Thorpe v Head, Transport for Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 04091

MARJORIE THORPE	Plaintiff
v
HEAD, TRANSPORT FOR VICTORIA (and others according to the attached Schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 May 2021 - 2 June 2021
DATE OF JUDGMENT:	23 November 2021
DATE OF REVISION:	30 August 2022
CASE MAY BE CITED AS:	Thorpe v Head, Transport for Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 750

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DECLARATION AND INJUNCTION – Presence of Aboriginal places – Whether a real controversy exists between parties – Where no reliance placed on approval decision under Aboriginal Heritage Act 2006 (Vic) to conduct future works – Availability of civil court declaration as to past criminal conduct in respect of past works – Whether any threat to Aboriginal cultural heritage requiring restraint – Whether court should make declaration or grant injunction in advance of statutory process to be undertaken – Aboriginal Heritage Act 2006 (Vic), ss 61, 63 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 19, 39(1) – Acts incompatible with human rights – Whether Charter claim survives strike out or summary judgment of non-Charter claim – Standing – Insufficient identification of relevant act and associated harm.

PRACTICE AND PROCEDURE – Application to further amend statement of claim – Applicable test – Proposed amendments allege improper purpose and corrupt motive – Duties owed by Registered Aboriginal Party under Aboriginal Heritage Act 2006 (Vic) – Whether pleadings have no real prospect of success – Supreme Court Act1986 (Vic), s 29(2) – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 36 – Proposed pleadings address arguable claims but inadequate in current form – Leave refused.

PRACTICE AND PROCEDURE – Application by defendant for summary dismissal or stay – Whether a real controversy exists between the parties – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 23 – Civil Procedure Act 2010 (Vic), s 63 – Summary judgment granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Merkel QC Ms E. Smith Mr T. Wood Mr J. Murphy	Phi Finney McDonald
For the First to Fourth Defendants	Mr C. Young QC Ms A. Robertson Mr T. Barry Ms M. Narayan	Minter Ellison
For the Fifth Defendant	Mr P. Noonan Ms P. Wakhlu	Madgwicks
For the Victorian Equal Opportunity and Human Rights Commission	Mr E. Nekvapil	Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

A.. The proceeding to date and the present applications........................................................... 1

B.. Issues raised by the applications.............................................................................................. 5

C.. Principles....................................................................................................................................... 7

(i)..... Amendment of pleadings................................................................................................... 7
(ii).... Summary dismissal or stay.............................................................................................. 10

D.. The changes proposed by the SFASOC................................................................................. 11

(i)..... The relief now sought....................................................................................................... 12
Declaration as to past works............................................................................. 14
Submissions of the parties................................................................................... 22
Consideration........................................................................................................ 23
As to Aboriginal places...................................................................................... 26

E... Dismissal application................................................................................................................ 33

(i)..... The basis for the dismissal summons............................................................................. 33
(ii).... Evidentiary basis............................................................................................................... 35
(iii).. A real controversy between the parties?........................................................................ 37
(iv)... Foreseeable consequences and utility?........................................................................... 39
(v).... Final injunctive relief......................................................................................................... 46

F... Certiorari to quash Martang’s Approval Decision.............................................................. 49

G.. Charter claims............................................................................................................................. 53

(i)..... Standing.............................................................................................................................. 58

H.. The SFASOC pleading against Martang............................................................................... 63

(i)..... Martang’s duties and powers.......................................................................................... 65
(ii).... Martang’s conduct............................................................................................................. 71
(iii).. Martang’s exercise of power............................................................................................ 73

I.... Section 64 of the Civil Procedure Act..................................................................................... 79

HER HONOUR:

A. The proceeding to date and the present applications

This proceeding seeks orders for the protection of certain places and things said to constitute Aboriginal cultural heritage within the meaning of the Aboriginal Heritage Act2006 (Vic) (Heritage Act). Marjorie Thorpe contends that the places and things in question are threatened by the construction of a 12-kilometre section of the Western Highway Duplication project. The stretch of road between Buangor and Ararat is described as Section 2B. Marjorie Thorpe has obtained interim and interlocutory relief restraining the first to fourth defendants (the State defendants) from further constructing Section 2B pending trial.[1]
[1]Thorpe v Head, Department of Transport & Ors [2020] VSC 804.

Sections 27 and 28 of the Heritage Act make it an offence to harm Aboriginal cultural heritage. Harm is defined in the Heritage Act as including ’damage, deface, desecrate, destroy, disturb, injure or interfere with‘.[2] Harm to Aboriginal cultural heritage is permitted in limited circumstances, including where the acts are undertaken in accordance with a cultural heritage management plan approved by the relevant registered Aboriginal party (RAP). The Western Highway Duplication project requires approved cultural heritage management plans for areas where the works are to be undertaken. In 2013, VicRoads sponsored a cultural heritage management plan, number 12327 (2013 plan), which it submitted to the relevant RAP, Martang Pty Ltd (Martang). The 2013 plan described in the pleadings as the Specified Area covered the area through which Section 2B would pass.[3] The decision to approve the 2013 plan was made by Martang pursuant to s 63 of the Heritage Act on 18 October 2013 (the Approval Decision).
[2]Aboriginal Heritage Act 2006 (Vic) (‘Heritage Act’), s 4.
[3]The specified area covered by the 2013 plan (Plan No 12327) is identified by a map which for ease of reference is reproduced as Annexure 1 to these reasons and which is defined in the original statement of claim as the specified area.

The plaintiff contends that construction of the road in reliance on the 2013 plan will involve harm to Aboriginal cultural heritage[4] not permitted by the Heritage Act. She advances two grounds for that contention. First, she says that certain Aboriginal cultural heritage exists but is not identified in the 2013 plan and is not protected from harm by it, even if the plan is otherwise valid (the non-identification issue). It is claimed that six particular trees and certain other places and things are within the definition of Aboriginal cultural heritage but are not identified in the 2013 plan. Second, it is claimed that the Approval Decision was not lawfully made and, as a consequence, the entire 2013 plan is invalid and cannot render lawful harming of any Aboriginal cultural heritage present in the area, whether or not identified in the 2013 plan (the unlawful decision issue). The relief sought in the proceeding includes declarations and associated injunctive relief on a final basis.
[4]The definition of Aboriginal cultural heritage is set out below at [73] of these reasons.

These reasons deal with two applications. First, by summons dated 31 March 2021, the plaintiff seeks leave to further amend her Statement of Claim and expand the relief sought (further amendment application). Second, the State defendants by summons filed 14 April 2021 seek summary dismissal of the proceeding, a stay of the proceeding, or alternatively a strike out of the current pleading (dismissal application) (together the applications).

It is helpful in an introductory way to give an overview of events that have occurred since the injunction was granted. This sets the present applications in context.

The urgent interim[5] and then interlocutory injunction[6] restrained the State defendants from October 2020 pending an expedited final hearing. On 15 December 2020, Martang was joined as a fifth defendant. The claim against Martang was for declaratory relief on the unlawful decision issue. As a RAP, it is alleged to owe statutory and common law duties to persons, including the plaintiff, in approving a cultural heritage management plan under the Heritage Act. The plaintiff alleges that Martang had breached those duties by actions that placed it in a conflict of interest or by conduct that gave rise to actual or apprehended bias. In summary, the actions said to amount to breach relate to commercial negotiations with VicRoads over an extended period of time where Martang had also notified VicRoads that it intended to evaluate the cultural heritage management plan that would be submitted for its approval. The plaintiff’s Statement of Claim reflecting these matters as presently filed is a Further Amended Writ and Statement of Claim dated 15 December 2020 (the existing Statement of Claim).
[5]Order of Justice Forbes dated 29 October 2020 in Thorpe v Head, Transport for Victoria (S ECI 2020 04091).
[6]Order of Justice Forbes dated 11 December 2020 in accordance with the reasons in Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804.

Two further applications for joinder have been made. The plaintiff made an application to join Eastern Maar Aboriginal Corporation (EMAC) as a second plaintiff to the action pursuant to the provisions of the Corporations (Aboriginal and Torres Strait Islander) Act2006 (Cth) (CATSI Act). The CATSI Act application for leave under s 169-5 is akin to a derivative action under s 237 of the Corporations Act 2001 (Cth) for a company member to bring an action in the name of a corporation. EMAC has replaced Martang as the RAP for the area through which Section 2B is to travel. The Aboriginal Heritage Council (AHC), a body established under the Heritage Act whose functions include the registration of RAPs and to ‘manage, oversee and supervise RAPs’,[7] applied for leave to intervene or, in the alternative, be heard as amicus curiae (AHC application). The AHC application and the CATSI Act application were heard earlier this year and my decisions are reserved. The parties are agreed that any decisions should await the outcome of the present applications. EMAC and AHC were otherwise excused from participation in the hearing.
[7]Heritage Act (n 2) pt 9, s 132.

The plaintiff also seeks remedies under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). The Victorian Equal Opportunity and Human Rights Commission (Commission) has elected to intervene as of right.[8]
[8]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 40.

The present parties were working towards an expedited timetable with an anticipated final hearing listed on 26 April 2021. Discovery was ongoing and filing of evidence by way of witness statements and expert reports by the plaintiff was underway. On 17 March 2021, the State defendants produced a tranche of further discovery of 53 documents. This included two documents initially produced on 11 March 2021 (the two CPA documents) pursuant to s 26 of the Civil Procedure Act 2010 (Vic) (the CPA).

As a result of these additional documents whose context is outlined later, the plaintiff sought to add two new grounds relevant to the unlawful decision issue, alleging that when exercising the statutory power to approve the 2013 plan, Martang:

(a) subjectively engaged in conduct with the purpose of securing a pecuniary or financial benefit (defined in the pleading as a corrupt motive); and

(b) objectively engaged in conduct with the purpose of securing a pecuniary or financial benefit (defined in the pleading as a financial benefit purpose).

It is also proposed to plead that a pre-condition for the lawful exercise by Martang of its approval power under s 63 of the Heritage Act, was that there be no beach of the statutory and common law duties and obligations.

A directions hearing was listed to deal with these proposed amendments and other pre-trial issues. The day before that directions hearing, the State defendants wrote to all other parties advising that they would no longer rely on the approved 2013 plan to construct Section 2B. The first defendant would prepare a new cultural heritage management plan for submission to the relevant RAP (now EMAC). The State defendants would not recommence construction until such time as a new plan is approved and lodged under the Heritage Act (the Changed Position). No step has been taken to formalise the Changed Position pending the outcome of the plaintiff’s further amendment application.

