SUMNER v UNITED KINGDOM OF GREAT BRITAIN & ORS No. SCGRG-99-1257 [2000] SASC 91 (13 April 2000)

Last Updated: 16 April 2000

Court

Ruling of the Honourable Justice Nyland

Hearing

Catchwords

Materials Considered

• Genocide Convention Act 1949 ;
• Racial Discrimination Act 1975 ss 7, 9(1);
• Equal Opportunity Act (SA) 1984 s 51;
• Aboriginal Heritage Act (SA) 1988 s 23;
• Planning Act (SA) 1982 ;
• Development Act (SA) 1993 ;
• Crimes (Torture) Act 1988 ;
• Foreign States Immunity Act 1985 s 9, referred to.
• Francese v Corporation of Adelaide (1989) 51 SASR 506;
• Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493;
• Thorpe v Commonwealth [1997] HCA 21; (1997) 144 ALR 677, applied.
• Nulyarimma v Thompson [1999] FCA 1192;
• Mabo v Queensland (No 2) (1992) 175 CLR 1;
• Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273;
• Sumner v United Kingdom of Great Britain [1999] SASC 462;
• Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 72 ALJR 1270;
• Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129, considered.

Representation

Defendant UNITED KINGDOM OF GREAT BRITAIN:

No Attendance

GRIFFIN AND JOHN OLSEN:

Counsel: MS I HAYTHORPE - Solicitors: CROWN SOLICITOR (SA)

Defendant ALEXANDRINA COUNCIL:

Counsel: MR S ABBOTT - Solicitors: LEMPRIERE ABBOTT MCLEOD

Defendants WENDY CHAPMAN AND TOM CHAPMAN:

Counsel: MR D MEYER - Solicitors: LYNCH MEYER

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

Counsel: MR W ERICSON - Solicitors: FINLAYSONS

Defendant CHRIS KENNY:

No Attendance

Defendant COMMONWEALTH OF AUSTRALIA:

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

SCGRG-99-1257

Judgment No. [2000] SASC 91

13 April 2000

(Civil: Application)

Nyland J

Ruling on applications to strike out and applications to intervene:

1. In this action the plaintiff, Darrell Sumner of the Ngarrindjeri, seeks various orders against the defendants with respect to the building of the Hindmarsh Island Bridge.

2. At the hearing of this application the plaintiff appeared in person. On the previous hearing with respect to the application for injunction I permitted Mr Lindon to make submissions on behalf of Mr Sumner as amicus curiae. On this occasion, Mr Lindon sought leave to appear with Mr Byrt to make submissions on behalf of the plaintiff. I eventually gave leave to Mr Lindon in order to facilitate, and expedite, the resolution of this matter, although I made it clear that such an indulgence would not necessarily be afforded to the plaintiff in the future. The plaintiff did, however, make a statement to the Court at the conclusion of the submissions made on his behalf.

3. The first defendant to the proceedings is the United Kingdom of Great Britain. There was no appearance by this defendant either at the hearing of this application or in any previous proceedings. The State of South Australia is the second defendant. The State was represented by Ms Haythorpe who also appeared on behalf of the sixth defendant, a former South Australian premier, the seventh, eighth, ninth, tenth, eleventh, and twelfth defendants, all of whom are South Australian Government Ministers, and the thirteenth defendant, the current Premier of South Australia. The third defendant, the Alexandrina Council, was represented by Mr Abbott. Mr Meyer appeared for the fourth and fifth defendants, Mrs and Mr Chapman, who are property developers on Hindmarsh Island. The fourteenth defendant is the construction company which has been engaged to build the Hindmarsh Island bridge and the fifteenth defendant is a director of that company. These defendants were represented by Mr Ericson, as were the sixteenth and seventeenth defendants which are also companies involved in the construction of the bridge. I previously ruled that the proceedings against the eighteenth defendant be dismissed. There was no appearance by the nineteenth defendant who is a journalist. The twentieth defendant, the Commonwealth of Australia, was represented by Dr Perry.

4. The prayer for relief contained in the Statement of Claim sets out the various orders sought against the defendants as follows:

"1. Upon the Court making the following findings of fact (or assuming them to be true for the purposes of this hearing): (i) Ngarrindjeri have never given their consent to the forced occupation of their lands and the purported usurpation of Ngarrindjeri Law and Ngarrindjeri Lands; (ii) acts of genocide (according to the well-settled definition in the Genocide Convention 1948 as confirmed by the International Criminal Court Statute 1998) have been committed against Ngarrindjeri since 1800 by the first defendant and, since its first formation, the second defendant and, since its first formation, the third defendant and, since their first formation, the predecessor local [Goolwa] councils to the third defendant. 2. 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). 3. 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. 4. 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. 5. An Order that the first defendant commence proceedings in the International Court of Justice against Australia for its breaches of the Genocide Convention and the Vienna Law of Treaties. 6. 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 and The State of South Australia over Ngarrindjeri. 7. An Order that the Court will sit at Goolwa on a date to be fixed but within the next few days and visit the site and surrounding area of the proposed bridge to further understand the evidence and submissions on the Law."

