Lester v Ananguku Arts and Culture Aboriginal Corporation (No 2) - [2016] SASC 43

Supreme Court of South Australia
(Civil: Application)
LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION (No 2)
[2016] SASC 43
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
8 March 2016
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
ABORIGINALS - HERITAGE PROTECTION - SOUTH AUSTRALIA
The defendant filed an interlocutory application that the Court strike out certain parts of the Statement of Claim or in the alternative to dismiss the action or stay the proceedings.
The application arises out of proceedings in which the the plaintiffs seek orders prohibiting the publication of material and information about Ngintaka Tjukurpa.
The plaintiff’s claim that wrongful disclosure was made in an exibition promoted and curated by the defendant on the premises of the South Australian Museum in 2014, and in a book created by the defendant and published by Wakefield Press.
Held per Kourakis CJ, allowing the application:
1. The Third Statement of Claim is struck out on the grounds that the claims are an abuse of process, are frivilous or vexacious or disclose no reasonable cause of action.
2. Leave is given to re-plead the parts of the Statement of Claim that claim a breach of the Competition and Consumer Act 2010 (Cth) in the marketing of, or claim equitable relief based on breach of confidence and misuse of cultural information with respect to, the Ngintaka book.
3. Leave is not given to re-plead the parts of the Statement of Claim that seek relief with respect to the exhibition or rely on s 35 of the Aboriginal Heritage Act 1988 (SA).
Supreme Court Civil Rules 2006 (SA) ss 104, 117, 192, 193, 232; Competition and Consumer Act 2010 (Cth); Aboriginal Heritage Act 1988 (SA) s 20, s 21, s 22, s 23, s 24, s 25, s 26, s 28, s 29, s 30, s 31, s 32, s 33, s 34, s 35, s 36, s 37, s 45; Federal Court of Australia Act 1976 (Cth) s 31A; District Court Civil Rules 2006 (SA) s 232; Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); South Australian Museum Act 1976 (SA); Summary Procedure Act 1921 (SA) s 52, referred to.
Lester & Ors v Ananguku Arts and Culture Aboriginal Corporation & Anor [2016] SASC 23; Ceneavenue Pty Ltd v Martin [2008] SASC 158; Spencer v The Commonwealth [2010] 241 CLR 118; Proude v Visic & Ors (No 4) [2013] SASC 154, considered.

LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION (No 2)
[2016] SASC 43
Civil (ex tempore)

KOURAKIS CJ: By this action the plaintiffs seek equitable relief declaring wrongful and enjoining future disclosures by the defendant of sensitive aspects of the spiritual and cultural beliefs of the Ananguku people of the Western Desert Region. The defendant is an organisation which has as its purpose the promotion of the art and culture of the Ananguku people. Sadly this action is the culmination of a dispute between sections of the Ananguku people about the extent of the disclosure of their beliefs and customs concerning the Ngintaka (the perentie lizard) which can be made consistently with their traditions. I will refer to those beliefs and customs as the Ngintaka Tjukurpa. The plaintiff’s claim that wrongful disclosure was made in an exhibition promoted and curated by the defendant on the premises of the South Australian Museum (the former second defendant) from 29 March to 22 June 2014 (the Exhibition) and in a book created by the defendant and published by Wakefield Press, entitled Ngintaka (the Ngintaka book).
The defendant has brought an interlocutory application to strike out certain paragraphs of the Statement of Claim or in the alternative to dismiss the action or stay the proceedings.
The defendant relies on SCR 104, 117, 192, 193 and 232.[1] SCR 104 empowers the Court to strike out pleadings that are non-compliant with the Rules and are an abuse of process or prejudice the proper conduct of the action. SCR 117 empowers the Court to strike out a document or proceeding which is frivolous, vexatious or abuse of process. SCR 193 empowers the Court to dismiss a proceeding if the pleadings disclose no reasonable cause of action or the proceedings are frivolous, vexatious or an abuse of process.
[1] Supreme Court Civil Rules 2006 (SA).
SCR 232 empowers the Court to give summary judgment if it is satisfied that there is no reasonable basis for the claim against the applicant.
In Ceneavenue Pty Ltd v Martin[2] Debelle J (Duggan and Anderson JJ agreeing) said of DCR 232:[3]
A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61].
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried … The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
[2] [2008] SASC 158.
[3] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [79]-[82]; District Court Civil Rules 2006 (SA) r 232.
