FEDERAL COURT OF AUSTRALIA

THOMAS LINCOLN CHAPMAN

and

WENDY JENNIFER CHAPMAN

and

BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED)

(IN LIQUIDATION)

LUMINIS PTY LTD

and

DEANE JOANNE FERGIE

and

CHERYL ANNE SAUNDERS

and

ROBERT EDWARD TICKNER

and

COMMONWEALTH OF AUSTRALIA

(Action No SG 33 of 1997)

SUMMARY

(Judgment delivered 21 August 2001)

1 In accordance with the practice of this Court in cases where the Reasons for Decision are long, I propose to give a brief summary of the principal conclusions which underlie the Court's judgment. This summary, however, forms no part of the Reasons for Decision.

2 The background to this case is summarised at the commencement of the reasons. The present applicants are Mr and Mrs Chapman and the company Binalong Pty Ltd (Binalong) which at material times was subject to the appointment of Receivers and Managers, and is now in liquidation. Mr and Mrs Chapman sue as assignees of Binalong's rights, so the issues raised in the pleadings relate solely to the legal liability of the respondents to Binalong.

3 It is alleged that Binalong suffered a loss in the value of its marina development on Hindmarsh Island in consequence of the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, making a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Heritage Protection Act) on 9 July 1994. The declaration was made on an application by the Aboriginal Legal Rights Movement (the ALRM) on behalf of the Lower Murray Aboriginal Heritage Committee. By its terms the declaration banned the construction of a bridge from Goolwa to Hindmarsh Island for a period of twenty-five years.

4 That declaration was later set aside by a single judge of this Court on public law principles in an application for judicial review, and that decision was upheld by a Full Court in December 1995. It is common knowledge that the construction of the bridge was thereafter further delayed by another application by Ngarrindjeri people for protection under the Heritage Protection Act, by litigation, and by other matters. The construction of the bridge did not resume until late in 1999 and proceeded to completion as the trial of this action continued.

5 This action seeks damages for losses allegedly suffered by Binalong from five respondents. Mr Tickner is sued as the former Minister. Professor Cheryl Saunders is sued as the person nominated by Mr Tickner under the Heritage Protection Act to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection. Luminis Pty Ltd (Luminis) and Dr Deane Fergie are sued in respect of their provision of consultancy services to the ALRM including the preparation of a report containing an anthropological evaluation of the significance of secret women's knowledge within Aboriginal tradition to the area where the bridge was to be constructed. The last respondent is the Commonwealth of Australia which is sued for compensation on the basis that the declaration under the Heritage Protection Act resulted in the acquisition of property belonging to Binalong.

6 The report prepared by Dr Fergie later became an attachment to a representation made by the ALRM to Professor Saunders. Both Dr Fergie and Professor Saunders in their respective reports reported on the significance of the area according to Aboriginal tradition to Ngarrindjeri people. That Aboriginal tradition was said to involve knowledge restricted to women. It was identified in broad terms in their reports but more detail about it was contained in envelopes attached to Dr Fergie's report marked "To be read by women only".

7 Mr Tickner made the declaration to ban the bridge because of the spiritual and cultural significance of the area to Aboriginal people, particularly Aboriginal women, and because of the failure of the South Australian Government to adequately consult Aboriginal women as part of the decision making process relating to the grant of approvals permitting construction of the bridge.

8 The applicants' case contends that if Mr Tickner, Professor Saunders, Luminis and Dr Fergie had carried out their respective tasks properly, the declaration would not have been made on these grounds and Binalong would not have suffered loss.

9 The application alleges that Professor Saunders, Luminis and Dr Fergie are liable to pay damages under statutory remedies for conduct in the course of trade or commerce that was misleading or deceptive or likely to mislead or deceive because representations made in the Saunders Report and the Fergie Report were not correct. Further, against these respondents and against Mr Tickner, it is alleged that they were negligent, that is, they were in breach of common law duties of care owed to Binalong not to cause it foreseeable loss.

10 Against Professor Saunders and Mr Tickner the applicants also allege that they were guilty of breaches of statutory duty arising under the Heritage Protection Act, and were guilty of misfeasance in public office.