At that directions hearing, the plaintiff’s counsel foreshadowed proposed further amendments to expand the relief sought to include a declaration relating to alleged past conduct by the State in relation to some of the activities carried out to date (Past Works) to construct Section 2B of the highway, together with other consequential relief being orders for remediation relating to those past acts.

The further amendment application seeks to amend the existing Statement of Claim filed 15 December 2020 to bring it into a form containing both the further claims against Martang and the State defendants as prepared prior to 23 March 2021, and also an expansion to the new declaratory and consequential relief in respect of the alleged unlawful past conduct. A Second Further Amended Statement of Claim is proposed (SFASOC).[9]
[9]The proposed Second Further Amended Statement of Claim is dated 31 March 2021 (‘SFASOC’).

The State defendants oppose the proposed amendments. Their dismissal application is based on the proposition that, in the absence of any reliance by them on the 2013 plan, there is no threat of harm to Aboriginal cultural heritage and so no longer any dispute regarding the interpretation or application of the Heritage Act.

In the applications, the plaintiff relies on the seventeenth and nineteenth affidavits of Brett Spiegel, solicitor, and the exhibits thereto[10] as well as submissions filed in the CATSI Act application. The State defendants rely on the first, second and fourth affidavits of Ben Dodgshun, solicitor,[11] and the affidavit of Timothy Price, Program Director, Major Road Projects Victoria.[12] Martang relies on the affidavit of Lisa McNicholas[13] and an affidavit of Timothy Chatfield.[14]
[10]Affirmed on 31 March 2021 and 28 April 2021 respectively.
[11]Sworn on 28 October 2020, 13 November 2020 and 14 April 2021 respectively.
[12]Affirmed on 13 November 2020.
[13]Affirmed on 22 April 2021.
[14] Affirmed on 15 April 2021 (with some paragraphs excluded).

B. Issues raised by the applications

Before turning to the detail of the proposed amendments and the matters raised by the dismissal application, a few observations may be made about the issues that are raised for consideration. In broad compass they cover four areas.

First, if the 2013 plan either omits to identify relevant Aboriginal cultural heritage or the plan otherwise is invalid, then past acts which have harmed Aboriginal cultural heritage in the Specified Area may amount to criminal offences. A declaration in the form proposed would amount to a finding of past criminal conduct. The parties accept that case law approaches the exercise of discretion in granting such a declaration as generally requiring ‘exceptional circumstances’ to be demonstrated. The question for present purposes is not whether the discretionary relief would be granted but whether the exceptional circumstances identified by the plaintiff are arguable such that the amendment should be allowed and the plaintiff have the opportunity to ventilate those arguments at trial.

Second, the expanded relief seeks a declaration that the claimed Aboriginal places are in fact Aboriginal places as defined by the Heritage Act Such a declaration is made independently of any statutory process for the identification and protection of those places as provided for by the Heritage Act. The claim for such a declaration is associated with a claim for injunctive relief to confine sponsorship of any further plan to one that would be consistent with the proposed declaration of Aboriginal places.

Third, opposition of the State defendants to the proposed amendments overlaps with principles upon which they rely in their own summons. They argue that the claims in the proposed amendments, like the present claims for relief, have no real prospect of success. They say that there is no real prospect that the Court will grant the declarations sought in respect of alleged past criminal conduct, or grant any relief in respect of the 2013 plan where no reliance is placed upon it for future acts, or make declarations in relation to what amount to hypothetical claims. Standing is a present issue between the parties on the existing Statement of Claim and standing in relation to Past Works is also contested.

Fourth, as against Martang, new relief is sought by way of an order in the nature of certiorari to quash the Approval Decision. This proceeding was commenced by Writ and Statement of Claim rather than by Originating Motion. Consequently, the plaintiff’s summons seeks an order dispensing with compliance with Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). The plaintiff seeks dispensation from both the requirement as to the form of the originating process and the requirements as to time for seeking this relief. By Rule 56.02(1), the time fixed to seek an order in the nature of certiorari is 60 days after the grounds for the grant arose, generally the date of the relevant decision. Rule 56.02(3) provides:

The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

At issue is whether the plaintiff is able to demonstrate special circumstances.

Martang also takes issue with the adequacy of the proposed pleading in respect of the claims against it if the plaintiff is otherwise given leave to amend to address some or all of the changes proposed. Deficiencies are said to remain in the existing Statement of Claim and in some cases are said to be compounded in the SFASOC. Martang contends that the factual matters relied on to underpin the duties and the breaches alleged are inadequately identified. It also submits that if those factual allegations are made out, the legal consequence of unlawfulness or invalidity of the 2013 plan arising from those facts is also not properly pleaded.

Finally, although the State defendants’ written submissions were focused on various grounds for summary dismissal of all or part of the proceeding, the oral argument was focused predominantly on the alternative relief of an interlocutory or permanent stay of the proceedings. At the conclusion of the hearing of the applications, I gave leave to the parties to file further affidavits on the question of prejudice that would be occasioned by a stay.

For the reasons that follow, I will grant the State defendants’ summary judgment application, broadly on two bases. First, as to future acts, there is no longer any utility in the present declaratory or injunctive relief sought, as the 2013 plan has been abandoned. It follows that there will be no utility in granting leave to amend to seek a declaration as to Aboriginal places in relation to future acts. Second as to Past Works, I am not satisfied that there is any real prospect of showing that exceptional circumstances exist that might permit a civil court to make declarations as to past criminal conduct. Accordingly I will not permit amendments to the pleadings that seek such relief. The plaintiff’s existing and proposed Charter claims can only be maintained if she is a person under s 39(1) who ‘may seek’ relief on a non-Charter ground. They cannot be maintained in light of my conclusions about the non-Charter relief.

C. Principles
(i) Amendment of pleadings

The principles for permitting amendment were not in dispute and may be briefly set out. The Court exercises its jurisdiction to secure as far as possible complete and final determination of all matters in dispute between the parties.[15] Order 36 of the Rules provides the Court with power to amend pleadings at any stage in order to determine the real controversy in the proceeding and to avoid a multiplicity of proceedings. The discretion is to be exercised having regard to the position of the parties to the litigation, their right to choose the way the claim is made or its defence is framed, and to identify the issues in dispute. Any prejudice that arises to other parties by the timing of any application to amend, and an explanation for that timing, are identified so that justice is done between them.[16]
[15]Supreme Court Act1986 (Vic), s 29(2).
[16]Aon Risk Services v Australian National University (2009) 239 CLR 175, 214-215; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

In Aon Risk Services v Australian National University, the High Court emphasised the matters to take into consideration when exercising the discretion to grant leave to amend, being the wider public interest in the efficient use of court resources and the impact upon the court system and case management. As was said in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors:

It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed are wider than just that of the parties.[17]

[17][2011] VSC 370 (J Forrest J).

In Mandie v Memart Nominees Pty Ltd, the Court said:

The Civil Procedure Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law related to summary judgment. More than ever, the focus is now pointedly on efficiency and cost effectiveness, albeit they are not the only, nor the predominant considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the Civil Procedure Act which set out when a pleading amendment will be allowed must be approached with caution.[18]

[18]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4.

Additional claims for relief would ordinarily be allowed, subject to a sufficient explanation for the timing of any amendments, unless it can be shown that they raise no arguable case or have no real prospect of success.[19] The expedited trial date having been vacated, no issue was taken with the case management impact of amendments on a pending trial. The central issues are whether the amendments raise an arguable case and whether, where they do, the amendments are adequate in their present form. Both the State defendants and the plaintiff referred me also to the helpful summary in Re Allmine Group (in liq),[20] which sets out the present position regarding leave to amend pleadings.
[19]Ibid [42] (Kyrou, Ferguson, McLeish JJA).
[20][2021] VSC 125, [32]–[37] (Connock J).

The plaintiff’s explanation for the timing of the amendments lies in two matters. The absence of an expedited trial date was a basis for the expanded claim to include past conduct, the effect of which was to allow the plaintiff to ‘consider and pursue the full amplitude of claims available to her’.[21] The amendments, particularly those going to the additional grounds for relief for breach against Martang, are raised it is said because of the disclosure in March 2021 of the two CPA documents. Prior to disclosure, there was not a proper basis to make the further allegations of motive and purpose.
[21]Plaintiff, ‘Submissions in Response to Defendants’ Submissions of 12-13 May 2021’, Submission in Thorpe v Head, Transport for Victoria S ECI 2020 04091, 20 May 2021, [165] (‘Plaintiff’s Submissions’).

The two CPA documents are both internal VicRoads documents. One is a memorandum dated 28 November 2012. The memorandum is on the subject of the Parliamentary Inquiry into the establishment and effectiveness of Registered Aboriginal Parties which was tabled in Parliament in November 2012. The memorandum sets out views regarding the potential implications for VicRoads should the recommendations of the Inquiry be adopted. Under the heading ‘Effectiveness of established RAPS’, VicRoads identified an issue with ‘aspirational demands’ and gave the example of Martang withholding participation in an area based agreement with VicRoads until there is agreement to fund the purchase of property. Martang was said to want to ‘develop expertise in native vegetation management’. It was thought by the author that such pressure on VicRoads might be alleviated by adoption of recommendations made by the Inquiry. The other is an email dated 22 February 2013 sent between members of the VicRoads Environment Sustainability team. It dealt with a draft letter for Martang regarding provision of funds by VicRoads for payment for the property Martang proposed purchasing. It noted ‘as you are aware Martang are refusing to sign off on the 2013 plan if VicRoads does not assist (provide funds) the Martang purchase the property’.

(ii) Summary dismissal or stay

The State defendants seek summary dismissal under section 63 of the CPA, under Order 23.01(1) of the Rules, or pursuant to the Court’s inherent power to do so. In the alternative, a permanent or temporary stay is sought. Martang has also issued a summons seeking the same relief against it, consequential upon any grant of the relief to the State defendants.

A proceeding may be dismissed or stayed summarily under Order 23 where it is scandalous, frivolous or vexatious or an abuse of process.[22] Section 63 of the CPA provides:

63 Summary judgment if no real prospect of success
(1)Subject to s 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
[22]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(a).

