Plaintiff v Defendants

PRACTICE AND PROCEDURE - Application to further amend statement of claim - Applicable test - Proposed amendments allege improper purpose and corrupt motive - Duties owed by Registered Aboriginal Party under Aboriginal Heritage Act 2006 (Vic) - Whether pleadings have no real prospect of success - Supreme Court Act 1986 (Vic), s 29(2) - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 36 - Proposed pleadings address arguable claims but inadequate in current form - Leave refused.

PRACTICE AND PROCEDURE - Application by defendant for summary dismissal or stay - Whether a real controversy exists between the parties - Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 23 - Civil Procedure Act 2010 (Vic), s 63 - Summary judgment granted.

For the Victorian Equal Opportunity and Human Rights Commission

Victorian Equal Opportunity and Human Rights Commission

A. The proceeding to date and the present applications

1 This proceeding seeks orders for the protection of certain places and things said to constitute Aboriginal cultural heritage within the meaning of the Aboriginal Heritage Act 2006 (Vic) (Heritage Act). Marjorie Thorpe contends that the places and things in question are threatened by the construction of a 12-kilometre section of the Western Highway Duplication project. The stretch of road between Buangor and Ararat is described as Section 2B. Marjorie Thorpe has obtained interim and interlocutory relief restraining the first to fourth defendants (the State defendants) from further constructing Section 2B pending trial.[1]

2 Sections 27 and 28 of the Heritage Act make it an offence to harm Aboriginal cultural heritage. Harm is defined in the Heritage Act as including 'damage, deface, desecrate, destroy, disturb, injure or interfere with'.[2] Harm to Aboriginal cultural heritage is permitted in limited circumstances, including where the acts are undertaken in accordance with a cultural heritage management plan approved by the relevant registered Aboriginal party (RAP). The Western Highway Duplication project requires approved cultural heritage management plans for areas where the works are to be undertaken. In 2013, VicRoads sponsored a cultural heritage management plan, number 12327 (2013 plan), which it submitted to the relevant RAP, Martang Pty Ltd (Martang). The 2013 plan described in the pleadings as the Specified Area covered the area through which Section 2B would pass.[3] The decision to approve the 2013 plan was made by Martang pursuant to s 63 of the Heritage Act on 18 October 2013 (the Approval Decision).

3 The plaintiff contends that construction of the road in reliance on the 2013 plan will involve harm to Aboriginal cultural heritage[4] not permitted by the Heritage Act. She advances two grounds for that contention. First, she says that certain Aboriginal cultural heritage exists but is not identified in the 2013 plan and is not protected from harm by it, even if the plan is otherwise valid (the non-identification issue). It is claimed that six particular trees and certain other places and things are within the definition of Aboriginal cultural heritage but are not identified in the 2013 plan. Second, it is claimed that the Approval Decision was not lawfully made and, as a consequence, the entire 2013 plan is invalid and cannot render lawful harming of any Aboriginal cultural heritage present in the area, whether or not identified in the 2013 plan (the unlawful decision issue). The relief sought in the proceeding includes declarations and associated injunctive relief on a final basis.

4 These reasons deal with two applications. First, by summons dated 31 March 2021, the plaintiff seeks leave to further amend her Statement of Claim and expand the relief sought (further amendment application). Second, the State defendants by summons filed 14 April 2021 seek summary dismissal of the proceeding, a stay of the proceeding, or alternatively a strike out of the current pleading (dismissal application) (together the applications).

5 It is helpful in an introductory way to give an overview of events that have occurred since the injunction was granted. This sets the present applications in context.

6 The urgent interim[5] and then interlocutory injunction[6] restrained the State defendants from October 2020 pending an expedited final hearing. On 15 December 2020, Martang was joined as a fifth defendant. The claim against Martang was for declaratory relief on the unlawful decision issue. As a RAP, it is alleged to owe statutory and common law duties to persons, including the plaintiff, in approving a cultural heritage management plan under the Heritage Act. The plaintiff alleges that Martang had breached those duties by actions that placed it in a conflict of interest or by conduct that gave rise to actual or apprehended bias. In summary, the actions said to amount to breach relate to commercial negotiations with VicRoads over an extended period of time where Martang had also notified VicRoads that it intended to evaluate the cultural heritage management plan that would be submitted for its approval. The plaintiff's Statement of Claim reflecting these matters as presently filed is a Further Amended Writ and Statement of Claim dated 15 December 2020 (the existing Statement of Claim).

7 Two further applications for joinder have been made. The plaintiff made an application to join Eastern Maar Aboriginal Corporation (EMAC) as a second plaintiff to the action pursuant to the provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). The CATSI Act application for leave under s 169-5 is akin to a derivative action under s 237 of the Corporations Act 2001 (Cth) for a company member to bring an action in the name of a corporation. EMAC has replaced Martang as the RAP for the area through which Section 2B is to travel. The Aboriginal Heritage Council (AHC), a body established under the Heritage Act whose functions include the registration of RAPs and to 'manage, oversee and supervise RAPs',[7] applied for leave to intervene or, in the alternative, be heard as amicus curiae (AHC application). The AHC application and the CATSI Act application were heard earlier this year and my decisions are reserved. The parties are agreed that any decisions should await the outcome of the present applications. EMAC and AHC were otherwise excused from participation in the hearing.

8 The plaintiff also seeks remedies under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). The Victorian Equal Opportunity and Human Rights Commission (Commission) has elected to intervene as of right.[8]

9 The present parties were working towards an expedited timetable with an anticipated final hearing listed on 26 April 2021. Discovery was ongoing and filing of evidence by way of witness statements and expert reports by the plaintiff was underway. On 17 March 2021, the State defendants produced a tranche of further discovery of 53 documents. This included two documents initially produced on 11 March 2021 (the two CPA documents) pursuant to s 26 of the Civil Procedure Act 2010 (Vic) (the CPA).

10 As a result of these additional documents whose context is outlined later, the plaintiff sought to add two new grounds relevant to the unlawful decision issue, alleging that when exercising the statutory power to approve the 2013 plan, Martang:

(a) subjectively engaged in conduct with the purpose of securing a pecuniary or financial benefit (defined in the pleading as a corrupt motive); and

(b) objectively engaged in conduct with the purpose of securing a pecuniary or financial benefit (defined in the pleading as a financial benefit purpose).

It is also proposed to plead that a pre-condition for the lawful exercise by Martang of its approval power under s 63 of the Heritage Act, was that there be no beach of the statutory and common law duties and obligations.

11 A directions hearing was listed to deal with these proposed amendments and other pre-trial issues. The day before that directions hearing, the State defendants wrote to all other parties advising that they would no longer rely on the approved 2013 plan to construct Section 2B. The first defendant would prepare a new cultural heritage management plan for submission to the relevant RAP (now EMAC). The State defendants would not recommence construction until such time as a new plan is approved and lodged under the Heritage Act (the Changed Position). No step has been taken to formalise the Changed Position pending the outcome of the plaintiff's further amendment application.

12 At that directions hearing, the plaintiff's counsel foreshadowed proposed further amendments to expand the relief sought to include a declaration relating to alleged past conduct by the State in relation to some of the activities carried out to date (Past Works) to construct Section 2B of the highway, together with other consequential relief being orders for remediation relating to those past acts.

13 The further amendment application seeks to amend the existing Statement of Claim filed 15 December 2020 to bring it into a form containing both the further claims against Martang and the State defendants as prepared prior to 23 March 2021, and also an expansion to the new declaratory and consequential relief in respect of the alleged unlawful past conduct. A Second Further Amended Statement of Claim is proposed (SFASOC).[9]

14 The State defendants oppose the proposed amendments. Their dismissal application is based on the proposition that, in the absence of any reliance by them on the 2013 plan, there is no threat of harm to Aboriginal cultural heritage and so no longer any dispute regarding the interpretation or application of the Heritage Act.

15 In the applications, the plaintiff relies on the seventeenth and nineteenth affidavits of Brett Spiegel, solicitor, and the exhibits thereto[10] as well as submissions filed in the CATSI Act application. The State defendants rely on the first, second and fourth affidavits of Ben Dodgshun, solicitor,[11] and the affidavit of Timothy Price, Program Director, Major Road Projects Victoria.[12] Martang relies on the affidavit of Lisa McNicholas[13] and an affidavit of Timothy Chatfield.[14]

16 Before turning to the detail of the proposed amendments and the matters raised by the dismissal application, a few observations may be made about the issues that are raised for consideration. In broad compass they cover four areas.

17 First, if the 2013 plan either omits to identify relevant Aboriginal cultural heritage or the plan otherwise is invalid, then past acts which have harmed Aboriginal cultural heritage in the Specified Area may amount to criminal offences. A declaration in the form proposed would amount to a finding of past criminal conduct. The parties accept that case law approaches the exercise of discretion in granting such a declaration as generally requiring 'exceptional circumstances' to be demonstrated. The question for present purposes is not whether the discretionary relief would be granted but whether the exceptional circumstances identified by the plaintiff are arguable such that the amendment should be allowed and the plaintiff have the opportunity to ventilate those arguments at trial.

18 Second, the expanded relief seeks a declaration that the claimed Aboriginal places are in fact Aboriginal places as defined by the Heritage Act Such a declaration is made independently of any statutory process for the identification and protection of those places as provided for by the Heritage Act. The claim for such a declaration is associated with a claim for injunctive relief to confine sponsorship of any further plan to one that would be consistent with the proposed declaration of Aboriginal places.

19 Third, opposition of the State defendants to the proposed amendments overlaps with principles upon which they rely in their own summons. They argue that the claims in the proposed amendments, like the present claims for relief, have no real prospect of success. They say that there is no real prospect that the Court will grant the declarations sought in respect of alleged past criminal conduct, or grant any relief in respect of the 2013 plan where no reliance is placed upon it for future acts, or make declarations in relation to what amount to hypothetical claims. Standing is a present issue between the parties on the existing Statement of Claim and standing in relation to Past Works is also contested.

20 Fourth, as against Martang, new relief is sought by way of an order in the nature of certiorari to quash the Approval Decision. This proceeding was commenced by Writ and Statement of Claim rather than by Originating Motion. Consequently, the plaintiff's summons seeks an order dispensing with compliance with Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). The plaintiff seeks dispensation from both the requirement as to the form of the originating process and the requirements as to time for seeking this relief. By Rule 56.02(1), the time fixed to seek an order in the nature of certiorari is 60 days after the grounds for the grant arose, generally the date of the relevant decision. Rule 56.02(3) provides:

The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

21 At issue is whether the plaintiff is able to demonstrate special circumstances.

22 Martang also takes issue with the adequacy of the proposed pleading in respect of the claims against it if the plaintiff is otherwise given leave to amend to address some or all of the changes proposed. Deficiencies are said to remain in the existing Statement of Claim and in some cases are said to be compounded in the SFASOC. Martang contends that the factual matters relied on to underpin the duties and the breaches alleged are inadequately identified. It also submits that if those factual allegations are made out, the legal consequence of unlawfulness or invalidity of the 2013 plan arising from those facts is also not properly pleaded.

23 Finally, although the State defendants' written submissions were focused on various grounds for summary dismissal of all or part of the proceeding, the oral argument was focused predominantly on the alternative relief of an interlocutory or permanent stay of the proceedings. At the conclusion of the hearing of the applications, I gave leave to the parties to file further affidavits on the question of prejudice that would be occasioned by a stay.

24 For the reasons that follow, I will grant the State defendants' summary judgment application, broadly on two bases. First, as to future acts, there is no longer any utility in the present declaratory or injunctive relief sought, as the 2013 plan has been abandoned. It follows that there will be no utility in granting leave to amend to seek a declaration as to Aboriginal places in relation to future acts. Second as to Past Works, I am not satisfied that there is any real prospect of showing that exceptional circumstances exist that might permit a civil court to make declarations as to past criminal conduct. Accordingly I will not permit amendments to the pleadings that seek such relief. The plaintiff's existing and proposed Charter claims can only be maintained if she is a person under s 39(1) who 'may seek' relief on a non-Charter ground. They cannot be maintained in light of my conclusions about the non-Charter relief.

25 The principles for permitting amendment were not in dispute and may be briefly set out. The Court exercises its jurisdiction to secure as far as possible complete and final determination of all matters in dispute between the parties.[15] Order 36 of the Rules provides the Court with power to amend pleadings at any stage in order to determine the real controversy in the proceeding and to avoid a multiplicity of proceedings. The discretion is to be exercised having regard to the position of the parties to the litigation, their right to choose the way the claim is made or its defence is framed, and to identify the issues in dispute. Any prejudice that arises to other parties by the timing of any application to amend, and an explanation for that timing, are identified so that justice is done between them.[16]

26 In Aon Risk Services v Australian National University, the High Court emphasised the matters to take into consideration when exercising the discretion to grant leave to amend, being the wider public interest in the efficient use of court resources and the impact upon the court system and case management. As was said in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London & Ors:

It is, however, to be remembered that the primary question still remains: what do the interests of justice dictate? Aon reminds us that the prism through which these interests are viewed are wider than just that of the parties.[17]

27 In Mandie v Memart Nominees Pty Ltd, the Court said:

The Civil Procedure Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law related to summary judgment. More than ever, the focus is now pointedly on efficiency and cost effectiveness, albeit they are not the only, nor the predominant considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the Civil Procedure Act which set out when a pleading amendment will be allowed must be approached with caution.[18]

28 Additional claims for relief would ordinarily be allowed, subject to a sufficient explanation for the timing of any amendments, unless it can be shown that they raise no arguable case or have no real prospect of success.[19] The expedited trial date having been vacated, no issue was taken with the case management impact of amendments on a pending trial. The central issues are whether the amendments raise an arguable case and whether, where they do, the amendments are adequate in their present form. Both the State defendants and the plaintiff referred me also to the helpful summary in Re Allmine Group (in liq),[20] which sets out the present position regarding leave to amend pleadings.

29 The plaintiff's explanation for the timing of the amendments lies in two matters. The absence of an expedited trial date was a basis for the expanded claim to include past conduct, the effect of which was to allow the plaintiff to 'consider and pursue the full amplitude of claims available to her'.[21] The amendments, particularly those going to the additional grounds for relief for breach against Martang, are raised it is said because of the disclosure in March 2021 of the two CPA documents. Prior to disclosure, there was not a proper basis to make the further allegations of motive and purpose.

30 The two CPA documents are both internal VicRoads documents. One is a memorandum dated 28 November 2012. The memorandum is on the subject of the Parliamentary Inquiry into the establishment and effectiveness of Registered Aboriginal Parties which was tabled in Parliament in November 2012. The memorandum sets out views regarding the potential implications for VicRoads should the recommendations of the Inquiry be adopted. Under the heading 'Effectiveness of established RAPS', VicRoads identified an issue with 'aspirational demands' and gave the example of Martang withholding participation in an area based agreement with VicRoads until there is agreement to fund the purchase of property. Martang was said to want to 'develop expertise in native vegetation management'. It was thought by the author that such pressure on VicRoads might be alleviated by adoption of recommendations made by the Inquiry. The other is an email dated 22 February 2013 sent between members of the VicRoads Environment Sustainability team. It dealt with a draft letter for Martang regarding provision of funds by VicRoads for payment for the property Martang proposed purchasing. It noted 'as you are aware Martang are refusing to sign off on the 2013 plan if VicRoads does not assist (provide funds) the Martang purchase the property'.

31 The State defendants seek summary dismissal under section 63 of the CPA, under Order 23.01(1) of the Rules, or pursuant to the Court's inherent power to do so. In the alternative, a permanent or temporary stay is sought. Martang has also issued a summons seeking the same relief against it, consequential upon any grant of the relief to the State defendants.

32 A proceeding may be dismissed or stayed summarily under Order 23 where it is scandalous, frivolous or vexatious or an abuse of process.[22] Section 63 of the CPA provides:

63 Summary judgment if no real prospect of success

(1) Subject to s 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

...

64 Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

33 It is clear that the test under the CPA is more liberal than that under Order 23 and under the previous test of 'hopeless' or 'bound to fail'.[23] In Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd,[24] Warren and Nettle JJA said that the caution with which summary judgment is approached under section 63 remains and that:

... the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question be to tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[25]

34 The parties were agreed that the prospect of success for the purpose of summary dismissal and for the purpose of permitting an amendment to pleadings now amount to the same threshold test. This much is clear from the comments in Mandie set out above.[26]

35 The relief sought generally is premised upon establishing the presence of Aboriginal cultural heritage as defined by the Heritage Act. As mentioned above this includes Aboriginal places of cultural heritage significance. As I said in my ruling granting the interlocutory injunction:

The relief in this proceeding is directed at ensuring compliance with the [Heritage] Act in the protection of Aboriginal places.[27]

36 The two asserted serious questions to be tried identified by the plaintiff in the interlocutory injunction application were the non-identification issue and the unlawful decision issue, either of which if made out would result in the construction of Section 2B being non-compliant with the Heritage Act. To obtain final relief on the first of those issues, the plaintiff would need to establish the presence of Aboriginal cultural heritage in the area, not identified in the 2013 plan that would be, or would likely be, harmed by the continuing construction of the road. If the decision is unlawful, even that which is identified may not be protected.