The matter of Spencer v Commonwealth of Australia[4] was concerned with s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), as the leading High Court decision on the application of summary judgment. Section 31A relevantly provides:
[4]    Spencer v The Commonwealth (2010) 241 CLR 118.
(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)     the first party is prosecuting the proceeding or that part of the proceeding; and
(b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)     the first party is defending the proceeding or that part of the proceeding; and
(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)     hopeless; or
(b)     bound to fail;
for it to have no reasonable prospect of success.
In Spencer French CJ and Gummow J said:[5]
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
[5] Spencer v The Commonwealth (2010) 241 CLR 118 at [25]-[26].
Hayne, Crennan, Kiefel and Bell JJ stated:[6]
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
[6] Spencer v The Commonwealth (2010) 241 CLR 118 from [58].
In Proude v Visic & Ors (No 4)[7] Blue J made the following observations on the similarities and differences between s 31A(2)(b) and r 232(2)(b):[8]
Section 31A(2)(b) bears a similarity to Rule 232(2)(b). However, the Federal Court provision refers to “no reasonable prospect of successfully prosecuting the proceeding”, whereas this Court’s rule refers to “no reasonable basis” for the claim. The inquiry in the Federal Court is directed to the future and to an assessment of the prospect of success, whereas the provision in this Court is directed to the present and to the basis for the plaintiff’s claim. While there is no equivalent in this Court’s Rules to section 31A(3), the Full Court decided in Ceneavenue that it was not a pre-condition for obtaining summary judgment that a proceeding be demonstrated to be hopeless or bound to fail.
[7] [2013] SASC 154.
[8] Proude v Visic & Ors (No 4) [2013] SASC 154 at [16].
Blue J concluded that the determination of what is a reasonable basis for a claim will vary depending upon the nature and circumstances of the particular claim, and bearing in mind the necessity to determine whether there is a reasonable basis for the claim in a summary way.[9]
[9] Proude v Visic & Ors (No 4) [2013] SASC 154 at [18], [19].
For my part I doubt that the ‘prospective and present’ focus of the FCA Act and DCR 232 respectively will ever lead to a different result. There cannot be a reasonable prospect of future success in prosecuting or defending a claim unless there is a presently existing reasonable basis upon which to prosecute or defend it. Nor can it be said that a claim or defence which has a reasonable basis does not have a reasonable prospect of success.
There is a reasonable basis for a claim, or a positively pleaded defence when, in the case of a summary judgment application, there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff or the defendant as the case may be. In cases in which the defendant merely denies the claim there must be reasonable grounds on which to argue that the plaintiff will not discharge its onus of proof or make good the allegations or propositions of law on which it relies. In the case of a SCR 232 application the basis or grounds must be pleaded.
SCR 192 empowers the Court to stay proceedings if the justice of the case so requires.
The plaintiffs are Aboriginal men of the Pitjantjatjara Yankunytjatjara or Ngaanyatjarra People (the Ananguku people). The defendant is an Aboriginal corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The former second defendant is the South Australian Museum, an instrumentality of the Crown under the South Australian Museum Act 1976 (SA).
By the Third Statement of Claim filed on 25 November 2015 (the SOC), the plaintiffs plead that they are senior Anangu men with ‘responsibility under Anangu law for the area at Walatina’ or have responsibility to provide support to members of the Anangu people in the exercise of Anangu law and custom. As such, the plaintiffs make the following claims against the defendants:
1The second defendant was not authorised to hold the Exhibition because it had not obtained the permission of the plaintiffs in relation to that part of the Ngintaka story from in and around Walatina Station;
2The defendant had access to knowledge of the Ngintaka Tjukurpa on a confidential basis and by displaying items had committed a breach of an equitable duty of confidence and had offended against s 35 of the Aboriginal Heritage Act 1988 (SA) (AHA);
3The defendant has in trade or commerce, misled and deceived by including items in the Exhibition that are from other creation stories of the Anangu people or purport to be part of the creation story but are rather stories that fall outside the Anangu repertoire of stories;
4The defendant was not authorised to proceed with the publication of the Ngintaka book because they failed to obtain permission from the plaintiffs in relation to that part of the story from around Walatina Station;
5The defendant had access to knowledge of the Ngintaka Tjukurpa on a confidential basis and by displaying items within the Ngintaka book has committed a breach of confidence and concurrently breached s 35 of the Aboriginal Heritage Act 1988 (SA);
6The defendant has, in trade or commerce, misled and deceived, or alternatively is likely to have misled or deceived, by including items in the Ngintaka book that are not traditional aspects of the Anangu culture;
7The defendant, by conducting the Exhibition and publishing the Ngintaka book, has made a false and misleading representation to the public that sponsorship, approval or affiliations were received when no permission from the plaintiffs or the first plaintiffs had been provided;
8The defendant breached Anangu protocols by including certain materials in the Ngintaka book.
