Sumner v United Kingdom of Great Britain & Ors A34/1999 [1999] HCATrans 481 (15 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A34 of 1999

B e t w e e n -

DARRELL SUMNER

Applicant

and

UNITED KINGDOM OF GREAT BRITAIN

First Respondent

THE STATE OF SOUTH AUSTRALIA

Second Respondent

ALEXANDRINA COUNCIL

Third Respondent

WENDY CHAPMAN

Fourth Respondent

TOM CHAPMAN

Fifth Respondent

JOHN BANNON

Sixth Respondent

DEAN BROWN

Seventh Respondent

MICHAEL ARMITAGE

Eighth Respondent

DIANA LAIDLAW

Ninth Respondent

ROD LUCAS

Tenth Respondent

DOROTHY KOTZ

Eleventh Respondent

TREVOR GRIFFIN

Twelfth Respondent

JOHN OLSEN

Thirteenth Respondent

BUILT ENVIRONS PTY LTD

Fourteenth Respondent

DAVID O'SULLIVAN

Fifteenth Respondent

COFFEY GEOSCIENCES PTY LTD

Sixteenth Respondent

UNDERDALE DRILLERS PTY LTD

Seventeenth Respondent

STEVE PALYGA

Eighteenth Respondent

CHRIS KENNY

Nineteenth Respondent

and

COMMONWEALTH OF AUSTRALIA

Twentieth Respondent

Application for expedition and an interim injunction

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 15 NOVEMBER 1999, AT 2.15 PM

Copyright in the High Court of Australia

___________________

HIS HONOUR: Yes, what are the appearances?

MR D. SUMNER OF NGARRINDJERI: Appearance, your Honour.

MR T. TREVORROW OF NGARRINDJERI: Your Honour, I am Tom Trevorrow of Ngarrindjeri. I am intervening with your leave, your Honour, with the assistance of Mr Byrt.

HIS HONOUR: Where is Mr Byrt?

MR P.T. BYRT: Here, your Honour. I am a practitioner of the Court. Mr Trevorrow is unrepresented and he has asked me to give him assistance.

HIS HONOUR: What is the purpose of your client's appearance today.

MR BYRT: He is not my client, your Honour, but speaking for him; he wishes to intervene in his own right owing to the finding of the Full Court that Mr Sumner was not acting in a representative capacity.

HIS HONOUR: How would that remedy things in the Full Court?

MR BYRT: Mr Trevorrow's own rights are in jeopardy here, your Honour. Do you have a copy of - - -

HIS HONOUR: No, no, I have read his affidavit. What he said could be material if he reapplied on the hearing on the special leave application. That is not what is here today. The only question here today is whether there should be an interlocutory injunction in aid of that special leave application.

MR BYRT: Yes, your Honour. He has a submission that he filed this morning - - -

HIS HONOUR: Yes, I have read that.

MR BYRT: - - - setting out his - - -

HIS HONOUR: Yes, I have read that.

MR BYRT: He says he stands to be prejudiced by not being heard on Mr Sumner's application for special leave to appeal; that natural justice requires it.

HIS HONOUR: Yes, but that is on the application for special leave to appeal. What I am trying to say to you is at the moment I am disposed to stand that application over to the hearing of the special leave application.

MR BYRT: Thank you, your Honour.

HIS HONOUR: Is there anything you want to add to that? Anything you want to add in that respect?

MR BYRT: No, your Honour.

HIS HONOUR: Yes. Thank you, Mr Byrt. Well, I will stand over the application for intervention to the hearing of the special leave application itself.

Now, what other appearances are there?

MR K. BUZZACOTT: Hello. I am Kevin Buzzacott, Arabunna, from Lake Eyre. I am seeking to intervene on this case.

HIS HONOUR: Are there any papers filed?

MR BUZZACOTT: Yes, just hang on.

MR L.J. LINDON: My name is Len Lindon. I am a practitioner, your Honour, solicitor for Mr Buzzacott. His papers are, in fact, filed. They are file No C19 of the Court. It is an application for special leave Mr Buzzacott has made and he will be referring to, as he already has - - -

HIS HONOUR: What has that to do with this afternoon's application, Mr Lindon?