Applications To Intervene

5. There are two applications to intervene in these proceedings; an application filed on behalf of Wadjularbinna Nulyarimma of Gungalidda and an application filed by Robbie Thorpe of Gunnai under Boorun, both of which are dated 26 October 1999. I previously refused an application for leave to intervene by Kevin Buzzacott of the Arabunna. Each of the present applicants is described in his application as "an applicant for leave to appeal to the High Court of Australia ... on a question of law common with the subject proceedings and the decision of which might affect the proceedings".

6. Leave was given to Mr Lindon to make submissions on behalf of both applicants, whom he described as "the aboriginal genocide prosecutors". His submissions were to the effect that the applicants "have experienced the same genocidal practices on their own people". He argued that "[i]t is incumbent on the court to hear alleged victims of the same genocidal practices asserting that this is a common problem, and that they have an interest in the matter not being struck out because the same issues they wish to ventilate and are ventilating are involved." The applications were opposed.

7. The determination as to whether permission to intervene should be granted to a party is a discretionary matter. Supreme Court Rule 33.01 governs the conditions by which a person may seek to intervene in proceedings. It provides:

"Any person: (a) claiming an interest in the subject matter of proceedings; or (b) whose claim or defence raises a question of law or fact, in common with the subject proceedings or the decision of which might affect the proceedings; or (c) claiming that his participation in the proceedings will provide the Court with information relevant to the decision of the case or the choice of a remedy that will not be presented by an existing party, may by application to the Court in the proceedings seek: (i) permission to intervene; and (ii) directions." (emphasis added).

8. Mr Lindon conceded that the submissions which he would make on behalf of the applicants, should leave be granted, would be identical to those to be made on behalf of the plaintiff but said they would provide different factual illustrations. In endeavouring to demonstrate that the applicants had an interest in the subject matter of the action, Mr Lindon emphasised the impact which the outcome of this matter will have on them. Essentially, his submissions hinged on the assertion that any finding concerning the law of genocide would affect the applicants in the sense that it would affect the litigation in which they are currently involved: "certainly a loss affects them, and, likewise, a win will affect them".

9. It has previously been held by this court that the mere fact that an intervener may be affected by a finding about the law in relation to other proceedings in which he or she is a party will not, of itself, justify intervention under SCR33: Francese v Corporation of Adelaide (1989) 51 SASR 506. In the circumstances, as was the case with Mr Buzzacott, I do not consider that there is any basis upon which to grant either Mr Thorpe or Mr Nulyarimma leave to intervene in these proceedings. I therefore refuse both applications.

10. I now turn to consider the remaining applications. The defendants represented before the court have made various applications to dismiss the proceedings as being frivolous, vexatious, constituting an abuse of process of the court, and/or not disclosing any cause of action known to law. Alternatively, the defendants apply to strike out the summons and statement of claim for the same reasons. Furthermore, each of the defendants that have filed such an application seek an order that the plaintiff pay that defendant's costs of the application.

11. As a matter of convenience and expediency, counsel divided the argument as to the various topics between them, with each adopting submissions of all the others. I indicate, that I have taken all of the submissions into account in considering each of the individual applications.

Genocide

12. At the heart of the defence applications is the issue as to whether allegations of genocide underpin, and are fundamental to, the plaintiff's claims against the defendants. It was submitted on behalf of the defendants that the alleged crime of genocide constituted the fundamental basis for the entire action. This appears to be consistent with the Summons and Statement of Claim, both of which preface the relief sought with the requisite finding of genocide, as was cited above. Similarly, all causes of action outlined in the Statement of Claim appear to rely, if not explicitly at least implicitly, upon a finding of genocide. Furthermore, the submissions made by Mr Lindon pertained almost entirely to the issue of genocide or issues related directly thereto. It is apparent, therefore, that the defendants' submission that this entire action relies fundamentally upon a finding of genocide against the Ngarrindjeri is correct.

13. The relevance of such a finding to the defendants' applications lies in their submissions that, firstly, the allegations contained in the statement of claim could not amount to genocide according to its international law definition and, secondly, the crime of genocide is not cognisable to Australian domestic law and, as such, the entire action is undermined by its reliance upon findings of genocide.

14. It is with a profound sense of regret that one looks upon the history of Aboriginal dispossession, discrimination and cultural suppression within this country, all of which have resulted in a continuing degree of alienation experienced by many indigenous people within the Australian community and consequent social and health problems specific to the Aboriginal population. Wilcox J, in Nulyarimma v Thompson [1999] FCA 1192 (at [5] - [6]), provides an insightful and clearly empathetic account of the history of the mistreatment of Aborigines in this nation:

"Anybody who considers Australian history since 1788 will readily perceive why some people think it appropriate to use the term "genocide" to describe the conduct of non-indigenes towards the indigenous population. Many indigenous Peoples have been wiped out; chiefly by exotic diseases and the loss of their traditional lands, but also by the direct killing or removal of individuals, especially children. Over several decades, children of mixed ancestry were systematically removed from their families and brought up in a European way of life. Those Peoples who have been deprived of their land, but who nevertheless have managed to survive, have lost their traditional way of life and much of their social structure, language and culture. Not surprisingly, this social devastation has led to widespread (although not universal) community demoralisation and loss of individual self-esteem, leading in turn to a high rate of alcohol and drug abuse, violence and petty criminality followed by imprisonment and, often, suicide. Many (not all) communities suffer substandard housing, hygiene, and nutrition, leading to prevalent diseases that are rarely experienced by non-indigenous communities. The result of all this, as numerous studies have demonstrated, is that indigenous Australians face health problems of a different order of magnitude to those of other Australians, leading to an expectancy of life only about two-thirds that of non-indigenous people."