The plaintiffs plead that:
·under the laws and customs of the Anangu people, they have authority to speak for and make decisions in relation to Anangu lands;
·according to the cultural protocol mandated by Anangu laws, the plaintiffs and other Anangu people are required to comply with and enforce the laws and customs on or relating to Anangu lands;
·the Anangu laws and customs provide restraints or constraints upon the defendant in relation to the display of items in the Exhibition and require the plaintiffs to obtain permission from the relevant Anangu person with proper authority to provide such consent or use or to tell stories embedded in the particular area;
·the first plaintiff has a fiduciary obligation to ensure that cultural knowledge for which he is responsible is not used without his permission and that the first plaintiff’s fiduciary obligation requires him to assert his rights of ownership of cultural knowledge, whether at common law or in equity, and in relation to the use of such cultural knowledge by third parties, if such occurs without his permission.
The SOC pleads that the first plaintiff has expended considerable intellectual and cultural efforts over his lifetime to learn details of the ceremonies and stories in intricate detail from his time as novice to the time that he has become a senior initiated Anangu Elder of the Yankunytjatjara People.
The SOC alleges that:
·the South Australian Museum held an Exhibition from 29 March 2014 to 22 June 2014 comprising numerous artworks, maps, texts, cultural and ceremonial items, and cultural knowledge contained within a number of audio-visual materials;
·the Ngintaka book comprises numerous artworks, maps, text, cultural and ceremonial items, and cultural knowledge relating to the Ngintaka Tjukurpa and that the defendant has offered and continues to offer the Ngintaka book for sale to the public.
The plaintiffs claim that the Ngintaka Tjukurpa exists at different levels and is spoken or represented at different levels to different audiences. Those parts of the Ngintaka Tjukurpa which cannot be disclosed at all or without the plaintiff’s permission are referred to in [52] and [54] of the SOC. The detail of those confidential parts of the Ngintaka Tjukurpa were filed with the SOC in sealed envelopes and are referred to in the SOC as the Confidential Materials.
The plaintiffs plead they gave no permission for the Exhibition or the Ngintaka book. The plaintiffs also plead that:
·the Ngintaka book and Exhibition contained certain confidential material in that certain maps at the Exhibition revealed the location of places known only to Anangu men under their laws and customs;
·a textual description of the relevance of location on another map which is known only to Anangu men in accordance with their laws and customs;
·a video recording of an old man telling the creation story which includes aspects of culturally significant information which should not be conveyed to non-Anangu except in limited circumstances;
·another video of a young man performing a dance which wrongly suggests that it is part of the creation story and is performed at a place which is not where the dance should occur;
·another video recording of women entering into a cave system with paintings and drawings, which suggests that women may enter the cave and view the paintings at that location without curatorial intervention of the images, and in any event, the cave includes materials that are not part of the creation story;
·misrepresenting the role of the Nginktaka in the creation story.

The plaintiffs also complain of some 35 inaccuracies in some of the videos which formed part of the Exhibition in which either parts of the story are wrongly told, or in which mistaken references are made to place names, or in which stories are wrongly included as part of the Ngintaka Tjukurpa. The plaintiff’s claim that those errors distort, undermine or corrupt the integrity of the content of the Ngintaka Tjukurpa story. Similar complaints are made about the contents of the Ngintaka book.
The plaintiffs seek declarations that:[10]
·the defendant proceeded with the Exhibition without authority;
·the defendant proceeded with the use of the name ‘Ngintaka’ without authority;
·the defendant has misled or deceived, or, in the alternative, is likely to mislead or deceive the public by the use of the name ‘Ngintaka’ in the Exhibition;
·the defendant has misled or deceived or, in the alternative, is likely to mislead the public by presenting the Distorting Materials (as defined in the Claim) in the Exhibition;
·the defendant has misled or deceived or, in the alternative, is likely to mislead the public by presenting the materials referred to in the Ngintaka book;
·the defendant has made a false and misleading representation to the public that the defendant has approval to conduct the Exhibition or publish the Ngintaka book.