37 It is convenient to consider the proposed amendments under the four broad areas that they cover. Three of these areas would expand the relief sought:

(i) declaratory and remediation relief in respect of Past Works;

(ii) further declaratory and injunctive relief in respect of future acts; and

(iii) an order in the nature of certiorari.

38 A fourth area expands the grounds upon which it is alleged Martang's conduct has resulted in an Approval Decision that is invalid and/or unlawful. According to the plaintiff the Changed Position has expanded rather than narrowed the issues in dispute.

39 The original pleading sought three declarations and three final injunctions. The proposed amendment seeks to add a further three declarations, variation in the injunctive relief sought and consequential remediation relief. The terms of the orders sought are as follows (with the proposed amendments underlined or stricken in red):

1. A declaration that the construction and/or completion of the Proposed Section 2B Route, and the carrying out of any associated works:

(a) in the Specified Area;

(b) alternatively, in Focus Area 1 and Focus Area 2;

(c) alternatively, in the Six Trees' Immediately surrounding Areas;

(d) alternatively, involving the destruction and/or removal of Tree E1;

(e) sections 27(1), (3), (5) and/or 28 of the Aboriginal Heritage Act and/or

(f) section 38(1) of the Charter.

(a) each of the Six Trees;

(b) each of the Six Trees' Immediately Surrounding Areas;

(c) each of Focus Area 1 and Focus Area 2; and

(d) the Specified Area;

(e) is an "Aboriginal place" and/or "Aboriginal object" within the meaning of the Aboriginal Heritage Act.

A2. A declaration that the Past Works were unlawful by reason of:

(a) sections 27(1), (3), (5) and/or 28 of the Aboriginal Heritage Act and/or

(b) section 38(1) of the Charter

1. A final injunction restraining the first to fourth defendants, whether by their servants, officers, agents or howsoever otherwise, from constructing and/or completing the proposed Section 2B route, and carrying out any associated works:

(a) in the Specified Area;

(b) alternatively, in Focus Area 1 and Focus Area 2;

(c) alternatively, in the Six Trees' Immediately Surrounding Areas;

(d) alternatively, involving the destruction and/or removal of Tree E1.

1. A final injunction restraining the first to fourth defendants, whether by their servants, officers, agents or howsoever otherwise, from sponsoring a "cultural heritage management plan" under Pt 4 of the Aboriginal Heritage Act that requires or involves the destruction of Tree E1.:

(a) that requires or involves the destruction of Tree E1; and/or

(b) that is to be prepared, evaluated and/or approved otherwise on the basis:

(i) that each of the Six Trees;

(ii) each of the Six Trees Immediately Surrounding Areas;

(iii) each of Focus Area 1 and Focus Area 2; and

(iv) the Specified Area;

is an "Aboriginal place" and/or "Aboriginal object" within the meaning of the Aboriginal Heritage Act, including for the purposes of ss 61 and 63(4) of the Aboriginal Heritage Act.

1. A declaration that the 2013 CHMP is not an "approved cultural heritage management plan" that can be relied upon by the first to fourth defendants for the purposes of s 29 of the Aboriginal Heritage Act, to engage in conduct that is likely to cause, or will cause, harm to:

(a) any of Trees E1, E2, E3, E4, E5 and E6;

(b) the Six Trees' Immediately Surrounding Areas;

(c) the Specified Area;

(d) Focus Area 1 or Focus Area 2.

1. A declaration that the approval of the 2013 CHMP by the fifth defendant under s 63 of the Aboriginal Heritage Act was invalid and/or unlawful and, as a consequence, the 2013 CHMP did not take effect as an "approved cultural heritage management plan" under

s 64 of the Aboriginal Heritage Act.

E1. A declaration that the commencement of Past Works caused by the first to fourth defendants whether by their servants, officers or agents or howsoever otherwise, was unlawful by reason of s 46(2), (4) and/or (6) of the Aboriginal Heritage Act.

E2. An order in the nature of certiorari quashing the Approval Decision and the 2013 CHMP.

E3. Such remediation orders in respect of the Past Works as the Court deems appropriate.

1. In reliance on declarations D and, E and/or E2, an injunction restraining the first to fourth defendants from relying on the 2013 CHMP to construct and/or complete the Proposed Section 2B Route, or to carry out any associated works.

40 A Court has power to make a declaration, even if no other relief is sought.[28] A declaration itself operates neither to restrain nor to coerce those that it binds but provides answer to a legal dispute. The relief is discretionary. The bounds of that discretion are those which define the boundaries of judicial power.[29] As was said in Ainsworth v Criminal Justice Commission:

It is a discretionary power which "[i]t is neither possible nor desirable to fetter...by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".[30]

41 The Past Works are set out in the SFASOC at paragraphs [55A.1-9]. The Past Works are defined as follows:

55A. Between October 2019 and 27 October 2020, the construction of the Proposed Section 2B Route, and associated works, has involved, among other things:

55A.1 the removal of the tree known as the "Fiddleback Tree" or "Directions Tree"(or CMT14), which was located in the Specified Area;

55A.2 the establishment, by the Project Director of MRPV as delegate of the Transport Secretary, of the Specified Area as a "restricted access area" for the purposes of the Major Transport Projects Facilitation Act 2009 (Vic), by the use of fencing, barriers or other permanent or temporary means of physical demarcation, preventing anyone not authorised under that Act from entering the Specified Area and Focus Areas 1 and 2, including the Plaintiff and other Djab Wurrung people;

55A.3 the destruction and clearing of the camps constituting the Djab Wurrung Heritage Protection Embassy, being camps located in the Specified Area, including:

55A.3.1 a camp within Focus Area 1 and the Tree E3 Immediately Surrounding Area;

55A.3.2 a camp within Focus Area 2 and the Tree E6 Immediately Surrounding Area; and

55A.3.3 a camp in proximity to the tree known as the "Fiddleback Tree" or "Directions Tree" (or CMT14);

55A.4 the installation of fencing, including right of way and no-go zone fencing within or surrounding the Specified Area;

55A.5 partial construction of the Hillside Road intersection within the Specified Area;

55A.6 the construction, or partial construction, of a 3.85km section of Section 2B within the Specified Area;

55A.7 changes to the natural or existing condition or topography of land within the Specified Area, including:

55A.7.1 the removal, destruction or lopping of trees;

55A.8 site establishment and construction of site compound on Hillside Road West within the Specified Area;

55A.9 the construction of an access track within the Specified Area.

42 Particulars of the activities that are the Past Works are provided by reference to the affidavits relied on by the State defendants in the application for the interlocutory injunction.[31]

43 The declarations sought by [A2] and [E1] are that the Past Works contravene ss 27, 28 and 46 of the Heritage Act. Section 27 is an indictable offence. Sections 28 and 46 are summary offences.

44 Although a civil court has a wide jurisdiction to make a declaration, where it is asked to declare that acts (whether past or future) amount to criminal conduct, it is generally reticent to do so. The fundamental reason for caution is that of fairness and justice. The protections afforded to an accused person by criminal procedures are absent. The proper forum for determination of criminal conduct is a criminal court.[32]

45 In a prosecution initiated in a criminal court, those charged with offences under the Heritage Act would face:

(a) a higher standard of proof, beyond reasonable doubt, and a right to silence; and

(b) procedural protections afforded to an accused under the Criminal Procedure Act 2009 (Vic), including preliminary disclosure requirements, provision of a charge sheet and particulars of charges together with a preliminary brief of evidence, and the procedural requirements of case management.

46 An accused would have a number of protections including:

(a) the prosecution must be authorised by the Secretary or a police officer, and, where an indicatable offence is to be charged, may only proceed with the written consent of the Director of Public Prosecutions. Members of the public cannot prosecute offences;[33] and

(b) an ability to bring a civil action for the tort of malicious prosecution in certain circumstances following an unsuccessful prosecution.

47 The absence of these factors gives rise to the unfairness to a person accused being dealt with by way of declaration in a civil court, subject to processes of pleadings, discovery and interrogatories.

48 On occasion, a plaintiff may obtain a declaration that their own proposed conduct does not amount to a criminal offence.[34]

49 Although the parties agreed that 'exceptional circumstances' are generally required where a declaration is sought in a civil proceeding of conduct that amounts to a criminal offence, it is instructive to identify what is meant by that phrase in this context.

50 In Gouriet v Union of Post Office Workers,[35] a declaration and injunction were sought to restrain unlawful interference with mail in protest against apartheid. Lord Wilberforce said of the use of a civil court to aid the criminal law:

It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty... or to cases of emergency.[36]

...the jurisdiction - though proved useful on occasion - is one of great delicacy and is one to be used with caution.[37]

51 In Imperial Tobacco Ltd v Attorney General,[38] the plaintiff sought a declaration that the lottery it was conducting was lawful. It obtained such a declaration where a prosecution against it for running an unlawful lottery was on foot. The House of Lords said that the relief should not have been granted because:

Such a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. If a civil court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial...[39]

My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started.[40]

52 The House of Lords was then called upon to examine what might amount to exceptional circumstances in R v Her Majesty's Attorney General ex parte Rusbridger & Anor.[41] In that case, a newspaper printed articles advocating the replacement of the monarchy with a republican form of government. They sought declarations that by doing so they were not guilty of any offence under s 3 of the Treason Felony Act 1848. The Court of Appeal held that the newspaper could proceed with its claim for a declaration. The Attorney General appealed. The relevant question on the appeal, for present purposes, was 'what are the principles that determine whether a civil court should entertain a claim for declaratory relief on a question of criminal law?'[42] There was no controversy with the statement of principle as expressed in earlier cases that it is not appropriate 'save in exceptional circumstances'. Rather, it concerned the application of that principle absent pending or anticipated criminal suit.

53 Lord Steyn identified a threshold requirement. The plaintiff has an interest and standing so that the relief claimed may as a matter of jurisdiction be granted. Then three factors are considered. First, an absence of any genuine dispute about the subject matter. In this context, the subject matter is a present or anticipated threat of prosecution. As the Attorney General had declined to express any view on whether or not to prosecute, there was no dispute. Lord Steyn said:

But that cannot by itself conclude the matter or be a weighty criterion if there are otherwise good reasons to allow the claim for a declaration to go forward. It is not a significant factor militating against placing the present case in an exceptional category.[43]

54 Second whether the case is fact sensitive or not. He said:

This is a factor of great importance and most claims for a declaration that particular conduct is unlawful will founder on this ground. ... But it has always been recognised that a question of pure law may more readily be made the subject matter of a declaration.[44]

55 Finally, he identified a cogent public or individual interest which could be advanced by the grant of a declaration. He concluded that the interpretation of the relevant Act and European Convention on Human Rights (Convention) did not give rise to any disputed issues of fact. He thought the question of an historic anomaly that may be of constitutional importance was a matter of public interest not to be left to the court in Strasbourg to determine. Interpretation of the Human Rights Act 1998 (UK) must now be undertaken in light of the Convention to which the UK was a party.[45] As all criteria were demonstrated the case was capable of falling into the category of 'exceptional'. However, having allowed the appeal, the proceeding was then dismissed as unnecessary, it being fanciful to believe that any criminality under the Treason Felony Act 1848 would survive scrutiny under the Human Rights Act 1998 (UK).

56 The same restrictive principle is accepted in Australia. In Sankey v Whitlam,[46] committal proceedings were on foot at the time the High Court was asked to make a declaration as to the admissibility of evidence and the availability of crown privilege as to documents produced pursuant to subpoena in the committal. As with Imperial Tobacco, the circumstances were therefore one where a civil court was asked to intervene when a criminal proceeding was on foot. The Magistrate ordered that most of the documents were privileged. The prosecution sought a declaration from the Supreme Court of New South Wales that the documents be produced and used if otherwise admissible. The case was removed to the High Court where it was argued that a civil court had no power to grant declaratory relief (at least at suit of an informant in criminal proceedings) or, if there was power it would not be a proper exercise of discretion to do so. The Court recited the well-established proposition that the power to grant declaratory relief was not excluded because the matter to be declared may be something to be decided in a criminal proceeding. It said that in the context of criminal proceedings, a declaration on a question of evidence or procedure may, in circumstances that 'must be most exceptional', warrant the relief. Gibbs ACJ said 'the procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay or expense'.[47] He recognised the potential for abuse in instances where the power is wrongly used.

57 In Inglis v Moore,[48] the Full Federal Court dismissed an appeal against a refusal to grant leave to amend pleadings to include a declaration that the defendants had conspired contrary to the Crimes Act 1914 (Cth). After considering Sankey v Whitlam and reviewing the cases cited there, St John J said:

Gibbs ACJ outlined the leading authorities on the ambit of declaratory relief without disapproving of any of the instances in which such an application was entertained. Examination of those authorities does not reveal a single instance in which, in civil proceedings, the declaration sought has been one that certain actions of the defendants constituted a crime after finding facts in those proceedings.[49]

58 Finkelstein J was asked by the plaintiff, which was a regulator, to make a declaration about past conduct of a company director which would amount to an offence.[50] He declined to do so as the regulator had not yet foreclosed the possibility of bringing criminal charges. In reviewing the authorities arising from the United Kingdom (Rusbridger, Imperial Tobacco and Gouriet) he said those cases showed:

Whether or not a court will intervene may depend on whether the court is asked to consider past or future conduct. If the court is asked to rule on future conduct and the issue involved is simply a question of law, the court is more likely to intervene. On the other hand, it is less likely to act in relation to past conduct, especially if the facts are in dispute.[51]

59 The Australian cases his Honour considered were in some flux in relation to company cases since Australian Softwood Forests Pty Ltd v Attorney General (NSW),[52] where the High Court held it was appropriate to grant declarations that past conduct contravened provisions of the Companies Act 1961 (NSW), which made the declared conduct a criminal offence. In that case two features were particularly important: there was no threat of criminal process (rather the regulator was specifically seeking to vindicate its view of the defendant's conduct in a civil proceeding), and the trial from commencement was on a statement of agreed facts. Finkelstein J did not consider that the case involved any wholesale change in the applicable principles. He concluded that while a civil court is usually the appropriate court to deal with a contravention of the Corporations Act 2001 (Cth), it should be wary if the case is likely to end up before a criminal court. Ordinarily and in such cases:

... a civil court should not intervene in those circumstance unless its failure to do so will result in irreparable injury.[53]

60 In Pharmacy Guild of Australia v Ramsay Health Care Ltd,[54] Ward CJ in Eq was confronted with plaintiffs seeking a declaration that the defendants had, in establishing a franchise of pharmacies, committed an offence under the Health Practitioner Regulation National Law (NSW). There was no criminal prosecution threatened or anticipated by the relevant regulator. The plaintiffs disputed that the declaration they sought was to the effect that the defendants have committed, or were continuing to commit, a criminal offence, as the declaration was not framed in such terms. Reviewing the authorities, the court observed that it was undesirable to embark upon a determination as to whether or not there is or has been conduct which would amount to the commission of an offence where the facts relied on as giving rise to the conduct and the alleged contraventions were disputed. The judge was of the view that it was not appropriate to entertain such declaratory relief in a civil action at the suit of a person who was not the regulator. Summary dismissal of the claim was ordered.

61 The plaintiff submits that the pleading identifies what are arguably exceptional circumstances and she is therefore entitled to take the matter to trial where the exercise of discretion will inevitably depend on the evidence to be led.[55] She submits that her case is distinguishable from Kinglake Friends of the Forest Inc v VicForests (No 3) ('Kinglake No 3')[56] and Warburton Environment Inc v VicForests (No 2) ('Warburton No 2')[57] where no attempt was made to plead the nature of any exceptional circumstances. Ms Thorpe identifies at paragraph 18A the exceptional circumstances she relies on.[58] Paragraph 18A deals with additional matters as to standing. It is proposed to read:

18A. Further, in addition to the matters set out at paragraphs 1 to 4 above, the plaintiff has standing to bring this proceeding and seek the relief sought, including in relation to the specific relief sought concerning Past Works (as defined in paragraph 55A below), because:

18A.1 there is a significant public interest in the relief sought, having regard to the context and purpose of the Aboriginal Heritage Act, including the fact that the Aboriginal Heritage Act binds the Crown in right of the State of Victoria (s 11);

18A.2 the relief is an appropriate vindication and recognition of the public rights of Aboriginal people whose cultural heritage is protected by the Aboriginal Heritage Act, and the plaintiff's Charter rights, that have been infringed by the Past Works and/or will be infringed by the construction and/or completion of the Proposed Section 2B Route;

18A.3 the conduct constituting the Past Works was ongoing over an extended period of time, and those works only ceased by reason of the interlocutory injunctions granted in these proceedings to prevent those works from being continued;

18A.4 of the public interest in the first to fourth defendants being held accountable for, and not being able to reap the benefits of there being no sanction in respect of, or no recognition of, their unlawful conduct in relation to the Past Works, particularly having regard to the matters set out in paragraphs 83 to 111B below;

18A.5 the matters set out in paragraph 112A below;

18A.6 in all of the circumstances (including the matters set out in paragraphs 111, 111A and 111B below) there is no real prospect that any prosecution of any of the first to fourth defendants (or any other person) in relation to the Past Works will be commenced; and

18A.7 the facts and conduct constituting the Past Works are based on the evidence filed in this proceeding by the first to fourth defendants, and those facts and conduct are not in dispute.

62 In oral submissions the circumstances relied on were widened to include the disclosure of a corrupt motive and improper purpose as also capable of amounting to exceptional circumstances.