15. It should be a matter of deep concern for all Australians that our indigenous communities continue to be plagued with the problems identified by Wilcox J. It is, however, my task to determine any legal responsibility to address such issues, or more specifically, the issues of concern with respect to the Ngarrindjeri which have been raised in this matter. The distinction must be drawn between legal responsibility and social responsibility. While all Australians might bear a social responsibility to play their part in the resolution of issues pertaining to indigenous Peoples and in promoting a process of reconciliation, it is an entirely different matter to determine whether individual Australians, groups of Australians, Australian companies or even the government of the day have a legal responsibility to this effect.

16. In this respect, it is pertinent to note that Mr Lindon in the course of argument was critical of the approach to these issues taken by what he described as "a white court". When I indicated that I was having some difficulty in understanding some of the submissions put to me, Mr Lindon suggested that this reflected a continuing attitude of "white denial" and an unwillingness to accept that the Court itself was based on genocide. Mr Lindon made it clear that this was an issue of some significance which underpinned all the submissions made by him in this matter.

Genocide Under International Law

17. It is accepted by all parties that genocide constitutes a serious offence under international law. The prohibition against genocide forms a part, not only of Australia's treaty obligations to other nation States, but it has also been recognised as a peremptory norm of customary international law, giving rise to a non-derogatable obligation owed by each State to all other States within the international community.

18. The elements of the universal crime of genocide are defined in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter the "Genocide Convention") as follows:

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group."

19. It is clear, therefore, that an intention to destroy forms an essential element of the international crime of genocide. Any such intention is denied by the defendants. The thrust of Mr Lindon's argument was that the failure to recognise the Ngarrindjeri as a sovereign nation amounted to an intention to destroy them. This argument cannot, however, be sustained. Not only is it a matter independent of the building of the bridge, but it simply does not follow that any such person who fails to recognise the legal sovereignty of a group therefore intends to destroy that group.

20. Moreover, this argument involves a questioning of the acquisition of sovereignty over Ngarrindjeri land, Mr Lindon asserting that the land "was acquired by genocide", rendering such acquisition invalid. However, the High Court has stated in clear terms that there can be no residual sovereignty residing in Australia's indigenous peoples. Although Mabo v Queensland (No 2) (1992) 175 CLR 1 recognised the fictional basis of the doctrine of terra nullius in an Australian context, that decision is:

"entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are 'a domestic dependent nation' entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law": Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200, per Mason CJ.

21. More fundamentally, however, the issue as to the acquisition of sovereignty over Australia by Great Britain and subsequently, by the Commonwealth of Australia, is a non-justiciable matter. As Gibbs J stated in the New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 388, in a passage expressly approved by Brennan J in Mabo (No 2) (supra, at 31), "[t]he acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state".

22. I accept that none of the defendants, by reason of building the bridge, had any intention to destroy the Ngarrindjeri. Following the various inquiries into this matter, including the report of Professor Saunders in 1994, the Royal Commission in 1995 and Justice Matthews' inquiry in 1996, it appears that the building of the bridge and the agreements pertaining thereto have proceeded on an understanding that there would be little, if any, impact upon the Ngarrindjeri as a result of the construction thereof.

23. This finding necessarily undermines any cause of action founded upon allegations of genocide. For the sake of completeness, however, it is appropriate to address the argument concerning the recognition of genocide under Australian law.

Genocide Under Australian Law

24. Dealing firstly with Australia's treaty obligations, the Australian Parliament enacted the Genocide Convention Act in 1949, the purpose of which was to endorse Australia's ratification of the 1948 Genocide Convention, which ratification occurred on 8 July 1949. The Convention entered into force on 12 January 1951. There is, however, no legislation implementing the Genocide Convention in Australia.

25. It is a firmly entrenched principle of our common law that entry into a treaty by Australia will not give rise to a direct source of rights and obligations under Australian domestic law. After a long history of High Court references to this principle (see: Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449 at 478; Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641-642; Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 211-212, 224-225; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 570; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305), the Court provided clear confirmation of the principle in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, wherein Mason CJ and Deane J held (at 286-287):

"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties falls within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive." (footnotes omitted)

26. It follows, therefore, that the plaintiff is unable to rely on the provisions of the Genocide Convention as they have clearly not been incorporated into Australian law.

27. Mr Lindon conceded this but submitted that Australian courts could look to the provisions of the Convention according to, what he referred to as, "the lacuna theory". He explained this as follows:

"[I]f there is a gap, hiatus, there is a gap in the law, then you can look to internationally-recognised human rights standards, and you try and make your law consistent with it... Is there a gap in the law? There clearly is a gap in the law. Somehow, there is a gap in the law between the non-justiciability, act of state, denial of how the land was acquired, and the deliberate refusal to provide protection for (sic) genocide to people, particularly aboriginal people."