…
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because –
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.

It is clear that the test under the CPA is more liberal than that under Order 23 and under the previous test of ‘hopeless’ or ‘bound to fail’.[23] In Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd,[24] Warren and Nettle JJA said that the caution with which summary judgment is approached under section 63 remains and that:

… the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question be to tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[25]

[23]Ibid r 23.02.

[24][2013] VSCA 158.

[25]Ibid [35](d).

The parties were agreed that the prospect of success for the purpose of summary dismissal and for the purpose of permitting an amendment to pleadings now amount to the same threshold test. This much is clear from the comments in Mandie set out above.[26]
[26]Set out at [27] of these reasons; see also Plaintiff’s Submissions (n 21) [38].

D. The changes proposed by the SFASOC

The relief sought generally is premised upon establishing the presence of Aboriginal cultural heritage as defined by the Heritage Act. As mentioned above this includes Aboriginal places of cultural heritage significance. As I said in my ruling granting the interlocutory injunction:

The relief in this proceeding is directed at ensuring compliance with the [Heritage] Act in the protection of Aboriginal places.[27]

[27]Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804, [10].

The two asserted serious questions to be tried identified by the plaintiff in the interlocutory injunction application were the non-identification issue and the unlawful decision issue, either of which if made out would result in the construction of Section 2B being non-compliant with the Heritage Act. To obtain final relief on the first of those issues, the plaintiff would need to establish the presence of Aboriginal cultural heritage in the area, not identified in the 2013 plan that would be, or would likely be, harmed by the continuing construction of the road. If the decision is unlawful, even that which is identified may not be protected.

(i) The relief now sought

It is convenient to consider the proposed amendments under the four broad areas that they cover. Three of these areas would expand the relief sought:

(i)declaratory and remediation relief in respect of Past Works;
(ii)further declaratory and injunctive relief in respect of future acts; and
(iii)an order in the nature of certiorari.

A fourth area expands the grounds upon which it is alleged Martang’s conduct has resulted in an Approval Decision that is invalid and/or unlawful. According to the plaintiff the Changed Position has expanded rather than narrowed the issues in dispute.

The original pleading sought three declarations and three final injunctions. The proposed amendment seeks to add a further three declarations, variation in the injunctive relief sought and consequential remediation relief. The terms of the orders sought are as follows (with the proposed amendments underlined or stricken in red):

A.A declaration that the construction and/or completion of the Proposed Section 2B Route, and the carrying out of any associated works:
(a) in the Specified Area;
(b) alternatively, in Focus Area 1 and Focus Area 2;
(c) alternatively, in the Six Trees’ Immediately surrounding Areas;
(d) alternatively, involving the destruction and/or removal of Tree E1;

is unlawful by reason of;
(e) sections 27(1), (3), (5) and/or 28 of the Aboriginal Heritage Act and/or
(f) section 38(1) of the Charter.

A1. A declaration that:
(a)each of the Six Trees;
(b)each of the Six Trees’ Immediately Surrounding Areas;
(c)each of Focus Area 1 and Focus Area 2; and
(d)the Specified Area;
(e)is an “Aboriginal place” and/or “Aboriginal object” within the meaning of the Aboriginal Heritage Act.

A2. A declaration that the Past Works were unlawful by reason of:
(a)sections 27(1), (3), (5) and/or 28 of the Aboriginal Heritage Act and/or
(b)section 38(1) of the Charter

B. A final injunction restraining the first to fourth defendants, whether by their servants, officers, agents or howsoever otherwise, from constructing and/or completing the proposed Section 2B route, and carrying out any associated works:
(a)in the Specified Area;
(b)alternatively, in Focus Area 1 and Focus Area 2;
(c)alternatively, in the Six Trees’ Immediately Surrounding Areas;
(d)alternatively, involving the destruction and/or removal of Tree E1.

C. A final injunction restraining the first to fourth defendants, whether by their servants, officers, agents or howsoever otherwise, from sponsoring a “cultural heritage management plan” under Pt 4 of the Aboriginal Heritage Act ~~that requires or involves~~ ~~the destruction of Tree E1.~~:
(a)that requires or involves the destruction of Tree E1; and/or
(b)that is to be prepared, evaluated and/or approved otherwise on the basis:
(i)         that each of the Six Trees;
(ii)        each of the Six Trees Immediately Surrounding Areas;
(iii)       each of Focus Area 1 and Focus Area 2; and
(iv)       the Specified Area;

is an “Aboriginal place” and/or “Aboriginal object” within the meaning of the Aboriginal Heritage Act, including for the purposes of ss 61 and 63(4) of the Aboriginal Heritage Act.

D. A declaration that the 2013 CHMP is not an “approved cultural heritage management plan” that can be relied upon by the first to fourth defendants for the purposes of s 29 of the Aboriginal Heritage Act, to engage in conduct that is likely to cause, or will cause, harm to:
(a)any of Trees E1, E2, E3, E4, E5 and E6;
(b)the Six Trees’ Immediately Surrounding Areas;
(c)the Specified Area;
(d)Focus Area 1 or Focus Area 2.

E. A declaration that the approval of the 2013 CHMP by the fifth defendant under s 63 of the Aboriginal Heritage Act was invalid and/or unlawful and, as a consequence, the 2013 CHMP did not take effect as an “approved cultural heritage management plan” under
s 64 of the Aboriginal Heritage Act.

E1. A declaration that the commencement of Past Works caused by the first to fourth defendants whether by their servants, officers or agents or howsoever otherwise, was unlawful by reason of s 46(2), (4) and/or (6) of the Aboriginal Heritage Act.

E2. An order in the nature of certiorari quashing the Approval Decision and the 2013 CHMP.

E3. Such remediation orders in respect of the Past Works as the Court deems appropriate.

F. In reliance on declarations D ~~and~~, E and/or E2, an injunction restraining the first to fourth defendants from relying on the 2013 CHMP to construct and/or complete the Proposed Section 2B Route, or to carry out any associated works.

A Court has power to make a declaration, even if no other relief is sought.[28] A declaration itself operates neither to restrain nor to coerce those that it binds but provides answer to a legal dispute. The relief is discretionary. The bounds of that discretion are those which define the boundaries of judicial power.[29] As was said in Ainsworth v Criminal Justice Commission:

It is a discretionary power which “[i]t is neither possible nor desirable to fetter…by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.[30]
[28]Supreme Court Act 1986 (Vic), s 36.
[29]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (‘Ainsworth’).
[30]Ibid 581-582 (Mason CJ, Dawson, Toohey, and Gaudron JJ) (footnotes omitted).

Declaration as to past works

The Past Works are set out in the SFASOC at paragraphs [55A.1-9]. The Past Works are defined as follows:

55A. Between October 2019 and 27 October 2020, the construction of the Proposed Section 2B Route, and associated works, has involved, among other things:

55A.1 the removal of the tree known as the “Fiddleback Tree” or “Directions Tree”(or CMT14), which was located in the Specified Area;
55A.2 the establishment, by the Project Director of MRPV as delegate of the Transport Secretary, of the Specified Area as a “restricted access area” for the purposes of the Major Transport Projects Facilitation Act 2009 (Vic), by the use of fencing, barriers or other permanent or temporary means of physical demarcation, preventing anyone not authorised under that Act from entering the Specified Area and Focus Areas 1 and 2, including the Plaintiff and other Djab Wurrung people;
55A.3 the destruction and clearing of the camps constituting the Djab Wurrung Heritage Protection Embassy, being camps located in the Specified Area, including:
55A.3.1 a camp within Focus Area 1 and the Tree E3 Immediately Surrounding Area;
55A.3.2 a camp within Focus Area 2 and the Tree E6 Immediately Surrounding Area; and
55A.3.3 a camp in proximity to the tree known as the “Fiddleback Tree” or “Directions Tree” (or CMT14);

55A.4 the installation of fencing, including right of way and no-go zone fencing within or surrounding the Specified Area;
55A.5 partial construction of the Hillside Road intersection within the Specified Area;
55A.6 the construction, or partial construction, of a 3.85km section of Section 2B within the Specified Area;
55A.7 changes to the natural or existing condition or topography of land within the Specified Area, including:
55A.7.1 the removal, destruction or lopping of trees;
55A.7.2 the removal of vegetation;
55A.7.3 the removal of topsoil;
55A.7.4 bulk earthworks;

55A.8 site establishment and construction of site compound on Hillside Road West within the Specified Area;
55A.9 the construction of an access track within the Specified Area.

Particulars of the activities that are the Past Works are provided by reference to the affidavits relied on by the State defendants in the application for the interlocutory injunction.[31]
[31]First to Fourth Defendants, Affidavit of Ben Dodgshun, Affidavit in Thorpe v Head, Transport for Victoria & Ors, S ECI 2020 04091, 28 October 2020, [32], [40] – [43]; see also Affidavit of Timothy Price (n 14), [49]-[52].

The declarations sought by [A2] and [E1] are that the Past Works contravene ss 27, 28 and 46 of the Heritage Act. Section 27 is an indictable offence. Sections 28 and 46 are summary offences.

Although a civil court has a wide jurisdiction to make a declaration, where it is asked to declare that acts (whether past or future) amount to criminal conduct, it is generally reticent to do so. The fundamental reason for caution is that of fairness and justice. The protections afforded to an accused person by criminal procedures are absent. The proper forum for determination of criminal conduct is a criminal court.[32]
[32]Sankey v Whitlam (1978) 142 CLR 1; Inglis v Moore(1979) 24 ALR 411 (‘Inglis’); Imperial Tobacco v Attorney General [1981] AC 718 (‘Imperial Tobacco’).

In a prosecution initiated in a criminal court, those charged with offences under the Heritage Act would face:

(a) a higher standard of proof, beyond reasonable doubt, and a right to silence; and

(b) procedural protections afforded to an accused under the Criminal Procedure Act 2009 (Vic), including preliminary disclosure requirements, provision of a charge sheet and particulars of charges together with a preliminary brief of evidence, and the procedural requirements of case management.

An accused would have a number of protections including:

(a) the prosecution must be authorised by the Secretary or a police officer, and, where an indicatable offence is to be charged, may only proceed with the written consent of the Director of Public Prosecutions. Members of the public cannot prosecute offences;[33] and

(b) an ability to bring a civil action for the tort of malicious prosecution in certain circumstances following an unsuccessful prosecution.

