Sainty, R. v Allen, J.
[1995] FCA 599
•28 Jul 1995
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 643 of 1995
BETWEEN:
ROY SAINTY
First Applicant
THE TASMANIAN ABORIGINAL
LAND COUNCIL ABORIGINAL CORPORATION
Second Applicant
-and-
JIM ALLEN
First Respondent
-and-
TIM MURRAY
Second Respondent
-and-
LATROBE UNIVERSITY
Third Respondent
Coram: Olney J
Place: Melbourne
Date: 28 July 1995
MINUTE OF ORDERS
The applicants by their counsel having undertaken:
a)to pay to any party adversely affected by this order such compensation (if any) as the Court thinks just, in such manner as the Court directs, and
b)to take all reasonable steps to ensure that the items delivered pursuant to this order are delivered to and securely retained at the Museum of Victoria in accordance with this order
THE COURT ORDERS THAT:
Paragraph 2 of the order of 5 July 1995 be discharged.
On or before Monday 31 July 1995 at a time and place to be notified by the solicitors acting for the second and third respondents to the solicitor acting for the applicants the respondents cause to be delivered into the possession of the second applicant the artefacts, relics and other material obtained by them or which came into and are in their possession by reason of Permits No 88/04, 90/5, 90/17, 90/18, and 91/12 issued pursuant to the Aboriginal Relics Act 1975 (Tasmania) (the delivered items) to enable the transportation and holding in safe keeping of the delivered items at the Museum of Victoria, Swanston Street, Melbourne.
The delivered items be transported forthwith upon receipt thereof by the person or persons authorised to receive the same to the Museum of Victoria and there be held in safe keeping under the care of Gaye Sculthorpe until further order.
A copy of this order be served on the said Gaye Sculthorpe at the time of the delivery to her of the delivered items.
Unless and until the first respondent shall enter an appearance, service of the application and any other process in this proceeding on the University Solicitor of Latrobe University shall be deemed to be good service on the first respondent.
Within 3 days the applicants cause copies of this order and of the reasons for judgment herein delivered on 28 July 1995 to be served on the Crown Solicitor for the State of Tasmania.
The State of Tasmania have liberty to apply to be joined as a party to, or to otherwise intervene in, this proceeding.
The question of costs and the directions hearing be adjourned to Friday 4 August 1995 at 9.30am.
Liberty to apply to vary this order on short notice to the other party.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 643 of 1995
BETWEEN:
ROY SAINTY
First Applicant
THE TASMANIAN ABORIGINAL
LAND COUNCIL ABORIGINAL CORPORATION
Second Applicant
-and-
JIM ALLEN
First Respondent
-and-
TIM MURRAY
Second Respondent
-and-
LATROBE UNIVERSITY
Third Respondent
Coram: Olney J
Place: Melbourne
Date: 28 July 1995
REASONS FOR DECISION
This case has to do with the question of whether the first and second respondents or either of them are presently entitled to retain possession of certain relics which originally came into their possession pursuant to permits issued under s 14(1) of the Aboriginal Relics Act 1975 (Tasmania) (the Act).
The following facts are common cause:
The following permits under s 14(1) of the Act (the Allen permits) were issued to the first respondent and expired on the respective dates indicated below:
Permit NoSite Issued Expired
88/04 74 01/05/88 31/05/91
90/17 3786 15/11/90 30/11/92
90/18 2448 15/11/90 30/11/92
91/12 74 12/12/91 30/01/93
On 27 March 1990 permit 90/5 (the Murray permit) was issued to the second respondent in respect of a site at Burghley. Such permit expired on 12 March 1991.
Each of permits 88/04, 90/5, 90/17 and 90/18 authorised the removal of relics from Tasmania.
Permit 91/12 did not authorise the removal of relics from Tasmania.
Each of the Allen permits and the Murray permit was issued upon the condition, inter alia, that all materials be returned to the Senior Archaeologist, Department of Parks, Wildlife and Heritage (the Senior Archaeologist) by the respective expiry dates of the permit.
Relics removed pursuant to the permits are currently held under the control of the first and/or the second respondents at the third respondent's premises in Victoria.
All of the relics referred to in 6 above are the property of the Crown in the right of Tasmania.
On or about 11 October 1994 the Tasmanian Minister administering the Act (the Minister) refused an application made by the first respondent for the extension of the Allen permits and requested the first
respondent to arrange for the relevant material to be returned to the second applicant by 1 November 1994.The first respondent did not return the material as requested by the Minister, or at all.
10.No application has been made to extend the Murray permit.
11.The second respondent has not complied with the condition of the Murray permit regarding return of the relics.