28. Although Mr Lindon did not provide any authority for the lacuna theory, I assume that he was intending to refer to comments such as those of Kirby P (as he then was) in the New South Wales Court of Appeal case of Cachia v Hanes (1991) 23 NSWLR 304. In that case, Kirby P suggested (at 313) that international law could be regarded as a "source of filling a lacuna in the common law of Australia or for guiding the court as to the proper construction of the legislative provision in question".

29. A similar sentiment was expressed in Mabo (No 2) (supra) (at 42) where Brennan J stated:

"The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights".

30. It is clear, however, that those statements were made in relation to customary international law and cannot be regarded as a basis for the incorporation of international treaty provisions into domestic law as Mr Lindon appears to suggest. Equally, it is clear that these cases and others, such as Chow Hung Ching (at p477), view customary international law as a potential source of Australian common law but not an automatic part of it.

31. International conventions have also been regarded as a source of influence upon the common law. In Teoh it was held by Mason CJ and Deane J (at 288) that:

"[a]part from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention in our domestic law. Judicial development of the common law must not bee seen as a backdoor means of importing an unincorporated convention into Australian law ... Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law." (footnotes omitted)

32. Notwithstanding the fact that both customary international law and international conventions may thus have some influence upon the development of the common law, in the case of the crime of genocide there is no scope for such development. It has been expressly held that the offence of genocide is not recognised by Australian domestic law: Nulyarimma v Thompson [1999] FCA 1192; Sumner v United Kingdom of Great Britain [1999] SASC 462. Each of the judges in Nulyarimma engage in a detailed exploration of the international law pertaining to the crime of genocide and its relationship with Australian law, and made it clear that, in the absence of legislation, a prohibition against genocide is not cognisable under Australian law. Accordingly, any arguments by the plaintiff based upon a supposed common law crime of genocide must inevitably fail.

Locus Standi

33. It was submitted on behalf of the defendants that, on the pleadings as they presently stand, the plaintiff was not in a position to sue in any capacity other than his personal capacity. It was further argued that no private right of the plaintiff had been or was likely to be interfered with, nor was he likely to personally suffer any loss or damage. These submissions were consistent with those pertaining to the issue of genocide. Essentially, it was argued that since the entire action was founded upon allegations of genocide against the Ngarrindjeri, it would therefore be necessary for the plaintiff to bring the action in a representative capacity, on behalf of the Ngarrindjeri. Mr Lindon conceded, however, that the plaintiff had not complied with the procedure required by SCR 34 with respect to representative actions.

34. I will in due course consider the plaintiff's locus standi in relation to each cause of action set out in the statement of claim. Insofar as this action relies on a finding as to the crime of genocide, however, Mr Lindon argued that the very fact that these proceedings involved allegations of genocide was sufficient to overcome any difficulties in establishing the plaintiff's standing. He submitted that it was irrelevant that the plaintiff had failed to comply with the requirements for a representative action:

"because what we are talking about is aboriginal people. It becomes a question about whether those proceedings about representative proceedings are to apply to aboriginal people in relation to matters of genocide, because clearly under genocide law, one person can complain of genocide, because the thing you are complaining about is destroying you as a group as such".

35. The principle of locus standi was enunciated by Gibbs J in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 526 as follows:

"It is quite clear that an ordinary member of the public, who has no interest other than that which any other member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."

36. Traditionally, a plaintiff has been required to establish either that:

"the interference with the public right is such as that some private right of his is at the same time interfered with... [or that he] suffers special damage peculiar to himself from the interference with the public right": Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114, per Buckley J.

37. The concept of "special damage" was defined as incorporating a "special interest in the subject matter of the action": ACF v Cth (1980) (supra) at 527 per Gibbs J; Australian Conservation Foundation v South Australia (1988) 53 SASR 349 at 352, per King CJ. It has been held that:

"an interest ... does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it": Gibbs J in ACF v Cth at 530-531.

38. More recently, in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 72 ALJR 1270, the High Court emphasised the flexibility of the rule requiring special interest and stated that the court should look to the nature and subject matter of the litigation in determining what will amount to a special interest. The court went on to say:

"This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support the public interest in due administration which enlivens equitable intervention in public law": at 1280, per Gaudron, Gummow & Kirby JJ.

39. In this case, the public wrong which the plaintiff seeks to avoid is the offence of genocide. The plaintiff's purported locus standi is therefore undermined by the fact that the offence of genocide is not cognisable under Australian law and not, as a result, capable of being sought to be enforced by anyone. It is therefore unnecessary to consider whether the plaintiff has established a "special interest in the subject matter of the action". Had the law been otherwise, it is likely that a person making a serious allegation of genocide would be able to establish locus standi, since his or her interest in the matter would exceed that of a mere intellectual or emotional concern and a loss would result in more than a sense of grievance or debt for costs. As a member of a racial group the subject of genocide, that person's life would be threatened and as such he or she would suffer special damage peculiar to him/herself. Naturally, this would depend entirely of the court's assessment of the seriousness of the allegation. Nevertheless, until such time, if ever, that genocide becomes a recognisable offence under Australian law, it is not possible to establish locus standi on the basis of allegations of genocide. It follows, therefore, that to the extent that the plaintiff's action relies on findings as to genocide, he lacks the requisite locus standi.

