Newchurch v The Minister for Aboriginal Affairs and Reconciliation - [2010] SASC 245

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
NEWCHURCH v THE MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION
[2010] SASC 245
Reasons of Judge Burley a Master of the Supreme Court
10 August 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Application for permission to proceed - whether sufficient detail in supporting affidavit - whether plaintiff has standing to sue.
Aboriginal Heritage Act 1988 (SA) s 3, s 6(2), s 13(1)(b), s 23; Supreme Court Civil Rules 2006 r 200(4), referred to.
Ferdinands v Attorney-General of South Australia (sitting in Executive Council) (Unreported, Supreme Court of South Australia, Layton J, 15 February 2007, Judgment No [2007] SASC 53); Keogh v Medical Board of South Australia & Anor (Unreported, Supreme Court of South Australia, Perry J, 15 September 2006, Judgment No [2006] SASC 285); Spiero v State of South Australia (Unreported, Supreme Court of South Australia, Bleby J, 20 June 2002, Judgment No [2002] SASC 198), considered.

NEWCHURCH v THE MINISTER FOR ABORIGINAL AFFAIRS AND RECONCILIATION
[2010] SASC 245
JUDGE BURLEY:

By Summons dated 13 July 2010 the plaintiff has sought a judicial review of certain determinations of the defendant. By interlocutory application filed on the same day the plaintiff has applied, pursuant to Rule 200(4) of the Supreme Court Civil Rules 2006, for permission to proceed with the action. When the application first came before me on 21 July 2010, I determined that it would be appropriate to notify the Crown Solicitor of the proceedings, who might then obtain instructions from the defendant as to whether or not he wished to be heard on the application.
On 23 July 2010 Mr Jacobi appeared for the defendant and informed me that the defendant wished to be heard on the application. I then adjourned the matter to 29 July for hearing.
I handed down my decision to refuse the application on 4 August when I indicated that I would provide reasons in the following week. These are my reasons.
The plaintiff relied upon his affidavit sworn on 7 July 2010, together with the three affidavits of his solicitor, the first of which was sworn on 13 July 2010 and the second and third of which were each sworn on 27 July 2010 (FDN 4, 6 and 7).
The plaintiff, in his affidavit, asserts that he is a traditional owner of the land in and around Adelaide, particularly the Karrawirra Parri (the River Torrens). He next sets out what I understand to be the factual basis upon which he says he is a traditional owner. I accept the evidence of the plaintiff.
I also accept the evidence of Mr Campbell, the plaintiff’s solicitor. In his first affidavit he sets out the background to the plaintiff’s application. The proceedings concern the defendant’s dealings pursuant to the provisions of the Aboriginal Heritage Act 1988 (“the Act”) in relation to the site of the new Royal Adelaide Hospital PPP Project situated west of the Morphett Street bridge. On 4 May 2009 the Minister of Health, Mr Hill, applied to the defendant under s 23 of the Act seeking authorisation to damage, disturb or interfere with an Aboriginal site on which the hospital was to be built. Section 23 of the Act provides, among other things, that it is unlawful to damage, disturb or interfere with any Aboriginal site without the authority of the defendant.
Before giving an authorisation under s 23, the defendant is required, by s 13(1)(b) of the Act, to take all reasonable steps to consult with various entities and persons, including the traditional owners. A traditional owner is defined in s 3 of the Act as:
… an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object;
By 17 July 2009, a site record card for the area and associated data in relation to the site boundaries had been prepared. [1]
[1] See Exhibit TMC4 to the affidavit of Timothy Maxwell Campbell sworn 13 July 2010.
On 29 July 2009 a consultation meeting took place. It is not clear whether the plaintiff attended that meeting. However, after that time, there was email correspondence between government officials and the plaintiff’s solicitor, the effect of which was that further consultation was sought by Mr Campbell. In his email dated 12 August 2009[2] to Ms Barbara Weis, he referred to the consultation meeting held with the Kaurna people on 29 July 2009 and to the heritage survey conducted by Australia Cultural Heritage Management Pty Ltd. It is apparent that the final version of that survey was completed by 6 August 2009.
[2] See Exhibit TMC6 to the affidavit of Timothy Maxwell Campbell sworn 13 July 2010.
The email also refers to the Kaurna Heritage Board Inc. That association subsequently became the Kaurna Nation Cultural Heritage Association Inc.[3] I shall refer to the Association, however named, as KHB. In the email, Mr Campbell asserted on behalf of his client that the construction of the hospital and research institute would result in the extinguishment of Kaurna culture and heritage on the site and that the Kaurna people believed that there must be some compensation for such extinguishment. He sought “adequate and appropriate consultation” in respect of the s 23 application and that such consultation would “take time”. Further email correspondence ensued during August and September 2009. On 21 September 2009, Ms Weis informed Mr Campbell[4] that he would be advised of the defendant’s deliberations as soon as possible. According to Mr Campbell, there was no subsequent reply, nor were there any further s 23 consultation meetings.