63 The State defendants submitted that this case is relevantly indistinguishable from Kinglake No 3 and Warburton No 2 in which amendments seeking declaratory relief as to criminal conduct were disallowed. The matters identified in paragraph 18A go to standing but there is nothing exceptional in a desire to enforce a public law obligation nor in the fact that the Heritage Act binds the Crown. Neither public interest in the subject matter generally given the public law nature of the litigation, nor any special interest of the plaintiff, is itself sufficient to found exceptional circumstances.

64 They also contend that there is a factual dispute as the defendants have not pleaded to criminal conduct. They submit that the allegations of criminal conduct in the SFASOC as presently pleaded are vague and imprecise - they do not identify harm, and they identify matters going to the knowledge, recklessness or negligence of the defendants in carrying works that lack specificity.

65 For present purposes I approach the amendment question on the basis that the plaintiff has an arguable case that she would meet the threshold question of standing. I accept that the Past Works, if unlawful, would be a matter of significant public interest and condemnation. Considerations of public interest here are in the context of matters for which the legislature intends proof of conduct and punishment be tested through criminal procedures. The plaintiff alleges an absence of any real prospect of prosecution, and certainly there is nothing to suggest presently that any prosecution is threatened. However, nor is the prospect foreclosed by those charged with bringing a prosecution under the Heritage Act.[59] A civil declaration of unlawful conduct may well change the public landscape in relation to charges being laid. Certainly in respect of indictable offences where charges might still be laid, a declaration would in effect be a finding of guilt or innocence which may well prejudice future criminal proceedings and in particular the defendants in those proceedings. I am doubtful whether it could be said that there is an absence of any genuine dispute about this. It is to be contrasted with the position in Rusbridger, where any prosecution under the Felony Treason Act for publishing a debate as to republicanism was considered fanciful and improbable.

66 Even if I were to accept that there would not likely be a prosecution in the future, it seems clear that the factual contest that would fall for determination - what harm has been done and what was the knowledge or state of mind of those conducting the activities said to have caused that harm - would preclude the Court from entertaining such relief. None of the cases in which a declaration was made followed from a fact-finding exercise by the civil court. I do not accept the plaintiff's submission that there is no factual dispute as to the Past Works. Even if the conduct relied on is that which has been described by the defendants themselves, the submission ignores the requirement that proof of all elements will be needed; namely conduct, harm and knowledge. The offences established by s 27 are:

(1) A person is guilty of an offence if -

(a) the person by an act or omission harms Aboriginal cultural heritage; and

(b) at the time of the act or omission the person knew that the act or omission was likely to harm Aboriginal cultural heritage.

...

(3) A person is guilty of an offence if -

(a) the person by an act or omission harms Aboriginal cultural heritage; and

(b) at the time of the act or omission the person was reckless as to whether the act or omission was likely to harm Aboriginal cultural heritage.

...

(5) A person is guilty of an offence if -

(a) the person by an act or omission harms Aboriginal cultural heritage; and

(b) at the time of the act or omission the person was negligent as to whether the act or omission was likely to harm Aboriginal cultural heritage.

Section 28 makes it an offence to do an act that harms or is likely to harm Aboriginal cultural heritage. Section 46 creates offences if activity is commenced which requires a cultural heritage management plan and one has not been approved and the person knew, was reckless or negligent as to whether the activity required such a plan.

67 The submission that the discretion to grant the relief is one that will inevitably depend on the evidence led at trial[60] itself recognises the need for fact finding. The claim does not meet the second of the three considerations outlined in Rusbridger.

68 A person must demonstrate a cogent public or private interest advanced by the making of a declaration as to criminal conduct. The lawful cessation of life sustaining medical support was an example of an overwhelming private interest.[61] Constitutionally important questions are capable of demonstrating the requisite public interest. The question posed by this requirement is not merely to identify a public interest in the protection of Aboriginal cultural heritage which undoubtedly exists, and which the plaintiff has a sufficient interest that might meet the threshold question of standing. It is to show whether the public interest is served by a departure from the principle that a civil court is not generally the forum for determination of criminal matters. As was said by St John J in Inglis v Moore:

Whether indictable offences have been committed is the concern of the criminal courts and are for trial there. There, the accused has certain rights. The litigants are the Crown and the accused. There is no private right or private legal interest in conviction or acquittal other than that of the accused recognised by law. The whole emphasis in the criminal jurisdiction is one of public concern.[62]

69 Therefore, in my view, the exceptional circumstances must include a consideration of the qualities that would justify departure from this general rule. Neither considerable public interest in a declaration being made, nor the plaintiff's desire for vindication of her claim that the Heritage Act has been contravened, go to the reasons why in this case it would be appropriate to permit a civil court to intrude upon the proper role of a criminal court.

70 The declarations sought are squarely for the contravention of particular provisions with criminal effect. It could not be said, nor was it argued, that all that was sought was a declaration of unlawfulness not tied to provisions with criminal sanctions. The plaintiff placed reliance on Keogh J's permission to amend pleadings to seek a declaration of past unlawful conduct in WOTCH Inc v VicForests (No 7)[63] where no prosecution was on foot or threatened. The declaration sought was not for contravention of the provision which created an offence. Keogh J allowed that a more nuanced approach may be required when the declaratory relief raises issues of criminal conduct but is not in a form that states that the defendant committed a crime. Unlike the amendment sought here, the issue of non-compliance in that proceeding would not necessarily lead to the consequence that the defendant would be exposed to a prosecution.

71 For these reasons, in my opinion there is no real prospect that the Court would make a declaration that Past Works contravened the relevant penal provisions of the Heritage Act. It is not appropriate to leave the matter to an exercise of discretion at the conclusion of a fact-finding exercise.

72 The plaintiff submits that the central issue in this proceeding is the protection of Aboriginal cultural heritage, whether it be under the 2013 plan or any other cultural heritage management plan.[64] In addition to the two issues of non-identification and unlawfulness (both involving legal questions as to the lawfulness under the Heritage Act), the plaintiff submits that the proceeding identifies a third issue: the existence of the Aboriginal places that are claimed.

73 Aboriginal cultural heritage is defined in section 4 of the Heritage Act as:

Aboriginal places, Aboriginal objects and Aboriginal ancestral remains.

Aboriginal place has the meaning given to it under section 5 of the Heritage Act:

(1) For the purposes of this Act, an Aboriginal place is an area in Victoria or the coastal waters of Victoria that is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria.

(2) For the purposes of subsection (1), area includes any one or more of the following -

(a) an area of land;

(b) an expanse of water;

(c) a natural feature, formation or landscape;

(d) an archaeological site, feature or deposit;

(e) the area immediately surrounding any thing referred to in paragraphs (c) and (d), to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people;

(f) land set aside for the purpose of enabling Aboriginal ancestral remains to be re-interred or otherwise deposited on a permanent basis;

(g) a building or structure.

Section 4 of the Heritage Act further provides the following definitions:

Cultural heritage significance includes -

(a) archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and

(b) significance in accordance with Aboriginal tradition.

...

Aboriginal tradition means -

(a) the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and

(b) any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

74 The plaintiff's submission is that she is entitled to seek a declaration from the Court, identifying claimed Aboriginal places, that is not tied to any statutory process of protection from harm or to any threat of harm. The pleading which claims identified Aboriginal places and which have been denied in the defences, she submits creates a real legal controversy between the parties which the Court is to decide. On this question, which is divorced from any controversy as to the 2013 plan, the amendment and the summary dismissal arguments are identical. Such a declaration must determine a legal controversy between the parties.

75 The plaintiff submits that the identification of Aboriginal places is not merely an evidentiary step along the way to obtaining their protection from unlawful harm, but a necessary element of the cause of action itself. The declaration she seeks as to Aboriginal places is said to be both the remedy and the cause of action.[65] Relief is frequently directed at some action of a public authority, that has been or is intended to be taken, which is claimed to be contrary to law. A cause of action in relation to a public law remedy is necessarily entwined with standing to seek the relief. As Cavanough J said 'of course there must be a foundation in law for declaring that which is to be declared'.[66] That foundation in this instance is whether there is compliance with the Heritage Act in the decisions and actions of the defendants. In other words, the Court's declaration must be grounded in some public wrong which has the capacity to affect the interest of a plaintiff who seeks such relief. In Bateman's Bay Local Aboriginal Council v Aboriginal Community Benefit Fund Pty Ltd it was said:

In private law there is, in general, no separation of standing from the elements in a cause of action.[67]

Whether it is helpful or accurate to describe a declaration as an element of the cause of action in a public law setting is questionable where the right to bring an action is determined by the identification of a sufficient interest in the subject matter of the litigation. I will return to the interaction between standing and the subject matter of the legal controversy in the consideration of the Charter claims.

76 There is no doubt that the presence of Aboriginal cultural heritage is a question of fact. Whether an area is an Aboriginal place as defined by s 5 of the Heritage Act depends upon it being of 'cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria'.[68] This in turn requires consideration of archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance, and significance in accordance with Aboriginal tradition.[69]

77 There may be differing views about the significance of objects or places amongst those communities that are to be taken into account in identifying what meets the definition of an Aboriginal place. Significance may come about by a number of different ways that a particular community or its members attach significance. The inclusion of 'significance' in the definitions (on three occasions)[70] creates both a subjective and an evaluative element. An Aboriginal place is one that has 'significance' to Aboriginal people, and that significance may arise in one or more of the ways to be considered. To the extent the plaintiff submits that the identification of Aboriginal places is a question of objective fact, the submission ignores the evaluative and subjective elements contained in the definition which in my view require attention.

78 Even allowing for this, the declaring of an Aboriginal place under the Heritage Act may determine a factual matter, but it is not itself determining any legal controversy. I accept the submission that the existence of Aboriginal cultural heritage is not dependent upon any statutory decision making process. However, absent some statutory process or prosecution requiring it to be identified, the question whether it exists is not a proper subject for legal determination. Aboriginal places exist whether or not third parties, including the state, recognise their presence. A main purpose of the Heritage Act is to provide for their protection in certain circumstances.[71] The plaintiff submits she is entitled to the protection of the Heritage Act 'to determine her cultural heritage places, how they are not authorised to be harmed by the 2013 [plan]'.[72] The qualification that those places face harm, and specifically unlawful harm, is in my view central to the relief she seeks.

79 Where an Aboriginal person, or for that matter a RAP, seeks a declaration of a place as an Aboriginal place when no activity is to be undertaken in its proximity or that may affect it, then no legal dispute arises. If a tree is an Aboriginal place and there is no proposal to conduct any activity that impacts upon the tree, what legal controversy exists that would require a Court to determine and declare it an Aboriginal Place? There would be no contradictor proposing an activity attracting the provisions of the Heritage Act. A Court would simply be asked to declare a fact.

80 The plaintiff submits that such a declaration would have foreseeable consequences even if no dispute about the Approval Decision persists. First, by declaration the places would become 'known Aboriginal places' within the meaning of s 145 of the Heritage Act and so are to be recorded on the Victorian Aboriginal Heritage Register (Register), which is maintained by the Secretary to the Department of Premier and Cabinet.[73] Second, it will ensure that any new cultural heritage management plan will be prepared in accordance with the declared Aboriginal places (and she seeks injunctive relief to this effect). The plaintiff submits that a further declaration simply makes explicit that which has been implicit - the existence of Aboriginal places - and this remains a real legal controversy between the parties. The practical consequences of a declaration would not interfere with the statutory process to come.[74]

81 I do not accept that such a declaration would have the foreseeable consequence of compelling the Secretary to place on the Register that which would be declared an Aboriginal place. By the plaintiff's claim, it is clear that the existence of the places are known to her and others. There is no requirement that a Court declare an Aboriginal Place in order for it to be 'known'. Nor is a declaration necessary to seek to have a known Aboriginal place listed on the Register. This is not judicial review of a refusal to list places on the Register.

82 I was referred to Oil Basins Ltd v Commonwealth & Ors[75] to support an argument that even if the Secretary did not dispute the claimed Aboriginal places this was no bar to seeking the declaratory relief.[76] In Oil Basins there was a controversy between the plaintiff and two defendant producers as to which entity was liable to pay a particular tax pursuant to a royalty agreement. The Commissioner for Taxation was a party but had not yet issued any assessment notice or formed a view about who was liable. The Commonwealth objected to being a party. The Court held that notwithstanding the fact that the Commissioner for Taxation had not yet made any decision, he was a proper party. Dawson J doubted that a failure to indicate whether or not he would dispute the plaintiff's claim would preclude the plaintiff's relief, given there were other contradictors (the producers). The case otherwise proceeded on the orthodox position that as between the plaintiff and the producers there was a real (and not hypothetical) dispute as to who is to meet a tax liability. The case does not assist in identifying the legal controversy here between the parties.

83 The plaintiff submitted that any further cultural heritage management plan would be 'prepared against the background of the Court's reasons and findings'[77] had the trial proceeded. In my opinion this highlights the advisory nature of a declaration in the absence of a continuing controversy given the abandonment of the past statutory process. A declaration for the purpose of assisting the preparation of any further cultural heritage management plan and decision making of EMAC under s 63, would now be advisory in nature. Any evidence upon which the Court might act would not necessarily identify all heritage present that a cultural heritage management plan would need to deal with. The statutory process for preparing a cultural heritage management plan commences with the assessment of the area to determine the nature of any Aboriginal cultural heritage present in the area.[78] The process is required to be undertaken in conformity with regulated standards. The plaintiff's claim is that the 2013 plan did not comprehensively identify matters. It remains to be seen whether a new cultural heritage management plan will do so. I am not prepared to assume that Aboriginal cultural heritage that has been identified by traditional owners since 2013 will not now be considered by the statutory process as the plaintiff submits is likely. For the reasons set out above, I do not accept the submission that the legal controversy is whether there exist Aboriginal places that must be subject to a cultural heritage management plan.[79]

84 There is a further consideration. A cultural heritage management plan performs two interrelated tasks - identification and protection. The process does not separate the two. The statutory scheme provides for consultation with traditional owners in the preparation of any plan and at least at first instance, for the traditional custodians (through the statutory mechanism of RAPs) to evaluate whether the sponsored plan is sufficient to be approved. That approval necessarily considers the adequacy of both tasks - identification and protection - placing primary decision making in the hands of Aboriginal people. Understanding the significance of an Aboriginal place is important in devising its adequate protection. There are inextricable links between the identification of Aboriginal places, the significance that is accorded to them and the adequacy of measures to be adopted to avoid harm.

85 Therefore, I conclude any declaration as to Aboriginal places as sought in A1 can only stand as a stepping stone to other declaratory or injunctive relief. It is not a stand-alone cause of action. Any amendment to include A1 as a stepping stone in respect of future acts will depend upon whether other declarations of unlawfulness, or any associated injunctive relief in respect of those future acts, survive the dismissal application.

86 It is convenient next then to consider what relief in respect of future acts survives the dismissal application.

87 On 19 March 2021, when the State defendants communicated the Changed Position and intent of the first defendant to sponsor a New Plan, the question arises whether, and how, the Changed Position impacts upon the legal controversy before the Court. In light of the Changed Position, do any of the claims for declaration or injunction based upon reliance on the 2013 plan remain? I will deal separately with relief based upon Charter rights.

88 As a consequence of the Changed Position the State defendants contend that:

(a) there is no imminent threat of unlawful harm to Aboriginal cultural heritage so no basis for final injunctive relief; and

(b) the declarations of unlawfulness sought, being advisory or hypothetical in nature, would no longer determine any legal controversy between the parties; and

(c) any injunction to restrain the content of a further cultural heritage management plan is both hypothetical and pre-empts the statutory process now underway.

89 The plaintiff's submissions in opposition are premised on the proposition that the Changed Position of the State defendants does not vary the nature of the legal controversy because:

(a) the 2013 plan has ongoing legal effect and the reliance by the State defendants on it for some purposes (but not others) continues to be a real controversy that is to be determined;

(b) the discretionary relief she seeks involves complex questions of fact and law and so are not amenable to summary determination; and

(c) the claimed Aboriginal places have been denied by the defendants.

90 There can be no doubt that the pleadings disclose factual questions and legal questions (as to the consequences of those factual matters) that are complex, in some respects novel, and that deal with matters in which the public may be interested. The answer would be straightforward if the State defendants were contending that the plaintiff has no real prospect of establishing that there are Aboriginal places in the Specified Area. But that is not the basis of the dismissal summons.

91 The plaintiff submits that the dismissal summons rests entirely on the proposition that final relief, all of which is discretionary, would necessarily be refused without contesting the plaintiff's legal claims. However, the State defendants' submission is not that the discretion will inevitably be exercised one way or another - something that I agree could only be determined after hearing all the relevant facts and circumstances. It is a submission that the occasion for considering whether to exercise that discretion at all no longer exists and so will not arise because the legal controversy has fallen away.

