SUMNER v UNITED KINGDOM OF GREAT BRITAIN & ORS No. SCGRG-99-1257 Judgment No. S462 [1999] SASC 462 (2 November 1999)

Last Updated: 11 November 1999

Court

Judgment of the Full Court (ex tempore)

Hearing

Catchwords

Materials Considered

• Racial Discrimination Act 1975 ;
• Crimes (Torture) Act 1988 ;
• Aboriginal Heritage Act (SA) 1988 ;
• Planning Act (SA) 1982 ;
• Genocide Act (UK) 1969 , referred to.
• Nulyarimma v Thompson (1999) FCA 1192, considered.

Representation

Respondents UNITED KINGDOM OF GREAT BRITAIN, JOHN BANNON AND CHRIS KENNY:

No Attendance

JOHN OLSEN:

Counsel: MR M JOHNS - Solicitors: CROWN SOLICITOR (SA)

Respondent ALEXANDRINA COUNCIL:

Counsel: MR S ABBOTT - Solicitors: LEMPRIERE ABBOTT MCLEOD

Respondents WENDY CHAPMAN AND TOM CHAPMAN:

Counsel: MR D MEYER - Solicitors: LYNCH & MEYER

Respondents BUILT ENVIRONS PTY LTD, DAVID O'SULLIVAN, COFFEY GEOSCIENCES PTY LTD AND UNDERDALE DRILLERS PTY LTD:

Counsel: MR W ERICSON - Solicitors: FINLAYSONS

Respondent STEVE PALYGA:

Counsel: MRS M SHAW QC - Solicitors: LYNCH & MEYER

Respondent COMMONWEALTH OF AUSTRALIA:

Counsel: DR M PERRY - Solicitors: CROWN SOLICITOR (CTH)

SCGRG-99-1257

Judgment No. S462

2 November 1999

On Appeal from SUPREME COURT (THE HONOURABLE JUSTICE NYLAND)

(Full Court: Doyle CJ, Debelle and Lander JJ)

SUMNER V UNITED KINGDOM OF GREAT BRITAIN AND THE STATE OF SOUTH AUSTRALIA

[1999] SASC 462

Full Court: Doyle CJ, Debelle and Lander JJ

1 This is an appeal by the plaintiff in these proceedings from the decision of a single judge of this Court refusing the plaintiff's application for an interim injunction.

2 The Court permitted Mr Lindon, a practitioner of the Court, and Mr Byrt, to assist the plaintiff in arguing the appeal. The plaintiff told us that he was unable to present his case adequately.

3 The Court did so only because it was desirable to deal with the appeal promptly, and as an indulgence to Mr Sumner. The appellant should not assume that the High Court would take the same approach. Nor, usually, would this Court do what it did in this case.

4 The plaintiff's proceedings were issued on 23 October 1999. In those proceedings, the plaintiff sought relief against a number of different parties. The plaintiff has named as first defendant the "United Kingdom of Great Britain". The second defendant is the State of South Australia. The third defendant is "Alexandrina Council". The fourth and fifth defendants are property developers at Hindmarsh Island. The sixth defendant is a former premier of South Australia and a former Leader of the Australian Labor Party in this State. The seventh defendant is a former premier of South Australia and a Minister in the present Government. The eighth, ninth, tenth, eleventh and twelfth defendants are Ministers in the Government of this State. The thirteenth defendant is the Premier of South Australia. The fourteenth, fifteenth, sixteenth and seventeenth defendants are parties directly associated with the construction of the proposed bridge from Goolwa to Hindmarsh Island. The eighteenth defendant is the fourth and fifth defendants' solicitor. The nineteenth defendant, is a journalist. The twentieth defendant is the Commonwealth of Australia.

5 The plaintiff has sought various forms of relief against those defendants. He seeks:

1. A declaration that the deeds to construct a bridge at Goolwa are either void for illegality (contrary to public policy) or voidable at the election of the third defendant (Alexandrina Council).

2. An interim order and a permanent order restraining the defendants, whether by their agents, servants or howsoever from acting on the agreements evidenced by the deeds in any way or any further action towards commencing construction of the bridge at the proposed Goolwa site.

3. An order restraining the fourth and fifth defendants from any public statement on this matter unless that statement has been submitted to the plaintiff for consideration and liberty to apply at short notice for the plaintiff prior to any publication of such a statement to any other person.

4. An order that the first defendant commence proceedings in the International Court of Justice against Australia for its breaches of the Genocide Convention and Vienna Law of Treaties.