[10] Third Statement of Claim [74].
In addition the plaintiffs seek a series of permanent injunctions aimed to prevent any future display or distribution of Confidential Materials (as set out in the SOC), and damages.
The Exhibition
The Exhibition was held long ago. It is accepted that it concluded on 22 June 2014. There is no evidence, nor any suggestion, that another exhibition in the same or similar form is contemplated. On 11 June 2014 I dismissed the action against the former second defendant. I strike out those parts of the SOC that seek declarations with respect to the Exhibition, and all of the pleadings of facts and circumstance supporting the claim for that relief. The relief sought is futile. Those parts of the SOC are therefore an abuse of process because they do not have any reasonable prospects of obtaining a favourable exercise of the discretionary remedies they seek.
I strike out those parts of the SOC for an additional reason that the plaintiffs rely at least on part in support of their claim on s 35 of the AHA. The time in which to bring a summary prosecution for breach of s 35 of the AHA has expired. It is necessary to explain why it is that the plaintiffs had standing to bring a prosecution for an offence against that section. Section 35 of the AHA provides:
35—Divulging information contrary to Aboriginal tradition
(1)Except as authorised or required by this Act, a person must not, in contravention of Aboriginal tradition, divulge information relating to—
(a) an Aboriginal site, object or remains; or
(b) Aboriginal tradition.
Maximum penalty: $10 000 or imprisonment for 6 months.
(2)Such information may be divulged with the authority of the Minister.
Section 44 of the AHA provides that offences against the AHA are summary offences.
Section 45 governs the commencement of prosecutions:
45—Commencement of prosecutions
(1)A prosecution for an offence against this Act—
(a)     in relation to an Aboriginal site, object or remains located on or partly on the lands vested in Maralinga Tjarutja pursuant to the Maralinga Tjarutja Land Rights Act 1984 must not be commenced except—
(i)by a person authorised by the Minister with the approval of Maralinga Tjarutja; or
(ii)by Maralinga Tjarutja or a person authorised by Maralinga Tjarutja;
(b)     in relation to an Aboriginal site, object or remains located on or partly on the lands vested in Anangu Pitjantjatjara pursuant to the Pitjantjatjara Land Rights Act 1981 must not be commenced except—
(i)by a person authorised by the Minister with the approval of Anangu Pitjantjatjara; or
(ii)by Anangu Pitjantjatjara or a person authorised by Anangu Pitjantjatjara;
(c)     in relation to an Aboriginal site, object or remains located on or partly on the lands vested in the Aboriginal Lands Trust pursuant to the Aboriginal Lands Trust Act 1966 or the Aboriginal Lands Trust Act 2013 must not be commenced except—
(i)by a person authorised by the Minister with the approval of the Aboriginal Lands Trust; or
(ii)by the Aboriginal Lands Trust or a person authorised by the Trust;
(d)     in relation to any other Aboriginal site, object or remains must not be commenced except by a person authorised by the Minister.
(2)Such a prosecution may, if the Minister so authorises, be commenced notwithstanding that more than six months have elapsed (as at the date of the authorisation) from the date on which the offence is alleged to have been committed.
(3)The traditional owners of an Aboriginal site or object may request the Minister to authorise a person to commence a prosecution for an offence against this Act in relation to that site or object and the Minister must give proper consideration to such a request.
(4)In any proceedings for an offence against this Act—
(a)     a document apparently signed by the Minister authorising the commencement of the proceedings by a particular person   constitutes, in the absence of proof to the contrary, proof of the authorisation;
(b)     a document apparently executed by Maralinga Tjarutja, Anangu Pitjantjatjara or the Aboriginal Lands Trust authorising or approving the commencement of the proceedings by a particular person constitutes, in the absence of proof to the contrary, proof of the authorisation or approval.
The limitation period of six months appears in the Summary Procedure Act 1921 (SA) s 52.
Section 45(1) empowers only persons authorised by the Minister or Maralinga Tjarutja to commence a prosecution for an offence against the Act ‘in relation to an Aboriginal site, object or remains’ with respect to lands vested in Maralinga Tjarutja and only by a person authorised by the Minister and Anangu Pitjantjatjara with respect to lands vested in Anangu Pitjantjatjara. A similar provision governs the commencement of a prosecution in relation to an Aboriginal site, object or remains located on or partly on the lands in the Aboriginal Lands Trust.
Section 45(2) of the AHA allows the Minister to extend the time to authorise the bringing of a prosecution beyond the time of six months.