[33]Heritage Act (n 2) s 186.

The absence of these factors gives rise to the unfairness to a person accused being dealt with by way of declaration in a civil court, subject to processes of pleadings, discovery and interrogatories.

On occasion, a plaintiff may obtain a declaration that their own proposed conduct does not amount to a criminal offence.[34]
[34]See for example Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 (Martin CJ).

Although the parties agreed that ‘exceptional circumstances’ are generally required where a declaration is sought in a civil proceeding of conduct that amounts to a criminal offence, it is instructive to identify what is meant by that phrase in this context.

In Gouriet v Union of Post Office Workers,[35] a declaration and injunction were sought to restrain unlawful interference with mail in protest against apartheid. Lord Wilberforce said of the use of a civil court to aid the criminal law:

It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty… or to cases of emergency.[36]
…the jurisdiction – though proved useful on occasion – is one of great delicacy and is one to be used with caution.[37]

[35][1978] AC 435.

[36] Ibid 481.

[37]Ibid.

In Imperial Tobacco Ltd v Attorney General,[38] the plaintiff sought a declaration that the lottery it was conducting was lawful. It obtained such a declaration where a prosecution against it for running an unlawful lottery was on foot. The House of Lords said that the relief should not have been granted because:

Such a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. If a civil court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial...[39]
My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started.[40]

[38]Imperial Tobacco (n 32).

[39]Imperial Tobacco (n 32) 741 (Viscount Dilhorne).

[40]Ibid 742.

The House of Lords was then called upon to examine what might amount to exceptional circumstances in R v Her Majesty’s Attorney General ex parte Rusbridger & Anor.[41] In that case, a newspaper printed articles advocating the replacement of the monarchy with a republican form of government. They sought declarations that by doing so they were not guilty of any offence under s 3 of the Treason Felony Act 1848. The Court of Appeal held that the newspaper could proceed with its claim for a declaration. The Attorney General appealed. The relevant question on the appeal, for present purposes, was ‘what are the principles that determine whether a civil court should entertain a claim for declaratory relief on a question of criminal law?’[42] There was no controversy with the statement of principle as expressed in earlier cases that it is not appropriate ‘save in exceptional circumstances’. Rather, it concerned the application of that principle absent pending or anticipated criminal suit.
[41][2003] UKHL 38 (‘Rusbridger’).
[42]Ibid [15].

Lord Steyn identified a threshold requirement. The plaintiff has an interest and standing so that the relief claimed may as a matter of jurisdiction be granted. Then three factors are considered. First, an absence of any genuine dispute about the subject matter. In this context, the subject matter is a present or anticipated threat of prosecution. As the Attorney General had declined to express any view on whether or not to prosecute, there was no dispute. Lord Steyn said:

But that cannot by itself conclude the matter or be a weighty criterion if there are otherwise good reasons to allow the claim for a declaration to go forward. It is not a significant factor militating against placing the present case in an exceptional category.[43]

[43]Rusbridger (n 41) [22].

Second whether the case is fact sensitive or not. He said:

This is a factor of great importance and most claims for a declaration that particular conduct is unlawful will founder on this ground. … But it has always been recognised that a question of pure law may more readily be made the subject matter of a declaration.[44]

[44]Ibid [23].

Finally, he identified a cogent public or individual interest which could be advanced by the grant of a declaration. He concluded that the interpretation of the relevant Act and European Convention on Human Rights (Convention) did not give rise to any disputed issues of fact. He thought the question of an historic anomaly that may be of constitutional importance was a matter of public interest not to be left to the court in Strasbourg to determine. Interpretation of the Human Rights Act 1998 (UK) must now be undertaken in light of the Convention to which the UK was a party.[45] As all criteria were demonstrated the case was capable of falling into the category of ‘exceptional’. However, having allowed the appeal, the proceeding was then dismissed as unnecessary, it being fanciful to believe that any criminality under the Treason Felony Act 1848 would survive scrutiny under the Human Rights Act 1998 (UK).
[45]European Convention on Human Rights, Council of Europe, opened for signature 4 November 1950, entered 3 September 1953.

The same restrictive principle is accepted in Australia. In Sankey v Whitlam,[46] committal proceedings were on foot at the time the High Court was asked to make a declaration as to the admissibility of evidence and the availability of crown privilege as to documents produced pursuant to subpoena in the committal. As with Imperial Tobacco, the circumstances were therefore one where a civil court was asked to intervene when a criminal proceeding was on foot. The Magistrate ordered that most of the documents were privileged. The prosecution sought a declaration from the Supreme Court of New South Wales that the documents be produced and used if otherwise admissible. The case was removed to the High Court where it was argued that a civil court had no power to grant declaratory relief (at least at suit of an informant in criminal proceedings) or, if there was power it would not be a proper exercise of discretion to do so. The Court recited the well-established proposition that the power to grant declaratory relief was not excluded because the matter to be declared may be something to be decided in a criminal proceeding. It said that in the context of criminal proceedings, a declaration on a question of evidence or procedure may, in circumstances that ‘must be most exceptional’, warrant the relief. Gibbs ACJ said ‘the procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay or expense’.[47] He recognised the potential for abuse in instances where the power is wrongly used.
[46](1978) 21 ALR 505 (‘Sankey’).
[47]Sankey (n 46) 515.

In Inglis v Moore,[48] the Full Federal Court dismissed an appeal against a refusal to grant leave to amend pleadings to include a declaration that the defendants had conspired contrary to the Crimes Act 1914 (Cth). After considering Sankey v Whitlam and reviewing the cases cited there, St John J said:

Gibbs ACJ outlined the leading authorities on the ambit of declaratory relief without disapproving of any of the instances in which such an application was entertained. Examination of those authorities does not reveal a single instance in which, in civil proceedings, the declaration sought has been one that certain actions of the defendants constituted a crime after finding facts in those proceedings.[49]

[48]Inglis (n 32).

[49]Ibid 414.

Finkelstein J was asked by the plaintiff, which was a regulator, to make a declaration about past conduct of a company director which would amount to an offence.[50] He declined to do so as the regulator had not yet foreclosed the possibility of bringing criminal charges. In reviewing the authorities arising from the United Kingdom (Rusbridger, Imperial Tobacco and Gouriet) he said those cases showed:

Whether or not a court will intervene may depend on whether the court is asked to consider past or future conduct. If the court is asked to rule on future conduct and the issue involved is simply a question of law, the court is more likely to intervene. On the other hand, it is less likely to act in relation to past conduct, especially if the facts are in dispute.[51]

[50]Australian Securities and Investments Commission (ASIC) v HLP Financial Planning (Aust) Pty Ltd (2007) 245 ALR 29 (‘HLP’).

[51]HLP (n 50) [30].

The Australian cases his Honour considered were in some flux in relation to company cases since Australian Softwood Forests Pty Ltd v Attorney General (NSW),[52] where the High Court held it was appropriate to grant declarations that past conduct contravened provisions of the Companies Act 1961 (NSW), which made the declared conduct a criminal offence. In that case two features were particularly important: there was no threat of criminal process (rather the regulator was specifically seeking to vindicate its view of the defendant’s conduct in a civil proceeding), and the trial from commencement was on a statement of agreed facts. Finkelstein J did not consider that the case involved any wholesale change in the applicable principles. He concluded that while a civil court is usually the appropriate court to deal with a contravention of the Corporations Act 2001 (Cth), it should be wary if the case is likely to end up before a criminal court. Ordinarily and in such cases:

… a civil court should not intervene in those circumstance unless its failure to do so will result in irreparable injury.[53]

[52]Ex Rel Corporate Affairs Commission (1981) 36 ALR 257.

[53]HLP (n 50) [58].

In Pharmacy Guild of Australia v Ramsay Health Care Ltd,[54] Ward CJ in Eq was confronted with plaintiffs seeking a declaration that the defendants had, in establishing a franchise of pharmacies, committed an offence under the Health Practitioner Regulation National Law (NSW). There was no criminal prosecution threatened or anticipated by the relevant regulator. The plaintiffs disputed that the declaration they sought was to the effect that the defendants have committed, or were continuing to commit, a criminal offence, as the declaration was not framed in such terms. Reviewing the authorities, the court observed that it was undesirable to embark upon a determination as to whether or not there is or has been conduct which would amount to the commission of an offence where the facts relied on as giving rise to the conduct and the alleged contraventions were disputed. The judge was of the view that it was not appropriate to entertain such declaratory relief in a civil action at the suit of a person who was not the regulator. Summary dismissal of the claim was ordered.

Submissions of the parties

[54][2019] NSWSC 1045.

The plaintiff submits that the pleading identifies what are arguably exceptional circumstances and she is therefore entitled to take the matter to trial where the exercise of discretion will inevitably depend on the evidence to be led.[55] She submits that her case is distinguishable from Kinglake Friends of the Forest Inc v VicForests (No 3) (‘Kinglake No 3’)[56] and Warburton Environment Inc v VicForests (No 2) (‘Warburton No 2’)[57] where no attempt was made to plead the nature of any exceptional circumstances. Ms Thorpe identifies at paragraph 18A the exceptional circumstances she relies on.[58] Paragraph 18A deals with additional matters as to standing. It is proposed to read:
[55]Plaintiff, ‘Plaintiffs Submissions in Support of Summons dated 31 March 2021’, 28 April 2021, [48].
[56][2020] VSC 777.
[57]Warburton Environment Inc v VicForests (No 2) [2020] VSC 738.
[58]Plaintiff, ‘Plaintiffs Submissions in Support of Summons Dated 31 March 2021’, Submission in Thorpe v Head, Department of Transport & Ors, S ECI 2020 04091, 28 April 2021, [48].