5. An order that the twentieth defendant seek an advisory opinion from the International Court of Justice as to the lawfulness of the jurisdiction claimed by the Commonwealth of Australia in the State of South Australia over Ngarrindjeri.

6. An order that the Court will sit at Goolwa on a date to be fixed within the next few days and visit the site and surrounding area of the proposed bridge to further understand the evidence and the submissions on the law.

6 The first defendant has not been served with the plaintiff's proceedings and so was not represented before the Judge from whom this appeal is brought. The plaintiff says that notice of the proceedings has now been given to the first defendant. The first defendant did not appear at the appeal. The first and the seventh to the thirteenth defendants were represented before the Judge. The third defendant was represented but withdrew advising the Court that it would abide by the Court's decision. The fourth and fifth defendants were represented. The fourteenth to seventeenth were also separately represented.

7 The eighteenth defendant was represented by senior counsel. The trial Judge dismissed the proceedings against the eighteenth defendant. There was no appearance by the nineteenth defendant.

8 The twentieth defendant was represented before the trial Judge. Its counsel indicated to the Judge that it did not wish to make any submissions upon the interlocutory application but sought some procedural orders. The application in relation to the procedural orders was adjourned for hearing before the trial Judge today.

9 The same parties were represented before us.

10 The plaintiff sought an interlocutory order in the following terms:

1. Until Monday, 1 November 1999 at 4pm, the fourteenth defendant, Built Environs Pty Ltd and the fifteenth defendant, David O'Sullivan, whether by themselves or by their agents, be restrained until Monday 1 November 1999 or further order from taking any further steps to disturb the ground or establish a construction site or otherwise commence construction at the proposed location at Goolwa of the proposed bridge.

11 The application was heard on 26 October, the day after the proceedings were issued. The Judge's decision was given on 27 October.

12 Clearly enough the application was for an interim injunction. That application was refused. It is from that application that the plaintiff appeals.

13 If that was all that the plaintiff was seeking this appeal would be pointless. The appeal was heard on the day on which the order sought from the Judge would have expired.

14 The appeal has proceeded upon the basis that this is an appeal from a refusal by the Judge to grant interlocutory injunctive relief, that is, an injunction until trial.

15 The appellant comes to this Court as of right. The appellant does not need leave to appeal from the Judge's refusal; see s50(3) Supreme Court Act.

16 The Statement of Claim in the proceedings identifies the appellant as Darrell Sumner of Ngarrindjeri. It claims that the Ngarrindjeri have a special interest in the land and waters, at the site of the proposed bridge at Goolwa, as traditional owners, custodians and traditional owners and custodians since time immemorial. It further claims that Ngarrindjeri have a special interest as victims of genocide since white invasion.

17 The Statement of Claim asserts that the consent of the Ngarrindjeri to construct the proposed bridge on Ngarrindjeri land has never been sought nor has any consent to occupy any Ngarrindjeri land ever been sought by any of the defendants. It asserts that the Ngarrindjeri have never been properly consulted or consulted at all by any of the defendants as to the construction of the proposed bridge on the proposed site. The Ngarrindjeri have been, it is claimed, excluded from any negotiations or agreements by the defendants to the decision to construct the proposed bridge. The Statement of Claim then asserts in para 6 that:

"The agreements to construct the proposed bridge as evidenced by the several deeds are void for illegality since they are contrary to public policy and their implementation involves similar illegality.

Particulars

(1) Statutory - breaches of the Racial Discrimination Act and the Equal Opportunity Act, Aboriginal Heritage Act 1988, Planning Act (2) Common Law - Breaches of the Schedule to the Genocide Convention Act 1949 and of other international human rights standards including the draft declaration on the rights of indigenous peoples. The agreements will affect relations with another nation - Ngarrindjeri nation."

18 In the alternative it is said in para 7 that the agreements are voidable for illegality at the election of the third defendant.

19 The Statement of Claim also claims that the defendants are liable in negligence to the plaintiff by reason of the theft and wrongful acquisition of Ngarrindjeri land by the defendants and by reason of "continuing acts and attempted acts of genocide against Ngarrindjeri by the defendants since 1800".

20 It is asserted that the defendants owe a duty of care to the Ngarrindjeri not to commit or attempt further acts of genocide and to protect Ngarrindjeri from any further acts or attempted acts of genocide.

21 It is claimed that the decision to proceed to construct the bridge would cause the Ngarrindjeri people damage in the nature of serious mental harm.