Contract

40. Part I of the Statement of Claim is concerned with a cause of action in contract. It states:

"1. Ngarrindjeri have a special interest in the Land and Waters at the proposed site of the proposed bridge at Goolwa, as traditional owners, custodians and traditional owners and custodians since time immemorial and as victims of genocide since white invasion (historical interest). 2. The consent of Narrindjeri 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. 3. Ngarrindjeri have never been properly consulted at all by any of the defendants as to the construction of the proposed bridge on the proposed site. 4. Ngarrindjeri have been unconscionably excluded from any negotiations or agreements by the defendants to the decision to construct the proposed bridge. 5. Under duress, the Ngarrindjeri have authorised unconditionally the construction of the proposed bridge at an alternative site, namely, Wellington, which is not as special to Ngarrindjeri as the Goolwa location. 6. 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 (SA), Aboriginal Heritage Act 1998 (SA), Planning Act (SA). (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. 7. Further or in the alternative, the said agreements are voidable for illegality at the election of the third defendant (Alexandrina Council)."

41. It was submitted on behalf of the defendants that the plaintiff has failed to plead any material facts which would support a cause of action in contract. SCR 46.04 provides:

"(1) A pleading shall: ... (b) contain a statement in a summary form of the material facts on which the party relies, but not the evidence by which the facts are to be proved and when necessary be divided into paragraphs, numbered consecutively, with each matter, so far as convenient, put in a separate paragraph."

42. It is necessary for the facts stated to constitute in themselves a complete cause of action: Philipps v Philipps (1874) 4 QBD 127; Bruce v Odhams Press Ltd [1936] 1 KB 697. The plaintiff does not identify any particular contract or contracts which give rise to a cause of action. He has not pleaded that he is a party to any contract, nor established the basis upon which he is able to challenge the validity of any contract to which he is not a party. In my opinion, the pleadings in Part I are manifestly inadequate and incapable of supporting any cause of action in contract.

43. Having reached this conclusion, however, I propose to discuss these pleadings in a little more detail as this will be relevant to the application to dismiss the action as opposed to the application to strike out the statement of claim.

44. Paragraph 1 uses the phrase "special interest" which, as discussed above, is generally used in the context of arguments as to locus standi. The pleading clearly does not give rise to a cause of action and appears to have been included only on the basis of historical interest. Alternatively, the reference in paragraph 1 to a "special interest" may have been included to provide a legal basis for the claims set out in paragraphs 2, 3 and 4, although this is not entirely clear. However, even if the plaintiff was able to establish that the Ngarrindjeri have a special interest in the identified land and/or water, this would not afford the Ngarrindjeri a legal entitlement to consultation, inclusion in negotiations and agreements concerning the building of the bridge, nor to have their consent obtained prior to the building of the bridge. Furthermore, the plaintiff would again be faced with the issue as to his standing, since he would need to sue on behalf of the Ngarrindjeri and not in his personal capacity.

45. Paragraph 5 concerns a proposed alternative bridge at Wellington. Although the term "duress" is used, suggesting a contractual remedy, it is clear that there is no contract with respect to any proposal for a bridge at Wellington. Regardless of the merits of such a proposal, the suggestion of an alternative site obviously can not give rise to a cause of action with respect to any agreement concerning the Hindmarsh Island bridge. This is particularly so, given that the plaintiff is not a party to any such agreement.

46. Paragraph 6 alleges that the unidentified contracts concerning the construction of the bridge are "void for illegality since they are contrary to public policy and their implementation involves similar illegality". Firstly, it is alleged that the contracts breach a number of statutes. In his submissions, Mr Lindon referred cursorily to s 7 of the Racial Discrimination Act but did not refer the court to any specific provisions of any of the other Statutes listed in the Statement of Claim.

47. Section 7 of the Racial Discrimination Act 1975 (Cth) provides: "Approval is given to ratification by Australia of the Convention" where "Convention" means the International Convention on the Elimination of All Forms of Racial Discrimination. Clearly, this reference, is too vague to found an allegation as to the invalidity of any contract in the absence of further explanation. Section 9(1) of the Act provides:

"It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

48. This section is directed at an act which creates a distinction on the basis of race. It could not, in my view, be directed at an act which consists of building some infrastructure, such as the bridge. For similar reasons, the Equal Opportunity Act 1984 (SA) is also irrelevant. Section 51 defines discrimination on the ground of race as:

"For the purposes of this Act, a person discriminates on the ground of race (a) if he or she treats another person unfavourably by reason of the other's race; (b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and - (i) the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other's race; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other's race, or on the basis of a presumed characteristic that is generally imputed to persons of that race."

49. The building of a bridge is not such an act. In any event, the specific contexts in which discrimination on the ground of race is unlawful pursuant to the Act, do not apply to the present case. Therefore, even if the building of the bridge could be found to be discriminatory on the ground of race under the Act, this would not render it unlawful.