11 At the commencement of the trial both the applicants and the respondents said that the Court could determine the case without deciding whether the restricted women's knowledge identified in the Saunders and Fergie Reports was a genuine part of Aboriginal tradition. The Court was informed that the hearing would not be a re-run of the central issue considered by the South Australian Hindmarsh Island Bridge Royal Commission which concluded that "women's business" had been fabricated for the purpose of obtaining a declaration under the Heritage Protection Act to prevent the construction of the bridge. However, as the case proceeded, a recurring issue canvassed in the evidence was whether the restricted women's knowledge had been fabricated and whether female gender specific restricted knowledge could be a feature of traditional Ngarrindjeri culture. The applicants and the respondents called Ngarrindjeri people and anthropological evidence to support their respective cases. Late in the trial the applicants amended their pleadings to specifically allege that the restricted women's knowledge, which they refer to as "women's business", was not a genuine Ngarrindjeri tradition.

12 As the Reasons for Decision explain, the evidence received by the Court on this topic is significantly different to that which was before the Royal Commission. Upon the evidence before this Court I am not satisfied that the restricted women's knowledge was fabricated or that it was not part of genuine Aboriginal tradition.

13 In my opinion, the claims based on the statutory remedies arising under the Trade Practices Act and the Fair Trading Acts for misleading or deceptive conduct fail for several reasons. I consider that the impugned conduct of Professor Saunders, Luminis and Dr Fergie was not conduct in trade or commerce. As I am not satisfied that the restricted women's knowledge was not part of genuine Aboriginal tradition, I consider the applicants have not established that the Saunders and Fergie Reports when read and understood as a whole were misleading or deceptive, or likely to mislead or deceive those to whom they were directed. I consider the statutory claims also fail as they are claims that could only be made by Binalong as the party who is said to have suffered loss, and by the time that Binalong was joined as a party to the action the statutory time limit of three years within which actions of this kind must be brought had expired.

14 I consider the negligence claims must also fail. I hold that in the exercise of functions under the Heritage Protection Act neither Mr Tickner nor Professor Saunders owed a common law duty of care to Binalong. I also hold that Luminis and Dr Fergie in fulfilling their contractual retainer to the ALRM acted exclusively in the interests of the ALRM and its clients and did not owe a common law duty of care to Binalong. The negligence claims fail at the outset for want of a duty of care, but I consider they would also fail as the particulars of breach of duty are either not made out or have not been shown to be a cause of the loss alleged by Binalong.

15 I hold that the claims against Mr Tickner and Professor Saunders for breach of statutory duty fail because the Heritage Protection Act does not evidence an intention to create a private right of action for damages in favour of a person said to be aggrieved by a failure by the Minister or the reporter to meet procedural requirements of the Act.

16 The claims for misfeasance in public office must also fail as I reject completely the allegations that Mr Tickner and Professor Saunders knew that they were acting beyond power, or were reckless as to their power and acted in bad faith.

17 I hold that the claim against the Commonwealth also fails. I consider that once the decision to make the declaration was set aside on judicial review, the event said to constitute the acquisition is to be treated as having not occurred. Further, I hold that the declaration even if it had been validly made would not have effected an acquisition of property within the meaning of s 28 of the Heritage Protection Act.

18 Finally, the Reasons for Decision address the question of loss and the assessment of damages. The applicants' claim is that Binalong suffered an immediate loss in value of the marina when the declaration under s 10 of the Heritage Protection Act was made, and that in the events which followed the value did not return to the marina before it was sold by the Receivers and Managers in September 1997 to Kebaro Pty Ltd, a company that is the trustee of family trusts in favour of members of the family of Mr and Mrs Chapman. I hold that the evidence establishes that in September 1997 the marina was worth at least as much as it would have been worth in July 1994 had the declaration not been made by Mr Tickner. I also hold that there would have been delays in the sale of the marina even if the declaration had not been made, such that the making of the declaration has not caused Binalong to incur additional interest to its financiers that would have been avoided if the declaration had not been made. I therefore find that Binalong did not suffer any loss in consequence of the making of the declaration on 9 July 1994.

19 For these reasons the applicants' claims fail and there will be judgment for the respondents.

20 I will hear the parties on the question of costs at a date to be fixed when the parties have had the opportunity of considering the published Reasons for Decision.

21 The full text of the Court's Reasons for Decision reported as Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 will shortly be available on the Federal Court's website at www.fedcourt.gov.au.

FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106

Aboriginals - Heritage protection - declaration made preventing construction works to protect a significant Aboriginal area - declaration set aside on judicial review - whether civil liability attaches to the Minister and a reporter in respect of failures to comply with procedural requirements imposed by statute - requirements of a valid application for protection - discussion of meaning of Aboriginal tradition - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 9, 10, 28

Aboriginals - Heritage protection - declaration of significant Aboriginal area - Aboriginal tradition - requirement of antiquity of beliefs - whether beliefs held by only one person sufficient to constitute an Aboriginal tradition - whether use and treatment of an area in a manner inconsistent with traditional beliefs held by only one or a small number of Aboriginals can constitute injury or desecration - whether purpose of an application for protection may be ascertained from a series of written and oral communications with the Minister

Trade Practices - Misleading and deceptive conduct - report prepared by anthropologist for incorporation into a representation to the Minister - report prepared by a reporter under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) - anthropologist and reporter each engaged under a contract for the supply of consultancy services - reporter supplying services to the Commonwealth - whether representations conveyed by the reports constitute conduct in trade or commerce - whether representations misleading or deceptive - whether an assignee can sue for damage suffered by the assignor by misleading or deceptive conduct of the respondent - whether proceedings brought within three years of the accrual of the cause of action - time when the cause of action accrues - whether time limit can be extended

Tort - Negligence - exercise by a public official of discretionary power arising under statute - Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) - declaration to protect a significant Aboriginal area - whether a common law duty of care owed by the respositories of power to those likely to suffer economic loss by the making of the declaration - whether the Minister and a reporter exercise powers and functions of a legislative or quasi-legislative nature - whether conduct alleged to be in breach of duty established - whether damage caused by the negligent acts alleged

Tort - Statutory duty - breach of statutory duty - elements - whether applicants within the class of person for whose protection or benefit the statute provides - whether the statute evidences an intention to create a ground of civil liability

Tort - Misfeasance in public office - elements - invalid exercise of powers conferred by the statute - whether respondents knew that they were acting beyond power or were recklessly indifferent as to whether they were so acting - whether respondents acted in bad faith

Acquisition of land - whether acquisition of property from a person otherwise than on just terms - whether declaration for protection of a significant Aboriginal area which prevented the construction of a bridge constituted an acquisition of property - declaration set aside on judicial review - whether an acquisition occurred - whether sterilisation of contractual rights affected by the declaration confers an identifiable and measurable advantage upon the Commonwealth or another relating to the ownership or use of property

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 7, 9, 10, 13, 14, 15, 22, 23, 27, 28

Aboriginal Heritage Act 1988 (SA) ss 7, 13, 23, 24, 35

Planning Act 1982 (SA) ss 40, 50, 51

Real Property Act 1886 (SA)

Trade Practices Act 1974 (Cth) ss 4, 6, 52, 53, 75B, 82

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth) ss 39B, 79

Hindmarsh Island Bridge Act 1997 (Cth)

Fair Trading Act 1987 (SA) ss 55(i), 56, 84

Fair Trading Act 1985 (Vic) ss 11, 37

The Constitution, Ch III, ss 51(xxxi), 51(xxvi)

Fair Trading Act 1987 (NSW) ss 4, 42

Corporations Law s 477

Federal Court of Australia Act 1976 (Cth) ss 50, 59(2B)

Limitation of Actions Act 1936 (SA) ss 38A, 48

Limitation of Actions Act 1958 (Vic) s 34

Evidence Act 1995 (Cth) s 130

Royal Commissions Act 1917 (SA) ss 5, 6, 7, 8, 9

Federal Court Rules O6 r 2, O13 r 2, O 34A

Chapman v Luminis Pty Ltd (1998) 86 FCR 513 referred to

Chapman v Tickner (1995) 55 FCR 316 referred to

Tickner v Chapman (1995) 57 FCR 451 referred to

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1997) 189 CLR 1 referred to

Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337 referred to

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied

Prestia v Aknar (1996) 40 NSWLR 165 cited

The Queen v The Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 applied

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 distinguished

Durant v Greiner (1990) 21 NSWLR 119 distinguished

Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272 applied

Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41 - 669 applied

Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 41 - 710 applied

Brown v Riverstone Meat Co Pty Ltd (1985) 60 ALR 595 distinguished

Merman Pty Ltd v Cockburn Cement Ltd 1988 84 ALR 521 distinguished

Pacific Cole Pty Ltd v Idemitsu Queensland Pty Ltd (1992) ATPR 46 - 094 distinguished

Plimer v Roberts (1997) 80 FCR 303 applied

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited

Bowler v Hilda Pty Ltd (1998) ATPR 41 - 625 cited

Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 cited

James v ANZ Banking Group Ltd (1986) 64 ALR 347 cited

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 cited

Park v Allied Mortgage Corporation Ltd (1993) ATPR 46 - 105 cited

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Fed C, Beaumont J, 7 November 1994, unreported) cited