MR LINDON: It has a great deal to do, your Honour, with this afternoon's application because both Mr Buzzacott and Mr Trevorrow are seeking to intervene on this expedition question. I heard what your Honour said to Mr Trevorrow but they are seeking to intervene on the expedition question and on the importance of granting an injunction. They want to make submissions about the balance of convenience and the - - -

HIS HONOUR: But they are not parties to make that sort of application, Mr Lindon. Is it not much better to get on with your application and stand all these other applications over?

MR LINDON: Obviously, hearing what your Honour says, that is the way it is going to go but it seems to me, your Honour, there are some - - -

HIS HONOUR: I am just wondering why it should not be the way it is going to go.

MR LINDON: Because there are reasons, legal arguments, to be put to you as to why it should go the other way, but I hear what you are saying about time.

HIS HONOUR: What are they? What extra reasons are they that you will not be putting in your assistance to Mr Sumner?

MR LINDON: Because in the case of Mr Buzzacott, he comes from a different nation, the Arabunna, but they have a similar problem. Out there it is Roxby Downs. So it is the same problem, your Honour, of trying to stop things that are destructive to their lands and he has a similar issue and it is actually before this Court at the moment in applications numbers - - -

HIS HONOUR: Exactly.

MR LINDON: That is right, so the first question was, "Where are the papers?"

HIS HONOUR: That is exactly why I should not be dealing with it. Yes, go on.

MR LINDON: I think it does show several things. It obviously shows that there is a question of public importance that is causing somewhat of a logjam in the court processes around this country and your Honour will see that Mr Sumner refers to the proceedings in the Victorian Supreme Court, and the South Australian Supreme Court and are still reserved. As I say, there is this matter of Wadjularbinna Nulyarimma and I understand Wadjularbinna Nulyarimma is in the Court in Canberra at the moment seeking to intervene as well. Her number is C18 of 1999 and Mr Buzzacott's is C19 of 1999 and both of them, your Honour, involve the same question that we say is at issue here as to whether genocide is a civil wrong or a criminal offence and, if it be either of those - - -

HIS HONOUR: That will not be decided today in any way, shape or form, Mr Lindon.

MR LINDON: Certainly, your Honour, but it is an issue that is pending before the Court and one would - - -

HIS HONOUR: Of course it is and it is another matter. The only question today and what I want you to focus on when you come to deal with Mr Sumner's submissions, after I have had the chance to take the other appearances, is what error in principle there is as to the law with respect to interlocutory injunctions in the Full Court. That is what I am here to decide.

MR LINDON: Obviously it is all connected but, if your Honour will not hear - - -

HIS HONOUR: I will stand both those applications mentioned by Mr Lindon over to the hearing of the special leave application itself. What other appearances are there today?

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MS I.K. HAYTHORPE, for the second and the sixth to thirteenth respondents, that being Ministers and former Ministers of the South Australian Crown. (instructed by the Crown Solicitor for South Australia)

MR W.M. ERICSON: May it please the Court, I appear for the fourteenth, fifteenth, sixteenth and seventeenth respondents who are essentially the contractor and subcontractors who are actually building the bridge. (instructed by Finlaysons)

HIS HONOUR: Are those the parties against whom injunctive relief was sought?

MR ERICSON: Your Honour, in the Full Court injunctive relief was sought against all four of them. Before the trial judge, injunctive relief was only sought against the fourteenth and fifteenth.

HIS HONOUR: Yes, that is what I thought.

MR ERICSON: Perhaps if I could just flag at this stage just one thing, that we will be objecting to the reception of certain portions of Mr Sumner's affidavit.

HIS HONOUR: Yes.

MR C.S.L. ABBOTT: May it please your Honour, I appear on behalf of the third respondent. (instructed by Lempriere Abbott McLeod)

HIS HONOUR: That is the Alexandrina Council?

MR ABBOTT: That is correct, your Honour. On Friday afternoon I informed the Registrar of the High Court that my client would abide any orders save as to costs made by your Honour today. However, early this morning I received and was served with the notice of motion by Mr Trevorrow which your Honour has already stood over. That was the only limited ground upon which I was seeking to appear today, and so - - -

HIS HONOUR: You may be excused if you wish.

MR ABBOTT: Thank you very much, your Honour.

HIS HONOUR: Any other appearances?