[3] See Exhibit TMC1 to the affidavit of Timothy Maxwell Campbell sworn 27 July 2010.
[4] See Exhibit TMC9 to the affidavit of Timothy Maxwell Campbell sworn 13 July 2010.
On 28 August 2009 Mr Campbell wrote to the defendant[5] He said in his affidavit that he wrote on behalf of the traditional owners. What he said in the letter is as follows:
I act for the Kaurna Heritage Board Inc (‘KHB’).
The KHB represents the traditional owners of the Kaurna land, with the traditional owners often referred to as the Kaurna Nation.
[5] See Exhibit TMC10 to the affidavit of Timothy Maxwell Campbell sworn 13 July 2010.
Having referred to the proposed RAH site, Mr Campbell then said in the letter:
I have been instructed by the Board of KHB to request, under s 6(2) of the Act, that you delegate your powers under sections 21, 23, 29 and 35 of the Act to the traditional owners, represented by KHB, for the Site.
Section 6(2) stipulates that the Minister must make such a delegation at the request of the traditional owners of an Aboriginal site.
The effect of this letter was to request the Minister to make the delegation to KHB. No such delegation has been made by the Minister.
By letter dated 14 January 2010, the Minister advised Ms Lynette Crocker (the Chair of KHB) that a s 23 authorisation had been granted. A copy of the authorisation was enclosed with the letter.
Paragraph 17 et seq of Mr Campbell’s first affidavit is as follows:
17.The section 23 authorisation incorporated a section 12 determination. Attached hereto and marked ‘TMC14’ is a true copy of that determination.
18.The Traditional Owners, represented by the Kaurna Heritage Board Inc were not consulted in relation to the section 12 determination.
19.I am instructed that the Aboriginal site is a larger area than indicated by the Minister’s section 12 determination.
20.On 12 July 2010, I received a letter dated 7 July 2010 from the Minister revoking the section 23 authorisation. Attached hereto and marked ‘TMC15’ is a true copy of that letter.
ORDERS SOUGHT[6]
[6] The numbering of the following paragraphs (ie. a repeat of i. and ii.) is the numbering set out in the affidavit.
i.A declaration that the determination made under section 12 of the Aboriginal Heritage Act 1988 (SA) '(‘the Act’)(‘the section 12 determination’) dated 14 January 2010 was invalid, void and of no legal effect as a result of:
a.The Minister’s failure to consult the traditional owners in relation to the determination, which is a condition precedent to so determining; and/or
b.The Minister denied the Plaintiff procedural fairness; and/or
c.The Minister did not accept the views of the traditional owners on the question of the area of land which is of significance according to aboriginal tradition.
ii.An order in the nature of certiorari quashing the purported determination of the Minister to declare the area an Aboriginal site.
i.A declaration that the Minister’s authorisation under section 23 of the Act (‘the section 23 authorisation’) dated 14 January 2010 was invalid, void and of no legal effect as a result of:
a.The section 23 authorisation was premised on the section 12 determination; and/or
b.the Minister failed to properly consult with the traditional owners; and/or
c.The Minister took into account irrelevant factors; and/or
d.The traditional owners had a legitimate expectation that the Minister would reply to their request for further consultation prior to making the section 23 authorisation; and/or
e.The Minister denied the traditional owners procedural fairness; and/or
f.The Minister’s decision was unreasonable.
ii. An order in the nature of certiorari quashing the purported section 23 authorisation of 14 January 2010.
iii.In the alternative, if the section 23 authorisation is valid (which the Plaintiff denies), a declaration that the section 23 purported revocation dated 7 July 2010 is invalid, void and of no legal effect as a result of:
a.The Minister has no power under the Act to revoke authorisations; and/or
b.the Minister failed to consult the traditional owners; and/or
c.the Minister denied the traditional owners procedural fairness.
iv.An order in the nature of certiorari quashing the purported revocation of the section 23 authorisation.
v.An order in the nature of mandamus that the Minister comply with the provisions of section 6(2) of the Act for the section 23 application made by the Minister for Health on 4 May 2009.
vi.A declaration that the section 23 authorisation, if valid, relates only to the New Royal Adelaide Hospital PPP Project.
vii.An order that the Plaintiff have its costs of and incidental to these proceedings.
viii.Such further and other orders as the Court deems fit.