92 As I have endeavoured to set out earlier, the legal controversy is founded on a threat of unlawful harm occurring to Aboriginal cultural heritage, not the existence of it. Although the pleadings give rise to a factual dispute as to the presence of Aboriginal places, that in itself does not give rise to any legal controversy. As Meagher, Gummow and Lehane's text describes, 'a legal dispute is a dispute over the legal significance of certain facts'.[80] For the reasons I set out earlier, the existence of Aboriginal places is to be judicially determined in the context of a legal dispute about it.[81]

93 Therefore, consideration of the dismissal summons gives rise to three questions. First, do the remaining declarations (A, D and E) still seek to determine a real controversy or are they now advisory or hypothetical such that they are beyond that which marks the boundaries of judicial power?[82] Second, and the mirror argument of the first question, would there be any foreseeable consequences or utility in making the declarations? Depending on the answer there may be no occasion for discretionary considerations. Third, in relation to final injunctive relief (B, C and F), given the Changed Position of the State defendants, might it still be necessary to restrain reliance on the 2013 plan, restrain construction of Section 2B, or restrain sponsorship of a proposed New Plan before it is prepared or submitted for approval under s 63?

94 There was a dispute as to the admissible evidence upon which I could act on the dismissal application. The plaintiff submitted that the only admissible evidence before the Court was the new Notice of Intent. The letter advising of the decision, which is dated 22 March 2021 (the letter), and submissions are the only evidence of what the plaintiff submits are the 'purported decisions'. The plaintiff submits that the content of the letter is hearsay and the requirements of s 75 of the Evidence Act 2008 (Vic), that the source of the information and belief be disclosed, have not been met. Absent information as to the relevant decision makers, a generic description of 'our clients' in the affidavit is said to be insufficient. The letter identified the relevant decisions as being:

(a) Major Road Projects Victoria, as the proponent of the Project, intends to take steps to sponsor a new cultural heritage management plan under the Aboriginal Heritage Act 2006 (Vic) (the Act) for any area in which future activities, including construction works, for the Project will occur (a New Plan). A New Plan will, among other things, set out a detailed description of any Aboriginal cultural heritage in the area; and

(b) the First to Fourth Defendants (and their employees, agents and contractors):

(i) will not rely upon the cultural heritage management plan (number 12327) dated 19 September 2013 (approved on 18 October 2013) in relation to the Project (the 2013 Plan), for the purposes of s 29 of the Act, to do any future acts that may harm, or may be likely to harm, the alleged Aboriginal cultural heritage in this proceeding; and

(ii) will not recommence construction works for the Project until a New Plan is approved and lodged under the Act.

95 It is the plaintiff who has tendered the letter and therefore for the plaintiff to adduce adequate evidence of its source. The defendant submits that the letter is admissible evidence. It has been tendered and admitted.[83] In any event, I have formed the view that the identification of 'our clients', in the context of identifying steps intended to be taken by Major Roads Projects Victoria, and the First to Fourth defendants do sufficiently identify the decision maker; notwithstanding it does not specify the individuals who have given the instructions on behalf of the relevant defendants. I do not accept the submission that the position is like that confronting Palmer J in Wily v Terra Cresta Business Solutions Pty Ltd.[84]

96 In Wily, the liquidator of two companies (Mr Wily) sought relief, one effect of which would determine whether the liquidator or a receiver appointed by the defendant controlled certain federal court litigation. In that context, the liquidator sought to tender a letter setting out statements about the position of a litigation funder which made reference to 'our client'. The statement as to the litigation funder's position was a hearsay statement. Mr Wily argued that 'our client' or 'the funder' in the letter did adequately disclose the source, because an earlier letter which had been tendered identified the client as International Litigation Support Pty Ltd. Faced with information that searches revealed there was no such company or organisation in Australia carrying on business, the Court was somewhat sceptical about this being a 'mistake' rather than a desire on the part of the liquidator to keep secret the true identity of any litigation funder. In that context, the reference to 'our client' was not a proper disclosure of the source of information. There is no such difficulty about the identity of the four State defendants here.

97 The plaintiff submits that the intent of the State defendants not to rely on the 2013 plan for a specific purpose[85] does not change the legal controversy as set out in the pleadings because any decision is capable of being reversed, changed or abandoned. This is illustrated by a prior Notice of Intent in August 2019 that was later resiled from, which formed part of the evidence on the hearing of the interlocutory injunction.[86] Therefore it is said, the serious question to be tried as to the non-identification issue and the unlawful decision issue as pleaded, has not changed.

98 The State defendants submit that the Changed Position cannot now relevantly be reversed. The second defendant has notified an intent and EMAC has elected to evaluate it.[87] To avoid any doubt about a change of mind, the State defendants proffered undertakings including that, in respect of the 2013 plan, they would seek that the Secretary for the Department of the Premier and Cabinet revoke the lodgement under s 64 and would consent to any revocation or repeal requested by EMAC or Martang that might be made.

99 The plaintiff submits that an offer of undertakings, expressed first in reply submissions to its own summons, should not be accepted or acted on by the Court. A court may accept and enforce an undertaking in lieu of an injunction. The plaintiff submits that, offered in support of summary dismissal, the undertaking would have the force of substituting final injunctive relief. In those circumstances, Thomson Australian Holdings Pty Ltd v Trade Practices Commission holds that an undertaking,[88] like consent orders, are to be in conformity with legal principle. In deciding whether a consent order or consent injunction did so conform, a court is entitled to treat a defendant's consent as involving an admission of all facts necessary or appropriate to the granting of the relief.[89] An undertaking is in an identical position. The State defendants have not admitted all facts necessary for the Court to act on the undertaking. When invited to make admissions that might provide a basis for final relief by letter dated 23 March 2021, the State defendants did not do so.[90]

100 I accept that the undertakings offered are not an appropriate basis upon which to decide whether the proceeding should be summarily determined. They were not proffered for that purpose, but in support of the alternative relief of a temporary stay.[91] However, in my view the undertakings offered do have some relevance responding as they do to the submission that the Changed Position is and may be subject to change again. They inform the weight to be given to a submission that it is merely 'a present intent expressed [that] may be changed if and when it suits them to do so'.[92]

101 The plaintiff submits that while the 2013 plan has some ongoing legal effect, there is a need for its validity to be finally determined. The controversy is encapsulated by and supported by the following three submissions. First, the tenuous and reversible nature of the Changed Position underscores the need for the question of its validity to be finally determined.[93] Second, the Changed Position eschews reliance in narrow terms, limited to 'the purposes of section 29 of the [Heritage] Act to do any future acts', which says nothing about past acts.[94] It is also clear that it is still relied on for the other purposes such as satisfying section 49 of the Heritage Act (which requires a cultural heritage management plan if an Environmental Effects Statement is required).[95] Third, no steps have been taken to amend the defence to give effect to the Changed Position and the defence makes assertions of reliance on and application of the 2013 plan which remains in effect.[96]

102 The first submission is tempered by the proffered undertakings of the State defendants and while I do not intend to act on them, they lend weight against the notion that some further reversal and reliance are likely. In the absence of reliance to undertake future construction, such activity remains unlawful. The undertaking simply reflects the position that without recourse to and reliance on the 2013 plan, construction of Section 2B will not be in accordance with the Heritage Act. Whether or not this proceeding remains on foot, any future decision to again rely on the 2013 plan would not be immune from challenge.

103 The narrow nature of any non-reliance loses force given the amendments to put some Past Works in dispute have not been allowed. It is not clear how the continued reliance of the 2013 plan for purposes such as compliance with s 49 might relevantly give rise to some dispute between the present parties as to future construction. The third submission is answered by the State defendants on the basis that at the time of the Changed Position the pleadings in the statement of claim were unsettled and it would not be appropriate to file an amended defence until such time as the proposed pleadings were resolved. That course was agreed by the parties.[97]

104 The substantive legal dispute between the parties is the lawfulness of continued construction. The unlawfulness arises either under the Heritage Act or because construction would be in breach of the Charter. In the absence of continued reliance on the 2013 plan, in my view there remains no legal controversy surrounding the Aboriginal places present in the Specified Area between the plaintiff and the State defendants that would require the declaration sought in [D]. Nor would a declaration of unlawfulness under the Heritage Act sought in [A] address a continuing legal controversy. I will deal with the Charter claim for a declaration separately.

105 The plaintiff's fourth submission relates to foreseeable consequences of relief. In Gardner v Dairy Industry Authority of New South Wales,[98] the Court was prepared to consider a declaration as to existing rights and transactions but said:

It is quite another thing to say it should be granted in respect of past transactions under legislation which has been repealed or amended when the Court's declaration will produce no foreseeable consequences for the parties.[99]

106 The plaintiff submits that while the 2013 plan remains with ongoing legal effect it is, like unrepealed legislation, productive of foreseeable consequences requiring a declaration of present rights. Other than the specific consequences that I have dealt with above,[100] the plaintiff submitted that while the 2013 plan remains in effect, having been lodged with the Secretary in accordance with s 64, any party (not just the State defendants) may rely on it for any purpose as operating to authorise activities in the specified area.[101] If that is correct, then clearly the validity of the 2013 plan would have foreseeable consequences for the plaintiff by continuing to authorise harm by others.

107 However, I do not accept the submission that a cultural heritage management plan once it takes effect, authorises any person conducting any activity in the area that it covers, and therefore its validity remains a matter of controversy even if the State defendants abandon reliance on it. By s 46(1), cultural heritage management plans are required for 'proposed activities' or certain works. A Notice of Intent must identify the 'description of the proposed activity to which the plan relates'.[102] During the approval process of the plan, there must be consideration as to the way that the activity is to be conducted and specific measures to be taken both during and after the activity.[103] An approval therefore authorises a particular activity and authorises it to be conducted in a particular way. The 2013 plan can have no broader application than for the construction of Section 2B by the State defendants in the manner that it described. It could not, for example, have any relevance to a proposed construction of a camping and caravan park, or a service station within the Specified Area.[104] The submission that the protection afforded by s 29 might apply in respect of acts done in the geographic area that a plan covers should be rejected. A relevant plan operates only in respect of the activity it addresses.

108 Although the 2013 plan has not yet been revoked or rescinded, and so is not directly analogous to repealed legislation, two matters ought be mentioned. First, the 2013 plan is not an instrument of general application as with legislation. It is an authorisation to conduct a particular activity in an approved manner. Without reliance on it, it has no practical effect on rights. Second, an application may well be made to revoke or rescind the plan at an appropriate time, within the context of the new plan being prepared. As such, a declaration as to the status or content of the 2013 plan regarding future acts is directed at events that have not and now may never eventuate. Similarly, the plaintiff's submission that two cultural heritage management plans cannot co-exist for the same activity in the same specified area is at present an academic question posed in relation to an occurrence that may never happen.

109 The plaintiff says that there is utility in a declaration of a past wrong even if there are no other foreseeable consequences. That utility might be either to ensure actions are not repeated, or because the circumstances are such that there is a wider public interest that makes it appropriate for the Court to consider doing so even if there is no practical effect for the plaintiff herself. The utility of avoiding a repeat of past conduct the plaintiff submits is a situation best analogous to M68/2015 v Minister for Immigration and Border Protection.[105] The plaintiff's submission was that the reasoning of the High Court there places an insurmountable barrier to the State defendants here.

110 In M68, the plaintiff was an asylum seeker previously detained on Nauru who had been removed to Australia. The plaintiff sought a declaration that the Commonwealth's involvement in her past detention was not lawful because the relevant provisions of the Migration Act 1958 (Cth) relied on as authorising Australian participation were invalid.[106] She had also sought injunctive relief preventing the Commonwealth returning her to Nauru. Prior to hearing but after commencement of the proceeding, the government of Nauru took steps to change detention arrangements there which suggested that if returned, the plaintiff was unlikely to be detained again. The injunction and prohibition to prevent her from being returned to Nauru fell away by reason of the changed detention arrangements. French CJ, Kiefel and Nettle JJ said:

Given these developments, the injunction and writ that the plaintiff seeks no longer assume relevance in these proceedings. There is not a sufficient basis for making them.[107]

111 The Commonwealth contested the plaintiff's standing to challenge the remaining issue - its past conduct, and whether the declaration sought would have foreseeable consequences. The Court said that the plaintiff's deprivation of liberty, past and potential, gave her standing and she did not lose standing by reason of the changed detention arrangements on Nauru.[108] The legal controversy lay not because of the actions of Nauru, but the continuing question of lawfulness of the provisions of the Migration Act 1958 (Cth) by which Australia was involved in detaining persons there. Those provisions remained in force so that which remained in issue 'is whether what has been done can be repeated'.[109]

112 Standing and the special interest in the legal controversy are closely related, particularly so in matters of public law where a plaintiff seeks to enforce a public right or obligation. In M68, it was observed that:

The question of standing cannot be detached from the notion of a "matter" and is related to the relief claimed.[110]

The Australian legislation under challenge had not been amended or repealed, only the position of the Nauruan government had changed. The Australian participation may lawfully be repeated in future absent the declaration sought.

113 I will return to the question of standing in the context of the Charter claims. Assuming for the moment that the plaintiff has standing, and that standing is not lost by the Changed Position, it is standing to seek relief from unlawful conduct. The declaration she seeks is the converse of the situation of M68 where the statute made lawful the Commonwealth's participation in detention, or the situation in Loielo v Giles where the Deputy Public Health Commander's direction, and thereby the pandemic curfew, was asserted to be lawful.[111]

114 By contrast the Heritage Act makes an activity unlawful unless a statutory process has been followed. Therefore, a declaration of unlawfulness may be necessary where the activity continues, or where lawfulness is asserted by past compliance with the statutory process. A legal controversy arises where the Court is asked to find that the Heritage Act will be contravened in the manner alleged, as was the position when this proceeding was commenced. Now the sponsor and the other State defendants disavow reliance on a lawful basis for continued construction. The lack of utility in declaring that the 2013 plan cannot be relied on for the purpose of s 29 where the State defendants are no longer relying on it for that purpose is apparent. The statutory scheme does not permit any repetition of or continuation of the relevant activity. It could only be of utility if a future decision was made to revert to reliance on the 2013 plan, something that may never occur.

115 The plaintiff submits that a declaration may nevertheless be made even where it declares only a past infringement without any present consequences or is of doubtful utility to the party seeking it. In Minister for Immigration and Ethnic Affairs v Ozmanian,[112] Kiefel J observed:

A declaratory order must be productive of some effect before it could be said to be warranted. And, given that His Honour listed a number of grounds which might support the making of the declaration in question, one infers that his Honour took that to be so. From what follows however, the question which arises is whether any effect will suffice. And for the purpose of that consideration one needs to bear in mind that any consequences could not be brought about by the declaration itself, as might occur where there is a pronouncement of the parties' rights. If it were to have operation it would be in another sphere.[113]

...

In my respectful opinion it will be a rare case where a bare declaration will be seen to be justified and the present is not such a case.[114]

116 The rare circumstances might include such circumstances to redress harm to reputation (Ainsworth) or it may have a public interest consequence. In ACC v Eurong Beach Resorts,[115] Kiefel J clarified her comments in Ozmanian. Her Honour concluded that where a regulatory authority brings proceedings seeking a declaration as to conduct of competitors in the marketplace, there is a public interest in a declaration being made. In such cases the consequence or utility of a declaration would be to show that certain conduct was not condoned and would serve to educate the public. She confirmed the statement of principle that the power to grant declaratory relief exists even where the consequence is only to declare the existence of a wrong.[116]

117 In Victorian Taxi Families Inc v Commercial Passenger Vehicle Commission,[117] Cavanough J traced the line of authority that a 'bare declaration' could be made in matters involving the public interest. Most illustrations, like Eurong, were in proceedings brought by an industry regulator whose standing is established by statute.[118] In many of the cases, at the suit of a regulator, other relief is sought associated with contravention of legislation. Cavanough J concluded that it was arguable that a statutory authority or executive government which appeared to have had a blanket policy, the effect of which dispensed with the law of the land across an entire industry, might amount to such a rare case.[119] There was a public interest if the executive power purported to dispense with statutory compliance. Cavanough J found that the plaintiffs would both arguably have standing to seek the associated relief in any event, which also encompassed a potential claim for damages in negligence. Accordingly, his Honour was not prepared to foreclose the argument as to the availability of a declaration on an application for preliminary discovery.

118 In my view, caution ought be exercised when applying these principles, generally expressed in the context of a plaintiff regulator given standing by the relevant statute, to proceedings commenced by an individual in a public law context. This caution arises because a bare declaration is by nature one in which any effect or consequence is not, to use the words of Kiefel J, 'brought about by the declaration itself, as might occur where there is a pronouncement of the parties' rights'.[120] If a bare declaration does not pronounce upon rights that the plaintiff has 'by reason of her special interest in the subject matter' it may not be one which she has standing to seek.

119 It is not necessary to decide this question as I am not persuaded that in any event the circumstances might amount to such a rare case. An argument that a RAP acted in motivation of financial gain in a statutory decision making role, and the adequacy of measures to protect Aboriginal cultural heritage, are no doubt matters that have involved a great deal of interest by the public. That interest has led the Victorian Ombudsman to conduct an 'own motion' investigation in relation to complaints about the planning and delivery of Section 2B. Amongst other topics, the investigation specifically looked at VicRoads' decision to negotiate and enter into a Credit Trading Agreement with a RAP involved in assessing the project's cultural heritage impact. The result of that investigation was reported to Parliament in 2020. The VicRoads memorandum was written for the purpose of comment on the effect of recommendations arising out of a Parliamentary Inquiry into RAPs, which was tabled in Parliament 2012. The inquiry looked generally at the RAP 'aspirational demands' creating unnecessary conflicts and noted that the recommendations of the inquiry were directed at such matters.[121] In short, the public interest in the process underpinning the Approval Decision, VicRoads position, and the process of RAP functions more widely, is something that has already been subject of investigation and recommendation on more than one occasion.

