SUMNER v UNITED KINGDOM OF GREAT BRITAIN & ORS No. SCGRG-99-1257 Judgment No. S456 [1999] SASC 456

3 Mr Sumner appeared in person on the hearing of the application but was assisted by Mr Lindon of counsel who appeared as amicus curiae and made submissions on his behalf. At the conclusion of those submissions, however, Mr Sumner, in a palpably sincere statement to the court, expressed his concerns as to the desecration to the site and the culture of the Ngarrindjeri people should there be further development to Hindmarsh Island.

4 There was no appearance by the first defendant, that is, the United Kingdom of Great Britain. Mr Lindon subsequently informed the court that he had not notified the first defendant due to a reluctance to proceed without formal documents.

5 Mr Johns appeared for the second defendant, that is, the State of South Australia, as well as the seventh, eighth, ninth tenth, eleventh, twelfth and thirteenth defendants, all of whom are members of the Cabinet of the current South Australian government, and opposed the application.

6 Mr Abbott appeared for the Alexandrina Council which is the third defendant. Mr Abbott indicated that he did not wish to file any documents nor make submissions as he was instructed that the Council would abide by my ruling. He indicated, however, that there were certain obligations the Council was required to meet under the tripartite agreement which would need to be addressed should an injunction be granted.

7 Mr Meyer appeared for Mr and Mrs Chapman who are the fourth and fifth defendants and opposed the application. There was no appearance by Mr Bannon who is the sixth defendant. Mr Ericson appeared for the fourteenth and fifteenth defendants who, as I have mentioned are the proposed builders of the bridge. He subsequently obtained instructions to act for the sixteenth and seventeenth defendants who are also construction contractors with respect to the project. In addition to opposing the application, Mr Ericson indicated that he wished to make submissions as to the admissibility of the various documents filed in support of the application.

8 Mrs Shaw QC appeared for Mr Palyga the eighteenth defendant. Mr Palyga is the solicitor who represented Mr and Mrs Chapman in the various proceedings which have previously taken place in this matter. Mrs Shaw sought an order that the proceedings against Mr Palyga be forthwith struck out as disclosing no identifiable cause of action.

9 There was no appearance by the nineteenth defendant, Mr Kenny, who appears to be a journalist.

10 Dr Perry appeared for the twentieth defendant, viz the Commonwealth of Australia. She indicated that the Commonwealth had not had sufficient opportunity to provide comprehensive instructions but she anticipated that an application would in due course be made to strike out the proceedings. Dr Perry did not wish to make submissions on the interlocutory application but indicated that she wished to seek some procedural orders arising with respect to the Notice to Admit which was directed to the first, second, third and twentieth defendants.

11 Mr Kevin Buzzacott, a member of the Arabunna nation who has been involved in other proceedings before this court as well as the Federal Court, sought leave to intervene in the proceedings. I permitted Mr Buzzacott to make oral submissions in support of the application. The effect of those submissions was that he wished to be heard in support of the application by the Ngarrindjeri to reinforce the need to "stand up and fight for our rights, fight to protect our sacred site". He appeared to acknowledge, however, that there was no interest personal to him which would make it appropriate to give leave to intervene. I therefore declined to do so.

12 In the course of the proceedings I received a further application for leave to intervene filed on behalf of Robbie Thorpe of Gunnai under Boorun of Lake Tyres Aboriginal Trust. Mr Thorpe was described as an applicant for leave to appeal to the High Court of Australia (C18 of 1999 filed 29 September 1999) on Question of Law in Common with Subject proceedings and the decision which might affect the proceedings. He asked to be permitted to intervene to present evidence and submissions on the law.

13 An application in like terms was received from Wadjularbinna Nulyarimma of Gungalidda who was also described as an applicant for leave to appeal to the High Court in the same proceedings as Mr Thorpe. (This is the matter referred to in para 28 hereof.)

14 The applications for intervention were opposed. I indicated that I did not consider that it was necessary for either applicant to be given leave to intervene for the purposes of determining the application for injunction. I indicated that I would adjourn those applications to a date to be fixed to give the applicants the opportunity to pursue those applications if so advised with respect to the substantive action.