18A. Further, in addition to the matters set out at paragraphs 1 to 4 above, the plaintiff has standing to bring this proceeding and seek the relief sought, including in relation to the specific relief sought concerning Past Works (as defined in paragraph 55A below), because:
18A.1 there is a significant public interest in the relief sought, having regard to the context and purpose of the Aboriginal Heritage Act, including the fact that the Aboriginal Heritage Act binds the Crown in right of the State of Victoria (s 11);
18A.2 the relief is an appropriate vindication and recognition of the public rights of Aboriginal people whose cultural heritage is protected by the Aboriginal Heritage Act, and the plaintiff’s Charter rights, that have been infringed by the Past Works and/or will be infringed by the construction and/or completion of the Proposed Section 2B Route;
18A.3 the conduct constituting the Past Works was ongoing over an extended period of time, and those works only ceased by reason of the interlocutory injunctions granted in these proceedings to prevent those works from being continued;
18A.4 of the public interest in the first to fourth defendants being held accountable for, and not being able to reap the benefits of there being no sanction in respect of, or no recognition of, their unlawful conduct in relation to the Past Works, particularly having regard to the matters set out in paragraphs 83 to 111B below;

18A.5 the matters set out in paragraph 112A below;
18A.6 in all of the circumstances (including the matters set out in paragraphs 111, 111A and 111B below) there is no real prospect that any prosecution of any of the first to fourth defendants (or any other person) in relation to the Past Works will be commenced; and
18A.7 the facts and conduct constituting the Past Works are based on the evidence filed in this proceeding by the first to fourth defendants, and those facts and conduct are not in dispute.

In oral submissions the circumstances relied on were widened to include the disclosure of a corrupt motive and improper purpose as also capable of amounting to exceptional circumstances.

The State defendants submitted that this case is relevantly indistinguishable from Kinglake No 3 and Warburton No 2 in which amendments seeking declaratory relief as to criminal conduct were disallowed. The matters identified in paragraph 18A go to standing but there is nothing exceptional in a desire to enforce a public law obligation nor in the fact that the Heritage Act binds the Crown. Neither public interest in the subject matter generally given the public law nature of the litigation, nor any special interest of the plaintiff, is itself sufficient to found exceptional circumstances.

They also contend that there is a factual dispute as the defendants have not pleaded to criminal conduct. They submit that the allegations of criminal conduct in the SFASOC as presently pleaded are vague and imprecise – they do not identify harm, and they identify matters going to the knowledge, recklessness or negligence of the defendants in carrying works that lack specificity.

Consideration

For present purposes I approach the amendment question on the basis that the plaintiff has an arguable case that she would meet the threshold question of standing. I accept that the Past Works, if unlawful, would be a matter of significant public interest and condemnation. Considerations of public interest here are in the context of matters for which the legislature intends proof of conduct and punishment be tested through criminal procedures. The plaintiff alleges an absence of any real prospect of prosecution, and certainly there is nothing to suggest presently that any prosecution is threatened. However, nor is the prospect foreclosed by those charged with bringing a prosecution under the Heritage Act.[59] A civil declaration of unlawful conduct may well change the public landscape in relation to charges being laid. Certainly in respect of indictable offences where charges might still be laid, a declaration would in effect be a finding of guilt or innocence which may well prejudice future criminal proceedings and in particular the defendants in those proceedings. I am doubtful whether it could be said that there is an absence of any genuine dispute about this. It is to be contrasted with the position in Rusbridger, where any prosecution under the Felony Treason Act for publishing a debate as to republicanism was considered fanciful and improbable.
[59]Which persons are limited to those authorised by the Heritage Act (n 2) s 186.

Even if I were to accept that there would not likely be a prosecution in the future, it seems clear that the factual contest that would fall for determination – what harm has been done and what was the knowledge or state of mind of those conducting the activities said to have caused that harm – would preclude the Court from entertaining such relief. None of the cases in which a declaration was made followed from a fact-finding exercise by the civil court. I do not accept the plaintiff’s submission that there is no factual dispute as to the Past Works. Even if the conduct relied on is that which has been described by the defendants themselves, the submission ignores the requirement that proof of all elements will be needed; namely conduct, harm and knowledge. The offences established by s 27 are:

(1) A person is guilty of an offence if –
(a)the person by an act or omission harms Aboriginal cultural heritage; and
(b)at the time of the act or omission the person knew that the act or omission was likely to harm Aboriginal cultural heritage.

…
(3) A person is guilty of an offence if –
(a) the person by an act or omission harms Aboriginal cultural heritage; and
(b)at the time of the act or omission the person was reckless as to whether the act or omission was likely to harm Aboriginal cultural heritage.

…
(5) A person is guilty of an offence if –

(a)the person by an act or omission harms Aboriginal cultural heritage; and
(b)at the time of the act or omission the person was negligent as to whether the act or omission was likely to harm Aboriginal cultural heritage.

Section 28 makes it an offence to do an act that harms or is likely to harm Aboriginal cultural heritage. Section 46 creates offences if activity is commenced which requires a cultural heritage management plan and one has not been approved and the person knew, was reckless or negligent as to whether the activity required such a plan.

The submission that the discretion to grant the relief is one that will inevitably depend on the evidence led at trial[60] itself recognises the need for fact finding. The claim does not meet the second of the three considerations outlined in Rusbridger.
[60]Plaintiff, ‘Plaintiff’s Submissions in Support of Summons dated 31 March 2021’, Submission in Thorpe v Head, Department of Transport for Victoria & Ors, S ECI 2020 04091, 28 April 2021, [48].

A person must demonstrate a cogent public or private interest advanced by the making of a declaration as to criminal conduct. The lawful cessation of life sustaining medical support was an example of an overwhelming private interest.[61] Constitutionally important questions are capable of demonstrating the requisite public interest. The question posed by this requirement is not merely to identify a public interest in the protection of Aboriginal cultural heritage which undoubtedly exists, and which the plaintiff has a sufficient interest that might meet the threshold question of standing. It is to show whether the public interest is served by a departure from the principle that a civil court is not generally the forum for determination of criminal matters. As was said by St John J in Inglis v Moore:

Whether indictable offences have been committed is the concern of the criminal courts and are for trial there. There, the accused has certain rights. The litigants are the Crown and the accused. There is no private right or private legal interest in conviction or acquittal other than that of the accused recognised by law. The whole emphasis in the criminal jurisdiction is one of public concern.[62]

[61]Royal College of Nursing of the UK v Department of Health and Social Security [1981] AC 800.

[62]Inglis (n 32) 7.

Therefore, in my view, the exceptional circumstances must include a consideration of the qualities that would justify departure from this general rule. Neither considerable public interest in a declaration being made, nor the plaintiff’s desire for vindication of her claim that the Heritage Act has been contravened, go to the reasons why in this case it would be appropriate to permit a civil court to intrude upon the proper role of a criminal court.

The declarations sought are squarely for the contravention of particular provisions with criminal effect. It could not be said, nor was it argued, that all that was sought was a declaration of unlawfulness not tied to provisions with criminal sanctions. The plaintiff placed reliance on Keogh J’s permission to amend pleadings to seek a declaration of past unlawful conduct in WOTCH Inc v VicForests (No 7)[63] where no prosecution was on foot or threatened. The declaration sought was not for contravention of the provision which created an offence. Keogh J allowed that a more nuanced approach may be required when the declaratory relief raises issues of criminal conduct but is not in a form that states that the defendant committed a crime. Unlike the amendment sought here, the issue of non-compliance in that proceeding would not necessarily lead to the consequence that the defendant would be exposed to a prosecution.
[63]WOTCH Inc v VicForests (No 7) [2020] VSC 817.

For these reasons, in my opinion there is no real prospect that the Court would make a declaration that Past Works contravened the relevant penal provisions of the Heritage Act. It is not appropriate to leave the matter to an exercise of discretion at the conclusion of a fact-finding exercise.

As to Aboriginal places

The plaintiff submits that the central issue in this proceeding is the protection of Aboriginal cultural heritage, whether it be under the 2013 plan or any other cultural heritage management plan.[64] In addition to the two issues of non-identification and unlawfulness (both involving legal questions as to the lawfulness under the Heritage Act), the plaintiff submits that the proceeding identifies a third issue: the existence of the Aboriginal places that are claimed.
[64]Transcript of Proceedings, Thorpe v Head, Transport for Victoria (S ECI 2020 04091, Justice Forbes) (‘Transcript of Proceedings’), 31 May 2021, 10 (R Merkel QC).

Aboriginal cultural heritage is defined in section 4 of the Heritage Act as:

Aboriginal places, Aboriginal objects and Aboriginal ancestral remains.

Aboriginal place has the meaning given to it under section 5 of the Heritage Act:

(1) For the purposes of this Act, an Aboriginal place is an area in Victoria or the coastal waters of Victoria that is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria.
(2) For the purposes of subsection (1), area includes any one or more of the following –
(a)       an area of land;
(b)       an expanse of water;
(c)       a natural feature, formation or landscape;
(d)      an archaeological site, feature or deposit;
(e)the area immediately surrounding any thing referred to in paragraphs (c) and (d), to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people;
(f)land set aside for the purpose of enabling Aboriginal ancestral remains to be re-interred or otherwise deposited on a permanent basis;

(g) a building or structure.

Section 4 of the Heritage Act further provides the following definitions:

Cultural heritage significance includes -
(a)archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and

(b) significance in accordance with Aboriginal tradition.
…
Aboriginal tradition means –
(a)the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and
(b)any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

The plaintiff’s submission is that she is entitled to seek a declaration from the Court, identifying claimed Aboriginal places, that is not tied to any statutory process of protection from harm or to any threat of harm. The pleading which claims identified Aboriginal places and which have been denied in the defences, she submits creates a real legal controversy between the parties which the Court is to decide. On this question, which is divorced from any controversy as to the 2013 plan, the amendment and the summary dismissal arguments are identical. Such a declaration must determine a legal controversy between the parties.

The plaintiff submits that the identification of Aboriginal places is not merely an evidentiary step along the way to obtaining their protection from unlawful harm, but a necessary element of the cause of action itself. The declaration she seeks as to Aboriginal places is said to be both the remedy and the cause of action.[65] Relief is frequently directed at some action of a public authority, that has been or is intended to be taken, which is claimed to be contrary to law. A cause of action in relation to a public law remedy is necessarily entwined with standing to seek the relief. As Cavanough J said ‘of course there must be a foundation in law for declaring that which is to be declared’.[66] That foundation in this instance is whether there is compliance with the Heritage Act in the decisions and actions of the defendants. In other words, the Court’s declaration must be grounded in some public wrong which has the capacity to affect the interest of a plaintiff who seeks such relief. In Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund Pty Ltd it was said:

In private law there is, in general, no separation of standing from the elements in a cause of action.[67]

Whether it is helpful or accurate to describe a declaration as an element of the cause of action in a public law setting is questionable where the right to bring an action is determined by the identification of a sufficient interest in the subject matter of the litigation. I will return to the interaction between standing and the subject matter of the legal controversy in the consideration of the Charter claims.