50. The Aboriginal Heritage Act 1988 (SA) concerns, in part, the preservation of Aboriginal sites. Its relevant provisions, however, are contingent upon the satisfaction of the Minister that a particular site is an aboriginal site. The authorisation of the Minister for the building of the Hindmarsh Island Bridge has been obtained pursuant to s 23 of the Act, as is expressly recorded in the report of the Royal Commission. If it is the authorisation of the Minister that is sought to be challenged by the plaintiff (which is not explicitly pleaded) then it is clear that these proceedings are not the appropriate avenue through which to seek such review. As an administrative decision, the authorisation of the Minister should be challenged by way of judicial review and in accordance with the procedure set out in SCR 98.

51. The Planning Act was repealed in 1993 and replaced by the Development Act 1993 (SA), but during an earlier hearing, Mr Lindon indicated that any reference to the Planning Act was intended to be construed as a reference to the Development Act. Be that as it may, in the absence of any reference to specific sections of Development Act or any material facts which are said to give rise to the alleged breaches, I am unable to draw inferences as to the substance of the allegations made.

52. The final basis upon which the illegality of the contracts is asserted, concerns purported breaches of international and common law resulting from the commission of genocide. This issue has been dealt with comprehensively and the argument must clearly fail.

53. Mr Lindon further argued that the contracts concerning the construction of the bridge must be void following the Ngarrindjeri's Proclamation of Dominium, as they purport to sell Ngarrindjeri land. The Proclamation is exhibited to the plaintiff's affidavit sworn on 22 November 1999, which states that the Proclamation was read and signed at Kumarangk on 21 November 1999. Mr Lindon submitted that this was a significant document and described it thus (Tr 206-7):

"What the Ngarrindjeri have done by this proclamation is that given, in their view, there clearly is a white court and the white court cannot acknowledge, even in its own corrupt foundation, it is a corrupt foundation - I'm not trying to be offensive. It is a bit like domestic violence. To name it and to bring it out in the open helps us to deal with it. This has never been brought out into the open and it is very difficult to do so. It is difficult for all of us to face what we have done. There is no doubt that it is a shocking thing which has occurred here and we are all, in a sense, responsible for not fixing it up. What this proclamation to the non-Aboriginal inhabitants of the State of South Australia was doing was as it were stating in black and white what the white people that first came here intended to do, and what they promised they would do. They were only allowed to come here to buy land by Lord Glenelg if they made this promise about the way they would treat the Aboriginal natives. These promises have either been broken or they have been changed. If they have been broken, it shows intent to destroy, because in black and white it says 'You couldn't take their lands except by voluntary sale, and you couldn't force them to sell and you had to guarantee them their rights to their land. None of this has been done. They had no certificates of title, they had no rights to redress, and they hadn't even sold the land. It was just taken from them. The importance about that - it is ancient history to us but living people to Aboriginal people - that Aboriginal people have a huge claim against the government defendants for the theft of their land and the lack of redress afforded to them."

54. As can be seen, this is directed to the acquisition of sovereignty over Ngarrindjeri land. This is a matter which I have already addressed and found to be non-justiciable.

55. Fundamentally, the plaintiff lacks the standing to pursue any cause of action in contract given that he is not a party to any of the relevant contracts. This undermines not only the present statement of claim insofar as it deals with an action in contract but also dictates the inevitable failure of any re-pleaded cause of action in contract. As was said by the Full Court in the appeal with respect to the application for interim injunction:

"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": Sumner v United Kingdom of Great Britain [1999] SASC 462 at 7.

56. In the course of argument, I specifically referred Mr Lindon to this passage of the judgment and invited him to identify the cause of action upon which he relied. As I understand Mr Lindon's response thereto, he was content to rely on his earlier submissions emanating out of the Proclamation, ie that the land continued to be Ngarrindjeri Land and therefore was not available for sale. The purported sale of any land therefore amounted to an act of genocide. For reasons already canvassed, this argument cannot be sustained.

57. In any event, it would appear that a contractual remedy would not assist the plaintiff in the sense that it would not prevent the construction of the bridge. I understand that the State of South Australia is currently under a contractual obligation to build the bridge. If the contracts were to be found void, that obligation would dissolve but the State would be left with a choice as to whether to proceed with the construction of the bridge and would not be prevented from continuing with such construction.

58. Paragraph 7 is dependent upon the election of the Third Defendant. As the Third Defendant has not made any such election , it is not for the courts to interfere in the contractual arrangements between the parties and it is not only unnecessary, but also inappropriate, for me to consider the merits of making an order as to the illegality of the contracts on this basis.

Negligence

59. Part II of the Statement of Claim pleads:

"8. By reason of the theft and wrongful acquisition of Ngarrindjeri Land by the defendants and the attempted usurpation of Ngarrindjeri Law by the defendants and continuing acts and attempted acts of genocide against Ngarrindjeri by the defendants since 1800, the defendants owe a duty of care to Ngarrindjeri not to commit or attempt further acts of genocide and to protect Ngarrindjeri from any further acts or attempted acts of genocide and to generally minimise genocidal stress on victims of genocide for seven generations.

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

(a) statutory - Racial Discrimination Act and Crimes (Torture) Act and SA Aboriginal Heritage Act and Planning Act;

(b) Common law - Genocide Convention, Covenant on Civil and Political Rights, Draft Declaration of Indigenous People.