The first respondent has not been formally served with the process in this proceeding although I have been informed by counsel appearing for the second and third respondents that he is aware of the proceeding. I propose making an order for substituted service by serving the University Solicitor of the third respondent. Although the first respondent has made no formal appearance I propose to refer hereafter to the respondents collectively as if the first respondent was in fact represented by counsel appearing for the second and third respondents.
The respondents have not seriously challenged the standing of the applicants to seek relief of the type sought in this proceeding.
The respondents do not deny that the property in the relics is vested in the Crown in the right of Tasmania and that the Minister had the right on behalf of the Crown to direct that the relics relating to the Allen permits be delivered up to the second applicant rather than to the Senior Archaeologist as specified in the permits. What the respondents say in justification of their conduct in failing to comply with the Minister's request (in the case of the first respondent) and in failing to comply with the condition of the permit (in the case of the second respondent) is that at a meeting held in Hobart on 5 January 1995 the Director of the Parks and Wildlife Service Tasmania (the Director) authorised the first and second respondents to retain possession of the relics pending the institution of a new system of permits and the consideration under such new system of any applications the first and second respondents may make for the extension of the now expired permits.
The scheme of the Act is to vest in the Minister, acting on the recommendation of the Director, the power to permit the removal of relics from Tasmania and the power to impose and vary the conditions upon which permits are granted. The Act does not empower the Minister to delegate his authority under s 14 and indeed, as the authority of the Minister is exercisable only on the recommendation of the Director, it would be odd indeed, if it were possible for the ministerial authority to be delegated to the person whose recommendation is a precondition of the exercise of that power. Counsel for the applicants has invited me to find as a matter of law that whatever may have transpired at the meeting on 5 January 1995 nothing could have affected the legal obligations imposed by the permits and (in the case of the Allen permits) the Minister's direction of 11 October 1994.
The respondents advocate a different view. They say that the Crown can only act through its agent and that in respect of Crown property (such as the relics) the Crown's agent may give binding directions in relation to its possession. It is said that in agreeing to the first and second respondents retaining possession of the relics the Director was acting as the agent of the Crown.
I do not think that the question of whether the Director had power to bind the Crown in relation to the continued possession of the relics is one which has been adequately addressed in the material presently before the Court. The final conclusion may well depend upon questions of fact which cannot be resolved on the affidavit material. Questions of credibility may well also arise.
In the circumstances, I am of the view that there are serious questions of both law and fact to be tried.
By their conduct, evidenced by the published writings and the correspondence which has emanated from the first and second respondents I have grave doubts as to their willingness to return the relics until they have concluded their research and this view is supported by the rather extraordinary statement made by counsel at the conclusion of his submissions in which he set out a timetable for the return of various classes of relics, a timetable which extends until the end of December 1995.
Having regard to the concern expressed in the previous paragraph and in particular to the following:
a)the apparent unlawful removal from Tasmania of relics covered by permit 91/12;
b)the failure of the first and second respondents to return the relics in accordance with the conditions upon which the permits were issued;
c)the refusal of the Minister to grant an extension of the Allen permits;
d)the failure of the first respondent to return the Allen relics as requested by the Minister's letter of 11 October 1994;
e)the attitude of the first and second respondents expressed in correspondence that they would only return the relics if satisfied as to their future preservation.
I am of the opinion that there is a real likelihood that the respondents will not return the relics in a timely manner even if it be held that they have no entitlement to continue in possession and accordingly I am satisfied that the balance of convenience falls heavily in favour of requiring the delivery up of the relics for safe keeping pending the hearing and determination of this proceeding. As I do not think that it is appropriate at this stage that the relics be removed from Victoria I propose that they be held in safe custody by the Museum of Victoria. There is evidence before the Court of the ability and willingness of the Museum to store the material.
This litigation could have been avoided, and indeed can still be quickly resolved, by the Minister making a positive decision as to the custody of the relics. It is unfortunate that the State of Tasmania is not a party, but that fact in itself does not inhibit the Minister from making a decision and conveying it either to the parties or to the Court. The Court will obviously readily accommodate any direction the Minister may give as to the return or otherwise of the relics. I propose therefore to direct that a copy of these reasons and of the order about to be made be served on the Crown Solicitor for Tasmania and that the State of Tasmania be given liberty to apply to be joined as a party to, or to otherwise intervene in, this proceeding as it shall be advised.
The parties are directed to confer with a view to formulating directions for the future conduct of the proceeding and for this purpose the directions hearing is adjourned to Friday 4
August 1995 at 9.30am.
I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 24 July 1995
Place: Melbourne
Judgment: 28 July 1995
Appearances:
Mr R. Merkel QC and Mr K.R. Howie (instructed by the Victorian Aboriginal Legal Service) appeared for the applicants.
Dr P. Buchanan and Dr K. Hanscombe (instructed by Arthur Robinson & Hedderwicks) appeared for the second and third respondents).
0
0
0