120 Further, Martang is no longer a RAP. It will play no role in approving a further cultural heritage management plan. The legislation now requires a RAP to be registered pursuant to the CATSI Act which has specific provisions regarding the representative nature of the corporation and for the resolution of disputes between members.

121 In light of these matters, I am not persuaded that this case is of the rare type where a bare declaration of doubtful utility might be appropriate such that there is a real prospect that a court might exercise its discretion on this basis.

122 In respect of future acts, the plaintiff seeks to injunct sponsorship by the first defendant of any further cultural heritage management plan in circumstances where the statutory process for its preparation is yet to be undertaken. She seeks an order preventing any sponsored plan being 'prepared, evaluated and approved' otherwise than on the basis that the Aboriginal places as identified in the statement of claim are Aboriginal places.

123 There are two fundamental difficulties with the way the injunctive relief in paragraph C is framed. First, the requirement under (a) that it not involve the destruction of Tree E1 goes not to the question of whether Tree E1 is an Aboriginal place but to the question of harm. It is no part of the plaintiff's case that this Court ought decide what harm might be authorised by the Heritage Act to any identified Aboriginal places. That decision rests with the registered Aboriginal party, EMAC, and its members. Second, it is not for the State defendants to evaluate or approve any sponsored cultural heritage management plan. That role also rests with EMAC. That may be sufficient to determine that final injunctive relief sought in [C] has no real prospect of success. However, I will consider the extent to which a final injunction might nevertheless mandate certain content by identifying Aboriginal places in the preparation of any plan that might now be sponsored.

124 The plaintiff says the existence of an Aboriginal place is determined by the statutory definition and not by the statutory process. I accept this submission. What the statutory process does is identify that which exists for the specific purpose of protecting it from harm. It requires a sponsor of a plan to make reasonable efforts to consult the relevant RAP, before commencing the assessment and during the preparation of the plan,[122] and to engage a heritage advisor to assist in the preparation of the plan.[123] The statutory definition does, as I have said, include subjective and qualitative elements.

125 While approval of a plan does not require a RAP to make any decision about whether or not an area is an Aboriginal place, the criteria it must consider in s 61 includes whether the activity is to be conducted in a way that avoids or minimises harm to Aboriginal cultural heritage.[124] This necessitates a consideration of what cultural heritage has been identified. In this way, a RAP does have a role to ensure that the identification of what exists and its protection are both adequately addressed by a plan submitted for its approval.

126 The plaintiff submits that there is no evidence that the proposed Section 2B route will be altered for any new Notice of Intent. The construction footprint of proposed Section 2B, which equates to the Specified Area as defined in this proceeding, covers the area through which both VicRoads route options originally proposed (options 1 and 2) would pass. The preparation of the 2013 plan was prepared in light of the decision taken by the Minister for Planning in 2013 which decided the alignment.[125] At present, it is unknown whether or not the new plan will evaluate the route as approved in 2013.

127 The plaintiff also submits that there is every reason to suppose that a new plan will not consult the plaintiff or others who have provided reports or affidavits in this proceeding. She also submits that there is every reason to suppose that EMAC will maintain its publicly stated position of support articulated in 2019 for a realigned Section 2B. While the plaintiff remains sceptical, there is no evidence that she or any other traditional owners would not be heard in the proposed process. The On Country report upon which she has relied in this proceeding was commissioned by EMAC with the support of VicRoads. The consultation process prescribed by the Heritage Act has been strengthened in various ways by amendments in 2016, which strengthen the obligation to consult.

128 To compel content of a sponsored plan that is to be prepared would impose upon the Court the task of identification that which the statute has provided be undertaken by a process of consultation, and with the engagement of appropriate expertise. This process accords with the purposes and objectives of the Heritage Act, importantly in my view, particularly those objects that seek to empower traditional owners as protectors of their cultural heritage.[126] There is no evidence one way or the other as to whether or how the claimed Aboriginal places are to be dealt with in the new plan. There is certainly no evidence that, having been identified since the 2013 plan was approved, the six trees or other identified Aboriginal places or objects will be ignored in the process to come, such that the Court should in some fashion injunct it. If, as she submits, EMAC has taken a particular view about the presence of Aboriginal cultural heritage and might be thought will maintain that view, that is not a dispute for resolution between the parties to this litigation or by reference to the validity of the 2013 plan.

129 In the absence of any evidence that the content of any further plan sponsored by the State defendants intends or is likely to exclude claimed Aboriginal places, there is no basis and therefore no prospect of the Court restraining the preparation of a cultural heritage management plan as is contemplated by the injunction sought in [C]. As outlined earlier, declaratory relief which is directed at the 2013 plan, is now hypothetical. It being hypothetical, and in the absence of any threat of harm to Aboriginal places by reliance on the 2013 plan, there is no basis for, and so no prospect of, the Court granting the permanent injunctive relief in [F].

130 The remaining injunction sought, paragraph B, seeks to permanently restrain construction of the proposed Section 2B route, at its broadest throughout the specified area, or more narrowly involving the destruction of Tree E1. The plaintiff submits that it is simply the proposed route to be followed for Section 2B that is sought to be injuncted (a route which requires the removal of Tree E1). She argues that, if the Court were to find that Tree E1 was an Aboriginal place there is 'nothing inherently unlikely' about the grant of injunctive relief as any further cultural heritage management plan may authorise harm but could not authorise destruction of Aboriginal cultural heritage. Any final injunction would necessarily be final, only insofar as a further cultural heritage management plan is prepared, evaluated and approved. Although this submission faces the difficulty that 'harm' is defined in the Heritage Act as including 'destroy', it is not necessary to explore the correctness of the proposition. What is not presently clear is whether the new plan is to be prepared for Section 2B along the same route as was contemplated at the time the 2013 plan was prepared. Knowing the actual route to be evaluated is the correct starting point.

F. Certiorari to quash Martang's Approval Decision

131 The plaintiff also seeks to invoke the supervisory jurisdiction of the Court to review the Approval Decision and make an order in the nature of certiorari.[127] The plaintiff says the utility of such order would be to remove the legal consequences of the decision and align the true legal position with the declared position. However, in my view certiorari would add nothing because a declaration would be enough to establish that the decision had no legal effect or legal consequence. Even if certiorari would add something, it was always available to be sought on grounds already advanced in the proceeding. The newly discovered documents did not change that.

132 The plaintiff submits that although the defendants take issue with her standing generally to bring the proceeding, standing is no bar. A stranger may seek certiorari.[128] The issue then becomes one of discretion in granting relief.

133 For present purposes, the plaintiff needs to demonstrate at least an arguable case that she will persuade a court that special circumstances exist. She submits that the material would be sufficient to grant an extension of time now, or in the alternative that it be dealt with at trial.[129]

134 The special circumstances arise, it is said, because only when the two CPA documents were provided in March 2021 did a 'clear and obviously strongly arguable cause of action'[130] for invalidity arise based upon the considerations outlined by Aickin J in R v Toohey; ex parte Northern Land Council.[131] Aickin J there said:

Two separate questions are involved in this argument, first whether the reasons, motives or purposes for which the Crown exercises a statutory power are examinable by a court, and if not, whether the Administrator is in the relevant sense a representative of the Crown.

The terminology used in the first of those questions is unfortunately neither uniform nor precise and it is sometimes impossible to be certain of the meaning intended to be conveyed by such expressions as, for example, good faith and bad faith. There are three distinct bases upon which an exercise of administrative power or authority or delegated legislative power or authority may be attacked; they are first the existence of a corrupt purpose, second the existence of an improper purpose and third ultra vires in the narrow sense of an act done being beyond power of the body concerned... I use the adjective "corrupt" to mean an act done for personal gain, including a gain for the person doing the act for his family or friends. Where some act is authorised to be done for a purpose, the doing of the act "falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power" is better classified as "improper" rather than "corrupt" in the absence of an endeavour to obtain personal gain, though the ultimate result of invalidity would follow on either view.[132]

135 According to the plaintiff the factual base for relying on motive and purpose emerged in March 2021 by the disclosure of the CPA documents. More broadly, the written submissions identified three further factors said to go to special circumstances: first, the interests of the Djab Wurrung people concerning harm to cultural heritage; second, the wider public interest in the protection of Aboriginal cultural heritage;[133] and third, that the public interest in the administration of justice requires scrutiny of executive action given the seriousness of the allegation made against Martang and the State defendants;[134] as relevant to special circumstances.

136 The State defendants say that the time limit should not be extended. They submit that the Court could not be satisfied that special circumstances exist by reference to the rationale that underpins the time limit and the public interest in the finality of administrative decisions.[135]

137 The State defendants rely on a substantial delay - a period of over seven years - as requiring 'a very strong case of countervailing circumstances'.[136] They submit that disclosure of the CPA documents in March 2021 cannot be accepted as an explanation for the delay as the plaintiff has contested the validity of the Approval Decision since the proceeding commenced and in doing so, called into question Martang's state of mind. She expressly disavowed seeking certiorari in November 2020, submitting:

... the plaintiff has not commenced a judicial review application under Order 56 of the Supreme Court Rules. Nor has it sought "any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto", being the subject matter of Order 56. Rather, the plaintiff seeks declarations in relation to the lawfulness of the 2013 CHMP. [137]

138 The State defendants point to the absence of any explanation for what they describe as a changed forensic position provided by the plaintiff. The plaintiff disputes this characteristic and relies heavily on the claims of corrupt purpose and improper motives being at the heart of the 'special circumstances' she relies on.

139 'Special' circumstances are those which are 'unusual, uncommon or exceptional'.[138] Context is important in determining whether circumstances may be described this way. A 'particular quality of unusualness' may permit the description of special if the circumstances are 'markedly different from the usual run of cases'.[139] Considerations include length and reason for the delay, prejudice to the defendants, whether an arguable case exists and the public interest in the finality of litigation.[140] All relevant factors, positive and negative, are to be considered.

140 Special circumstances were considered by Cavanough J in Kocak v Wingfoot at first instance:

It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tended to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[141]

141 The basic premise of the plaintiff's application for extension is that there is a single outstanding feature of this case - the recently uncovered documents upon which she alleges corrupt motive and improper purpose - which sufficiently contributes to make the circumstances as a whole 'special'. Including this feature, there are a large number of relevant matters that might also be considered in combination: lengthy delay, reliance on the Approval Decision by third parties and substantial work undertaken to date pursuant to it, any forensic decisions made by the plaintiff taken in ignorance of the CPA documents, potential prejudice or lack thereof. They all provide a miscellany of positive and negative factors. There is little evidence directed at those matters.

142 However, many of the other relevant matters would tend against a grant of extension - in particular the length of the delay and prejudice that might arise by reliance on the Approval Decision by third parties who have undertaken substantial works since August 2016.[142] Fundamentally though, the plaintiff's explanation that the two CPA documents explain the late application cannot by itself be accepted. While I accept that until she was made aware of those documents, she did not have a proper basis to plead an improper purpose or a motivation of financial benefit, she nevertheless has always challenged the validity of the Approval Decision in this proceeding, including on a traditional administrative law ground of actual or apprehended bias. The discovery of the CPA documents gave her potentially further grounds of review or challenge, but they did not for the first time alert her to the possibility of a challenge to the proper exercise of the statutory power.

143 I do not accept the submission that a reasonably arguable case in relation to allegations of the particular nature of motive and purpose as are made by the plaintiff should be sufficient to establish special circumstances.[143] A reasonably arguable case is generally not a sufficient basis for 'special circumstances' to be found. In Naik v Monash University, the Court of Appeal said:

The power to extend time is not to be exercised in pursuit of a futile proceeding. On the other hand, if proposed grounds are arguable, this may weigh in favour of an extension. However, the mere existence of an arguable case does not constitute special circumstances and of itself would not enliven the power to extend time.[144]

144 In circumstances where the Approval Decision is not relied on to continue the construction of Section 2B, then the limited utility of any grant of relief becomes another relevant factor to consider in deciding whether to extend time. The combined effect of all relevant features, including the arguments arising from the two CPA documents, does not persuade me that special circumstances are made out and therefore an extension of time may be granted.

145 The plaintiff seeks two declarations of unlawfulness under s 38(1) of the Charter against the first to third defendants. First, a declaration that further construction of Section 2B will be unlawful (by A(f) of the relief). Second, a declaration that the Past Works were unlawful (by the proposed addition of relief at A2(b)). Section 38 provides that public bodies act unlawfully when they act in a way incompatible with certain human rights. The plaintiff identifies the relevant human rights as those she has pursuant to s 19(1) and (2) of the Charter. Section 19 deals with cultural rights and provides:

(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language.

(2) Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community -

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

146 Section 39 governs the right of a person to obtain a remedy on a ground of unlawfulness arising because of the Charter. Section 39(1) provides:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of the Charter.

147 The question therefore is whether the plaintiff is a person who 'may seek' a remedy in respect of an act or decision otherwise than because of the Charter. The authorities make clear that a non-Charter claim for relief need not succeed for a person to come within s 39(1). In DPP v Debono,[145] Kyrou J summarised the authorities on what is required to meet the requirement of s 39(1) where a non-Charter remedy was also claimed. He concluded that:

Accordingly, it appears that the mere exercise of an available right to seek relief or remedy in respect of an act or decision of a public authority on a ground that is independent of the Charter is sufficient to satisfy the condition in s 39 of the Charter; that is, s 39 does not depend upon a successful exercise of that right based upon the non-Charter ground. However, if a right to seek relief or remedy in respect of an act or decision of a public authority is not available independently of the Charter, no relief or remedy can be granted where the act or decision is unlawful under s 38(1) of the Charter.[146]

148 Again, as the authorities have made clear, the construction of s 39(1) provides two constructional choices. Using terminology arising from a 2014 paper,[147] those choices are described as 'factual availability' and 'abstract availability'. In Bare v IBAC,[148] referring to the paper, Tate JA said:

There are two competing constructions, the 'factual availability' interpretation, which reflects the supplementary approach, the need for a litigant relying on the Charter also to seek relief on a non-Charter ground, and the 'abstract availability' interpretation which requires only the use of an existing process and procedure to ventilate a claim based upon an alleged breach of s 38(1) seeking a traditional remedy.[149]

149 This constructional choice has not yet been resolved. This is largely because the cases in which the issue is raised have all had a non-Charter claim on foot at trial and so satisfied the factual availability approach. Within the 'factual availability' construction, a further question arises as to whether there is some minimum threshold of merit or viability in the non-Charter claim that is commenced. The issue as developed in the Commission's oral submissions brings into focus competing approaches to the 'factual availability' construction: whether a non-Charter ground that could survive a strike out or summary dismissal application was needed, or whether only a non-colourable ground was required. The former view was expressed by Pamela Tate in 2007 as Solicitor-General and referred to in the Commission's submissions: 'one would expect that the independent non-Charter ground must be such as to survive a strike out application'.[150]

150 The conundrum now presented is this: if the claim seeking declaration or injunction directed at unlawfulness of future acts under the Heritage Act is struck out or summarily dismissed, is the plaintiff nevertheless a person who 'may seek' that relief because she had commenced the proceeding? On a factual availability construction although her claim of Heritage Act unlawfulness would not succeed, having sought that relief, can she maintain the Charter declaration in respect of future acts? Here the plaintiff's declaration as to unlawfulness under the Heritage Act regarding future acts has become hypothetical because of the State defendants' Changed Position for the reasons outlined earlier. Despite this, does the act or decision upon which her Charter claim is based survive? Further, as she fails on the further amendment application to include relief directed at Past Works, would she meet any minimum requirement on a construction of factual availability having not established that she 'may seek' that relief?

151 Alternatively, if a construction of abstract availability were preferred then it was submitted by the Commission that a plaintiff who 'may seek' non-Charter relief is one who has standing to seek relief on non-Charter grounds. Is the survival of her Charter relief in respect of Past Works dependent upon the basis for refusal of her further amendment application? The reason for the refusal of leave to amend regarding Past Works is the conclusion that there was no reasonable prospect that a court would make such a declaration as to past criminal conduct. Nor has time been extended to seek certiorari. In those circumstances has she established that she is someone who 'may seek' non-Charter relief in respect of Past Works?

152 On an 'abstract availability' construction, the Commission submitted that s 39(1) would entitle a plaintiff to maintain a Charter claim if she would have standing to seek the non-Charter relief regardless of whether or not a claim for which she would have standing was in fact commenced.

153 The Commission urges the abstract availability construction. It submits that on either construction, the demonstration of standing on general law or other statutory grounds is sufficient. This is because standing is a threshold condition. It is no part of s 39(1) to look at discretionary matters that might come to bear on the grant of such relief. The Commission submitted that the reasoning of Bell J in Goode v Common Equity Housing was consistent with a construction of s 39(1) requiring only that a person would have standing to seek the relief on non-Charter grounds.[151] His Honour's reasoning has been adopted and applied subsequently, including by John Dixon J in Certain Children v Minister for Families and Children (No 2).[152] Whilst the abstract availability approach may be consistent with the reasoning of Bell J, his actual reasoning was premised on both Ms Goode's entitlement to challenge the relevant acts and that 'she did so challenge those acts'.[153] The cases he considered there and those that have subsequently built upon this jurisprudence have all arisen in circumstances where the non-Charter claim is also before the Court at trial.