[65]Plaintiff, ‘Plaintiff’s Submissions in Support of Summons dated 31 March 2021’, 28 April 2021, [54].

[66]Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762 (‘Victorian Taxi Families’), [81] 150.

[67](1998) 194 CLR 247 [43] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

There is no doubt that the presence of Aboriginal cultural heritage is a question of fact. Whether an area is an Aboriginal place as defined by s 5 of the Heritage Act depends upon it being of ‘cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria’.[68] This in turn requires consideration of archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance, and significance in accordance with Aboriginal tradition.[69]
[68]Heritage Act (n 2) s 5(1).
[69]Ibid s 4.

There may be differing views about the significance of objects or places amongst those communities that are to be taken into account in identifying what meets the definition of an Aboriginal place. Significance may come about by a number of different ways that a particular community or its members attach significance. The inclusion of ‘significance’ in the definitions (on three occasions)[70] creates both a subjective and an evaluative element. An Aboriginal place is one that has ‘significance’ to Aboriginal people, and that significance may arise in one or more of the ways to be considered. To the extent the plaintiff submits that the identification of Aboriginal places is a question of objective fact, the submission ignores the evaluative and subjective elements contained in the definition which in my view require attention.
[70]Ibid ss 4, 5.

Even allowing for this, the declaring of an Aboriginal place under the Heritage Act may determine a factual matter, but it is not itself determining any legal controversy. I accept the submission that the existence of Aboriginal cultural heritage is not dependent upon any statutory decision making process. However, absent some statutory process or prosecution requiring it to be identified, the question whether it exists is not a proper subject for legal determination. Aboriginal places exist whether or not third parties, including the state, recognise their presence. A main purpose of the Heritage Act is to provide for their protection in certain circumstances.[71] The plaintiff submits she is entitled to the protection of the Heritage Act ‘to determine her cultural heritage places, how they are not authorised to be harmed by the 2013 [plan]’.[72] The qualification that those places face harm, and specifically unlawful harm, is in my view central to the relief she seeks.
[71]Heritage Act (n 2) s 1(a).
[72]Transcript of Proceedings, 1 June 2021, 218.17-21 (R Merkel QC).

Where an Aboriginal person, or for that matter a RAP, seeks a declaration of a place as an Aboriginal place when no activity is to be undertaken in its proximity or that may affect it, then no legal dispute arises. If a tree is an Aboriginal place and there is no proposal to conduct any activity that impacts upon the tree, what legal controversy exists that would require a Court to determine and declare it an Aboriginal Place? There would be no contradictor proposing an activity attracting the provisions of the Heritage Act. A Court would simply be asked to declare a fact.

The plaintiff submits that such a declaration would have foreseeable consequences even if no dispute about the Approval Decision persists. First, by declaration the places would become ‘known Aboriginal places’ within the meaning of s 145 of the Heritage Act and so are to be recorded on the Victorian Aboriginal Heritage Register (Register), which is maintained by the Secretary to the Department of Premier and Cabinet.[73] Second, it will ensure that any new cultural heritage management plan will be prepared in accordance with the declared Aboriginal places (and she seeks injunctive relief to this effect). The plaintiff submits that a further declaration simply makes explicit that which has been implicit – the existence of Aboriginal places – and this remains a real legal controversy between the parties. The practical consequences of a declaration would not interfere with the statutory process to come.[74]
[73]As provided for by the Heritage Act (n 2) pt 9, div 3.
[74]Transcript of Proceedings, 31 May 2021, 73 (R Merkel QC).

I do not accept that such a declaration would have the foreseeable consequence of compelling the Secretary to place on the Register that which would be declared an Aboriginal place. By the plaintiff’s claim, it is clear that the existence of the places are known to her and others. There is no requirement that a Court declare an Aboriginal Place in order for it to be ‘known’. Nor is a declaration necessary to seek to have a known Aboriginal place listed on the Register. This is not judicial review of a refusal to list places on the Register.

I was referred to Oil Basins Ltd v Commonwealth & Ors[75] to support an argument that even if the Secretary did not dispute the claimed Aboriginal places this was no bar to seeking the declaratory relief.[76] In Oil Basins there was a controversy between the plaintiff and two defendant producers as to which entity was liable to pay a particular tax pursuant to a royalty agreement. The Commissioner for Taxation was a party but had not yet issued any assessment notice or formed a view about who was liable. The Commonwealth objected to being a party. The Court held that notwithstanding the fact that the Commissioner for Taxation had not yet made any decision, he was a proper party. Dawson J doubted that a failure to indicate whether or not he would dispute the plaintiff’s claim would preclude the plaintiff’s relief, given there were other contradictors (the producers). The case otherwise proceeded on the orthodox position that as between the plaintiff and the producers there was a real (and not hypothetical) dispute as to who is to meet a tax liability. The case does not assist in identifying the legal controversy here between the parties.
[75](1993) 178 CLR 643.
[76]Plaintiff’s Submissions (n 21) [116]; see also Transcript of Proceedings, 31 May 2021, 76 (R Merkel QC).

The plaintiff submitted that any further cultural heritage management plan would be ‘prepared against the background of the Court’s reasons and findings’[77] had the trial proceeded. In my opinion this highlights the advisory nature of a declaration in the absence of a continuing controversy given the abandonment of the past statutory process. A declaration for the purpose of assisting the preparation of any further cultural heritage management plan and decision making of EMAC under s 63, would now be advisory in nature. Any evidence upon which the Court might act would not necessarily identify all heritage present that a cultural heritage management plan would need to deal with. The statutory process for preparing a cultural heritage management plan commences with the assessment of the area to determine the nature of any Aboriginal cultural heritage present in the area.[78] The process is required to be undertaken in conformity with regulated standards. The plaintiff’s claim is that the 2013 plan did not comprehensively identify matters. It remains to be seen whether a new cultural heritage management plan will do so. I am not prepared to assume that Aboriginal cultural heritage that has been identified by traditional owners since 2013 will not now be considered by the statutory process as the plaintiff submits is likely. For the reasons set out above, I do not accept the submission that the legal controversy is whether there exist Aboriginal places that must be subject to a cultural heritage management plan.[79]
[77]Plaintiff’s Submissions (n 21) [17], [57.2].
[78]Heritage Act (n 2) s 42(1)(a).
[79]As submitted by the plaintiff, see Transcript of Proceedings, 31 May 2021, 71.26 (R Merkel QC).

There is a further consideration. A cultural heritage management plan performs two interrelated tasks – identification and protection. The process does not separate the two. The statutory scheme provides for consultation with traditional owners in the preparation of any plan and at least at first instance, for the traditional custodians (through the statutory mechanism of RAPs) to evaluate whether the sponsored plan is sufficient to be approved. That approval necessarily considers the adequacy of both tasks – identification and protection – placing primary decision making in the hands of Aboriginal people. Understanding the significance of an Aboriginal place is important in devising its adequate protection. There are inextricable links between the identification of Aboriginal places, the significance that is accorded to them and the adequacy of measures to be adopted to avoid harm.

Therefore, I conclude any declaration as to Aboriginal places as sought in A1 can only stand as a stepping stone to other declaratory or injunctive relief. It is not a stand-alone cause of action. Any amendment to include A1 as a stepping stone in respect of future acts will depend upon whether other declarations of unlawfulness, or any associated injunctive relief in respect of those future acts, survive the dismissal application.

It is convenient next then to consider what relief in respect of future acts survives the dismissal application.

E. Dismissal application

On 19 March 2021, when the State defendants communicated the Changed Position and intent of the first defendant to sponsor a New Plan, the question arises whether, and how, the Changed Position impacts upon the legal controversy before the Court. In light of the Changed Position, do any of the claims for declaration or injunction based upon reliance on the 2013 plan remain? I will deal separately with relief based upon Charter rights.

(i) The basis for the dismissal summons

As a consequence of the Changed Position the State defendants contend that:

(a) there is no imminent threat of unlawful harm to Aboriginal cultural heritage so no basis for final injunctive relief; and

(b) the declarations of unlawfulness sought, being advisory or hypothetical in nature, would no longer determine any legal controversy between the parties; and

(c) any injunction to restrain the content of a further cultural heritage management plan is both hypothetical and pre-empts the statutory process now underway.

The plaintiff’s submissions in opposition are premised on the proposition that the Changed Position of the State defendants does not vary the nature of the legal controversy because:

(a) the 2013 plan has ongoing legal effect and the reliance by the State defendants on it for some purposes (but not others) continues to be a real controversy that is to be determined;

(b) the discretionary relief she seeks involves complex questions of fact and law and so are not amenable to summary determination; and

[174]Ibid 212 (Kirby J).

Two of the preliminary questions determined in Wik were addressed to pleadings that the relevant statutes under which pastoral leases were granted were invalid on the basis that the Crown owed a fiduciary duty to native title holders. Those judges who found it necessary to determine this question held that the Crown did not have such a duty. Martang argues that Wik provides no legal foundation for a novel fiduciary-like relationship. The comments of Brennan J were more nuanced despite holding that the Crown’s power to alienate land did not give rise to a fiduciary relationship with native title holders. He said:

The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power - whether statutory or not - that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary.[175]

[175]Ibid 96 (Brennan CJ) (emphasis added).

It is the latter circumstance a discretionary power conferred for the benefit of others, to be satisfied of the matters in s 61 and so approve a cultural heritage management plan, which has the capacity to adversely affect the cultural heritage of those it represents. It is this power that the plaintiff wishes to argue should be exercised in the manner expected of a fiduciary. The legal questions as to the existence and extent of such a relationship, and the nature of any obligation that arises, should not be determined in advance of the factual circumstances. Only then could questions of the scope of the duty and any breach be determined, including whether, as alleged, any breach invalidates the exercise of the statutory power.

Categories of fiduciary relationship are not closed.[176] The test by which new categories of relationship might be identified is difficult. The nature of the duty that a person in the position of a fiduciary owes to another is owed ‘within the scope of the venture or undertaking in respect of which the person in the fiduciary position has undertaken or assumed a responsibility to act in the exclusive interests of that other person’.[177]
[176]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, [29] (Gibbs J).
[177]Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43, [67] (Gageler J).