MR D.J. MEYER: I appear for the fourth and fifth defendants, the Chapmans. (instructed by Lynch & Meyer)

MRS M.E. SHAW, QC: If your Honour pleases, I appear for the eighteenth respondent, a legal practitioner, acting for the fourth and fifth respondents. (instructed by Lynch & Meyer)

MR R.J. WHITINGTON, QC: I appear with my learned friend, MR T.L. STANLEY, for the Commonwealth of Australia, the twentieth respondent. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, all right. Now, I hold a certificate from the Senior Registrar indicating that no appearance has been filed on behalf of the first respondent, that none has been filed on behalf of the nineteenth respondent, and that there was no appearance by those parties before Justice Nyland or the Full Court.

Yes, Mr Lindon.

MR SUMNER: Your Honour, I would like to make a statement if I may, sir.

HIS HONOUR: Well, I am allowing 20 minutes for this which is the time that will be allowed on a special leave application. If you wish to consume the time that would be otherwise used dealing with legal propositions by Mr Lindon, do so, but between you, you must finish by 2.45.

MR SUMNER: Thank you, your Honour. Your Honour, I asked myself what am I doing here. The respondents' legal team are asking the same question. Since the Hindmarsh Bridge saga began seven-odd years ago and that so much time has elapsed, well, my answer is the Ngarrindjeri People have been waiting since you invaded our lands for justice from your governments and courts and that your Heritage Act 1997 , Vilification Act, Equal Opportunity Act, Commonwealth Heritage Act, Racial Discrimination Act, Vilification Act and the Ombusdman's Act, going all the way back to the Foundation Act of 1834. They were supposed to be beneficial to the Ngarrindjeri People. I am just wondering who are these Acts supposed to be protecting.

HIS HONOUR: The real point, Mr Sumner, is why I should make these orders sought in the summons today. I will not answer that by worrying about what happened in 1834.

MR SUMNER: Okay, your Honour. My people, your Honour, make up 2 per cent of the South Australian population. They cause 85 per cent of the crimes committed; they cause 85 per cent of the drug and alcohol problem. They fill up your courts and gaols. The reason for all this is lost on your people. It is because Ngarrindjeri have not an identity. They have no future. They die, on average, 20 to 25 years younger than non-Aboriginals.

If you allow this bridge to be built and allow the developers to continue to destroy our burial grounds, our sites and healing places, this is what is going to continue in the future. If there is any hope for the Ngarrindjeri in the future, our burial ground sites and healing places must be preserved for the elders to teach young Ngarrindjeri People of our culture and laws, but if this does not happen it will mean the end of our people. It is genocide. It does not matter how you interpret, dissect, rip apart, or look it up in the dictionary, in the end it will still mean the end of the Ngarrindjeri People and culture.

Hindmarsh Island or Kumerunk, as we know it, your Honour, as my people know it, has always been a special place for us. I am a Ngarrindjeri male who was brought up by my grandparents.

HIS HONOUR: Look, that may all be true, Mr Sumner, but I have to have some assistance in dealing with the summons you bring today to the Court which deals with very narrow questions, and I am not just getting it at the moment. All of these matters can be dealt with if and when there is a trial. They are not matters for today.

MR SUMNER: I would like to finish my statement, your Honour.

HIS HONOUR: Yes, go on.

MR SUMNER: My grandparents had 11 daughters and therefore I grew up knowing what Kumerunk meant to our women just as Mundoo and the surroundings areas meant to my grandfather in Ngarrindjeri laws and customs. Why does the almighty dollar have to.....our culture and beliefs since invasion of our lands introduced diseases and massacres, being forced to live on missions. All we ever wanted was the preservation of our lands and culture and despite all what you have done to our Ngarrindjeri People, we are still willing to share our lands and culture with you.

Your Honour has the power to stop the construction of this bridge to protect the Ngarrindjeri People and our culture from devastation and maybe you also might benefit by our survival but, if you have not this power, then who has? Who is protecting the Ngarrindjeri People? Thank you, your Honour. I have, your Honour, more to say on the native title aspect, the main vehicle of the application, genocide, if you wish to hear it. It is from section 6 of the 1834 Foundation Act.

HIS HONOUR: Well, if Mr Lindon is here to help you, I think you should, speaking for myself, avail yourself of the assistance he is going to give for you.