22 Next, it is claimed, that the Ngarrindjeri have a legitimate expectation "that since genocide is apparently quite legal in this country, the defendants will do everything in their power to prevent acts and attempted acts of genocide occurring and to ensure that any such acts are not committed or attempted with intent to destroy Ngarrindjeri, especially after the rejection in 1992 by the High Court of the longstanding genocidal lie of terra nullius."

23 It is further claimed thereby that the defendants owe a fiduciary duty to the Ngarrindjeri to act uberrimae fidei.

24 These are the bases of the claim made by the plaintiff.

25 The Statement of Claim then seeks injunctive relief and the orders to which we have referred.

26 The application for injunctive relief was supported by an affidavit of the plaintiff filed on 25 October 1999. The Judge noted that it does not prove the facts upon which the injunction is sought.

27 The fifth defendant tendered an affidavit in opposition to the application which affidavit the Judge admitted.

28 Three other parties sought to intervene in the proceedings. Mr Robbie Thorpe of Gunnai Underboorun of Lake Tyres Aboriginal Trust and Wadjularbinna Nulyarimma of Gungalidda sought leave to intervene. The trial Judge did not rule on this application, adjourning them to another date.

29 Mr Kevin Buzzacott of the Arabunna nation also sought leave to intervene. The trial Judge did not make a formal order permitting intervention but did allow him to make oral submissions in support of the application. She then later refused him leave to intervene.

30 The plaintiff complains, on this appeal, of the failure by the Judge to permit these three men to intervene in these proceedings. They are procedural matters and could in no way have affected the decision on the substantive matter before the Judge. That complaint does not need to be considered on this appeal. It was not pressed on the appeal. In any event, an appeal against these orders could be heard only if leave to appeal was granted. Leave was neither sought nor granted. Nothing more need be said about this matter.

31 Apart from that, the appellant advances numerous grounds of appeal in support of the complaints that the trial Judge failed to grant an injunction as sought.

32 Broadly, the appellant complains that the trial Judge erred:

1. In holding that the plaintiff's undertaking for damages was inadequate;

2. In holding that there was no satisfactory reason for the delay in the application;

3. In holding that the plaintiff had not established an arguable case to be tried; and

4. In failing to have regard to the damage which would be suffered by the Ngarrindjeri people.

33 There is a separate complaint in relation to the dismissal of the proceedings against the eighteenth defendant and a further complaint that the Judge failed to make some procedural orders and failed to exclude some evidence at the hearing. None of these matters were pursued on the hearing of the appeal. Once again, they could be pursued only if leave to appeal was granted. Leave was neither sought nor granted. They can be put to one side.

34 The only issue to be decided by the Court is whether or not the plaintiff should have been granted the interlocutory injunction sought.

35 As the Judge rightly pointed out, the appellant must establish first that there is a serious question to be tried in the sense that there is a probability that the appellant will succeed at trial and obtain the relief sought. Secondly that the appellant will suffer irreparable injury which will not be adequately compensated for in damages. Thirdly that the balance of convenience favours a granting of an injunction.

36 The plaintiff presumably claims to be a member of the Ngarrindjeri nation. He, however, does not purport to bring these proceedings except on his own behalf. He does not claim to bring these proceedings in any representative capacity. In those circumstances the question is whether or not the plaintiff has a real probability of success on the relief which is claimed in the Statement of Claim against the fourteenth to seventeenth defendants.

37 The application for the injunction is directed only to the fourteenth to seventeenth defendants who are the proposed contractors to construct the bridge, or at least entities associated with the contractors.

38 The question then is whether or not the appellant has made out a serious question to be tried in respect of the claims against those contractors.

39 The appellant has not done so. There is nothing in the Statement of Claim or other material before the Court which indicates that the fourteenth to seventeenth defendants have been guilty of any breach of contract, any tort or any breach of fiduciary duty. It cannot be said that anything done by the fourteenth to seventeenth defendants has given rise to any legitimate expectations on the part of the appellant. Any such expectation could not, in any event, be a basis for the grant of an injunction.

40 We will refer briefly to each of the causes of actions raised in the appellant's Statement of Claim.

41 The appellant's first cause of action is in contract. He claims that the agreements to construct the proposed bridge are void for illegality since they are contrary to public policy and their implementation involves illegality.

42 The appellant is not a party to the relevant contracts. Indeed, the appellant does not identify, in his Statement of Claim, who are the parties to the contract. As the appellant is not a party the appellant is not entitled to an order setting aside the contracts on the basis that they are contrary to public policy or on the basis that their implementation would give rise to some form of illegality. The appellant does not identify how it is that he would be entitled to any relief in respect of a cause of action in contract.