10. The defendants, by their decision to construct the said proposed bridge and their implementing actions (including support for the proposed bridge and criticism of Ngarrindjeri), have breached the duty of care owed to Ngarrindjeri.

11. The defendants could reasonably foresee, given their knowledge of Ngarrindjeri Law and Culture as at both January 1988 and September 1999, that such a decision and such actions would cause Ngarrindjeri serious mental harm and would impose conditions of life likely to destroy Ngarrindjeri in whole or in part which it has and will do."

60. Again the pleadings suffer obvious defects. They lack sufficient particularity in that they fail to establish the essential elements of negligence. It is well-established that the essential elements of an action in negligence are as follows: first, there must be a duty of care owed to the plaintiff by the defendant, second, a breach of that duty, or a failure to conform to the standard of that duty on the part of the defendant and, third, damage suffered by the plaintiff as a reasonably proximate result of the breach of the defendant. Each of these elements must be proved on the balance of probabilities by the plaintiff in order to establish a cause of action in negligence.

61. In the statement of claim, the plaintiff attempts to establish a duty of care on the basis of asserted conclusions of law and again the non-justiciable issue as to the acquisition of sovereignty over Ngarrindjeri land is sought to be relied upon. It is clear that the matters pleaded in paragraph 8 are incapable of giving rise to a duty of care owed by the defendants to the Ngarrindjeri.

62. With respect to the pleading in paragraph 9, it is unclear whether the duty of care itself is said to arise from two sources (statutory and common law) or whether the international instruments and statutes to which reference is made are intended to provide a guide in determining the standard of care once it has been established that a duty exists. Accordingly, it is difficult to deal with the substance of this pleading. As I have found that no duty of care arises on the matters pleaded in paragraph 8, it is now necessary to consider whether the instruments referred to in paragraph 9 give rise to any duty of care.

63. The international agreements referred to are the Genocide Convention, the (International) Covenant on Civil and Political Rights and the Draft Declaration of Indigenous Peoples. The status of these instruments within Australian domestic law has been discussed above. Neither of these instruments can give rise to rights or obligations under Australian domestic law and therefore can not give rise to a cause of action based on a duty of care: Nulyarimma v Thompson [1999] FCA 1192 at [230], per Merkel J.

64. The plaintiff also purports to rely upon various statutes, namely the Racial Discrimination Act 1975 (Cth), the Crimes (Torture) Act 1988 (Cth), the Aboriginal Heritage Act 1988 (SA) and the Development Act 1993 (SA). There is nothing in any of these Acts to suggest that a failure to comply with their provisions will constitute a breach of a duty of care.

65. It is clear, therefore, that no duty of care can arise from the pleadings and accordingly, it is unnecessary to proceed to consider the alleged breaches or damage suffered .

Legitimate Expectation And Fiduciary Duty

66. Part III of the Statement of Claim reads:

"12. 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 the intent to destroy Ngarrindjeri, especially after the rejection in 1992 by the High Court of the long standing genocidal lie of terra nullius. 13. The defendants, for the reasons set out in paragraph 12 owe a fiduciary duty to Ngarrindjeri to act uberrimae fidei especially in matters of Land or genocide. 14. The defendants have breached this fiduciary duty and have also nullified the legitimate expectation of Ngarrindjeri as set out in paragraph 12."

67. The pleading as to legitimate expectation demonstrates a misunderstanding on the part of the plaintiff as to the principles of administrative law. The concept of legitimate expectation derives its meaning from its context within the body of rules governing procedural fairness. As such, it relates specifically to administrative decision-making and has no legal significance outside of administrative law. As was made very clear in Teoh (supra, at 291, per Mason CJ and Deane J):

"The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law ... But if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course."

68. The plaintiff has not indicated that he seeks the review of any particular administrative decisions that have been made with respect to the construction of the Hindmarsh Island bridge. In any event, the plaintiff has not complied with procedures required by SCR 98 and is therefore not in a position to initiate an application for judicial review.

69. As to the claim concerning a breach of fiduciary duty, my earlier discussion concerning genocide under Australian law is again relevant. This claim must fail to the extent that it relies upon findings of genocide.

70. The law remains open as to the possibility of a fiduciary duty owed by the state to aboriginals: Thorpe v The Commonwealth [1997] HCA 21; (1997) 144 ALR 677 at 688, per Kirby J. Such a duty could potentially apply to the second and twentieth defendants. If any such duty can exist, however, it is necessary for the plaintiff to demonstrate that there is a specific action or function to which the said fiduciary duty attaches. In Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129, Brennan CJ said at 160:

"The Wik and Thayorre submissions assert the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased areas. The duty is said to arise from the vulnerability of native title, the Crown's power to extinguish it and the position occupied for many years by the indigenous inhabitants vis-à-vis the Government of the State. These factors do not by themselves create some free-standing fiduciary duty. It is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. 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 believe and expect that the fiduciary will act in the interests of the beneficiary ... to the exclusion of the interest of any other person or the separate interest of the beneficiary." (footnotes omitted)

71. The plaintiff has failed to provide the specificity required. As was observed by the Full Court: Sumner v United Kingdom of Great Britain (supra) [at p 8]:

"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. 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'."

72. I agree with the Full Court that the basis of the claim is "incomprehensible": Sumner v United Kingdom of Great Britain (supra) [at p 8].