MR SUMNER: Thank you.

HIS HONOUR: Mr Lindon, can we look at the summons first.

MR LINDON: Yes, your Honour.

HIS HONOUR: Order 2 is an interim injunction. What is intended is an injunction until the determination of the special leave application, I take it?

MR LINDON: Yes.

HIS HONOUR: It seeks to restrain all the respondents, but the ones who really seem, as it were, to be at the centre of things are the fourteenth to the seventeenth, are they not? Are they not the ones you - - -?

MR LINDON: Yes. But we say, once again, it is all connected. We say they could not be doing it unless it was validated and legitimised by the other defendants.

HIS HONOUR: The question is who is going to be under an injunction from doing certain acts, and it looks to me as if it is should be the fourteenth to the seventeenth. Is that correct?

MR LINDON: No, sir. Also, the second respondent, the State of South Australia, is contractually involved in any injunctive relief and so is the third respondent, the Alexandrina Council.

HIS HONOUR: But you did not seek injunctive relief against them below, did you?

MR LINDON: No, because we say that the - - -

HIS HONOUR: Is the answer no, you did not seek injunctive relief against either the State or any of the other parties other than the fourteenth to seventeenth in the Full Court?

MR LINDON: Yes, because we are seeking to restrain their further construction but we are also seeking to restrain all the respondents, or the defendants in the lower court, from any further behaviour of the kind that has brought them to the Court already. So that by merely stopping the bridge, we say that that will not stop the mental harm or the destructive conditions of life. It is the whole decision-making - - -

HIS HONOUR: That may be a question for a final injunction. I really cannot seem to make myself clear. It cannot be a question here in this Court in light of the way the matter was run in the Full Court. It just seems to me obvious. If you do not agree with that, that is up to you but it seems to me it must be the fourteenth to the seventeenth. Which are the ones you want to add, the second and what else?

MR LINDON: Sorry, I thought your Honour's question was somewhat broader than, "Are you seeking relief against them?" Obviously in the short term we are seeking to stop any further construction of the bridge.

HIS HONOUR: No, I mean in the summons. That is why I took you to the text of the summons.

MR LINDON: That is right, so we seek to stop those defendants as named, which are Built Environs, their director David O'Sullivan, Coffey Geosciences and Underdale Drillers. I am not sure which if any of those people are actually still on site doing things.

HIS HONOUR: All right.

MR LINDON: We know that Coffey Geosciences were and we know that Underdale Drillers were, but there is no information flow.

HIS HONOUR: All I am asking you is: should I read the summons in order 2 seeking an injunction pending the determination of the special leave application and an injunction against the fourteenth to the seventeenth respondents? I think your answer is yes.

MR LINDON: Yes, your Honour.

HIS HONOUR: All right. Can we get to the substance of the matter, the matter being whether there should be this interlocutory injunction?

MR LINDON: Yes, and that involves an approach to the balance of convenience and an approach to the undertaking as to costs and an approach to the question of delay, which is somewhat different to the perspective that has been adopted so far. The very short point is essentially this: Mr Byrt wishes to address the Court on the question of authorisations and permits, which is quite a good legal point, but the short point that we are wasting the Court's time about today - not wasting, but the reason why we have come to this Court - - -

HIS HONOUR: It is not being wasted.

MR LINDON: No, but it had better be good. It is simply this, that basically the Commonwealth of Australia, your Honour, of which you are a judicial officer, and the State of South Australia and their judicial officers - we say that the State cannot have it both ways. It cannot both rely on a well-settled doctrine of Act of State and, until recently, rejected the doctrine of terra nullius. That kind of institutional intent to destroy that is being challenged, your Honour, we cannot argue the law on that. We cannot get the Court to look into the way in which the land was taken, was stolen, and the legal reasons that were given because of the doctrine of Act of State, but what we can say is that you cannot have it both ways. If you are going to say that, it is genocide. It is clearly displaying an institutional intent to destroy. That, your Honour, presents this Court with a very, very serious question. It has been raised before, you will remember, by Mr Thorpe, when you were sitting on the Full Court in - - -

HIS HONOUR: It might raise it after a trial but what I have here - - -

MR LINDON: Mr Thorpe, you will remember, raised it in December - - -

HIS HONOUR: Just listen to me for a minute.