National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 considered

Brookfield v Davey Products Pty Ltd (Fed C, Branson J, 8 February 1996, unreported) cited

Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 followed

Trendtex Trading Corporation v Credit Suisse [1982] AC 679 considered

Weldon v Neal (1887) 19 QBD 394 cited

Zoneff v Elcom Credit Union Ltd (1990) ATPR 41 - 058 cited

Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 distinguished

Commonwealth of Australia v International Air Aid Pty Ltd (Fed C, Neaves J, 2 September 1994, unreported) cited

Liff v Peasley (1980) 1 WLR 781 cited

Brook v The Flinders University of South Australia (1987) 47 SASR 119 cited

John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 cited

Vink v Schering Pty Ltd (1991) ATPR 41 - 073 distinguished

Pyrenees Shire Council v Day (1998) 192 CLR 330 distinguished

Perre v Apand Pty Ltd (1999) 198 CLR 180 referred to

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 distinguished

Calveley v Chief Constable of Merseyside [1989] 1 AC 1228 cited

Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 cited

Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 cited

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 considered

Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 cited

Anns v Merton London Borough Council [1978] AC 728 cited

Sutherland Shire Council v Heyman (1985) 157 CLR 424 distinguished

Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330 (Full Court - unreported) cited

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 cited

Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 distinguished

Caparo Industries Plc v Dickman [1990] 2 AC 605 cited

Hill v Van Erp (1997) 188 CLR 159 considered

Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 distinguished

Tickner v Bropho (1993) 40 FCR 183 considered

The Commonwealth v Tasmania (1983) 158 CLR 1 cited

The Queen v Kirby; Ex parte Boilermaker's Society of Australia (1956) 94 CLR 254 cited

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

The Commonwealth v Grunseit (1943) 67 CLR 58 cited

Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 cited

Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 cited

Foster v Mountford & Rigby Ltd (1976) 14 ALR 71 cited

Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 considered

Dunlop v Woollahra Municipal Council [1982] AC 158 cited

Kioa v West (1985) 159 CLR 550 cited

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 cited

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited

O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 cited

Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 cited

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 considered

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 followed

San Sebastian Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 followed

Tepko Pty Ltd v Water Board (2001) 75 ALJR 775 followed

Voli v Inglewood Shire Council (1963) 110 CLR 74 referred to

Bryan v Maloney (1995) 182 CLR 609 referred to

Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 referred to

Al-Kandari v J R Brown & Co [1988] 1 QB 665 referred to

Clarke v Bruce Lance & Co [1988] 1 WLR 881 referred to

White v Jones [1995] 2 AC 207 referred to

Ross v Caunters [1980] 1 Ch 297 considered

Sutherland v Public Trustee [1980] 2 NZLR 536 referred to

Chapman v Luminis Pty Ltd [No 2] [2000] 100 FCR 229 referred to

Western Australia v Ward (1977) 76 FCR 492 cited

David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294 considered

Briginshaw v Briginshaw (1938) 60 CLR 336 referred to

Shaw v Wolf (1998) 83 FCR 113 cited

Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 cited

Rowling v Takaro Properties Ltd [1988] AC 473 considered

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 considered

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 considered

Tampion v Anderson [1973] VR 715 referred to

Sykes v Cleary (1992) 176 CLR 77 cited

Sanders v Snell (1998) 196 CLR 329 referred to

Northern Territory v Mengel (1995) 185 CLR 307 referred to

Three Rivers District Council v Governor and Company of the Bank of England [2000] 2 WLR 1220 considered

Minister of State for the Army v Dalziel (1944) 68 CLR 261 distinguished

Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330 applied

Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 cited

First English Evangelical Lutheran Church v County of Los Angeles 482 US 304 (1987) distinguished

Loveladies Harbor Inc v The United States 28 F 3d 1171 (1994) distinguished

Clunies-Ross v The Commonwealth (1984) 155 CLR 193 referred to

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 referred to

Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 cited

The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 cited

The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 considered

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 distinguished

Commonwealth v Western Australia (1999) 196 CLR 392 referred to

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 followed

Smith v ANL Ltd (2000) 176 ALR 449 followed

Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175 cited

Air Services Australia v Canadian Airlines International Ltd (1999) 167 ALR 392 cited

Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 cited

Commonwealth v Western Mining Corporation Ltd (1996) 67 FCR 153 followed

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 cited

Bennett v Minister of Community Welfare (1992) 176 CLR 408 cited

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 cited

Sellars v Adelaide Petroleum Pty Ltd (1994) 179 CLR 332 cited

Midland Montagu Australia Ltd v Harkness (1994) 35 NSWLR 150 cited

Farrow Finance Co Ltd (in Liq) v ANZ Executors and Trustee Co Ltd [1998] 1 VR 50 cited

