Onus v Alcoa of Australia Ltd [1981] HCA 50;

Onus v Alcoa of Australia Ltd [1981] HCA 50; - HCA 1981 case summary — Zoe

[9]

2. Alcoa is a company which proposes to construct an aluminium smelter on land which it occupies at Portland in western Victoria. Alcoa is obliged to construct the smelter by an agreement made between that company and the State of Victoria on 2 September 1980. The agreement has been ratified, validated, approved and given the force of law by the Alcoa (Portland Aluminium Smelter) Act 1980 (Vict.) ("the Agreement Act"). However, the agreement is subject to certain conditions precedent, not all of which have yet been fulfilled. The land on which the smelter is to be built contains relics of the former aboriginal occupation of the area - particularly stone artefact scatters, i.e. stone tools and manufacturing debris, usually on the sites of former aboriginal workshops. Many of the scatters are in a very poor state of preservation. There seems no doubt that these scatters are "relics" within the Relics Act. The appellants, by their statement of claim, allege that Alcoa has wilfully interfered with the said relics in breach of the provisions of s. 21 of the Relics Act and that Alcoa threatens and intends further to interfere with the said relics over the whole or a substantial part of the said land by constructing industrial works thereon. They claim a declaration that the said relics are "relics" within the meaning of the Relics Act and an injunction restraining Alcoa, its servants, agents or contractors from carrying out any works upon the said land which would interfere with relics thereon. The appellants applied on summons to the Supreme Court of Victoria for an interlocutory injunction, and Alcoa similarly applied for an order that the action be dismissed or perpetually stayed on the ground that it was an abuse of the process of the Court and that it was frivolous and vexatious. The applications came before Brooking J. who held that the appellants had failed to make out a prima facie case either of a private right or of standing to sue to prevent a contravention of s. 21. He dismissed the appellants' application for an injunction, and on Alcoa's summons ordered that the action be dismissed. An application for leave to appeal against the order dismissing the action, and an appeal from the order refusing the interlocutory injunction, were refused by the Full Court of the Supreme Court. The present appeal is brought, by special leave, from that part of the order of the Full Court whereby the application for leave to appeal was dismissed. (at p31)

[23]

The Minister is given various powers for the purpose of preserving relics: ss. 22, 25, 26. A person who discovers a relic shall forthwith report the discovery to the Director or to an inspector or warden unless he has reasonable cause to believe that the relic is recorded in the register kept by the Director; when any relic is discovered in the course of any construction or excavation on any land, it shall be the duty of the person in charge of such construction or excavation to report the discovery to the Director, and the Director, if he considers the relic to be worthy of preservation, shall take whatever action is necessary (s. 23). A person is not guilty of an offence in picking up or collecting a portable relic exposed in or upon the surface of land, but a person who knowingly picks up or collects a portable relic must, inter alia, safeguard it from loss or damage and give notice to the Director (s. 27). It will be seen from these provisions that the enforcement of the Act has been entrusted to the ordinary agencies of government, assisted by inspectors and wardens, and not left to representatives of the aboriginal people. There is nothing in the Act that confers any special rights or duties on the aboriginal people or any class of them in relation to the relics which the Act intends shall be preserved. It is true that s. 18 exempts from compulsory acquisition any land established as an aboriginal reserve and on which aborigines are living, but this does not evince a recognition that aborigines have a special position in relation to relics on lands which are not established as aboriginal reserves, and even land which is an aboriginal reserve may be proclaimed an archaeological area under s. 15. The provisions of the Act as a whole show that the Act was passed for the benefit of the public at large, with a view to the conservation of relics which are regarded as being of interest and value not only to aborigines but also to archaeologists and anthropologists and indeed to Australians generally. It is quite impossible to hold that the Act confers any private rights on aborigines or any class of them. (at p35)

[24]

5. The case is therefore one in which two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s. 21 of the Relics Act. The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 . A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action (1980) 146 CLR, at pp 530-531, 537, 547-548 . The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. (at p36)

[28]

Mason J. (1980) 146 CLR, at p 548 agreed with the concluding sentence of this statement, and Stephen J. (1980) 146 CLR, at p 539 expressed a similar view when he said that "an individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern." Of course, a special interest is none the less sufficient if it is accompanied by an emotional or intellectual concern. The present is not a case in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except in so far as he holds beliefs or opinions about it. The appellants claim not only that their relics have a cultural and spiritual significance, but that they are custodians of them according to the laws and customs of their people, and that they actually use them. The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian. Counsel for Alcoa sought to meet the claim that the appellants and the other members of the Gournditch-jmara community put the relics to actual use by submitting that no relief could be given to them which would enable them to continue to use the relics. Alcoa, he said, has the right to occupy, and indeed owns, the land; the appellants have no right to resort to the land and therefore could gain no advantage from success in the present action. There is therefore, he submitted, no sufficient relationship between the facts relied on as giving standing and the relief sought in the action. With all respect this argument, although plausible, is unconvincing. If the relics are preserved, the appellants will at least have a possible opportunity to have access to them. If the relics are portable, no difficulty will arise in that respect. Even if it is right to conclude that it is the relics in and on the ground that have their special value for the appellants, it cannot be assumed that if the relics are not destroyed the appellants will be denied access to them. It is common experience that in places all over the world interested members of the public are afforded an opportunity to obtain access to relics of historical interest, including ancient buildings, notwithstanding that they are situated on private property. There is no evidence, and it cannot be assumed, that such an opportunity would be denied to the Gournditch-jmara people. On the other hand, if the relics are damaged or destroyed, there will be no possibility that the Gournditch-jmara people will be able to make use of them; they will suffer an immediate and permanent disadvantage. In any case, once the appellants show that they have a sufficient interest, they do not lose standing to bring an action because the only remedy which they may obtain may afford less than complete relief. (at p38)