MR LINDON: I will just take you to that. That was Thorpe's - - -

HIS HONOUR: Just listen to me for a minute; it might be a good idea. The matter before Justice Nyland was an application for an interlocutory injunction. She gave reasons and said that was dismissed.

MR LINDON: Yes.

HIS HONOUR: The Full Court of the South Australian Supreme Court dismissed an appeal and likewise refused an interlocutory injunction. In this Court the question would have to be, to get special leave, I think: where did the Full Court go wrong in its consideration of the principles that govern interlocutory injunctions when the Full Court said that Justice Nyland had got them right? I think that is what it comes to.

MR LINDON: Yes, but there is also this question of exceptional circumstances. So that we say here you have some exceptional circumstances and they are this, that as of 1999 the theft of the lands of the Ngarrindjeri in this case and the usurpation of their law has never been properly legally explained in an international forum such as the International Court of Justice. So we are totally reliant on the domestic explanation of any residual rights remaining to the Ngarrindjeri.

Under international law, your Honour, Australia is in breach because it has not enacted the necessary legislation it promised it would under the Genocide Convention of 1949 and it is in breach of the general law of treaties for the same reason. More importantly, it is obviously impossible to get any kind of independent unbiased judicial ruling on this matter.

HIS HONOUR: Why is that?

MR LINDON: Two reasons. First of all, because of the institutional nature, the Court in which your Honour sits has been established - - -

HIS HONOUR: I am not going to hear submissions from you, Mr Lindon, when you assume any bias against any judicial officer of the State or the Commonwealth.

MR LINDON: Let me just prove it to you.

HIS HONOUR: Let us just get that clear right now.

MR LINDON: Okay, thank you, your Honour. I am not making a personal one; I am saying institutionally.

HIS HONOUR: Exactly. I am not hearing that either.

MR LINDON: I am saying it in this way: the doctrine of terra nullius - - -

HIS HONOUR: You have to have better submissions than that, Mr Lindon.

MR LINDON: No doubt you have heard better submissions, your Honour, but this is a true submission, if I may just complete it. The doctrine of terra nullius, which is a judicially developed doctrine, has held sway in this country until seven years ago. I think it would be acknowledged by every jurist internationally that the doctrine of terra nullius clearly evidenced an institutional intention to destroy because clearly, your Honour, if the doctrine of terra nullius purports to say that the land is waste and that there are no people living there, then obviously it is an inducement, or at least not a deterrent, to the further destruction of those people.

So that we start from 1992, your Honour, with prior to 1992 what we say is demonstrably and clearly an intent to destroy Aboriginal people because the doctrine of terra nullius encompassed that. The High Court said in Mabo it was the darkest period of our history and a very shameful period. The submission we make about this is that the Court's institutional intent to destroy - and of course I am not just picking on the Court, your Honour, but every branch of government has been complicit in this. It is an unresolved issue that has not gone away and has not been settled by Mabo. It was not at issue in Mabo, as you remember. Technically sovereignty was - - -

HIS HONOUR: I keep asking you - you may be able to settle it at a trial in this case. How are you going to settle it - - -

MR LINDON: Then let me come to the exceptional circumstance, your Honour, and it is not a laughing matter because - - -

HIS HONOUR: What is the exceptional circumstance with respect to this?

MR LINDON: The exceptional circumstance is something that white people find very hard to - - -

HIS HONOUR: Just a minute. What is the exceptional circumstance in relation to this - - -

MR LINDON: The exceptional circumstance is that the - - -

HIS HONOUR: You do not let me finish. It is not good advocacy, if I may say so. What is the exceptional circumstance in relation to order 2 you seek in your summons? That is what I need to know.

MR LINDON: Simply this, that - - -

HIS HONOUR: Because we are in the world of interlocutory injunctions.

MR LINDON: We are.

HIS HONOUR: Not in the world of trials concluding issues of fact and law.

MR LINDON: That is right. But we are also in a court of law and not in a commercial court, so there is no presumption that merely by one party saying, "This is costing us a lot of money" that is not the end of the matter. The Court has a duty to look at the balance of convenience on both sides.

HIS HONOUR: Yes.