15 The application for the injunction was supported by an affidavit of Mr Sumner filed on 25 October 1999. That document does not, however, set out the basis upon which the injunctive relief is sought. The affidavit is primarily a vehicle for exhibiting a large number of documents numbered DS1 to DS12 inclusive, most of which were the subject of objection by Mr Ericson.

16 DS1 is a copy of a letter to be faxed by Tom Trevorrow on behalf of the Ngarrindjeri to the Attorney General of the United Kingdom seeking his protection "against acts of genocide presently being committed and attempted by the defendants".

17 DS2 are copies of notices to produce and notices to admit facts. Exhibits DS3 to DS9 include press statements, correspondence, and a series of articles such as Chapter 1 of a book entitled "Conquest of the Ngarrindjeri" and headed"The dispossession of the Ngarrindjeri" and an article entitled "The Law of the Land by Henry Reynolds, as well as a number of other documents relative to the subject area.

18 DS10 consists of copies of notices of motion and other documents filed in the High Court in proceedings relative to leave to appeal by Wadjularbinna Nulyarimma, Robbie Thorpe and Kevin Buzzacott, the applicants for leave to intervene in these proceedings.

19 DS11 is a copy of the speech made on 12 October 1999 by the Chief Justice of South Australia to the Federation Forum. DS12 is a copy of supportive signatures of Ngarrindjeri and other aboriginal nations and non-aboriginal people written at Raukkan during the first corroboree for 100 years, which was held last weekend.

20 DS3 to DS12 inclusive had not been served on all defendants. A preliminary issue arose as to the admission of the contents thereof due to the lack of service as well as the relevance and the hearsay content thereof. I indicated that, as a matter of expediency, I was prepared to accept all of the documents de bene esse. I now indicate that I am prepared to dispense with compliance with SCR 83.01 and 83.04 to the extent that I am prepared to admit, for the purposes of this application, the documents contained in DS2, DS3, DS4, DS5, DS6, DS7, DS8, DS9 and DS12. I have admitted those documents to assist in providing me with some historical background as to the various issues raised on the hearing of this matter, but in so far as many of those documents include hearsay comments and assert facts which are not deposed to on oath, I do not admit them as proof of the truth of the assertions contained therein. The remaining documents are excluded as lacking relevance to the present application.

21 For completeness I mention that I have also admitted the affidavit of Ingrid Haythorpe sworn on 25 October 1999 and filed on behalf of the State of South Australia. That affidavit sets out some of the relevant history of this matter. It has annexed to it a copy of the Report of the Hindmarsh Island Bridge Royal Commission dated 21 December 1995. In addition I admitted an affidavit of Mr Chapman sworn on 26 October 1999 which exhibits a copy of the current planning approval relating to the marina issued in 1993, and a copy of the overview section of the report of Justice Matthews. Justice Matthews conducted an inquiry with respect to the proposal to build the bridge, and inter alia concluded that there was "insufficient material from which the Minister could be satisfied that the building of the Hindmarsh Island bridge would desecrate this area according to [the Ngarrindjeri] traditions".

22 Mr Chapman's affidavit also annexes a copy of an announcement by Mr Griffin, the Attorney General on 1 April 1998, that legal impediments for the building of the Hindmarsh Island Bridge had been removed as a result of the judgment delivered by the High Court that day as to the validity of the Hindmarsh Island Bridge Act 1997.

23 The final exhibit to that affidavit is a chronology of the various events relating to the bridge which documents a history dating back to September 1988.

24 It is not disputed that the principles to be applied in determining the interlocutory application are those set out by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153, namely:

"In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."

25 In the course of argument, justifiable criticism was made as to the form and sufficiency of particularity as to the pleadings in this matter. While I appreciate the haste with which these documents were prepared, I reiterate the comments that I made in Buzzacott v Morgan (Butterworths unreported judgments 1901699) which dealt with similar issues as those which are now before me. I commented on that occasion as to the inadequacy of the pleadings and the need, given the seriousness of allegations of this kind, for a defendant to have proper notice of the specific acts upon which the allegations are based and sufficient time in which to respond to those matters.

26 The title to these proceedings purports to import the jurisdiction of the Genocide Act (UK) 1969. The allegations as to genocide are denied by each of the defendants. An issue therefore immediately arose as to the relevance and applicability to these proceedings of the English legislation. I indicated to Mr Lindon that I was not aware of the basis upon which I could exercise jurisdiction in accordance with an Act of another country which in any event had a provision limiting its extra territorial operation.