Mr Campbell’s affidavit (FDN6) sworn on 27 July 2010 records that KHB “has acknowledged that [the plaintiff] is a Kaurna man, traditional owner and can represent the Kaurna Nation”.
The other affidavit of Mr Campbell sworn on 27 July 2010 (FDN7) has exhibited to it a background research paper from Ms Rhonda Harris, a report from Adelaide Cultural Heritage Management Pty Ltd and a site card.
The plaintiff also relies upon Mr Campbell’s affidavit of 15 July 2010 (FDN5) in which he states that the defendant revoked the s 23 authorisation on 7 July 2010. Mr Campbell stated that subsequent to the revocation, the defendant started a consultation process for a replacement authorisation of the site.
The orders sought reflect the matters complained of by the plaintiff in these proceedings. He asserts that, for a variety of reasons, the s 12 determination relating to the heritage site was invalid and that the s 23 authorisation was invalid. Alternatively, the plaintiff asserts that if the authorisation was valid, then its revocation dated 7 July 2010 was invalid.
The plaintiff seeks orders in the nature of mandamus requiring the Minister to comply with s 6(2) of the Act.
Rule 200 of the Supreme Court Civil Rules 2006
I turn now to the provisions of Rule 200 and some of the case law in relation to that rule. It is clear from 6R 200(4) that the Court, if it is to grant permission to proceed, must be satisfied that “there is a reasonable basis upon which the applicant might establish a right to an order for judicial review”. Where I use the word “arguably” below, I intend to refer to this aspect of Rule 200.
Rule 200(3) requires the application to be supported by an affidavit which sets out in detail the grounds on which the orders are sought. Grounds consist of the “basis of an opinion or argument” or “the reason or motive for an action”.[7] In the context of 6R 200, the grounds consist of a mixture of opinions and the facts upon which those opinions are based. This is evident from the decision of Layton J in Ferdinands v Attorney-General of South Australia (sitting in Executive Council).[8]The rule was also considered by Perry J in Keogh v Medical Board of South Australia & Anor.[9]
[7] The New Shorter Oxford English Dictionary.
[8] Unreported, Supreme Court of South Australia, Layton J, 15 February 2007, Judgment No [2007] SASC 53.
[9] Unreported, Supreme Court of South Australia, Perry J, 15 September 2006, Judgment No [2006] SASC 285.
It was submitted by Mr Campbell that the latter decision was to the effect that the affidavit supporting the application did not need to set out the facts upon which applicants based their contention that the decision complained of should be reviewed by the Court. If that were the ratio of the case, it would plainly be in conflict with Ferdinands v Attorney-General. However, in my opinion, there is no inconsistency of approach between the two decisions. When 6R 200 is read as a whole, the material facts upon which a ground is based must be stated in the affidavit. The analogy of a pleading is apposite. There is a distinction between pleading material facts and pleading evidence. In my view, 6R 200 does not require evidence to be set out in the affidavit, but the material facts upon which the applicant relies to support the claim for judicial review should be set out in the affidavit in detail.
I agree with Mr Jacobi’s submission that 6R 200(3)(a)(ii) should be read with 6R 200(4). Without the grounds being set out in detail, as referred to above, it would be impossible to satisfy the Court that there is a reasonable basis upon which the applicant might establish a right to an order.
It has been necessary to deal with the way in which the rule is to be applied because one of the primary arguments of Mr Jacobi was that the plaintiff had not disclosed in sufficient detail the grounds upon which he relied.
Mr Jacobi also referred to the decision of Bleby J in Spiero v State of South Australia[10] where his Honour held that it was not sufficient for an applicant to state the grounds in general terms in the hope of finding some factual support for them by the process of disclosure of documents during the course of the action.[11] It also follows from that decision that the detail provided by the applicant must be such that the defendant is in a position to respond to the claim.
[10] Unreported, Supreme Court of South Australia, Bleby J, 20 June 2002, Judgment No [2002] SASC 198.
[11] Ibid, at [14].
I turn now to counsels’ written and oral submissions.
Challenge to the s 12 determination
I have already set out the orders sought. It is by reference to these that the grounds upon which the plaintiff seeks judicial review are to be discerned. The s 12 determination is referred to in paragraphs i. and ii. of the orders sought.
On the question of alleged failure to consult, it appears to me that there is sufficient factual material disclosed by the applicant to support this ground. From the review of the evidence set out earlier in these reasons, it is clear that although there was an initial consultation meeting, subsequent requests for further consultation made by Mr Campbell on behalf of either KHB or the traditional owners were not responded to by the defendant.
