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Thorpe v Head, Transport for Victoria

Thorpe v Head, Transport for Victoria

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Case Copied 23 November 2021 71 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 750
Decision Date: 23 November 2021

CaseChat Overview and Summary

The case of Thorpe v Head, Transport for Victoria involves the applicants seeking a declaration and injunction concerning the presence of Aboriginal places on land in Melbourne. The dispute reached the Supreme Court of Victoria, where the applicants argued that past works conducted by the defendant had criminal implications and posed a threat to Aboriginal cultural heritage. The applicants sought a declaration and injunction, but the court found that there was no real controversy between the parties, as the defendant had not relied on the approval decision under the Aboriginal Heritage Act 2006 (Vic) to conduct future works.

The primary legal issues addressed by the court were whether a real controversy existed between the parties, the availability of a civil court declaration concerning past criminal conduct, and whether any threat to Aboriginal cultural heritage required restraint. The court also considered whether it should make a declaration or grant an injunction in advance of the statutory process under the Aboriginal Heritage Act 2006 (Vic). Additionally, the court examined the applicability of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the case and the standing of the applicants.

The court held that there was no real controversy between the parties, as the defendant had not relied on the approval decision for future works. Furthermore, the court found that the applicants' claims under the Charter of Human Rights and Responsibilities Act 2006 (Vic) did not survive the strike-out or summary judgment of the non-Charter claim. The court also rejected the application for leave to further amend the statement of claim, as the proposed amendments did not address the arguable claims in an adequate form. Consequently, the court granted summary judgment in favour of the defendant.

Orders