27 Mr Lindon referred to the lack of equivalent Australian or South Australian legislation as to genocide and submitted:

"Where there has been a deliberate refusal and failure to pass genocide legislation protecting citizens who have a history of involvement with the United Kingdom, the subjects of the British Kingdom formally, then the extraterritorial jurisdiction of the United Kingdom Act is attracted, and attracted as the nearest and most appropriate Member of State of the United Nations to provide protection against what the preamble to genocide convention calls a scourge on mankind.

We say that, ordinarily, citizens of a Member State of the UN can avail themselves of the protection against genocide encompassed by the Member State legislation.

Where such legislation is absent, and intentionally absent, then the Ngarrindjeri are entitled to turn to the people who have a fiduciary obligation towards them, namely the United Kingdom, because they first invaded the Ngarrindjeri land and they can avail themselves to the protection of the United Kingdom.

We say there is sufficient connection between the Ngarrindjeri and the United Kingdom to, where the State of South Australia, which was subsequently the alleged successor in title, and where the Commonwealth of Australia, which have failed to - we say failed deliberately - to pass a Genocide Act - which the State of South Australia can do, they have sovereign power, they have failed to do that - and the Ngarrindjeri can turn to the next most likely country and Member State of that, the UK.

We say the history of the Ngarrindjeri is so inexplicably tied up with the history of the UK on that point, ie genocide, that the jurisdiction can be attracted. Obviously, it can't be attracted in any commercial dealings or even in any ordinary offences, even including criminal offences of murder and so on, apart from convention between the two countries. We can say it can be with genocide. Genocide is a crime of universal jurisdiction. In the Polyukhovic case there was some discussion of universal jurisdiction in the Wadjularbinna Nulyarimma."

28 I am not, however, persuaded that I can exercise any jurisdiction pursuant to the UK Act. In any event, many of the issues canvassed by Mr Lindon on the issue of genocide were the subject of a recent judicial pronouncement from the Full Court of the Federal Court of Australia. In Nulyarimma v Thompson [1999] FCA 1192, a judgment delivered on 1 September 1999, the court considered two cases together. The first was an appeal by four people, namely, Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe, against a decision of Crispin J, a judge of the Supreme Court of the Australian Capital Territory. Crispin J had upheld the refusal of the Registrar of the Magistrates Court of the ACT to issue warrants for the arrest of four persons, namely John Winston Howard, the Prime Minister, Timothy Andrew Fischer, the Deputy Prime Minister, Brian Harradine as Senator and Pauline Lee Hanson a Member of the House of Representatives, in respect of informations that charged they had committed the criminal offence of genocide in connection with the formulation of the Commonwealth Government Native Title "Ten Point Plan" and presentation and support of the Bill that, as extensively amended, became the Native Title Amendment Act 1998.

29 The second case concerned a motion to strike out proceedings instituted by Kevin Buzzacott in the South Australian registry of the Federal Court on behalf of the Arabunna people against two Commonwealth Ministers, Robert Hill, Minister for the Environment and Alexander Downer, Minister for Foreign Affairs and Trade and the Commonwealth of Australia. In those proceedings, Mr Buzzacott alleged that the respondents had committed genocide in failing to apply to the UNESCO World Heritage Committee for inclusion of the lands of the Arabunna people (which include Lake Eyre) on the World Heritage List maintained under the World Heritage Convention. Mr Buzzacott did not seek criminal sanctions but claimed that the failure constituted genocide. He sought civil remedies including a mandatory injunction compelling the respondents to proceed with the World Heritage application.

30 In a very detailed judgment the court examined Australian History and the topic of genocide and considered whether genocide formed part of Australian domestic law. The court heard argument as to the Genocide Convention and the doctrine of universal jurisdiction and whether the crime of genocide, which attracts universal jurisdiction under international law, could become part of Australian law without a legislative act creating genocide as an offence.

31 The judgement recognised the injustices of Australia's history and the effect of the dispossession of Aborigines on their culture. The court dismissed the appeal and held (Merkel J dissenting as to whether genocide is part of Australian law):

(i) In considering the appropriateness of the term "genocide" it is not possible to leave aside the matter of intent.

(ii) (Merkel J dissenting) Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted even where the ratification has received Parliamentary approval.