I must next consider the defendant's contention that such requests were made, at least in part, on behalf of KHB and, as a result, the proper plaintiff should be the Association rather than the individual. In answer to this, Mr Campbell pointed to the clear evidence that the plaintiff was the authorised agent of KHB and as such, he contended, could sue in his own name on behalf of KHB. Mr Jacobi submitted, correctly in my view, that whatever the authority the plaintiff had as agent on behalf of KHB, authority could not be conferred by the Association on the plaintiff to sue on its behalf in his own name. His authority at best would enable him to institute and control the proceedings, but only in the name of KHB. I agree with that submission. As a result, I am not satisfied that the plaintiff has established a reasonable basis for his contention that he has a right to the orders sought. It is for this reason that leave to proceed should not be given in respect of paragraph i. a. of the orders sought.
Sub-paragraphs b. and c. of paragraph i. assert that the plaintiff was denied procedural fairness and that the Minister did not accept certain views of the traditional owners. In my opinion, in relation to those grounds, each is insufficient because of a lack of appropriate detail and also because it has not been arguably demonstrated that the plaintiff has the standing to seek such relief.
Paragraph ii. of the orders sought sets out the claim for an order in the nature of certiorari. For the reasons stated above, leave to proceed should not be given by reference to paragraphs i. and ii. of the orders sought.
Challenge to the s 23 authorisation
The next paragraph under the heading “orders sought” is an additional paragraph i. This somewhat confusing, but the two paragraphs have different subject matter. The first seeks a declaration in relation to the s 12 determination and the second paragraph i. seeks a declaration in relation to the s 23 authorisation. In relation to the second paragraph i., the grounds upon which declaratory relief is sought are set out in sub-paragraphs a. to f.. In my opinion, none of those grounds is stated in sufficient detail, nor are there any material facts disclosed in affidavits which might make the grounds more understandable. In addition, for the same reasons advanced in relation to the declaration sought in relation to s 12 of the Act, I am not satisfied that the plaintiff has arguably demonstrated a standing to seek the relief sought in relation to the s 23 authorisation. Consequently, the order in the nature of certiorari quashing the s 23 authorisation cannot be the subject of any permission to proceed that the Court might otherwise grant.
The next paragraph under the heading “orders sought” is paragraph iii.. That deals with an alternative situation, namely the revocation of the original s 23 authorisation on 7 July 2010. It is asserted that, if the original s 23 authorisation was valid, then its subsequent revocation was invalid. Three sub‑paragraphs set out the grounds upon which that contention is based. Paragraph iv. seeks an order in the nature of certiorari quashing the revocation. Paragraphs iii. and iv. cannot be the subject of leave to proceed because, firstly, there is insufficient detail provided, both as to the ground and as to the facts supporting the ground and, secondly, the plaintiff has not arguably demonstrated that he has standing to apply for such an order.
In light of these conclusions, it has not been necessary for me to deal with the possible contradiction in the plaintiff’s case, namely that he seeks an order quashing an authorisation which has been revoked.
Section 6 of the Act
Paragraph v. is the next paragraph and that refers to the powers of delegation under s 6(2) of the Act. An order in the nature of mandamus is sought compelling the defendant to comply with the provisions of that section. Although I consider that the ground is sufficiently clearly stated and supported by material facts, I do not consider that the plaintiff has arguably demonstrated that he has standing to apply for such an order.

Paragraph vi. seeks a declaration in relation to the s 23 authorisation. For the same reasons given in relation to the first declaration sought in relation to the s 23 authorisation, permission to proceed in respect of this ground should not be given.
There are several other matters that need to be referred to. In relation to the delegation power set out in s 6 of the Act, Mr Jacobi advanced the submission that there was an additional reason why relief sought in relation to that section should not be the subject of permission to proceed. He pointed out that the request for delegation was made by KHB. Section 6(2) of the Act requires the Minister to delegate where there is a request made for that purpose by “the traditional owners”. Mr Jacobi submitted that an incorporated association could not be a traditional owner. He referred to the definition of traditional owner in s 3 of the Act. Under that definition, a traditional owner is “an Aboriginal person”. In addition, that status is reached in accordance with Aboriginal tradition if the Aboriginal person “has social, economic or spiritual affiliations with … the site”. In light of that definition, I agree with Mr Jacobi’s submission that, even if the defendant has not complied with the request to delegate, it is not open to the plaintiff to argue that the request to delegate was effective.
In relation to the plaintiff’s argument that there was no power to revoke the s 23 authorisation, although this is an arguable matter, it does not by itself support permission being given to proceed in relation to the s 23 authorisation.
For the above reasons, the application for permission to proceed has been refused.