[62]

3. Because the application for an interlocutory injunction in the Supreme Court was heard at the same time as the application to strike out the statement of claim and dismiss the action, the question of the locus standi of the appellants was dealt with not simply upon the basis of the statement of claim (to which I refer below) but in the light of such facts as were given in evidence in support of the application for an interlocutory injunction, both on affidavit and orally, which threw some additional light on the factual position. The additional matters are set out in the judgment of Starke J. in the Full Court of the Supreme Court as well as in the judgment of Brooking J. It is however not necessary to set them out in any detail. The plaintiffs alleged that they are descendants of the inhabitants of Australia in prehistoric times and are members of the Gournditch-jmara aboriginal people who had formerly lived in what is now the Portland area in Victoria. They said that they and all other members of that tribe are custodians of the relics of those aboriginal people according to their laws and customs. They alleged that land in the vicinity of Portland occupied by the defendant contains numerous "relics" within the meaning of the Act and that such relics relate to the occupation of the land by the Gournditch-jmara people. They further alleged that contrary to the provisions of s. 21 of the Act the respondent has wilfully interfered with the relics and that it threatens and intends to interfere with the relics by constructing industrial works on the land. It was said in evidence that the relics were of significance to the plaintiffs "because they are part of our culture. It is an area that we well know because, as I have just stated, it is educational for our children." It was not alleged that the relics were sacred in any sense of the term but that they were relics within the meaning of the Act and included debris resulting from the making of stone artefacts as well as stone tools and shell middens. It was also said by the plaintiffs that they and other members of the tribe used the land, or had used the land, for teaching their children "our culture" in the course of camping on the land and fishing and hunting. (at p47)

[136]

14. With regard to the second point, this seems to me to be a very special case. I have felt some concern about the sufficiency of the case asserted in the statement of claim and developed in the evidence with respect to the merits. But we are not concerned with that. The nature of the interest that is asserted is clear enough, and in my opinion it is one which stands in contrast to that which was asserted in the Conservation Foundation Case. In that case, the Foundation was asserting a general concern that environmental considerations should receive adequate consideration in the administration of government, a concern that happened to be focussed through the events that occurred on a particular development in Queensland. It might just as easily have been related to proposed development in Victoria, or Western Australia or anywhere else in Australia. In the present case, the interest of the appellants is necessarily focussed on relics in a particular locality. There is nothing abstract about it. There is nothing voluntary about it, as there would be if it were a cause which if not pursued at Portland today may be pursued in the Kimberleys tomorrow. The Gournditch-jmara people, of which the appellants are representative, are involved with these relics, whether they like it or not. It is to their ancestors, their history, that the relics bear silent but meaningful testimony. Furthermore, the corporate nature of the interest, resident as it is collectively in the tribe, also serves to identify an interest which is deeper and more significant than a mere emotional attachment. In my opinion, the interest of the appellants, described as it is as a cultural and historical interest, is more than the kind of emotional or intellectual interest to which Gibbs J. referred in the Conservation Foundation Case. Whether there are spiritual implications is something which is unclear, perhaps because we have been concerned with stone chips rather than with the land itself. (at p62)

[176]

20. Perhaps Buckley J.'s notion of special damage was derived from the notion of particular damage occasioned by a public nuisance and recoverable at common law (Neville Nitschke Caravans (Main North Road) Pty. Ltd. v. McEntee and McEntee (1976) 15 SASR 330, at p 340 , per Bray C.J.). If that be so the reformulated criterion of "special interest in the subject matter of the action" facilitates the separation of the rule as to standing from the definition of the damage occasioned by a public nuisance which is recoverable at law (as to which, see Walsh v. Ervin [1952] VicLawRp 47; (1952) VLR 361 ). The elements of the common law right to recover a pecuniary award for particular damage occasioned by a public nuisance are unlikely to furnish a general criterion of a private litigant's standing to sue for an injunction to restrain the contravention of a penal statute where the statute does not confer a personal right to sue for damages for its breach. It is not necessary for a private litigant to show that he would have an entitlement to damages if the law were breached before he can demonstrate a special interest in obtaining a declaration or an injunction to restrain a threatened breach. The exception to the general rule precluding a private litigant from suing in such cases extends beyond the recognition of a private litigant's right to sue to protect his own proprietary interests or to prevent the tortious infliction of damage upon him. If the exception were so limited, there would be a tendency to expand the categories of tortious liability to ensure that private rights of action corresponded with what are conceived to be appropriate cases for private litigation to enforce performance of public duties (cf. the judgment of Lord Denning M.R. in Ex parte Island Records Ltd. (1978) 1 Ch 122, at pp 136, 137 ). But the exception includes cases where the plaintiff has no private right of action, though he has an interest in the subject matter of the action which is special in comparison with the interest of the public at large (cf. Argyll (Duchess) v. Argyll (Duke) (1967) Ch 302, at pp 344, 345 , per Ungoed-Thomas J.). (at p71)

At a glance

Court

Decision date

Before

Source

Judgment (198 paragraphs)

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 (18 September 1981)

Parties

Legislation Cited (5)

Cases Cited (17)