In re Lines Bros Ltd (in Liq) (No 2) [1984] 2 WLR 905 cited

Graham v Baker (1961) 106 CLR 340 cited

Professor Bernard McCabe, "Re-visiting Concrete Constructions" (1995) 3 Trade Practices Law Journal 161

The Laws of Australia (LBC), Government 19.3 [34], Torts 33.8 [137] and Business Organisations 4.7 [182]

The Australian Oxford Dictionary 1999

The Macquarie Dictionary 3^rd ed. 1998

Report of the Hindmarsh Island Bridge Royal Commission (State Print, December 1995)

Dr Ron Brunton, Hindmarsh Island and the Hoaxing of Australian Anthropology (May 1995) Quadrant 11

R M and C H Berndt, A World That Was, The Yaraldi of The Murray River and The Lakes, South Australia (UBC Press, 1993)

D Bell, Ngarrindjeri Wurruwarrin: a world that is, was, and will be (Spinifex Press, 1998)

G Jenkin, Conquest of the Ngarrindjeri (Rigby Ltd, 1979)

Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1984, p 2133

Matter No. SG 33 of 1997

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

von DOUSSA J

ADELAIDE

21 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 33 OF 1997

BETWEEN:

THOMAS LINCOLN CHAPMAN

FIRST APPLICANT

WENDY JENNIFER CHAPMAN

SECOND APPLICANT

BINALONG PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION)

THIRD APPLICANT

AND:

LUMINIS PTY LTD

FIRST RESPONDENT

DEANE JOANNE FERGIE

SECOND RESPONDENT

CHERYL ANNE SAUNDERS

THIRD RESPONDENT

ROBERT EDWARD TICKNER

FOURTH RESPONDENT

COMMONWEALTH OF AUSTRALIA

FIFTH RESPONDENT

JUDGE:	von DOUSSA J
DATE:	21 AUGUST 2001
PLACE:	ADELAIDE

TABLE OF CONTENTS

SUBJECT PARAGRAPH

1. Introduction .............................................................................................................. 1

The declaration ............................................................................................... 3

The applicants ................................................................................................ 8

The respondents ............................................................................................. 9

Factual background ...................................................................................... 13

2. The Causes of Action .......................................................................................... 149

Luminis and Dr Fergie

Misleading or deceptive conduct .................................................. 150

Negligence .................................................................................... 151

Professor Saunders

Misleading or deceptive conduct .................................................. 152

Accessorial liability ....................................................................... 153

Negligence .................................................................................... 154

Breach of statutory duty ............................................................... 155

Misfeasance in public office .......................................................... 156

Mr Tickner

Negligence .................................................................................... 157

Breach of statutory duty ............................................................... 158

Misfeasance in public office .......................................................... 159

The Commonwealth

Acquisition of property other than on just terms ......................... 160

3. Misleading or Deceptive Conduct Claims ......................................................... 161

Introduction ................................................................................................ 161

In trade or commerce ................................................................................. 165

Misleading or deceptive conduct ................................................................. 192

Limitation of action issues ........................................................................... 201

4. Negligence Claims ............................................................................................... 227

Professor Saunders and Mr Tickner - duty of care ...................................... 227

The Aboriginal and Torres Strait Islander Heritage Protection Act

(the HPA) .................................................................................................. 249

Other issues under the HPA ........................................................................ 270

The notice ..................................................................................... 271

The application under the HPA, s 10 ............................................ 272

Natural justice issues .................................................................... 273

The Minister's obligation to consider representations ................. 274

Aboriginal tradition ...................................................................... 275

Luminis and Dr Fergie - duty of care .......................................................... 276

5. Factual Issues ...................................................................................................... 301

Evidence received in closed session ............................................................ 301

Comment on some witnesses ...................................................................... 310

The Royal Commission ............................................................................... 320

Late emergence .......................................................................................... 333

Literature and expert evidence .................................................................... 355

Only one woman knew ............................................................................... 382

Irrationality of women's business ................................................................. 390

Finding as to restricted women's knowledge ............................................... 400

Further comment on Dorothy Wilson's evidence ......................................... 401

Mouth House meeting - 9 May 1994 .......................................................... 402

The Graham's Castle meeting - 19 June 1994 ............................................. 404

The Graham's Castle meeting - 20 June 1994 ............................................. 410

Further comment on Dr Kartinyeri's evidence .............................................