MR LINDON: And what is exceptional about the circumstances here, your Honour, is that we have seven or eight generations of Ngarrindjeri who are victims of genocide, that is to say they have had seven to eight generations of theft of their land, usurpation of their law and official denial that both those things have occurred. Now that, in our view, presents an eggshell skull kind of victim, an eggshell skull kind of situation. It is not as if the Ngarrindjeri are ordinary, robust, white Australians who have always been able to buy and sell land and get work and have a good education without the usual health problems that we know from their demographics.

We are saying that what makes the situation different is the Ngarrindjeri have already suffered and I mean, it is almost impossible, your Honour, to make this point except in a different way. Australian courts, now that they have an Australian system of law, an indigenous system of law it is called, are very reluctant to allow any foreign statutes to apply in Australia, including, it turns out in this case, the UK Genocide Act, a beneficial piece of legislation.

HIS HONOUR: It is the Act of a foreign country. It is a statute of a foreign country. I am not surprised no one is enthused about applying it.

MR LINDON: Exactly, but the point I make about this, your Honour, is, just on the empathy front, the Court knows how reluctant Australians are to have foreign laws applied to them and yet it is quite okay, apparently, for the Ngarrindjeri to have had foreign laws applied to them, not just for six months or six weeks or six years but for seven generations they have been living under foreign laws. This is a matter of fact, your Honour, just as terra nullius was rejected because as a matter - - -

HIS HONOUR: It depends what you mean by "foreign", Mr Lindon, and we are still not grappling, I think, with orders 1 and 2.

MR LINDON: We know that from Sue v Hill, your Honour, that the UK is a foreign power and we were told last week by Justice von Doussa in the Referendum Case that it is a foreign power as well. Now, clearly, if it is a foreign power under Australian law as of now then just in terms of making the point about living under foreign law you can imagine, without too much difficulty I would say, that living under a completely imposed foreign system of law which you know is foreign and you never accept and never cede your sovereignty to, then you are not just living under one foreign statute, your Honour, but a whole foreign system and this is the point we make that there is not a level playing field in this country.

When the Court said that terra nullius was a fiction and a lie, it looked at the reality and it said, "Australia was never unoccupied." We now know that Aborigines have a system of law and a system of governance which we did not recognise or acknowledge but we now are. Now, that is what Mabo said in 1992 and then the Court went on to discover, as you will recall, your Honour, this notion of native title which is a common law doctrine.

Now, what was not done - and this is the unfinished business, this is the exceptional circumstance, what was not done, your Honour, was there was no agreement with any Aboriginal nation for their consent in any way, shape or form. There has never been any agreement for the consent of the Ngarrindjeri and the only reason for it, your Honour, is, we say, racism and white superiority because if the British had come to this country and it was occupied by people speaking French who were white, then things would have been resolved in a quite civilised way but we all know that that did not happen here. I mean, this is a matter for history. We cannot even argue about the facts because they are well known.

As I say, it is 1999 now, your Honour, and it is not the era of the Gove Land Rights Case, we have moved far beyond that. The Reconciliation Act which Mr Byrt refers to in his written submissions - you say you have read the submissions of Mr Trevorrow, your Honour?

HIS HONOUR: Yes.

MR LINDON: I think this morning there was a notice of motion filed, an affidavit, and some written submissions and Mr Byrt very carefully and, in my view, very devastatingly goes through the kinds of illegality that are being complained about.

Now, as you say, we are in the land of interlocutory injunctions and we are at the very last sort of stage of that process so it has to be a very good, simple proposition that can be put to the Court and your Honour can see the Full Court and Justice Nyland were wrong on and what we say is demonstrably clear from their judgment, what is omitted from their judgment, your Honour, is any acknowledgment of the fact that we do not have one system of law in this country. We have lots of different systems of laws. The Arabunna, Mr Buzzacott's law, is different to the Ngarrindjeri and as a matter of fact, that is the case.

Now, how the Court and the legal doctrine deals with that is another question and, of course, it is being said from this side of the Bar table so far, it is unsatisfactory but the point to make is this. It is not the Ngarrindjeri's fault that they are in this situation. It is the fault of the State of South Australia, the Commonwealth of Australia, the Goolwa Council and the other parties.

HIS HONOUR: Now, what do you say about delay, in a very specific sense, as to why Justice Nyland said this application before her had been left until the last minute.