The question is whether a prosecution for divulging information in contravention of Aboriginal tradition relating to an Aboriginal site, object or remains is a prosecution ‘in relation to an Aboriginal site, object or remains’ when that information relates to an Aboriginal site, object or remains. The words ‘in relation to’ are words of wide import. However, their meaning is to a large extent governed by the context in which they appear. Importantly s 35 appears in Part 3 of the AHA, which governs the ‘Protection and preservation of Aboriginal heritage’. Section 45 appears in Part 4 ‘Miscellaneous’.
Division 1 of Part 3 (ss 20-22) deals with the discovery of, and search for, Aboriginal sites, objects and remains.
Section 20 provides that it is an offence for an owner or occupier of land not to report discovery of an Aboriginal site, object or remains to the Minister. It is an offence against s 21 for a person to excavate land for the purpose of uncovering ‘any Aboriginal site, object or remains’ without the authority of the Minister.
It is an offence against s 22(5) to hinder or obstruct a person acting under an authority given by the Minister pursuant to s 22 to a person to enter land for the purposes of searching the land for an ‘Aboriginal site, object or remains’.
Division 2 of Part 3 (ss 23-28) deals with the protection of Aboriginal sites, objects and remains.
Section 23 provides that it is an offence to ‘damage, disturb or interfere with an Aboriginal site, object or remains’. Section 24 empowers the Minister to give direction prohibiting or restricting access to an area for the purposes of protecting or preserving an Aboriginal site, object or remains and s 25 empowers an inspector to give certain directions for the same purpose. Section 26 provides that it is an offence for a person to, without reasonable excuse, contravene or fail to comply with a direction pursuant to s 24 or s 25. Section 28 provides that it is an offence for a person not to take reasonable measures to protect an Aboriginal object that is in that persons ownership or possession as part of a public or private collection.
Division 3 (s 29) governs the sale and dealings with Aboriginal objects.
Section 29 provides that it is an offence to sell or dispose of an Aboriginal object or to remove it from the state without the authority of the Minister.
Division 4 (ss 30-34) deals with the acquisition and custody of Aboriginal sites, objects and records.
Section 30 and s 31 give the Minister power to acquire land and objects and records respectively.
Section 32 empowers the Minister to require the surrender of any object or record and s 32(3) makes in an offence for a person to fail to comply with such a requirement without a reasonable excuse. Section 33 provides for the forfeiture of objects via the owner of an Aboriginal object who is found guilty of an offence in relation to that object. Section 34 provides that the Minister may place any object or record which has come into his possession into the custody of an Aboriginal person or organisation.
On the other hand s 35 is found in Division 5 (ss 35-37) which deals with the protection of traditions.
In addition to s 35, s 36 empowers the Minister to authorise Aboriginal persons to enter any land (including private land) for the purpose of gaining access to an Aboriginal site, object or remains. The purpose of allowing that access is to allow the practice of traditional cultural customs and beliefs. Section 36(4) makes it an offence for a person to hinder or obstruct a person acting pursuant to that authorisation. Section 37 provides that nothing in the Act prevents Aboriginal people from doing anything in relation to Aboriginal sites, objects or remains in accordance with Aboriginal traditions.
Given that context, I would read down s 45 of the AHA so that it applies only to those offences against the Act in relation to an Aboriginal site, object or remain found in Part 3 Divisions 1, 2, 3 and 4. The differential operation of s 45 depending on the body in whom the land on which the site object or remains are located, confirms that construction. It follows that no permission is required to bring a prosecution for an offence against s 35. Importantly, an offence against s 35 might be committed by divulging information in relation to traditional cultural information in relation sites, objects or remains which are not located on any land vested in the three bodies to which s 45(1) refers.
The plaintiffs have failed, or for some other reason, chosen not to bring a prosecution for a breach of s 35 of the Act within the time allowed. To now allow their claims with respect to the Exhibition to proceed would, in effect, allow a prosecution in another guise out of time and without the safeguards of a criminal trial.
I do not give leave to re-plead this claim.
Misleading and Deceptive Conduct
I strike out those parts of the SOC which rely on the Competition and Consumer Act 2010 (Cth) because they are an abuse of process in that they have no prospects of success as pleaded.
Those parts of the SOC which allege misrepresentations of fact about the Ngintaka Tjukurpa within the book do not plead any circumstance connecting those misrepresentations of fact with an act in trade or commerce in the sense of an act which is an integer, or an element, of the marketing of the book.