154 The plaintiff adopted the written submissions of the Commission, with two qualifications. She does not accept that she would fall outside any version of 'factual availability' if she were not otherwise granted leave in respect of Past Works. She submits that, having genuinely attempted to obtain relief by her further amendment application, unless the refusal is based upon a lack of standing, she is a person who 'may seek' relief on a non-Charter ground. The second qualification is that the question of construction of s 39 is complex, unresolved by authority and is better left for resolution at trial than on an application to amend.

155 The plaintiff accepts that she must have standing to bring the relevant non-Charter claim in order to satisfy s 39(1).[154] She submits if she has standing, then it does not matter whether the right she has exercised is unsuccessful at trial or at some earlier stage, including summary dismissal. She submits that under an 'abstract availability' construction a person need not actually bring a proceeding for non-Charter relief. In respect of the Past Works, where leave to amend has been refused on the non-Charter ground, she submits that on either construction her Charter claim survives as she has genuinely sought the relief, unless her further amendment application failed on the basis of lack of standing.

156 She accepts that a non-Charter claim cannot be propounded for the purpose of 'manufacturing' a Charter jurisdiction. The State defendants do not rely on any issue of colourability but take issue with the plaintiff's capacity to bring her non-Charter claims. I accept that the issue of 'colourability' does not arise.

157 The State defendants submit that the decided cases have applied a 'factual availability' approach where the relief may be sought as a conditional and supplementary remedy, because invariably a non-Charter remedy has also been sought. They further suggested that, on either approach s 39(1) is not satisfied in respect of Past Works if the plaintiff is not given leave to amend. In respect to Future Works, the lack of a threat to cultural heritage, by non-reliance on the 2013 plan and the process now to be followed, means the plaintiff loses standing.

158 Although the reasoning in Goode, and indeed in other cases, may not be inconsistent with abstract availability, frequently in the cases the language speaks more to a factual availability interpretation for example;

's 39(1) has an operation which is both conditional and supplementary'[155]

'It is not necessary that the grounds of review are the same under the Charter and the [Administrative Law Act], merely that the relief or remedy sought is the same'.[156]

As mentioned earlier, no case seeking a Charter remedy alone, based upon an abstract availability of other non-Charter relief, has been determined.

159 The Commission sets out the three ways that a plaintiff may establish standing to seek a declaration of breach of a public duty; by statute, by a public act that also affects a private right, or by a 'special interest in the subject matter'. The third basis is in accordance with the test as set out in Australian Conservation Foundation Inc v The Commonwealth.[157] The plaintiff's Charter declarations rely on standing given by statute, namely s 39(1) of the Charter. Her other relief relies on establishing her 'special interest in the subject matter'.

160 As contemplated in Boyce v Paddington Borough Council,[158] the capacity to challenge a public wrong may arise in two ways: first 'where the interference with the public right is such that some private right of [hers] is at the same time interfered with'...; and, second, 'where no private right is interfered with, but the plaintiff, in respect of [her] public right, suffers special damage peculiar to [herself] from the interference with the public right'.[159]

161 Standing to seek relief on non-Charter grounds requires the plaintiff to establish a 'special interest in the subject matter of the action' as no private right of hers has been or is threatened to be affected.[160] The nature of the special interest is set out in the pleadings and centres on her position as a traditional owner and custodian of the Aboriginal places. It is a special interest relevantly indistinguishable from that in Onus v Alcoa of Australia Ltd.[161] She submits that her special interest is not diminished by the Changed Position of the State defendants, contending that, like in M68 and Loielo, 'she had that interest at the commencement of the proceeding, and she did not lose that standing by reason of the change in circumstances'.[162]

162 In each of the two cases relied on, the plaintiff's standing arose by reason of the first limb in Boyce. In each, the litigation was based upon the infringement of a private right. This is an important distinction. In Loielo, there was a challenge to the plaintiff's 'special interest' once the curfew was revoked. Standing was not determined as a preliminary question. At trial, Ginnane J found that standing was demonstrated on the evidence because the private right to run her own restaurant business had been adversely affected by the curfew. Her private right overlapped with public rights also infringed by the curfew. There was no requirement to otherwise establish a 'special interest' in order to maintain standing. Because there was evidence of some financial loss suffered while the curfew was in force, the ending of the curfew did not remove standing. Therefore, Ginnane J accepted that the plaintiff, who had standing to bring and did pursue non-Charter claims for declaratory relief, would meet the requirement of s 39(1) irrespective of the outcome of the non-Charter claim. Likewise in M68, the plaintiff's private right to liberty was engaged by the litigation. This determined her standing not whether she had a 'special interest'.

163 Where litigation is pursued to enforce the obligation of government and public bodies to act according to law, in the absence of any private right or interest being affected, standing is the mechanism that ensures the proceeding maintains the ordinary characteristics that mark the boundaries of judicial power. In Maguire v Parks Victoria,[163] the Court of Appeal referred to the decision in Kuczborski v Queensland emphasising the role of standing in keeping judicial power within proper bounds. In part, Kuczborski had said:

To recognise that a person has sufficient interest to seek the exercise of judicial power where that exercise is apt to affect 'the legal situation of persons subject to the jurisdiction of the court' serves to maintain the ordinary characteristics of judicial power.[164]

164 In application of the test of standing at common law, Maguire went on to say:

That said, the special interest test plainly requires an intersection between the interest identified by the plaintiff and the decision that is sought to be impugned in the proceeding. It will require an assessment of how the interests of the plaintiff are liable to be affected by the exercise of power. This will be especially so where the relevant interests belong to an individual and the relationship between the two takes the form of economic or personal impacts. On the other hand, where the interest sought to be protected by the plaintiff is the public interest, there is less utility in asking whether the interest of the plaintiff is affected. In this case, the applicant claims that the amenity enjoyed by him as an adjoining landowner will be interfered with, and this gives him a special interest peculiar to him. It is relevant to assess how the decision might intersect with that interest, having regard to the legal and practical effect of the decision. That is because the test revolves around the nature of the relationship between the plaintiff and the subject matter....However, it is to be remembered that standing is a threshold requirement and should not depend on whether the grounds might be made out or relief withheld on a discretionary basis.[165]

165 And, having concluded that the statutory context is important but not determinative of standing, said:

It is thus necessary to identify the nature of the claim and the relief sought.[166]

166 In Onus, Gibbs CJ, when discussing standing, said:

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 a proceeding.[167]

167 Where standing arises under the second limb in Boyce, it may well be changed by events that affect the public wrong that lies at the heart of the dispute. If the subject matter is fundamentally changed, it could not be said that the plaintiff's relationship with the subject matter remains unchanged. Whether or not standing continues will depend on the particular circumstances of the changed subject matter and whether the decision still intersects with the interest.

168 Section 38 of the Charter makes it unlawful for a public authority to act in a way incompatible with a human right or make a decision without giving proper consideration to a relevant human right. It is in respect of such acts or decisions that s 39(1) permits a person to bring legal proceedings. The plaintiff contends that the 'act' against which she seeks remedy remains the construction of proposed Section 2B route. The State defendants submitted that, in the absence of any intent to further construct Section 2B until a new plan is approved, there is no present or anticipated act or decision to which s 38(1) applies.

169 In my opinion, the subject matter of the proceeding is the apprehended unlawful construction of Section 2B other than in accordance with the Heritage Act or the Charter. As to the future, the State defendants do not propose to resume construction until such time as the required statutory process is commenced afresh and concluded. The plaintiff's 'special interest' must be attached to a legal controversy. The decision or act from which she seeks relief is no longer relied on to establish lawfulness. The plaintiff doesn't 'lose' any special interest she has in the preservation and protection of cultural heritage from future acts. But because the legal controversy that she sought be adjudicated, and in which she arguably has a special interest, no longer arises her standing is changed. The subject matter of the proceeding, being a dispute about present rights, does not survive a disavowal by the State defendants of a lawful basis to continue.

170 There seems to me a further difficulty faced by the plaintiff in maintaining a Charter claim in respect of the proposed further construction of Section 2B. There is not yet an act or decision as to the proposed route of Section 2B. Since 2017, there has been some variation in the proposed route as was negotiated between VicRoads and EMAC following receipt of the On Country report dated July 2019. The plaintiff assumes this agreement is to be given effect to by the new plan.[168] If so, it would not be the route approved by the Environment Minister in 2013. At present, there is no evidence before the Court to establish what the footprint for Section 2B will be for which the new plan will be prepared. In my view, a Charter claim of unlawfulness can only be advanced once the relevant act - the actual route for construction - is identified and the relevant authorised harm and the protection from harm associated with construction of that proposed route has been identified. Without these, whether any act or decision is incompatible with cultural rights, and whether any limitation of those rights is in accordance with s 7(2) of the Charter, could not be determined.

171 As to the claim for Past Works, the plaintiff has not been given leave to amend to seek non-Charter relief. She submits that if leave to seek the declaration at [A(2)(a)] is refused for reasons other than standing, then she is entitled to maintain her claim on either abstract or factual availability. The State defendants submit that until she establishes 'exceptional circumstances', or arguably exceptional circumstances that would permit an amendment, the plaintiff is not someone who may seek the non-Charter relief whether in fact or in the abstract. I agree with this submission. The proposed pleadings as to matters relied on as capable of demonstrating the exceptional circumstances were integrally related to questions of her standing to seek the relief. The matters were set out at paragraph [18] and [18A] under the heading 'Standing'. That proposed pleading is set out above at [61]. Therefore it can be said that the refusal of leave to amend is related to the threshold question of standing.

172 Therefore, even on the abstract availability construction, the plaintiff has not met, or no longer meets, the threshold that would give her a right to seek the non-Charter relief [A2(a)] or the non-Charter relief under [A(e)]. It is not necessary therefore to consider which is the preferable construction, or whether on a factual availability construction a non-Charter claim must be one that otherwise has a 'reasonable prospect of success'.

173 Given the conclusions above, it is not strictly necessary to deal with the balance of the amendments to the statement of claim. But, bearing in mind that it is desirable that a court deal with all substantive issues raised by the applications, and in case I am wrong in any of my conclusions, I will set out my conclusions on the pleadings that deal with Martang's conduct and the Approval Decision.

174 All the defendants contend that the material facts going to the unlawful decision issue are not properly pleaded and particularised. They submit that the deficiencies are incapable of being remedied. Similarly, the pleadings that go to the past conduct are also said to be imprecise and ambiguous in the context of allegations about criminal behaviour. For the reasons outlined below I accept these submissions generally. I will focus the reasons on the amendments as they deal with the claims against Martang rather than as they deal with the lawfulness of the Past Works. The deficiencies overlap. If the legal controversy between the parties remained, I accept that the claims raised by the plaintiff as to the lawfulness of Martang's decision would be arguable.

175 The structure of the SFASOC commences setting out the relevant features of the Djab Wurrung country [1-2], the parties [3-17], the plaintiff's standing [18], and the Aboriginal places and objects in the Specified area are identified [19-48]. The relevant penal provisions of the Heritage Act are then set out [50-53] and the work on Section 2B of the Western Highway Duplication project that has and will require work in the Specified Area [45-56A] including the proposed particularisation of the Past Works are defined. The 2013 plan including matters relevant to the non-identification of Aboriginal cultural heritage is next pleaded [57-62].

176 Then under a heading Martang's Approval Decision from [63], a series of subheadings provides: pleadings related to Martang's application to be a RAP [63-68], it's duties and powers as RAP [69-82], its conduct [83-105]. It alleges the conduct was for the exercise of its power pursuant to s 63 of the Heritage Act. It alleges the conduct was for a financial benefit purpose or corrupt motive [106-106A]. It next sets out Martang's breaches which have occurred by reason of the matters in [106-106A] concluding that it was therefore not an approved plan and so did not take effect. It last pleads matters relating to the Approval Decision under a subheading of VicRoads participation in Martang's breaches. As a result of matters all going back to [57] it is said, no reliance can be placed on the 2013 plan for the purpose of authorising harm pursuant to s 29 for past or future works.

177 Next under the heading unlawful conduct, knowledge, recklessness or negligence as to the presence of Aboriginal cultural heritage relevant to both proposed and past activity is pleaded [113-114]. Knowledge, recklessness or negligence from 26 July 2019 is awareness:

(a) in all cases identified by reference to paragraphs [19-48],[ 55 to 56A], [63-112A]; and then

(b) particularised by reference to two documents dated 23 May and 26 July 2019 and further particularised by how that knowledge of servants, officers or agents of the first defendant is attributed to the second and third defendants and ultimately to the fourth defendant.

178 As to a new cultural heritage management plan, it pleads by reason of foregoing matters that Section 2B cannot be constructed in compliance with the Heritage Act because neither the Heritage Act nor the Aboriginal Heritage Regulations 2018 (Vic) authorise destruction of Aboriginal cultural heritage. Therefore, any future plan is to be prepared by identifying, as Aboriginal places, those that are claimed [115-118] and is to be prepared for the Section 2B route or any other route, on the basis that, at its broadest 'the specified Area' is an Aboriginal place. Finally, the Charter claims are pleaded [119-123] and the relief is set out.

179 The contentious pleadings go to the duties and powers of Martang, the conduct of Martang and the consequences and breaches alleged.

180 There are now five duties or powers identified in this section relevant to the exercise of statutory power to approve or refuse cultural heritage management plans.[169] They are the statutory requirement to act in good faith,[170] the existence of a fiduciary-like relationship with persons including the plaintiff which gives rise to a non-conflict duty, and a duty not to be affected by actual or apprehended bias. To these three, the motive and purpose for the exercise of power are sought to be added. It is therefore to be pleaded that the exercise of power (or conduct related to the exercise of that power) must not:

(i) be in breach of the statutory duty of good faith;

(ii) be in breach of the non-conflict duty;

(iii) be affected by actual or apprehended bias;

(iv) have a subjective purpose of securing a financial benefit for itself;

(v) have an objective purpose of securing a financial benefit for itself.

181 The statutory power to be exercised by section 63 provides:

(1) A registered Aboriginal party must, within 30 days after receiving an application under s 62 -

(i) to approve the plan; or

(ii) refuse to approve the plan; and

(b) give written notice of the decision to the sponsor and each other registered Aboriginal party referred to in section 62.

(3) A registered Aboriginal party must refuse to approve the plan if it has not been prepared in accordance with the standards prescribed for the purposes of s 53.

(4) A registered Aboriginal party may otherwise only refuse to approve the plan if the registered Aboriginal party is not satisfied that the plan adequately addresses the matters set out in s 61.

182 Section 61 sets out five criteria to be considered in assessing whether to approve a plan relating to an activity. They are:

(a) whether the activity will be conducted in a way that avoids harm to Aboriginal cultural heritage;

(b) if it does not appear to be possible to conduct the activity in a way that avoids harm to Aboriginal cultural heritage, whether the activity will be conducted in a way that minimises harm to Aboriginal cultural heritage;

(c) any specific measures required for the management of Aboriginal cultural heritage likely to be affected by the activity both during and after the conduct of the activity;

(d) any contingency plans required in relation to disputes, delays and other obstacles that may affect the conduct of the activity;

(e) requirements relating to the custody and management of Aboriginal cultural heritage during the course of the activity.

183 Martang's principal argument is that the pleadings are incapable of being sustained or remedied because the 2013 plan was prepared in accordance with the applicable legal standards, and, when submitted in September 2013, Martang was legally obliged by s 63 to approve it. Martang submitted that the power to approve or refuse a cultural heritage management plan is a constrained one, not a decision 'at large'.

184 Martang's existing defences otherwise deny the existence of a conflict of interest and state that there was in fact no basis on which Martang legally could have refused to approve the 2013 plan.[171] They deny that compliance with an equitable duty (if one exists) is a precondition to the lawful exercise of the approval power under s 63. They say any interest in management and conservation of land, including receipt of payments for providing native vegetation offsets pursuant to that objective, were not matters in conflict with the exercise of the approval power under s 63.

185 Martang submits that it could not legally refuse to approve the plan and no facts are pleaded that might permit it to have done so. If it could not refuse approval under s 63, then no financial benefit could have influenced its exercise of statutory power to approve. There is no pleading to establish that the Approval Decision could or should have been different if it were not attended by any of the bases for unlawfulness if they were established. The pleading deficiency is therefore incapable of being remedied.

186 It also submits that the terms of the statutory power in s 63 and the nature of a RAP under the legislation is inconsistent with a fiduciary or 'fiduciary-like' obligation. It is not an obligation to act in the interest of another and subordinate their own interest. The RAP speaks for itself in a role that is prescribed by statute. Nor is the nature of any conflict pleaded between the Approval Decision and a decision to purchase land or enter into a credit trading agreement.

187 The plaintiff submits that the non-conflict duty is grounded in a relationship between the RAP and those it represents. By its registration under the Heritage Act, it exercises statutory functions and powers on behalf of a category of persons. It is, as the plaintiff's counsel describes, a 'sui generis' duty which, it will be said, arises under the statue but is one akin to the obligation of an agent not to have a conflict of interest with their principal. The Heritage Act does not explicitly state that when exercising statutory decision-making in relation to Aboriginal cultural heritage a RAP is to represent particular persons. When applying for registration to the Aboriginal Heritage Council, the Council must take into account whether the applicant is a body representing Aboriginal people with traditional or familial links to the area and the applicant must state their own relationship or links to the area.[172] Since 2016, additional information is required so that the legislation looks to conformity between RAP, native title holders and traditional owner group entities.