MR LINDON: Yes. There are two things, very shortly, to be said about it. The first one is that if you take the question of delay in the same way as the balance of inconvenience and look at it in a narrow way, your Honour, we have problems because it is then said, "Why didn't you bring this five years ago or three years ago or 12 months ago? Why now?" Now, that point has been made against us, of course, and it is not a very hard point to find to make but the court below did not listen to the answer that we gave and the answer is this, that there are 150 years, your Honour, of delay in basic justice and recognition of human rights for the Ngarrindjeri and we say that white courts are in such denial about that. It is so important to white courts to deny - - -

HIS HONOUR: It is not a white court, Mr Lindon, and I will not hear that expression used either. It is a Court for all Australians of every shape, size and colour. And I see it is a quarter to three.

MR LINDON: I will say two things then, your Honour. On the question of delay, does the Court, at least, have the point, even though you do not agree with it, understand the point that we do not believe the Full Court below or Justice Nyland understood or accepted which is this, that it is not a level playing field for Aborigines. There is a backlog of injustice. They have no recognition of their governance systems and they have had their lands stolen with no satisfactory explanation being given and no rent ever being paid. That is an absolutely appalling and fundamental abuse of their human rights and it is called genocide, your Honour, and it fits in with the definition of "genocide" that has been accepted for 50 years, and we say that white courts and we say that this is a white court, it is not a court for Aborigines - - -

HIS HONOUR: Well, I will not hear you if you are doing that, Mr Lindon.

MR LINDON: When you say you will not hear me, your Honour - - -

HIS HONOUR: Have you finished now?

MR LINDON: No, your Honour. You said you will not hear me about this point and that proves the very point we are making.

HIS HONOUR: I will not hear you abusing this Court or the courts of Australia in that language which is deliberately provocative.

MR LINDON: With respect, your Honour, I have not abused the courts of Australia and I am not being deliberately provocative.

HIS HONOUR: You are by using that expression, "white court".

MR LINDON: But consider this, your Honour. It is only your state of denial.

HIS HONOUR: It is not helping your client because it is not focusing on the issue.

MR LINDON: But, your Honour, it is only your state of denial that.....is being provocative, and it is not being provocative.

HIS HONOUR: But as a legal practitioner you should - do not talk over me, please.

MR LINDON: Sorry.

HIS HONOUR: As a legal practitioner you should grasp that.

MR LINDON: As a legal practitioner, your Honour - - -

HIS HONOUR: Do you wish to wind up your submissions?

MR LINDON: I must just say, since you adverted to the fact that I am a practitioner I should know, as it were, better, that this Court of which you are a member, your Honour, has just refused to hear a submission claiming that it is a provocative and that it is abusing the Court. I believe that when you read the transcript you will see that my language was measured. It was not provocative, no colourful language was used and - - -

HIS HONOUR: The expression "white justice" is extremely provocative. It could not be otherwise.

MR LINDON: That proves my point, with respect, your Honour, because if you find that submission provocative, that proves the very white denial I am talking about.

HIS HONOUR: Look, will you wind up your submissions, please, Mr Lindon, and get back to the matter in hand. I am asking you to get back to the matter in hand, which is this summons.

MR LINDON: Exactly, your Honour, and I am just asking you to actually accept the point that the matter in hand is somewhat bigger than - obviously, if one defines the matter in a small way, then there are no exceptional circumstances and, clearly, we would not waste the Court's time coming along if we had nothing to say about exceptional circumstances.

HIS HONOUR: I am not suggesting you are wasting the Court's time. I am just inviting you to make use of it.

MR LINDON: Exactly, your Honour, but the submission I have made to you, you have rejected out of hand and said was abusive and provocative and, in fact, it was said in measured - - -

HIS HONOUR: No, no. I said the phrase was abusive and provocative. I did not say the notion that there was a backlog of injustice suffered by certain persons in Australia was something that would not be entertained.

MR LINDON: Right, but you see that crystallises, your Honour.

HIS HONOUR: That can be done in a measured - - -

MR LINDON: That is the nub of the exceptional circumstances - sorry.

HIS HONOUR: That can be a done in a measured and deliberative manner. That is all I am asking you to do.