In so far as the SOC alleges that the Ngintaka book represents that it has the permission of the plaintiffs or of the Anangu people as a whole it is bound to fail. The book, on its face, disclaims any such permission. It states on the copyright page:
As per customary law compilation
...
Compiled by Diana James, and Elizabeth Tregenza.
There is no reasonable basis on which to claim that the inclusion of two photographs of a group of Anangu, including two of the plaintiffs, in the Ngintaka book represents that it is published with their permission.
I give leave to re-plead a claim that the defendant has breached the Competition and Consumer Act 2010 (Cth) but only if the breach is pleaded to be in the marketing of the Ngintaka book.
The Ngintaka Book
I strike out those parts of the SOC that rely on s 35 of the AHA in support of equitable relief in the form of an order enjoining a future contravention of s 35 of the AHA by further distribution of the Ngintaka book. I do so on the ground that this claim is an abuse of process and has no reasonable prospect of success because in the ordinary course, equity will not enjoin a contravention of the criminal law. In addition, the plaintiffs were in a position to lay a complaint for breach of s 35 of the AHA with respect to prior sales of the book for the reasons I gave in [25]-[45] above.
I accept that in some cases there may be special circumstances in which equity would so intervene to enforce the criminal law if there were a special interest that would be irreparably damaged and left without effective remedy if the apprehended offending were not restrained. For reasons that will soon become apparent, that is not this case.
Finally I strike out the remaining parts of the SOC which in effect seek relief in the nature of declarations with respect to the book and injunctions enjoining future further distribution of the book on the grounds that publication and distribution of the book are breaches of an equitable duty of confidence or is wrongful use of cultural information. I strike out those remaining parts of the SOC on the grounds that the form of pleading is vexatious and does not properly identify the factual and legal issues on which the claim is based. In particular, it fails to plead the factual circumstances by which the defendant became bound by that confidence which impressed the confidential material with a duty of confidence and the factual circumstances. I give the plaintiffs permission to re-plead their claims of breach of confidence and misuse of cultural information.
I observe here that the prospects of the plaintiffs being able to successfully continue on the cause of action of wrongful use of cultural knowledge are not great because that claim is a novel one. Much will depend on precisely how it is pleaded. I cannot preclude the possibility that the plaintiffs will be able to plead a claim which has sufficient prospects of success to be allowed to go forward.
The plaintiffs will now also have an opportunity to consider whether or not to join Wakefield Press. I am concerned that there may be little point in proceeding with injunctions against the defendant when there is a commercial publisher with books which can be, and are likely to be, distributed in any event whether or not the defendant is enjoined. That circumstance affects the utility of ordering an injunction and therefore affects the exercise of the discretion.
Costs
There remains the question of the costs of these proceedings and the time which the plaintiffs should be given to re-plead. There is an associated question of whether there ought to be a stay of the proceedings until those costs are paid. I intend to leave those three questions in abeyance in order to give the parties an opportunity to resolve this matter in accordance with Anangu law and custom, if they wish to do so. Dr Vachon said in his affidavit that he is of the view that this dispute can be resolved within the existing indigenous framework of dispute resolution operating in the APY Lands.
That course would require the giving of an undertaking by the defendant not to distribute the book without the consent of the plaintiffs while those attempts are made. The parties will have liberty to call the matter back on before me either to be released from that undertaking or to be given permission to proceed with the action.
Conclusion
In summary, the parts of the SOC that seek relief with respect to the Exhibition are struck out. I do not give leave to re-plead this part of the claim.
The parts of the SOC which rely on the Competition and Consumer Act 2010 (Cth) are struck out. I give leave to re-plead this claim.
I strike out those parts of the Claim that rely on s 35 of the Aboriginal Heritage Act 1988 (SA). Leave is not granted to re-plead a claim based on that section.
I strike out all remaining parts of the SOC that seek relief in the nature of declarations and injunctions with respect to the Ngintaka book.
I give leave for the plaintiffs to re-plead their claims for equitable relief based on breach of confidence and misuse of cultural information with respect of the Ngintaka book.
I observe by way of postscript that since the announcing of my decision the parties agreed to pursue a resolution in accordance with Anangu tradition and that the following orders were made by consent:
Remarks:
The defendant has made an undertaking not to distribute the Ngintaka book before the close of business on 26 April 2016.
Orders:
The proceedings are stayed until 26 April 2016.
Matter adjourned until 26 April 2016 at 10am.