(iii) If genocide is to be regarded as punishable in Australia, on the basis that it is an international crime, it must be shown that the Australian law permits that result.

(iv) The courts of the States and the Territories can have no authority for themselves to proscribe conduct as criminal under the common law simply because it has now become recognised as an international crime with the status of jus cogens under customary international law.

32 In my view, that decision represents the current state of the law on the topic of genocide in Australia. Furthermore, although Merkel J was in dissent I consider that his remarks, which appear at paras 199 and 202, are pertinent to the present application, viz:

"199 However, before departing from this aspect of the case it is desirable that I make certain observations as to the dangers of demeaning what is involved in the international crime of genocide. Undoubtedly, a great deal of conduct engaged in by governments is genuinely believed by those affected by it to be deeply offensive, and in many instances harmful. However, deep offence or even substantial harm to particular groups, including indigenous people, in the community resulting from government conduct is not genocide. Toohey J in Kruger (at 88) noted that each of the 'acts' in Article II of the Genocide Convention is qualified by the opening words 'with intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such'. As was stated in a recent decision of the International Criminal Tribunal for Rwanda:

'Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which requires that the perpetrator clearly seek to produce the act charged. The special intent in the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such".' See Prosecutor v Akayesu [September 2 1998] 37 ILM 1399 (1998) 1401 at 1406."

"202 I have made the above observations as I am conscious of the danger of raising unrealistic expectations about what might be achieved by recourse to the law to secure what might be perceived to be just outcomes for the Aboriginal people of Australia. Whilst, understandably, many Aboriginal people genuinely believe that they have been subjected to genocide since the commencement of the exercise of British sovereignty over Australia last century, it is another thing altogether to translate that belief into allegations of genocide perpetrated by particular individuals in the context of modern Australian society. In the present matter none of the allegations relied upon by the appellants are capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations have engaged in any conduct that is capable of constituting the crime of genocide under international and domestic law."´

33 Although at one stage, Mr Lindon endeavoured to argue that the claims in contract, negligence and legitimate expectation and fiduciary duty were independent of the issue of genocide, that is clearly not the case. The alleged illegality of the contracts and the breach of duty of care are predicated on acts which constitute genocide against the Ngarrindjeri. Mr Lindon also endeavoured to rely on statutory breaches of the Racial Discrimination Act 1975, the Equal Opportunity Act (SA), Aboriginal Heritage Act (SA) 1988, and the Development Act 1993, but I am not persuaded that any cause of action arises with respect to any of those pieces of legislation for the reasons outlined by Mr Ericson in his submissions.

34 Mr Lindon further argued that the enactment of those pieces of legislation had given rise to a legislative regime whereby the Ngarrindjeri had a legitimate expectation that they would be afforded "proper consultation" concerning the building of the bridge on Ngarrindjeri land. He argued that there had been no such proper consultation and that "the lack of consultation goes directly to the intention and the conduct of building the bridge". In my opinion this argument cannot be sustained. As Mr Johns, for the State of South Australia, pointed out, legitimate expectation is a concept known to administrative law and it does not create private legal rights such as are claimed in this instance. Moreover, I am not convinced that there is any factual basis upon which to found a claim that there has been a total lack of consultation, given that this matter has been the subject of a long history of litigation, as well as a Royal Commission and several inquiries which have specifically dealt with the claims of the Ngarrindjeri.

35 Mr Lindon further argued that white Australians have a fiduciary obligation with respect the Ngarringeri people and to Aborigines, generally. Without providing any specific reference, he purported to rely on the comments of Toohey J in Mabo (1992) 175 CLR 1. Mr Lindon put to the court that the Commonwealth of Australia, the State of South Australia and the Alexandrina Council had "a duty to do everything in their power not to exterminate or extinguish their [Aboriginal] rights". Whilst it is undoubtedly desirable for governments to endeavour to preserve indigenous rights, Mr Lindon failed to establish that this amounted to a fiduciary obligation. Furthermore, if he had succeeded on that point, he failed to demonstrate that any alleged fiduciary obligation would be breached as a result of the building of the bridge. Again, this argument was inherently founded on the allegations of genocide which cannot be sustained in the light of Nulyarimma v Thompson.

