Carriage v Duke Australia Operations Pty Ltd

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J FRIDAY 10 MARCH 2000

1546/00 - ALLAN RICHARD CARRIAGE & ANOR v DUKE AUSTRALIA OPERATIONS PTY LTD

JUDGMENT 1 HIS HONOUR: This is the hearing of an interlocutory injunction application in rather unusual circumstances. Last week, I dealt with this case on the basis of an interim injunction for a week, and I made an order to keep the status quo as best I could for that week. 2 The principal reason for dealing with the application on that basis was that the document involved in this case entitled "Native Title Consent Agreement" (the Agreement) dated 14 August 1997, appeared to include terms that were taken from a document entitled "EGP Cultural Heritage Plan", which, at that stage, had not come to light. It was hoped that it would come to light this week. Unfortunately, the document has not yet been discovered, though what might be parts of it appear as Attachment D to the affidavit of Mr Sotak of 8 March 2000. 3 However, both sides are hopeful that the document might surface before the final hearing. Accordingly, I cannot construe the Agreement at this stage, and need to deal with the case as to whether the usual interlocutory injunction tests are made out, namely - (a) whether there is a prima facie case; (b) whether the balance of convenience favours the grant rather than the refusal of an injunction; and (c) whether damages are an adequate remedy. 4 There are two plaintiffs. The male plaintiff says he is an Aboriginal monitor of the Wadi Wadi people. The female plaintiff is an elder of the Jerrinja people. The Wadi Wadi and Jerrinja people claim to be the traditional owners of the land through which the relevant pipeline is being constructed. The plaintiffs appear to be suing personally rather than in any representative capacity. 5 The dispute stems from the Agreement which was negotiated out by a predecessor of the defendant called "Eastern Gas Pipeline Company" (EGP) (BHP Petroleum and Westcoast Energy of Australia) of the one part and certain Native Title Claimants of the other part. The plaintiffs actually signed the Agreement as representatives of their people. The defendant purchased the rights to the pipeline project in December 1998. Under section 41(1) of the Native Title Act 1993, the Agreement has the same force as if the terms and conditions thereof were the terms of a contract between the negotiating parties. 6 Clause 5.3 of the Agreement, so far as is relevant is as follows -