43 Nor did the appellant identify in any way at all just how the contracts to construct the bridge gave rise to any illegality. The Statement of Claim refers to certain statutes, but no attempt was made by Lindon to identify as a matter of fact at law how the illegality arose, or under which statutory provision.

44 Next the appellant claims to be entitled to succeed upon a cause of action in negligence. The appellant does not identify with any particularity how it is that the duty of care is said to arise or, indeed, the scope of the duty of care. It is said:

"The standard of care required is both a statutory duty and a common law duty."

45 The appellant then relies upon the Racial Discrimination Act, Crimes (Torture) Act, Aboriginal Heritage Act and Planning Act in relation to the statutory standard of care.

46 The appellant has not indicated either by particulars in the Statement of Claim or during argument how it is that the fourteenth to seventeenth defendants have been guilty of any breach of duty of care owed by them to the appellant. Once again, the appellant has not been able to indicate the particular breaches of the various statutes which are relied upon.

47 Next the appellant says that the standard of care in common law includes Genocide Convention, Covenant on Civil and Political Rights, Draft Declaration of Indigenous Peoples. A similar basis for illegality of the construction contracts is also advanced.

48 These causes of action, and perhaps the whole of the Statement of Claim, are underpinned by a claim that all of the defendants including the fourteenth to seventeenth defendants have been guilty of genocide.

49 That, of course, is a very serious claim. The appellant, however, has not given any particulars of the acts of genocide of which the defendants have been guilty or any acts of genocide that are proposed which evidenced the breach of the "standard of care". The appellant simply says that building the bridge is an act of genocide.

50 Genocide is not known as such as an offence under Australian law; Nulyarimma v Thompson (1999) FCA 1192.

51 Undeterred, the appellant argued that the Genocide Act 1969 (UK) applied in this State and that this Court ought to apply that statute in a consideration of these matters. On that basis, the appellant argues, acts of genocide become unlawful. The submission was the main matter argued by Mr Lindon on appeal.

52 The submission was doomed to failure.

53 The Genocide Act 1969 is an Act of the Parliament of the United Kingdom and Northern Ireland. It has no application in this State.

54 The Genocide Act 1969 does not even purport to apply to this State.

55 It is irrelevant in these proceedings.

56 The third cause of action relied upon is a legitimate expectation. It is pleaded together with the fourth cause of action being the claim in fiduciary duty.

57 The appellant has no claim against the fifteenth to seventeenth defendants based upon any claim of a legitimate expectation. He certainly has no claim that "since genocide is apparently quite legal in this country" that some form of legitimate expectation arose in the appellant's mind for which these defendants are responsible.

58 The appellant does not identify how it is that the fiduciary relationship which is said to have been breached, arises. It is not clear whether it arises out of the acts of genocide or the fact that genocide is lawful or for some other reason.

59 In any event the fiduciary relationship is not identified. Nor are the fiduciary duties identified except a fiduciary duty to act "uberrima fidei especially in matters of land or genocide".

60 The plea, is, with respect, incomprehensible.

61 The appellant has not demonstrated that there is a serious question to be tried in the claim which he has brought against the fourteenth to seventeenth defendants. Whether there is a serious question to be tried between the appellant and any of the other defendants is not to be decided at this time.

62 There are other reasons why the Judge's decision must be upheld.

63 The appellant has not made out that he will suffer irreparable harm by reason of the failure of this Court to grant an injunction.

64 Nor has the delay in bringing the proceedings been adequately explained.

65 The appellant is able to offer no satisfactory understanding in relation to damages which will run at the rate of about $8,000 per day. The appellant has no substantial assets. Mr Lindon suggested that the Ngarrindjeri lands provided adequate security, but did not explain how the appellant could offer them as security.

66 The balance of convenience clearly favours the defendants.

67 The appellant could have brought these proceedings at a much earlier time. He could have brought these proceedings before Professor Saunders reported in 1994, during the currency of the Royal Commission into the Hindmarsh Bridge in 1995; at the time of Justice Matthews inquiry in 1996 and at any time since. The appellant has delayed these proceedings until the very last moment. This, coupled with the matters just referred to, means the balance of convenience favours the defendants.

68 For those reasons we dismissed the appeal, and ordered the appellants to pay the costs of those respondents who had appeared, except for the third respondent.

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