Ultimately where a statutory duty to act in good faith is also claimed to have been breached, it is likely that the existence of any of the other duties contended by the plaintiff will overlap with considerations as to the content of any statutory duty. In those circumstances, I am mindful of what was said by Kirby J in Wickstead v Browne[178] that where a cause of action survives summary judgment, another potential, and perhaps novel, cause of action ought be allowed to also proceed to trial and its viability be considered once all relevant evidence was available. Kirby J dissented on the question of permitting the novel claim to proceed, although all three judges permitted the two more orthodox claims to proceed to trial. On application for special leave to the High Court, the Court granted special leave and immediately allowed the appeal concluding that, as the other causes of action were permitted to go to trial, the claim in negligence ought also be permitted to go to trial.[179] I accept that the plaintiff, subject to pleading the causes of action sufficiently would otherwise not be precluded from ventilating other sources of duty at trial.
[178](1992) 30 NSWLR 1.
[179]Ibid 18.

By the two additional grounds going to the unlawful decision aspect of the claims the plaintiff seeks to establish that the Approval Decision was contingent upon, or connected to, Martang receiving a financial payment and that Martang improperly endeavoured to separate the commercial negotiations from the process leading to the Approval Decision when in fact they were linked. That is, an Approval Decision was withheld, or was intended to be withheld, unless a satisfactory commercial arrangement for the purchase of land was reached.

The legal principle that a statutory decision maker must exercise the power in accordance with the purpose for which it is given is not and could not be contested. In R v Toohey, the statutory exercise of power was that of the Administrator of the Northern Territory to make regulations pursuant to the Planning Act 1979 (NT). The Northern Land Council wished to argue before the Northern Territory Land Commissioner that the regulations were not passed for town planning purposes but with the purpose of defeating the land claim that was on foot before the Commissioner. The High Court held that the Commissioner was wrong to conclude that he could not inquire into the motive and purpose of the Administrator exercising a statutory power to make the regulations.

There is a distinction between the improper purpose of obtaining a personal benefit and a purpose beyond statutory purposes, although a personal benefit will amount to an improper purpose. Nor is the purpose for which a power is to be exercised to be equated with the decision that evidences the outcome. Speaking of improper purpose, Aickin J emphasised the objective nature of the inquiry – ascertaining both the legislative purpose and the actual purpose. The subjective intent or belief of the decision maker is irrelevant to this inquiry. In contrast, the motive of personal gain looks to the subjective purpose which will by its nature be inconsistent with the conferred legislative purpose. A decision maker may falsely avow a legitimate purpose to cover the actual pursuit of personal gain.[180] Establishing invalidity because of a purpose of personal gain requires a less rigorous analysis of the intended legislative purpose of the statutory power, as a decision-maker relying on ‘entirely personal’ considerations, unconnected to proper administration, will ‘seldom, if ever’ be a bone fide basis for exercising power.[181]
[180]Toohey (n 131) 233.
[181]Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 (Stephen J).

The defendants, particularly Martang, allege that the two new grounds of unlawfulness suffer deficiencies and should not be permitted, at least not in their present form. That is because they do not sufficiently identify the conduct that amounts to a breach of any duty, nor the nature of the conflict of interest asserted. As such, if both the financial benefit alleged and its link with the exercise of the statutory power can be made out, then the subjective and objective purposes may be demonstrated and unlawfulness made out. This must be so regardless of the fact that the decision might otherwise fall within circumstances requiring statutory approval. A decision-maker given statutory power for a particular purpose does not avoid scrutiny as to the purpose simply because only one decision was open to it at the time the decision was in fact made. A link between a financial benefit and the exercise of statutory power is an arguable claim if properly pleaded, even if it could not have affected the decision that could lawfully be made.

(ii) Martang’s conduct

This section between [83] and [105] develops a lengthy and detailed chronology of events occurring between 2010 and 2014 drawn largely from discovered documents. It identifies negotiation between Martang and VicRoads between July 2010 and April 2012 to enter into an ‘Area Based Agreement’.[182] It sets out notification by VicRoads in July 2011 and again in August 2012 that it intended to sponsor a cultural heritage management plan,[183] which Martang intended to evaluate.[184] Thereafter, consultation occurred in accordance with s 59 of the Heritage Act from at least 10 April 2012 for the purpose of making the Approval Decision, continuing until October 2013. It identifies a meeting and email in December 2011 at which a proposal was made by Martang, described as ‘win-win’ that VicRoads provide financial assistance for Martang to purchase land suitable to meet native vegetation offset credit requirements (offset credits) and Martang’s commercial farming business. A suitable property was identified by VicRoads in September 2012 (the Elmhurst property) and thereafter the steps taken up until October 2013 to bring about the commercial arrangement to purchase the Elmhurst property in a tripartite agreement including Trust For Nature.[185] It then sets out a chronology of events occurring after the Approval Decision relevant to the purchase of the Elmhurst property occurring in June 2014 and the entry into a Credit Trading Agreement in July 2014. The pleading does not identify or differentiate events said to be consultation under s 59 and commercial negotiations. It identifies the financial interest under the Credit Trading Agreement at [102], as that which Martang stood to gain in the outcome of the Approval Decision. By reason of all matters outlined by the above chronology it pleads that as at the date of the Approval Decision there was an agreement, or alternatively a commitment, that VicRoads would pay Martang a sum of funds.[186] The consequence of this agreement being that Martang had, at the time of making the Approval decision and all times prior, a financial interest in the outcome of its Approval Decision.[187]
[182]An agreement relating to VicRoads’ activities within Martang’s RAP area generally and which the defences plead is entered into for the purpose of pursuing the objectives of the VicRoads Indigenous Action Plan 2011-2015).
[183]In accordance with s 54(1)(a) of the Heritage Act (n 2).
[184]In accordance with s 55(2) of the Heritage Act (n 2).
[185]The chronology is set out in Plaintiff’s Summons (n 127), [93] – [97.I].
[186]Ibid [98H].
[187]Ibid [102].

Martang’s obligations, fiduciary or otherwise arise from its application and registration as a RAP to undertake duties and obligations under the Heritage Act. At the time it was so registered it also had private commercial interests unrelated to its role as a RAP. It does not follow that furthering its commercial interests and the exercise of power under s 63 will always give rise to the possibility of a conflict of interest. There may well be circumstances where the two purposes can co-exist independently and without conflict. The matters raised by the defences would canvas the detailed factual circumstances that would go to the scope and content of any duty or obligation. As it is presently pleaded, all of the conduct identified between [83] and [105], at least as it identifies things that Martang has said or done, is relied on as conduct ’related to the exercise of the power in s 63’. None is said to be conduct of, for example, furthering Martang’s commercial interests, or exercised in furtherance of or contrary to its obligations under s 59.

(iii) Martang’s exercise of power

The plaintiff alleges the breach of duty and bias arise from Martang using its position as RAP under the Heritage Act to procure benefits that further its own agricultural interests.[188] Its conduct in furthering its commercial interests also led to the exercise of statutory power for a purpose or motive extraneous to the statutory purpose.
[188]Plaintiff’s Summons (n 127) [109].

In the factual matrix of a RAP, which also conducts private commercial enterprises, the pleaded case against Martang does not presently identify those material facts that make the concurrent commercial negotiations (which would not be undertaken in any fiduciary capacity) contrary to the Heritage Act obligations (the subject of the alleged fiduciary duty).

The power in s 63 must be exercised within 30 days of the submission of a proposed plan by a sponsor. Other obligations fall on the RAP in respect of the preparation of a plan which requires consultation over what may be a lengthy period of time. In this case Martang’s conduct relied on for the purpose of establishing a breach of the relevant duties commences with events occurring in July 2010, three years before Martang was required to exercise its statutory power.

As Brennan J said in Wik, a relationship of vulnerability between law maker and vulnerable persons does not create some ‘free standing’ fiduciary duty. He said it was necessary that:

The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to expect that the fiduciary will act in the interests of the beneficiary (or in the case of a partnership or joint venture, in the common interest of the beneficiary and the fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.[189]

[189]Wik (n 173) 95.

Until the statutory power under s 63 is engaged, there is nothing that Martang might do that is capable of affecting the interests of Represented Persons. Conduct leading up to the actual exercise of statutory power may be relevant to the way that the power is exercised. It may for example demonstrate that the RAP threatens to act in a way inconsistent with any duty it has. In this context, it is relevant if it demonstrates that the actual exercise of statutory power is other than for the benefit of those persons, as is expected of a fiduciary, creates an apprehension of bias or, more strongly an improper purpose or motive. The manner in which it conducts its commercial negotiations is not a matter in which the beneficiaries of any fiduciary obligation have any interest, unless it adversely affects the statutory approval process. The claim against Martang makes no such allegation as to the actual Approval Decision.

The conduct pleaded now seeks to include that Martang would refuse, or proposed to refuse, approval of a cultural heritage management plan as set out under paragraphs [92A] and [92B] of the SFASOC. Ultimately, that is not the exercise of power that occurred. If a fiduciary-like obligation exists to exercise power for the benefit of others as pleaded, then it is breached by the manner in which it is ultimately exercised. The pleadings do not clearly identify the factors by which the economic interests of the RAP (which in this case are private interests that it does not pursue in a representative capacity) and the heritage interests that it has the capacity to adversely affect, are in actual or possible conflict.

In Wheelahan & Anor v City of Casey & Ors (No 12),[190] John Dixon J set out a summary of 16 principles to be applied in considering whether a statement of claim is sufficient. They include:
[190][2013] VSC 316 (‘Wheelahan’).

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet ( and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

…

(d) as a corollary [to the material facts relied on to establish the cause of action], the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent. Thus, a pleading is ‘embarrassing’ within the meaning of r23.02 when it places the opposite party in the position of not knowing what is alleged;

…

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

…

(h) it is not sufficient to simply plead a conclusion from unstated facts.

...

(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;

(m) extensive cross referencing of facts in a pleading may render parts of the pleading unintelligible;

To the matters in Wheelahan,[191] the Court of Appeal in Uber Australia Pty Ltd v Andrianakis[192] added the broader approach of standing back and considering whether the pleading as a whole gives clear notice of the case to be met at trial.
[191]Wheelahan (n 190) [25] where his Honour cited the authorities supporting the general principles in turn.
[192](2020) 61 VR 580.