"5.3 During construction EGP will implement the measures detailed in EGP's Cultural Heritage Plan for the protection and management of Aboriginal cultural heritage along the entire route of the pipeline. This plan includes the following elements (among others): - (a) the employment by EGP, at all stages of construction involving land disturbance (clearing, grading and trenching), of the Aboriginal Archaeological Consultant and two Aboriginal Monitors selected by the Archaeological Consultant….". 7 Clause 5.3(b) dealt with a similar arrangement in respect of construction over potentially sensitive areas. 8 As to an arguable case, no further argument has been presented as to the proper construction of section 41 of the Native Title Act 1993 as it existed in 1997, or what is meant by the term "land disturbance" in the relevant part of the Agreement. I have, however, done some research into the subject and for future benefit the word "disturbance" in this sort of agreement in both the Australian and American cases tends to be very widely construed, and includes indirect action as well as direct physical injury. 9 Many of the cases are referred to by Stein J a Judge of the Land and Environment Court in Corkill v Forestry Commission of NSW (No 2) (1991) 73 LGRA 126 at 139. Although the word "disturbance" is usually construed very widely, and there have been a few cases involving disturbing fisheries, in which it is said that things like fouling the water disturb the fishery (see, for instance, Fitzgerald v Firbanks [1897] 2 Ch 103), there are also decisions to the effect that one must be sensible in construing the term. If one construes the term too widely, one gets far beyond what the parties must have intended. That is illustrated by a case in quite a completely different connection, that is whether standing to take communion in an Anglican church is disturbing public worship (Skoke-Graham v R (1985) 16 DLR (4th) 321, 331). 10 What is to be disturbed is "land". As pointed out last week, "land" could mean "soil" or "surface" or "general topography". Even if it has the connotations of "soil", one must look further as there are a number of decisions as to whether "soil" means the surface, or whether it means the whole of the land. Perhaps the most instructive is Micklethwait v Winter (1851) 6 Ex 644; 155 ER 701; and see Wakefield v Duke of Buccleuch (1866) LR 4 Eq 613 at 625. 11 However, without seeing the whole of the ancillary documents referred to in the Agreement, in particular the EGP Cultural Heritage Plan, there is still a strongly arguable case that "land disturbance" includes the work of backfilling a trench. (I should note that part of Attachment D to Mr Sotak's affidavit may be relevant to the question of construction though I think it is presently conceded that it is not). One reason for this, as appears from part of the evidence, is that in backfilling a trench one almost of necessity interferes with part of the soil in the unexcavated part of the trench. I should note that the trench in this case is as wide as the average size room, if not wider, passing through various types of soil. It must not be thought for a moment that we are dealing with a narrow trench through Sydney sandstone in a normal building site which does tend to keep its shape no matter what one does to it. 12 Thus, in my view, there is an arguable case for the plaintiffs. 13 It is clear that damages are not an adequate remedy. This is for at least two reasons: first, the Agreement is what is sometimes called an equitable contract. That is, we are not dealing with a case where one party to a contract can sue another party at law for damages. What happens here is that under section 41 of the Native Title Act 1993 there is some sort of deemed contract. The original pipeline constructor received a benefit because of that deemed contract; that person assigned the contract to the defendant and it is submitted that the assignee in such circumstances takes not only the benefit, but also the burden of the contract of which it was aware at that time: De Mattos v Gibson (1859) 4 De G & J 276; 45 ER 108. 14 The Agreement is thus in one of the classes of contract which Professor Barbour lists in his History of Contract in Early English Equity (Oxford University Press, 1914, at p81) as being one where the technicalities of the law do not allow it to be enforced at law and, accordingly, it is enforced at equity. Moreover, it is a type of contract where the full benefit has already been gained by one side, so that equity is more likely to enforce it by specific order than would be the case in an executory contract: Greene v West Cheshire Railway Co (1871) LR 13 Eq 44. 15 The second reason why damages are not an adequate remedy is because the cultural significance of what might be lost cannot be assessed in money by way of damages. 16 I then pass to where the balance of convenience lies. In this sort of case in Canada, the courts have been prone to grant injunctions because of the nature of the rights involved. Miss Phillips for the plaintiffs, has referred to two cases in British Columbia, MacMillon Bloedel Ltd v Mullin (1985) 61 BCLR 145 and Pascoe v Canadian National Railway Company (1986) 69 BCLR 76. 17 On the other side there was evidence given that requiring employment of Aboriginal monitors would be both a large expense and dangerous. 18 Dealing with the second matter first, during argument it became clear that whilst it may be dangerous to have a number of monitors on the site whilst there was backfilling of trenches, a method could be worked out which would be satisfactory to both sides. 19 When the initial clearing, grading and trenching is carried out a machine moves in a more or less straight line from north to south, and the monitors can follow the machine. However, when the trench is backfilled, which on the evidence to date has to happen within a relatively short period of time, machines amass considerable quantities of earth from all around the site and need to dump the earth back into the trench. The defendant then has to make sure that the site is restored to its pre-excavation condition, which, if it is on an angle, may mean restoring the same angle as previously existed. Again however, there is a way of dealing with that problem, which can be reflected in the interim order which will mean that there can be some observation by the monitors without endangering the project or themselves. 20 The other aspect is who should pay. The amount involved compared with the vastness of the undertaking in which the defendant is involved is not very significant, probably under half a million dollars. On the other hand, the plaintiffs declined to give an undertaking as to damages, except that the male plaintiff is prepared to give such an undertaking personally. He does not appear to be a person who has very much by way of assets. 21 It is very significant that the community generally will not give the undertaking for two reasons. First of all, the Native Title Act 1993 appears to give the community the land rather than any individuals because throughout the world native title rights are usually community rights not individual rights. Secondly, as a matter of contract, the contract may well only be a joint contract and not a joint and several contract (i) for the very reason these rights are community rights; and (ii) this is the general law: see Glanville Williams, Joint Obligations (Butterworths, London, 1949) at pp 35-37. 22 The other aspect is that where the people who are really behind the plaintiffs who may have assets do not give an undertaking as to damages, the court is reluctant to grant any injunction at all. The position here is similar to requiring security as to costs; see eg M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97, 101 and Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201, 214. 23 However, the position can be protected by putting the money that should be paid for the monitors into a bank account under the control of one of the solicitors, with rights to the other solicitors to inspect, pending the final hearing of the case. This could be any time after four weeks from today, depending on how the judge dealing with the expedition list views its priority and what time is available. 24 Accordingly, the order that I am prepared to make is to continue order 2 made last week.

[Proposed orders handed to his Honour, together with form of undertaking] 25 The appropriate orders are in accordance with the sheets that I have marked 10/00A, 10/00B and 10/00C each of which I have initialled and dated and they are made up to the hearing of the proceedings. 26 Costs are costs in the cause.

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