its books since the date of liquidation, the theoretical possibility of a liability to pay interest will not be productive of a financial loss to Binalong which sounds in damages: see Graham v Baker (1961) 106 CLR 340 at 347.

6. 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

7. 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.

8. 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.

LIST OF ABBREVIATIONS

1990 Edmonds Report	See par 27
1988 Edmonds Report	See par 18
ADJR Act	Administrative Decisions (Judicial Review) Act 1977 (Cth)
ADJR Litigation	See par 130
AHA	Aboriginal Heritage Act 1988 (SA)
ALRM	Aboriginal Legal Rights Movement
ATSIC	Aboriginal and Torres Strait Islander Commission
BFC	Beneficial Finance Corporation Ltd
Binalong	Binalong Pty Ltd (Receiver and Manager appointed) (In liquidation)
Built Environs	Built Environs Pty Ltd:  see par 46
CFMEU	Construction, Forestry, Mining and Energy Union of Australia
Council	District Council of Pt Elliot and Goolwa (now the Alexandrina Council)
DEP	State Department of Environment and Planning
DOSAA	The Department of State Aboriginal Affairs
EIS	Environmental Impact Statement:  see par 22
EP Minister	State Minister for Environment and Planning
Friends	The Friends of Goolwa and Kumarangk Inc:  see par 48
HPA	Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
LMAHC	Lower Murray Aboriginal Heritage Committee:  see par 7
Marina	See par 14
MSC	Marina Services Co Pty Ltd:  see par 43
PPL	Partnership Pacific Ltd
SDP	Supplementary Development Plan:  see par 17
Secret envelopes	See par 109
The Lucas Report	See par 28
The State	South Australia, and includes the Government of South Australia
TPA	Trade Practices Act 1974 (Cth)
Tripartite Agreement	See par 41
Westpac	Westpac Banking Corporation Ltd

I certify that the preceding eight hundred

and fifty-three numbered paragraphs are a

true copy of the Reasons for Judgment

herein of the Honourable Justice von Doussa.

Associate:         

Dated:

Counsel for the Applicants:  Ms M E Shaw QC and Mr D J Meyer

Solicitors for the Applicants:  Lynch Meyer

Counsel for the 1^st and 2^nd Respondent:         Mr T R Anderson QC, Ms E F Nelson QC

and Mr K G Nicholson

Solicitors for the 1^st and 2^nd Respondent:      Thomson Playford

Counsel for the 3^rd, 4^th and 5^th Respondent:    Mr D M Quick QC, Mr M A Frayne

and Ms D S Mortimer

Solicitors for the 3^rd, 4^th and 5^th Respondent:  Australian Government Solicitor

Dates of Hearing:  13, 14 December 1999;  31 January 2000;  1-4 February 2000;  7-10 February 2000;  14-17 February 2000;  21-24 February 2000;  28, 29 February 2000;  1, 2 March 2000;  6-9 March 2000;  13-15 March 2000;  21-23 March 2000;  27-30 March 2000;  4-6 April 2000;  10, 11, 19 April 2000;  16-18 May 2000;  22-25 May 2000;  5-7 June 2000;  14, 15 June 2000;  19-21 June 2000;  26-29 June 2000;  3-6 July 2000;  10, 12, 13 July 2000;  17-20 July 2000;  24, 25, 28, 31 July 2000;  1-3 August 2000;  7, 8, 10 August 2000;  14-18 August 2000;  21-23 August 2000;  28-31 August 2000;  4-6 September 2000;  11-13 September 2000;  18-20 September 2000;  25-29 September 2000;  3-6 October 2000;  9, 10, 12 October 2000;  6-9 November 2000;  13-15 November 2000;  20, 21, 23 November 2000;  27-29 November 2000;  5-9 February 2001;  12-16 February 2001;  19-21 February 2001;  23, 27, 28 February 2001;  1 March 2001.