188 The plea of a 'fiduciary-like' relationship is novel and particular caution is expressed where a novel legal claim is sought to be determined by a dismissal or strike out application. In The Wik Peoples v The state of Queensland & Ors,[173] an appeal against the determination of preliminary questions by the trial judge, Kirby J said:

An order to strike out an action or to separate and answer adversely to the plaintiff preliminary questions having the same effect, may not be an appropriate course where the source of doubt as to the "legal viability of a cause of action" is that the "law is in a state of transition". In such a case it may be desirable to reach conclusions on the law after conclusions have been reached on the facts. Evidence may sometimes add substance and understanding to the legal claim depending on what it is.[174]

189 Two of the preliminary questions determined in Wik were addressed to pleadings that the relevant statutes under which pastoral leases were granted were invalid on the basis that the Crown owed a fiduciary duty to native title holders. Those judges who found it necessary to determine this question held that the Crown did not have such a duty. Martang argues that Wik provides no legal foundation for a novel fiduciary-like relationship. The comments of Brennan J were more nuanced despite holding that the Crown's power to alienate land did not give rise to a fiduciary relationship with native title holders. He said:

The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power - whether statutory or not - that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary.[175]

190 It is the latter circumstance a discretionary power conferred for the benefit of others, to be satisfied of the matters in s 61 and so approve a cultural heritage management plan, which has the capacity to adversely affect the cultural heritage of those it represents. It is this power that the plaintiff wishes to argue should be exercised in the manner expected of a fiduciary. The legal questions as to the existence and extent of such a relationship, and the nature of any obligation that arises, should not be determined in advance of the factual circumstances. Only then could questions of the scope of the duty and any breach be determined, including whether, as alleged, any breach invalidates the exercise of the statutory power.

191 Categories of fiduciary relationship are not closed.[176] The test by which new categories of relationship might be identified is difficult. The nature of the duty that a person in the position of a fiduciary owes to another is owed 'within the scope of the venture or undertaking in respect of which the person in the fiduciary position has undertaken or assumed a responsibility to act in the exclusive interests of that other person'.[177]

192 Ultimately where a statutory duty to act in good faith is also claimed to have been breached, it is likely that the existence of any of the other duties contended by the plaintiff will overlap with considerations as to the content of any statutory duty. In those circumstances, I am mindful of what was said by Kirby J in Wickstead v Browne[178] that where a cause of action survives summary judgment, another potential, and perhaps novel, cause of action ought be allowed to also proceed to trial and its viability be considered once all relevant evidence was available. Kirby J dissented on the question of permitting the novel claim to proceed, although all three judges permitted the two more orthodox claims to proceed to trial. On application for special leave to the High Court, the Court granted special leave and immediately allowed the appeal concluding that, as the other causes of action were permitted to go to trial, the claim in negligence ought also be permitted to go to trial.[179] I accept that the plaintiff, subject to pleading the causes of action sufficiently would otherwise not be precluded from ventilating other sources of duty at trial.

193 By the two additional grounds going to the unlawful decision aspect of the claims the plaintiff seeks to establish that the Approval Decision was contingent upon, or connected to, Martang receiving a financial payment and that Martang improperly endeavoured to separate the commercial negotiations from the process leading to the Approval Decision when in fact they were linked. That is, an Approval Decision was withheld, or was intended to be withheld, unless a satisfactory commercial arrangement for the purchase of land was reached.

194 The legal principle that a statutory decision maker must exercise the power in accordance with the purpose for which it is given is not and could not be contested. In R v Toohey, the statutory exercise of power was that of the Administrator of the Northern Territory to make regulations pursuant to the Planning Act 1979 (NT). The Northern Land Council wished to argue before the Northern Territory Land Commissioner that the regulations were not passed for town planning purposes but with the purpose of defeating the land claim that was on foot before the Commissioner. The High Court held that the Commissioner was wrong to conclude that he could not inquire into the motive and purpose of the Administrator exercising a statutory power to make the regulations.

195 There is a distinction between the improper purpose of obtaining a personal benefit and a purpose beyond statutory purposes, although a personal benefit will amount to an improper purpose. Nor is the purpose for which a power is to be exercised to be equated with the decision that evidences the outcome. Speaking of improper purpose, Aickin J emphasised the objective nature of the inquiry - ascertaining both the legislative purpose and the actual purpose. The subjective intent or belief of the decision maker is irrelevant to this inquiry. In contrast, the motive of personal gain looks to the subjective purpose which will by its nature be inconsistent with the conferred legislative purpose. A decision maker may falsely avow a legitimate purpose to cover the actual pursuit of personal gain.[180] Establishing invalidity because of a purpose of personal gain requires a less rigorous analysis of the intended legislative purpose of the statutory power, as a decision-maker relying on 'entirely personal' considerations, unconnected to proper administration, will 'seldom, if ever' be a bone fide basis for exercising power.[181]

196 The defendants, particularly Martang, allege that the two new grounds of unlawfulness suffer deficiencies and should not be permitted, at least not in their present form. That is because they do not sufficiently identify the conduct that amounts to a breach of any duty, nor the nature of the conflict of interest asserted. As such, if both the financial benefit alleged and its link with the exercise of the statutory power can be made out, then the subjective and objective purposes may be demonstrated and unlawfulness made out. This must be so regardless of the fact that the decision might otherwise fall within circumstances requiring statutory approval. A decision-maker given statutory power for a particular purpose does not avoid scrutiny as to the purpose simply because only one decision was open to it at the time the decision was in fact made. A link between a financial benefit and the exercise of statutory power is an arguable claim if properly pleaded, even if it could not have affected the decision that could lawfully be made.

197 This section between [83] and [105] develops a lengthy and detailed chronology of events occurring between 2010 and 2014 drawn largely from discovered documents. It identifies negotiation between Martang and VicRoads between July 2010 and April 2012 to enter into an 'Area Based Agreement'.[182] It sets out notification by VicRoads in July 2011 and again in August 2012 that it intended to sponsor a cultural heritage management plan,[183] which Martang intended to evaluate.[184] Thereafter, consultation occurred in accordance with s 59 of the Heritage Act from at least 10 April 2012 for the purpose of making the Approval Decision, continuing until October 2013. It identifies a meeting and email in December 2011 at which a proposal was made by Martang, described as 'win-win' that VicRoads provide financial assistance for Martang to purchase land suitable to meet native vegetation offset credit requirements (offset credits) and Martang's commercial farming business. A suitable property was identified by VicRoads in September 2012 (the Elmhurst property) and thereafter the steps taken up until October 2013 to bring about the commercial arrangement to purchase the Elmhurst property in a tripartite agreement including Trust For Nature.[185] It then sets out a chronology of events occurring after the Approval Decision relevant to the purchase of the Elmhurst property occurring in June 2014 and the entry into a Credit Trading Agreement in July 2014. The pleading does not identify or differentiate events said to be consultation under s 59 and commercial negotiations. It identifies the financial interest under the Credit Trading Agreement at [102], as that which Martang stood to gain in the outcome of the Approval Decision. By reason of all matters outlined by the above chronology it pleads that as at the date of the Approval Decision there was an agreement, or alternatively a commitment, that VicRoads would pay Martang a sum of funds.[186] The consequence of this agreement being that Martang had, at the time of making the Approval decision and all times prior, a financial interest in the outcome of its Approval Decision.[187]

198 Martang's obligations, fiduciary or otherwise arise from its application and registration as a RAP to undertake duties and obligations under the Heritage Act. At the time it was so registered it also had private commercial interests unrelated to its role as a RAP. It does not follow that furthering its commercial interests and the exercise of power under s 63 will always give rise to the possibility of a conflict of interest. There may well be circumstances where the two purposes can co-exist independently and without conflict. The matters raised by the defences would canvas the detailed factual circumstances that would go to the scope and content of any duty or obligation. As it is presently pleaded, all of the conduct identified between [83] and [105], at least as it identifies things that Martang has said or done, is relied on as conduct 'related to the exercise of the power in s 63'. None is said to be conduct of, for example, furthering Martang's commercial interests, or exercised in furtherance of or contrary to its obligations under s 59.

199 The plaintiff alleges the breach of duty and bias arise from Martang using its position as RAP under the Heritage Act to procure benefits that further its own agricultural interests.[188] Its conduct in furthering its commercial interests also led to the exercise of statutory power for a purpose or motive extraneous to the statutory purpose.

200 In the factual matrix of a RAP, which also conducts private commercial enterprises, the pleaded case against Martang does not presently identify those material facts that make the concurrent commercial negotiations (which would not be undertaken in any fiduciary capacity) contrary to the Heritage Act obligations (the subject of the alleged fiduciary duty).

201 The power in s 63 must be exercised within 30 days of the submission of a proposed plan by a sponsor. Other obligations fall on the RAP in respect of the preparation of a plan which requires consultation over what may be a lengthy period of time. In this case Martang's conduct relied on for the purpose of establishing a breach of the relevant duties commences with events occurring in July 2010, three years before Martang was required to exercise its statutory power.

202 As Brennan J said in Wik, a relationship of vulnerability between law maker and vulnerable persons does not create some 'free standing' fiduciary duty. He said it was necessary that:

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 expect that the fiduciary will act in the interests of the beneficiary (or in the case of a partnership or joint venture, in the common interest of the beneficiary and the fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.[189]

203 Until the statutory power under s 63 is engaged, there is nothing that Martang might do that is capable of affecting the interests of Represented Persons. Conduct leading up to the actual exercise of statutory power may be relevant to the way that the power is exercised. It may for example demonstrate that the RAP threatens to act in a way inconsistent with any duty it has. In this context, it is relevant if it demonstrates that the actual exercise of statutory power is other than for the benefit of those persons, as is expected of a fiduciary, creates an apprehension of bias or, more strongly an improper purpose or motive. The manner in which it conducts its commercial negotiations is not a matter in which the beneficiaries of any fiduciary obligation have any interest, unless it adversely affects the statutory approval process. The claim against Martang makes no such allegation as to the actual Approval Decision.

204 The conduct pleaded now seeks to include that Martang would refuse, or proposed to refuse, approval of a cultural heritage management plan as set out under paragraphs [92A] and [92B] of the SFASOC. Ultimately, that is not the exercise of power that occurred. If a fiduciary-like obligation exists to exercise power for the benefit of others as pleaded, then it is breached by the manner in which it is ultimately exercised. The pleadings do not clearly identify the factors by which the economic interests of the RAP (which in this case are private interests that it does not pursue in a representative capacity) and the heritage interests that it has the capacity to adversely affect, are in actual or possible conflict.

205 In Wheelahan & Anor v City of Casey & Ors (No 12),[190] John Dixon J set out a summary of 16 principles to be applied in considering whether a statement of claim is sufficient. They include:

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet ( and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

...

(d) as a corollary [to the material facts relied on to establish the cause of action], the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. Thus, a pleading is 'embarrassing' within the meaning of r23.02 when it places the opposite party in the position of not knowing what is alleged;

...

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

...

(h) it is not sufficient to simply plead a conclusion from unstated facts.

...

(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;

(m) extensive cross referencing of facts in a pleading may render parts of the pleading unintelligible;

206 To the matters in Wheelahan,[191] the Court of Appeal in Uber Australia Pty Ltd v Andrianakis[192] added the broader approach of standing back and considering whether the pleading as a whole gives clear notice of the case to be met at trial.

207 Therefore, it is critical that pleadings identify with some precision the particular conduct that gives rise to a departure from the various obligations that are alleged to exist. If there is a false avowal by Martang as to purposes, that should be identified and pleaded as part of the matters relied on. As presently pleaded, the claim is broad enough to encompass any and all conduct whether it be commercial negotiations or consultation as required under the Heritage Act as giving rise to the possibility of conflict of interest and therefore a breach of at least the non-conflict duty. If on the other hand, it is the contingency of one on the other that is alleged to give rise to an actual or possible conflict, or an improper purpose, that should be made clear. If there is some other basis for asserting the way in which the possible conflict between the two interests in the outcome arises, that should be identified.

208 Is the lengthy conduct prior to the submission of the 2013 plan for approval going to the surrounding circumstances in order to ascertain the purpose or purposes for which the power is actually exercised? Is it relied on to demonstrate conflicting interests such that any exercise of statutory power in relation to heritage matters is precluded by the simple fact of commercial negotiations commencing from 2012 or earlier?[193] What conduct is pleaded to give background context? To some extent the SFASOC does allege conduct leading to the Approval Decision that was contingent upon financial interests. If the contingent nature of the Approval is at the heart of the various breaches alleged, then its import is shrouded by the plethora of other conduct also relied on. Again the pleadings ought identify the particular conduct relied on to establish the contingency of approval.

209 The relevant pleadings as to contingency are at least the following:

92A. On occasions between 10 April 2012 and 21 October 2013, Martang threatened VicRoads that it would, alternatively it proposed to, refuse:

92A.1 to comply with the terms of the Area Based Agreement, including cl 10.1.1 concerning the process for the development and approval of cultural heritage management plans for VicRoads projects in the RAP Area (see paragraph 91.1 above); and

92A.2 to approve any cultural heritage management plan in the RAP Area in the exercise of its power under s 63 of the Aboriginal Heritage Act;

unless and until VicRoads agreed, or committed itself, to pay Martang the funds necessary to enable Martang to purchase the Suitable Property (in addition to any payments to be made by VicRoads to Martang for the purchase of the native vegetation credits to be generated at that property).

The particulars of this paragraph rely on the two CPA documents and detail no other occasions.

210 It is then pleaded at [92B] and [94D] that, as at February 2013, Martang had sustained its threat to refuse to exercise the power under s 63 to approve any cultural heritage management plans if funds for the purchase of the Elmhurst property were not provided. Again, this is by reference only to the two CPA documents. It alleges that between July 2013 and August 2013, Martang engaged in conduct with the intention of delaying the submission of the 2013 plan for approval until VicRoads agreed to pay the funds [94N], conduct being particularised by reference to VicRoads emails. Additionally, it pleads conduct by VicRoads which sought to arrange a meeting with Martang and Aboriginal Victoria for the purpose of making the process of approval for the 2013 plan appear unrelated to ongoing negotiations between VicRoads and Martang [94O].[194] By reason of 'foregoing matters' (which appears to be a reference to [98] and [98A-H], which are events occurring after the Approval Decision), as at 18 October 2013 VicRoads and Martang had agreed and/or VicRoads had made a commitment to Martang to pay funds to Martang [98H].

211 However, the pleading broadly identifies that all of the above[195] establish three things:

(a) that they had the tendency to influence and/or affect the manner in which the s 63 approval was determined [106];[196]

(b) that they demonstrate conduct with a corrupt motive and/or for a financial purpose [106A]; and

(c) because it was satisfied of having an agreement or commitment with VicRoads, it made the Approval Decision, demonstrating that the exercise of the power under s 63 was for a purpose extraneous to the statutory purpose [106B].

These paragraphs read (with the proposed further amendments underlined in red):

106. The matters set out in paragraphs 83 to 105 105 above had the tendency to influence and/or affect the manner in which Martang exercised its powers and discharged its duties in relation to the Approval Decision and the 2013 CHMP.

Martang's breaches of duty

106A. By reason of the matters set out in paragraphs 83 to 106 above, 105:

106A.1 Martang engaged in conduct in relation to the exercise of the power in s 63 of the Aboriginal Heritage Act with a Corrupt Motive and/or for the Financial Benefit Purpose;

106A.2 the agreement and/or the commitment referred to in paragraph 98H above was a condition that Martang required to be satisfied before exercising the power in s 63 of the Aboriginal Heritage Act to approve the 2013 CHMP;

106A.3 because the condition referred to in paragraph 106A.2 was satisfied Martang agreed to, and/or was committed, to approving, and did approve the 2013 CHMP on 18 October 2013.

106B. By reason of paragraph 106A:

106B.1 a subjective purpose, reason or intention of Martang in exercising the power under s 63 of the Aboriginal Heritage Act on 18 October 2013 was the Corrupt Motive; and

106B.2 an objective purpose of Martang in relation to exercising, and in exercising, the power under section 63 of the Aboriginal Heritage Act on 18 October 2013 was the Financial Benefit Purpose.

212 Much of the conduct identified in the pleadings as conduct of Martang is in fact conduct of others, whether it be VicRoads, Trust for Nature or Aboriginal Heritage Council. It is not identified how actions of those bodies are material to conduct of Martang.

213 The pleading does not identify what aspects of the conduct outlined between paragraphs [83] and [105] is the conduct related to the exercise of power under section 63 (as distinct from commercial or other conduct). Nor does it describe the way in which the two interests in the outcome (commercial and heritage) may conflict such that the Approval Decision that was actually made was one that was not in the interests of those to whom any duty was owed.