73. Paragraph 5 of the prayer for relief seeks an order directing the first defendant, ie the United Kingdom of Great Britain to commence proceedings in the International Court of Justice against Australia for its breaches of the Genocide Convention and the Vienna Law of Treaties. Mr Lindon failed to provide me with any authority to support me exercising a jurisdiction to make an order against a foreign power. Clearly I do not have any such jurisdiction.

74. Section 9 of the Foreign States Immunities Act (Cth) 1985 provides:

"Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding."

75. Paragraph 6 of the Statement of Claim suffers from a similar difficulty. The plaintiff requests "[a]n 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 and the State of South Australia over Ngarrindjeri".

76. The making of such an order is beyond the power of this court.

77. In Thorpe v Commonwealth (supra), Kirby J summarily dismissed a claim for a declaration that the Commonwealth "move the United Nations General Assembly for an Advisory Opinion from ... the International Court of Justice, as to the separate rights and legal status of the original peoples of this land" on the ground the claim was not justiciable. As Kirby J stated in that case (at 690):

"[I]n no case that could be cited, nor any that I have discovered in my own researches, has this court purported to intrude in such a way in the conduct of Australia's international activities. The reason why no such case could be found is plain enough although the explanation may be advanced in various ways. It might be said that the subject matters of the declarations are not the kind of 'immediate right, duty or liability' grounded in a legal norm which would present a 'matter' to enliven the jurisdiction of this court under the Constitution ... But it might also be said that the issues presented by the declaration lacked 'judicially discoverable and manageable standards for resolving' a justiciable issue." (footnotes omitted)

78. The order sought in para 6 of the Statement of Claim must be refused.

Strike out the Statement of Claim or Dismiss the Action?

79. The statement of claim in its present form discloses no reasonable cause of action against any of the defendants. It is clear that it must be struck out. The defendants ask, however, that I exercise my discretion to strike out the whole of the action.

80. The approach to be taken by a court with respect to such an application is set out by Kirby J in Thorpe v Commonwealth of Australia (supra) as follows (at 686 - 687):

"Setting aside, striking out, summarily dismissing or permanently staying proceedings of a litigant who has come to a court of law, are self-evidently serious steps. They are to be reserved to a clear case. If there is nay doubt, a court should err on the side of allowing the claim to proceed. Evidence at trial may sometimes lend colour and strength to a claim. Reformulation of a pleading should normally be permitted where justice requires that course, particularly where a party does not have the assistance of legal representation. A court will ordinarily provide some assistance in such a situation although not to the point of unfairly disadvantaging the other party or losing either the reality or appearance of neutrality and impartiality which is the hallmark of the judiciary under the Australian Constitution and under international human rights law. See, for example, the International Covenant on Civil and Political Rights 1966, Article 14.1: '[E]veryone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'. Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility: Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 256; [1996] HCA 14; 70 ALJR 541 at 545. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them. Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 141 ALR 353; 71 ALJR 294 at 297, 304-5. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process."

81. And further (at 687):

"[A]s the decisions of this court in Mabo (No 2) (1992) 175 CLR 1; 107 ALR 1 and Wik Peoples v Queensland (1996) 141 ALR 129; 71 ALJR 173 demonstrate, sometimes Australian law (including as it affects Aboriginal Australians) is not precisely what might earlier have been expected or predicted. Australian law at this time is in the process of a measure of readjustment, arising out of the appreciation, both by the parliaments and the courts of this country, of injustices which statute and common law earlier occasioned to Australia's indigenous peoples. In such circumstances, it is appropriate for a court, including this court, to be cautious in striking out or terminating proceedings, including those brought by such parties which, in the fullness of time, might, with evidence, elaboration and detailed argument, contribute to the process of readjustment."

82. In this case, there are substantial defects in the pleadings. Is it possible that those defects can be remedied by allowing the plaintiff an opportunity to re-plead his case?

83. In considering this issue it is appropriate to refer to the affidavit of the plaintiff sworn on 22 November 1999, and in particular to Exhibit DS3 thereto which purports to exhibit a copy of a document described as "draft amended statement of claim". In his affidavit, the plaintiff says that he is "taking urgent steps to get a solicitor's assistance on the record, so I may apply for leave to amend the Summons, Statement of Claim and other pleadings to do justice to the Ngarrindjeri causes of action and give more particulars of claim". The document has limited, if any, standing in these proceedings, but it does appear to be an attempt to institute a new cause of action, presumably to overcome some of the defects raised in these proceedings. There is, however, an inexplicable change in the order of the parties appearing as defendants with the addition of some new parties. Although there is more detail included with respect to some of the matters raised in the present Statement of Claim, the proposed amendments appear to suffer the same defects as the present pleadings and, as I understand the submission of Mr Byrt in arguendo, the purported causes of action are to remain the same, ie they are based upon the claim of genocide.

84. For the reasons already expressed, the claims made by the plaintiff in these proceedings are non-justiciable. It does not appear that an opportunity for the plaintiff to re-plead the issues will enable him to overcome that difficulty. I have therefore concluded that it is appropriate to grant the order sought by the defendants. I therefore order that the whole of this action be struck out.