36 In the course of the hearing I raised with Mr Lindon the issue of an undertaking as to damages. Mr Sumner, in para 17 of his affidavit in support of the injunction states:

"I understand the usual undertaking as to costs in injunction matters and I am prepared to give that undertaking."

37 The draft minutes of order filed with the application contain an endorsement as to the usual undertaking as to damages and Mr Lindon indicated that Mr Sumner was prepared to give such an undertaking. This is a matter of some significance, as in para 2 of Mr Chapman's affidavit there is a reference to the cost of delay in this matter equating to approximately $8,200 per day. Mr Meyer therefore raised the issue of proper security to support the undertaking. Mr Lindon thereafter indicated that the only security which could be provided related to claims against the UK, the State of South Australia and the Commonwealth of Australia for compensation for usurping the land of the Ngarrindjeri.

38 For practical purposes, therefore, I consider that there is no adequate undertaking as to damages in this matter.

39 Mr Meyer also raised the issue of delay. It is unnecessary to repeat the long and well documented history of this matter. There appears to have been more than adequate opportunity to bring the present application. There would appear to have been any number of announcements including that of the Attorney General made on 1 April 1998 indicating that the construction of the bridge would proceed but the present application was not brought until the day on which it was expected that the construction would commence. Apart from referring to the long history of this matter, Mr Lindon did not give any satisfactory explanation as to the delay. In my view, the balance of convenience is not therefore in favour of the plaintiff.

40 In view of the urgency in this matter it has not been possible to deal with all of the arguments presented by the parties with respect to the various issues which have arisen in this matter but I have endeavoured to bear all of those matters in mind. Essentially, as I have already stated, I consider that the decision of the Federal Court in Nulyarimma v Thompson (supra) represents the current state of the law in Australia concerning the issue of genocide.

41 In my view the plaintiff has failed to pass the threshold test of establishing that there is an arguable case to be tried, in addition to which the delay in bringing the present application is against the plaintiff when considering the balance of convenience. The application for injunction sought in the application dated 25 October 1999 is therefore refused.

42 As was mentioned in the course of argument, that application was only directed towards the fourteenth and fifteenth defendants who are the builders with respect to the project. I note however that para 3 of the inter partes summons, also filed on 25 October 1999, sought an order against all defendants. For the sake of completeness I indicate that I decline to make an order with injunction against any of the defendants.

43 I have also considered the submissions made by Mrs Shaw with respect to the claim against Mr Palyga. Mrs Shaw submitted that there was no identifiable cause of action pleaded against Mr Palyga, apart from the assertion that he had been in breach of the Racial Discrimination Act as a person who assisted or incited someone else to do an act of a racially discriminatory kind. This was an offensive allegation with respect to a person who was a practitioner of the court properly representing his clients. Mr Lindon, in response to Mrs Shaw's assertion said that he relied on the pleading contained in para 8 of the Statement of Claim which is in the following terms:

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

"As regard to the obligations and legal duty of legal practitioners it is clearly common ground that the right to practise is not actually a right, but it is a licence, and brings with it certain obligations because of the licence to earn money by having arguments for other people. We say that there are a couple of obligations that have to be taken into account. One is the obligation of all Australian lawyers insofar as historically the legal profession and the judicial system have been the ones that have validated and legitimised the doctrine of terra nullius since the first court was established in this court up until June 6, 1992, and all lawyers have an obligation to ensure what Brennan J called the darkest period of our history not be repeated."

44 In my view, there is no substance in the claim which is said to be pleaded against Mr Palyga. I therefore order that the proceedings against him be struck out. I order the plaintiff pay Mr Paylyga's costs of the proceedings as may be agreed or taxed and I certify for senior counsel.

45 Dr Perry has raised issues with respect to the notice to produce and the notice to admit. Each of those documents is directed to the first, second, third and 20th defendants. I adjourn the notice to admit to a date to be fixed and order that the time specified in SCR 54.02 within which the defendants may file a statement denying the matters alleged therein not commence to run until further order of the court.

46 I adjourn the consideration of notice to produce to a date to be fixed.

47 I order that the plaintiff pays the costs of each of the defendants represented before the court as may be agreed or taxed by the court in default of agreement. In each case I certify for counsel.

48 I refuse the application by the plaintiff for stay of proceedings pending an appeal to the Full Court.

49 The matter is adjourned to a directions hearing on 1 November 1999 at 9.30 am.