Therefore, it is critical that pleadings identify with some precision the particular conduct that gives rise to a departure from the various obligations that are alleged to exist. If there is a false avowal by Martang as to purposes, that should be identified and pleaded as part of the matters relied on. As presently pleaded, the claim is broad enough to encompass any and all conduct whether it be commercial negotiations or consultation as required under the Heritage Act as giving rise to the possibility of conflict of interest and therefore a breach of at least the non-conflict duty. If on the other hand, it is the contingency of one on the other that is alleged to give rise to an actual or possible conflict, or an improper purpose, that should be made clear. If there is some other basis for asserting the way in which the possible conflict between the two interests in the outcome arises, that should be identified.

Is the lengthy conduct prior to the submission of the 2013 plan for approval going to the surrounding circumstances in order to ascertain the purpose or purposes for which the power is actually exercised? Is it relied on to demonstrate conflicting interests such that any exercise of statutory power in relation to heritage matters is precluded by the simple fact of commercial negotiations commencing from 2012 or earlier?[193] What conduct is pleaded to give background context? To some extent the SFASOC does allege conduct leading to the Approval Decision that was contingent upon financial interests. If the contingent nature of the Approval is at the heart of the various breaches alleged, then its import is shrouded by the plethora of other conduct also relied on. Again the pleadings ought identify the particular conduct relied on to establish the contingency of approval.
[193]As discussed by Aickin J in Toohey (n 131) considering Municipal Council of Sydney v Campbell [1925] AC 338.

The relevant pleadings as to contingency are at least the following:

92A. On occasions between 10 April 2012 and 21 October 2013, Martang threatened VicRoads that it would, alternatively it proposed to, refuse:
92A.1 to comply with the terms of the Area Based Agreement, including cl 10.1.1 concerning the process for the development and approval of cultural heritage management plans for VicRoads projects in the RAP Area (see paragraph 91.1 above); and
92A.2 to approve any cultural heritage management plan in the RAP Area in the exercise of its power under s 63 of the Aboriginal Heritage Act;

unless and until VicRoads agreed, or committed itself, to pay Martang the funds necessary to enable Martang to purchase the Suitable Property (in addition to any payments to be made by VicRoads to Martang for the purchase of the native vegetation credits to be generated at that property).

The particulars of this paragraph rely on the two CPA documents and detail no other occasions.

It is then pleaded at [92B] and [94D] that, as at February 2013, Martang had sustained its threat to refuse to exercise the power under s 63 to approve any cultural heritage management plans if funds for the purchase of the Elmhurst property were not provided. Again, this is by reference only to the two CPA documents. It alleges that between July 2013 and August 2013, Martang engaged in conduct with the intention of delaying the submission of the 2013 plan for approval until VicRoads agreed to pay the funds [94N], conduct being particularised by reference to VicRoads emails. Additionally, it pleads conduct by VicRoads which sought to arrange a meeting with Martang and Aboriginal Victoria for the purpose of making the process of approval for the 2013 plan appear unrelated to ongoing negotiations between VicRoads and Martang [94O].[194] By reason of ‘foregoing matters’ (which appears to be a reference to [98] and [98A-H], which are events occurring after the Approval Decision), as at 18 October 2013 VicRoads and Martang had agreed and/or VicRoads had made a commitment to Martang to pay funds to Martang [98H].
[194]Paragraphs [93] and [94H] of the SFASOC (n 127) may also fit into this category.

However, the pleading broadly identifies that all of the above[195] establish three things:
[195]At [83] to [105] of the SFASOC (n 127).

(a) that they had the tendency to influence and/or affect the manner in which the s 63 approval was determined [106];[196]
[196]SFASOC (n 127) [106].

(b) that they demonstrate conduct with a corrupt motive and/or for a financial purpose [106A]; and

(c) because it was satisfied of having an agreement or commitment with VicRoads, it made the Approval Decision, demonstrating that the exercise of the power under s 63 was for a purpose extraneous to the statutory purpose [106B].

These paragraphs read (with the proposed further amendments underlined in red):

106. The matters set out in paragraphs 83 to ~~105~~ 105 above had the tendency to influence and/or affect the manner in which Martang exercised its powers and discharged its duties in relation to the Approval Decision and the 2013 CHMP.

~~Martang’s breaches of duty~~

106A. By reason of the matters set out in paragraphs 83 ~~to 106 above,~~ 105:

106A.1 Martang engaged in conduct in relation to the exercise of the power in s 63 of the Aboriginal Heritage Act with a Corrupt Motive and/or for the Financial Benefit Purpose;

106A.2 the agreement and/or the commitment referred to in paragraph 98H above was a condition that Martang required to be satisfied before exercising the power in s 63 of the Aboriginal Heritage Act to approve the 2013 CHMP;

106A.3 because the condition referred to in paragraph 106A.2 was satisfied Martang agreed to, and/or was committed, to approving, and did approve the 2013 CHMP on 18 October 2013.

106B. By reason of paragraph 106A:

106B.1 a subjective purpose, reason or intention of Martang in exercising the power under s 63 of the Aboriginal Heritage Act on 18 October 2013 was the Corrupt Motive; and

106B.2 an objective purpose of Martang in relation to exercising, and in exercising, the power under section 63 of the Aboriginal Heritage Act on 18 October 2013 was the Financial Benefit Purpose.

Much of the conduct identified in the pleadings as conduct of Martang is in fact conduct of others, whether it be VicRoads, Trust for Nature or Aboriginal Heritage Council. It is not identified how actions of those bodies are material to conduct of Martang.

The pleading does not identify what aspects of the conduct outlined between paragraphs [83] and [105] is the conduct related to the exercise of power under section 63 (as distinct from commercial or other conduct). Nor does it describe the way in which the two interests in the outcome (commercial and heritage) may conflict such that the Approval Decision that was actually made was one that was not in the interests of those to whom any duty was owed.

In this way, the nature of the claim to be pleaded is different from the bias ground and the corrupt motive ground, both of which go to the process of the decision maker rather than the actual decision arrived at. A cumulative, chronological, description of conduct over a four year period relied on to demonstrate an unlawfully exercised statutory power does not permit the fifth defendant to understand whether the case it must meet is that any commercial engagement with a potential sponsor of a heritage plan is said to amount to a breach of relevant duties. If it is not so broad, what particular attributes or aspects of the actual commercial engagement and actual conduct in protection of Aboriginal cultural heritage are in conflict with each other or breach the obligations or duties alleged to be owed to the plaintiff?

At present Martang’s breaches in respect of all pleaded duties and obligations are simply described as occurring by reason of paragraphs [106], [106A] and [106B]. In turn those paragraphs allege that by reason of the matters at [83] to [105] Martang’s conduct was that with a tendency to influence the manner of the exercise of power [106], was conduct with an improper purpose and motive, its approval was conditional upon an agreement or commitment with VicRoads, that approval was given because it was so satisfied of such an agreement or commitment [106A] and finally that because of the conduct in [106A] the exercise of the power under s 63 was for improper purposes. The cross referencing to establish links between the conduct relied on, the actual exercise of power and the unlawfulness resulting is difficult to follow. The breach of all five pleaded duties, and the unlawfulness that results from each breach is described in a conclusionary way simply by reference to ss 106, 106A and 106B.

I would not give leave to amend the SFASOC in its current form.

I. Section 64 of the Civil Procedure Act

Finally and for completeness, the plaintiff submits that I ought exercise my discretion under s 64 of the CPA to allow the matter to go to trial even if there be no real prospect of success because it is in the interest of justice to do so or the nature of the dispute is such that a full hearing on the merits is appropriate. For a number of reasons I do not propose to do so.

Firstly, I bear in mind that the conclusions that I have reached are that a civil court should not entertain the action seeking the declaration of past criminal conduct and that in respect of future acts to construct Section 2B there is to be a further statutory process under the Heritage Act which makes the dispute between the parties one that has become hypothetical. Had the State defendants abandoned reliance on the 2013 plan at the initial application for interlocutory injunction, there must be doubt as to whether the interlocutory relief would have been appropriate. To permit a full hearing on the merits, would be inappropriate given the basis upon which these applications have been determined.

Second, given the statutory process that has commenced and the entitlement of the plaintiff and other traditional owners (individually and collectively) to participate in that process to identify and determine appropriate protection of Aboriginal cultural heritage is clear. I should observe that the subjective and evaluative elements involved in attributing significance to Aboriginal places appear to give rise to differing opinions between the plaintiff and other Aboriginal persons.[197] In this adversarial process the plaintiff is entitled to present such evidence as she chooses to demonstrate the presence of Aboriginal places for the purpose of establishing the proposed unlawful acts by the State defendants. The proceeding does not necessarily give a voice to views held by other traditional owners with connection to the area under traditional laws and customs who are not parties to the proceeding. Such voices, as well as the plaintiff’s, are all entitled to be heard in the preparation of a cultural heritage management plan. The purposes of the CPA particularly with reference to appropriate dispute resolution processes would not be advanced by permitting a full hearing, in advance of that statutory process.
[197]Affidavit of Timothy Chatfield (n 14), [17] – [19]; Transcript of Proceedings, 1 June 2021, 129 (C Young QC).

I have given serious consideration to the submission that the conduct of Martang as alleged by the plaintiff is of sufficient seriousness and so warrants judicial scrutiny. Two factors lead me to conclude that, despite the serious nature of the allegations, I would not permit the matter to go to trial. The first is that public scrutiny has already been directed to that very question by the Ombudsman. The second is the fact that Martang is no longer a RAP and that the circumstances as they existed in 2013 have since been modified by amendments to the Heritage Act. Martang has no role to play in the protection of Aboriginal cultural heritage and scrutiny of its actions is of historic but not ongoing significance.

I will hear the parties on the appropriate orders.

SCHEDULE OF PARTIES

MARJORIE THORPE	Plaintiff
v
HEAD, TRANSPORT FOR VICTORIA	First Defendant
and
MINISTER FOR TRANSPORT INFRASTRUCTURE	Second Defendant
and
SECRETARY, DEPARTMENT OF TRANSPORT	Third Defendant
and
STATE OF VICTORIA	Fourth Defendant
and
MARTANG PTY LTD	Fifth Defendant

[2021] VSC 750

23 November 2021