214 In this way, the nature of the claim to be pleaded is different from the bias ground and the corrupt motive ground, both of which go to the process of the decision maker rather than the actual decision arrived at. A cumulative, chronological, description of conduct over a four year period relied on to demonstrate an unlawfully exercised statutory power does not permit the fifth defendant to understand whether the case it must meet is that any commercial engagement with a potential sponsor of a heritage plan is said to amount to a breach of relevant duties. If it is not so broad, what particular attributes or aspects of the actual commercial engagement and actual conduct in protection of Aboriginal cultural heritage are in conflict with each other or breach the obligations or duties alleged to be owed to the plaintiff?

215 At present Martang's breaches in respect of all pleaded duties and obligations are simply described as occurring by reason of paragraphs [106], [106A] and [106B]. In turn those paragraphs allege that by reason of the matters at [83] to [105] Martang's conduct was that with a tendency to influence the manner of the exercise of power [106], was conduct with an improper purpose and motive, its approval was conditional upon an agreement or commitment with VicRoads, that approval was given because it was so satisfied of such an agreement or commitment [106A] and finally that because of the conduct in [106A] the exercise of the power under s 63 was for improper purposes. The cross referencing to establish links between the conduct relied on, the actual exercise of power and the unlawfulness resulting is difficult to follow. The breach of all five pleaded duties, and the unlawfulness that results from each breach is described in a conclusionary way simply by reference to ss 106, 106A and 106B.

216 I would not give leave to amend the SFASOC in its current form.

I. Section 64 of the Civil Procedure Act

217 Finally and for completeness, the plaintiff submits that I ought exercise my discretion under s 64 of the CPA to allow the matter to go to trial even if there be no real prospect of success because it is in the interest of justice to do so or the nature of the dispute is such that a full hearing on the merits is appropriate. For a number of reasons I do not propose to do so.

218 Firstly, I bear in mind that the conclusions that I have reached are that a civil court should not entertain the action seeking the declaration of past criminal conduct and that in respect of future acts to construct Section 2B there is to be a further statutory process under the Heritage Act which makes the dispute between the parties one that has become hypothetical. Had the State defendants abandoned reliance on the 2013 plan at the initial application for interlocutory injunction, there must be doubt as to whether the interlocutory relief would have been appropriate. To permit a full hearing on the merits, would be inappropriate given the basis upon which these applications have been determined.

219 Second, given the statutory process that has commenced and the entitlement of the plaintiff and other traditional owners (individually and collectively) to participate in that process to identify and determine appropriate protection of Aboriginal cultural heritage is clear. I should observe that the subjective and evaluative elements involved in attributing significance to Aboriginal places appear to give rise to differing opinions between the plaintiff and other Aboriginal persons.[197] In this adversarial process the plaintiff is entitled to present such evidence as she chooses to demonstrate the presence of Aboriginal places for the purpose of establishing the proposed unlawful acts by the State defendants. The proceeding does not necessarily give a voice to views held by other traditional owners with connection to the area under traditional laws and customs who are not parties to the proceeding. Such voices, as well as the plaintiff's, are all entitled to be heard in the preparation of a cultural heritage management plan. The purposes of the CPA particularly with reference to appropriate dispute resolution processes would not be advanced by permitting a full hearing, in advance of that statutory process.

220 I have given serious consideration to the submission that the conduct of Martang as alleged by the plaintiff is of sufficient seriousness and so warrants judicial scrutiny. Two factors lead me to conclude that, despite the serious nature of the allegations, I would not permit the matter to go to trial. The first is that public scrutiny has already been directed to that very question by the Ombudsman. The second is the fact that Martang is no longer a RAP and that the circumstances as they existed in 2013 have since been modified by amendments to the Heritage Act. Martang has no role to play in the protection of Aboriginal cultural heritage and scrutiny of its actions is of historic but not ongoing significance.

221 I will hear the parties on the appropriate orders.

[1] Thorpe v Head, Department of Transport & Ors [2020] VSC 804.

[2] Aboriginal Heritage Act 2006 (Vic) ('Heritage Act'), s 4.

[3] The specified area covered by the 2013 plan (Plan No 12327) is identified by a map which for ease of reference is reproduced as Annexure 1 to these reasons and which is defined in the original statement of claim as the specified area.

[4] The definition of Aboriginal cultural heritage is set out below at [73] of these reasons.

[5] Order of Justice Forbes dated 29 October 2020 in Thorpe v Head, Transport for Victoria (S ECI 2020 04091).

[6] Order of Justice Forbes dated 11 December 2020 in accordance with the reasons in Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804.

[8] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 40.

[9] The proposed Second Further Amended Statement of Claim is dated 31 March 2021 ('SFASOC').

[10] Affirmed on 31 March 2021 and 28 April 2021 respectively.

[11] Sworn on 28 October 2020, 13 November 2020 and 14 April 2021 respectively.

[14] Affirmed on 15 April 2021 (with some paragraphs excluded).

[15] Supreme Court Act 1986 (Vic), s 29(2).

[16] Aon Risk Services v Australian National University (2009) 239 CLR 175, 214-215; State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

[17] [2011] VSC 370 (J Forrest J).

[18] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4.

[19] Ibid [42] (Kyrou, Ferguson, McLeish JJA).

[20] [2021] VSC 125, [32]-[37] (Connock J).

[21] Plaintiff, 'Submissions in Response to Defendants' Submissions of 12-13 May 2021', Submission in Thorpe v Head, Transport for Victoria S ECI 2020 04091, 20 May 2021, [165] ('Plaintiff's Submissions').

[22] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(a).

[24] [2013] VSCA 158.

[26] Set out at [27] of these reasons; see also Plaintiff's Submissions (n 21) [38].

[27] Thorpe v Head, Transport for Victoria & Ors [2020] VSC 804, [10].

[28] Supreme Court Act 1986 (Vic), s 36.

[29] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 ('Ainsworth').

[30] Ibid 581-582 (Mason CJ, Dawson, Toohey, and Gaudron JJ) (footnotes omitted).

[31] First to Fourth Defendants, Affidavit of Ben Dodgshun, Affidavit in Thorpe v Head, Transport for Victoria & Ors, S ECI 2020 04091, 28 October 2020, [32], [40] - [43]; see also Affidavit of Timothy Price (n 14), [49]-[52].

[32] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Inglis v Moore ( 1979) 24 ALR 411 ('Inglis'); Imperial Tobacco v Attorney General [1981] AC 718 ('Imperial Tobacco').

[34] See for example Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; (2009) 40 WAR 84 (Martin CJ).

[35] [1977] UKHL 5; [1978] AC 435.

[39] Imperial Tobacco (n 32) 741 (Viscount Dilhorne).

[41] [2003] UKHL 38 ('Rusbridger').

[45] European Convention on Human Rights, Council of Europe, opened for signature 4 November 1950, entered 3 September 1953.

[46] [1978] HCA 43; (1978) 21 ALR 505 ('Sankey').

[50] Australian Securities and Investments Commission (ASIC) v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868; (2007) 245 ALR 29 ('HLP').

[52] Ex Rel Corporate Affairs Commission [1981] HCA 49; (1981) 36 ALR 257.

[54] [2019] NSWSC 1045.

[55] Plaintiff, 'Plaintiffs Submissions in Support of Summons dated 31 March 2021', 28 April 2021, [48].

[56] [2020] VSC 777.

[57] Warburton Environment Inc v VicForests (No 2) [2020] VSC 738.

[58] Plaintiff, 'Plaintiffs Submissions in Support of Summons Dated 31 March 2021', Submission in Thorpe v Head, Department of Transport & Ors, S ECI 2020 04091, 28 April 2021, [48].

[59] Which persons are limited to those authorised by the Heritage Act (n 2) s 186.

[60] Plaintiff, 'Plaintiff's Submissions in Support of Summons dated 31 March 2021', Submission in Thorpe v Head, Department of Transport for Victoria & Ors, S ECI 2020 04091, 28 April 2021, [48].

[61] Royal College of Nursing of the UK v Department of Health and Social Security [1980] UKHL 10; [1981] AC 800.

[63] WOTCH Inc v VicForests (No 7) [2020] VSC 817.

[64] Transcript of Proceedings, Thorpe v Head, Transport for Victoria (S ECI 2020 04091, Justice Forbes) ('Transcript of Proceedings'), 31 May 2021, 10 (R Merkel QC).

[65] Plaintiff, 'Plaintiff's Submissions in Support of Summons dated 31 March 2021', 28 April 2021, [54].

[66] Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762 ('Victorian Taxi Families'), [81] 150.

[67] [1998] HCA 49; (1998) 194 CLR 247 [43] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

[72] Transcript of Proceedings, 1 June 2021, 218.17-21 (R Merkel QC).

[73] As provided for by the Heritage Act (n 2) pt 9, div 3.

[74] Transcript of Proceedings, 31 May 2021, 73 (R Merkel QC).

[75] [1993] HCA 60; (1993) 178 CLR 643.

[76] Plaintiff's Submissions (n 21) [116]; see also Transcript of Proceedings, 31 May 2021, 76 (R Merkel QC).

[77] Plaintiff's Submissions (n 21) [17], [57.2].

[79] As submitted by the plaintiff, see Transcript of Proceedings_,_ 31 May 2021, 71.26 (R Merkel QC).

[80] J Dyson Heydon, Mark Leeming and Pete Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2014) 625.

[81] See [72]-[79] of these reasons.

[83] Plaintiff, 17th Affidavit of Brett Spiegel, Affidavit in Thorpe v Head, Transport for Victoria & Ors, S ECI 2020 04091, 31 March 2021 ('17th Affidavit of Brett Spiegel'), Exhibit 17-2.

[84] [2006] NSWSC 949.

[85] 17th Affidavit of Brett Spiegel (n 83) Exhibit 17-2.

[86] Transcript of Proceedings, 19 November 2020, 69 (R Merkel QC); The prior Notice of Intent was exhibited as exhibit 14 to the 4th Affidavit of Brett Spiegel, Affidavit in Thorpe v Head, Transport for Victoria & Ors, S ECI 2020 04091, 6 November 2020.

[87] In accordance with s 54(1)(a) and s 55 (2) of the Heritage Act (n 2) respectively.

[88] (1981) 37 ALR 66.

[90] 17th Affidavit of Brett Spiegel (n 83) Exhibit BS17-3.

[91] Transcript of Proceedings, 1 June 2021, 134.16-26 (C Young QC).

[92] Plaintiff's Submissions (n 21) [54].

[95] The Notice of Intent for the New Plan identified that 'required by s 49' has been ticked in error and the plan is being prepared voluntarily.

[96] Plaintiff's Submissions (n 21) [58].

[97] Transcript of Proceedings_,_ 23 March 2021, 311-313.

[98] (1977) 52 ALJR 180.

[99] Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180, 188.

[100] See [80]-[83] of these reasons.

[101] Plaintiff's Submissions (n 21) [60]-[63].

[102] Heritage Act (n 2) s 54 (3)(b).

[104] Both of these examples are of land use that is a high impact activity that requires a cultural heritage management plan.

[105] [2016] HCA 1; (2016) 257 CLR 42 ('M68').

[106] Ibid 63 [15] (French CJ, Kiefel, Nettle JJ) and in particular their Honours' reference to the Migration Act 1958 (Cth), s 198AHA.

[110] Ibid 65 [22] (French CJ, Kiefel and Nettle JJ).

[111] Loielo v Giles (Ruling No 2) [2020] VSC 723 where it was ruled that standing is not to be determined as a preliminary question.

[112] [1996] FCA 1017; [1996] 71 FCR 1 ('Ozmanian').

[115] [2005] FCA 1134.

[116] Ibid quoting the statement of principle as expressed in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89 (Hill J).

[117] Victorian Taxi Families (n 66).

[118] Including the Victorian cases of Director Consumer Affairs Victoria v DW International Trading Pty Ltd [2010] VSC 515 and Director of Consumer Affairs of Victoria v Mecon Insurance Pty Ltd [2016] VSC 42 as well as Tax Practitioners Board v Hogan [2012] FCA 642.

[119] Victorian Taxi Families (n 66).

[121] The VicRoads memorandum as discovered appears incomplete. It does not conclude with a signature and, unlike to earlier paragraphs the document does not set out the recommendations of the Inquiry and implications for VicRoads.

[124] The text of s 61 is set out in full at [182].

[125] Affidavit of Timothy Price (n 12) [38].

[126] The State defendants' submissions referred to Alderson v Northern Land Council (1983) 67 FLR 353 (Muirhead J) as an illustration of the importance of allowing a statutory consultative process to tasks of determining matters of Aboriginal lore, customs and traditions to determine who are traditional Aboriginal owners.

[127] Plaintiff, 'Proposed Second Further Amended Statement of Claim Annexure A to the Summons', Summons in Thorpe v Head, Transport for Victoria, S ECI 2020 04091, 31 March 2021, 76 [E].

[128] McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, [90] [95] (McHugh J).

[129] Transcript of Proceedings, 31 May 2021, 81-82 (R Merkel QC).

[131] [1932] ArgusLawRp 91; (1981) 38 ALR 439 ('Toohey').

[133] As promoted by the purpose of the Heritage Act (n 2) s 4(d).

[134] Fifth Defendant, 'Fifth Defendant's Reply Submissions for the Hearing on 31 May 2021', Submission in Thorpe v Head, Transport for Victoria S ECI 2020 04091, 28 May 2021, [65]-[71].

[135] Naik v Monash University [2018] VSC 605, [2019] VSCA 72.

[136] Mann v Medical Practitioners Board of Victoria & Anor [2004] VSCA 148 ('Mann'), [58].

[137] Plaintiff, 'Applicant's Reply Submissions on Amended Summons Dated 30 October 2020', 18 November 2020, [19].

[138] Re Rosemarie Beadle and Director-General of Social Security [1984] AATA 176; (1984) 1 AAR 362, [12] (Toohey J).

[139] Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285 ('Wingfoot'), [33] (Cavanough J); see also Goodman v Victorian Civil and Administrative Tribunal [2011] VSC 35 ('Goodman'), [28] (Habersberger J).

[140] Mann (n 136) [57], [72]; Goodman (n 139), [29].

[142] Affidavit of Timothy Price (n 12) [49].

[143] Plaintiff's Submissions (n 21) [138.2].

[144] Naik v Monash University [2019] VSCA 72, [57].

[145] [2013] VSC 407.

[147] Mark Moshinsky QC (as his Honour then was), "Bringing Legal Proceedings Against Public Authorities for Breach of the Charter of Human Rights and Responsibilities" (2014) 2 Judicial College of Victoria On-Line Journal 91.

[148] [2015] VSCA 197; (2015) 48 VR 129.

[150] VEOHC, 'Submissions of the Victorian Equal Opportunity and Human Rights Commission', Submission in Thorpe v Head, Department of Transport S ECI 2020 04091, 28 May 2021, [29] quoting from Pamela Tate, A Practical Introduction to the Charter of Human Rights and Responsibilities (29 March 2007).

[151] [2014] VSC 585 ('Goode').

[152] [2017] VSC 251; (2017) 52 VR 441.

[154] Plaintiff's Submissions (n 21) [151].

[155] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, 580 (Maxwell P) in turn referencing PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373.

[156] Sabet v Medical Practitioners Board of Victoria [2008] VSC 346; (2008) 20 VR 414 (Hollingworth J).

[158] [1902] UKLawRpCh 174; [1903] 1 Ch 109 (Buckley J).

[159] [1902] UKLawRpCh 174; [1903] 1 Ch 109, 110.

[160] Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27 ('Onus').

[162] Plaintiff's Submissions (n 21) [100].

[163] [2020] VSCA 172 ('Maguire').

[164] Ibid [67] citing Kuczborski v Queensland [2014] HCA 46; [2014] 254 CLR 51.

[165] Maguire (n 163) [76] (emphasis added).

[168] Transcript of Proceedings, 1 June 2021, 226.22 (R Merkel QC).

[171] Fifth Defendant, 'Fifth Defendant's Submissions for the Hearing on 31 May 2021', Submission in Thorpe v Head, Transport for Victoria S ECI 2020 04091, 13 May 2021.

[173] (1996) 187 CLR 1 ('Wik').

[175] Ibid 96 (Brennan CJ) (emphasis added).

[176] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, [29] (Gibbs J).

[177] Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43, [67] (Gageler J).

[178] [1992] NSWCA 272; (1992) 30 NSWLR 1.

[181] Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 (Stephen J).

[182] An agreement relating to VicRoads' activities within Martang's RAP area generally and which the defences plead is entered into for the purpose of pursuing the objectives of the VicRoads Indigenous Action Plan 2011-2015).

[183] In accordance with s 54(1)(a) of the Heritage Act (n 2).

[184] In accordance with s 55(2) of the Heritage Act (n 2).

[185] The chronology is set out in Plaintiff's Summons (n 127), [93] - [97.I].

[188] Plaintiff's Summons (n 127) [109].

[190] [2013] VSC 316 ('Wheelahan').

[191] Wheelahan (n 190) [25] where his Honour cited the authorities supporting the general principles in turn.

[192] [2020] VSCA 186; (2020) 61 VR 580.

[193] As discussed by Aickin J in Toohey (n 131) considering Municipal Council of Sydney v Campbell [1925] AC 338.

[194] Paragraphs [93] and [94H] of the SFASOC (n 127) may also fit into this category.

[195] At [83] to [105] of the SFASOC (n 127).

[197] Affidavit of Timothy Chatfield (n 14), [17] - [19]; Transcript of Proceedings, 1 June 2021, 129 (C Young QC).