Lester v Ananguku Arts and Culture Aboriginal Corporation (No 3)

[2016] SASC 59

Supreme Court of South Australia

(Civil: Application)

LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION (No 3)

[2016] SASC 59

Judgment of The Honourable Chief Justice Kourakis (ex tempore)

26 April 2016

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS

ABORIGINALS - HERITAGE PROTECTION - SOUTH AUSTRALIA

The plaintiffs seek orders prohibiting the publication of material and information about the Ngintaka Tjurpa.

Reasons for judgment previously delivered ordering that the Statement of Claim be struck out and ordering an interim stay of proceedings.

The plaintiffs seek permission to appeal against the orders made striking out the Statement of Claim. The defendant seeks an order for costs of that interlocutory application.

Held per Kourakis CJ:

1.    The plaintiff to pay the defendant’s costs of and incidental to the application to strike out the Statement of Claim. Costs to follow the event.

2.    A further stay of proceedings until the costs order is satisfied.

3.    Permission to appeal is granted.

Lester & Ors v Ananguku Arts and Culture Aboriginal Corporation (No 2) [2016] SASC 43, considered.

LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION (No 3)
[2016] SASC 59

Civil: Application

1. KOURAKIS CJ:       In Lester & Ors v Ananguku Arts and Culture Aboriginal Corporation (No 2),[1] I made orders striking out the Plaintiff’s Statement of Claim. The defendant applies for the costs of those interlocutory proceedings.

   [1]    Lester & Ors v Ananguku Arts and Culture Aboriginal Corporation (No 2) [2016] SASC 43.

2. I order that the plaintiff pay the defendant’s costs of and incidental to its application to strike out the Statement of Claim, failing agreement those costs to be taxed. I so order in accordance with the usual rule that costs follow the event. I see no reason to make a different order because of the subject matter of the proceedings or in the circumstances of this particular case. The Statement of Claim was misconceived in a number of fundamental respects.

3. The defendant also seeks a stay of the substantive proceedings until the costs order that I have just made is satisfied. A stay will be granted for the following reasons.  The outstanding costs are likely to be substantial given the protracted nature of the interlocutory hearing. Those costs include disbursements totalling just over $2,000 for the interstate travel costs of the deponent of an affidavit whom the plaintiffs had asked be made available for cross-examination. After these costs were incurred the plaintiff’s decided not to pursue that course.

4. From the submissions made by the plaintiff’s counsel there appears to be no prospect that the costs will be paid. The continuation of these proceedings is likely to be protracted. There is also likely to be argument over the pleading of any further Statement of Claim because of the novel nature of some of the claims the plaintiffs intend to advance.

5. The relief sought by the plaintiffs has little utility. The publication and dissemination of the Ngintaka book which has already occurred, and the further communication of the culturally sensitive information in that book between members of the public, either in conversation or through the electronic media, cannot effectively be prevented. Further dissemination of the book is unlikely to materially augment what has already been communicated. These proceedings arise out of an argument between groups of the Anangu Pitjantjatjara Yankunytjatjara community who have differing views as to the sensitivity and confidentiality of the published material.

6. I acknowledge that the defendant, having entered into arrangements for the publication of the book with publishing houses and having entered into arrangements with the South Australian Museum, may have greater resources than the plaintiffs to engage in this litigation and in that sense the plaintiffs may be at something of a financial disadvantage. Nonetheless, given the history of the proceedings, the costs that will be incurred and the limited utility of further argument, the justice of the case requires in my view a stay unless and until the costs orders are met and I so order.

7. Furthermore, this stay does not prevent the defendants or any one of them, bringing proceedings for a breach of the Competition and Consumer Act 2010 (Cth), if the book is published and they wish to assert that there has been an unlawful breach of confidence and misuse of cultural information with respect to the Ngintaka book.

8. The plaintiffs seek permission to appeal. Given that the stay will for all practical purposes preclude them from bringing this action, I give them permission to do so.

9. I also order a continuation of the stay previously given[2] in the same terms on the dissemination of the Ngintaka book for a period of 28 days and if an appeal is filed within that period of 28 days, then until the hearing and determination of that appeal.

   [2]    Lester & Ors v Ananguku Arts and Culture Aboriginal Corporation(No 2) [2016] SASC 43 at [64].

10. I give the defendant liberty to apply to set aside the stay on the dissemination of the Ngintaka book in the event that any appeal commenced by a notice of appeal is not diligently prosecuted.