MR LINDON: All right. Well, then, as long as the point grasped - the exceptional circumstance that we are talking about has been crystallised by the Court finding in any way offensive a submission that it is a "white court". I mean, now, as a matter of fact, your Honour, in the same way as the Court in Mabo looked at terra nullius and said as a matter of fact it was not true at the time and we know that now, I am simply asking the Court to say as a matter of fact that this Court does not - it is not an Aboriginal court, your Honour, and it does not apply Aboriginal law and it does not apply Ngarrindjeri law, so as a matter of fact it is a "white court".

As to the question of delay, your Honour, up until August there were legal proceedings in which the validity of the tripartite deed, the fundamental agreement in question, was actually being challenged by the fifth and sixth respondent and it was not until 11 August, your Honour, that there was a press release announcing that the bridge was to go ahead. I do not know if your Honour has before you the affidavit and exhibits of Mr Sumner that were placed on the file.

HIS HONOUR: Yes, I do.

MR LINDON: It is a thick booklet of materials, your Honours, and your Honour will see that in there there was correspondence first with the Attorney-General and also with the Attorney-General of the UK inviting them to take proceedings in a world court but the letter to the South Australian Attorney-General, your Honour, was responded to immediately in terms of refusing a meeting and then took some 16 days later to come back with a letter in which the Attorney-General refuted, your Honour, completely any intention to destroy any group as such in any way.

There was further correspondence following from that, so that, in fact, we say that on the question of delay, from the time that the fifth and sixth defendants stopped challenging the validity of the agreement and the agreement was then put into a parliamentary Bill, from that time everything short of confrontation has been tried in terms of negotiations and asking for meetings and so on, and we say that it would have been premature to have come to court sooner because all those avenues had not been exhausted, and that is clearly shown by the first three exhibits to the affidavit of Mr Sumner.

Although it is said that this matter has been litigated extensively over the past decade, your Honour, and that there have been all number of inquiries and reviews, funnily enough, the applicant says that the full details have never properly come out in a court of law and, in fact, when you look at, for example, the Matthews' inquiry, your Honour will see that there was no evidence by the so-called dissident women and there was no cross-examination of them, but we regard that as a side issue. There has never, in a submission of the plaintiff, been a proper consultation with Ngarrindjeri and it could not have been very hard, your Honour, to have got them all together. People did not know what their governance system was. So that is what we say about delay.

But the main point, your Honour, that we make - and I will sit down now. It is a very short point and it probably does not involve much law and it just involves this Court, as the ultimate, the supreme court of a member state of the United Nations, deciding that in the absence of legislation prohibiting genocide and in the presence of parties who have suffered seven or eight generations of such genocide, that there are exceptional circumstances warranting a delay because justice must not only be done, it must be seen to be done, and the plaintiff ought to have every opportunity to exhaust his domestic remedies. Thank you, your Honour.

HIS HONOUR: Yes, Mr Lindon. I will take a short adjournment.

AT 2.53 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.59 PM:

HIS HONOUR: There is no need to call on any of the respondents.

On 1 April 1998 this Court held that the Hindmarsh Bridge Act of the Commonwealth was valid. See Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337. However, it was on August 11, 1999 that there was an announcement that the present proposed development was to go ahead.

Thereafter, on 25 October 1999 the applicant commenced an action in the Supreme Court of South Australia. The statement of claim alleges that the agreements to construct the proposed bridge as evidenced by several deeds, are void for illegality as being contrary to public policy. It is said that their implementation would involve similar illegality. The illegality involved is said to be breaches of the Racial Discrimination Act 1949 , the Equal Opportunity Act of South Australia, the Aboriginal Heritage Act of South Australia, the Planning Act of that State or, alternatively, breaches of the schedule to the Genocide Convention Act and other international human rights standards. These include the Draft Declaration of the Rights of Indigenous Peoples. The statement of claim also contains allegations of negligence, of legitimate expectation and fiduciary duty.

On the same day, that is to say 25 October, the applicant applied to a judge of the Supreme Court of South Australia for interlocutory injunctive relief. The application was heard by Justice Nyland on 26 October and dismissed by her Honour in a judgment delivered on 27 October. On 29 October, the applicant appealed against the judgment and orders and sought from the Full Court interlocutory injunctive relief. It appears that the appeal to the Full Court was competent without any requirement of leave from the Full Court.

The Full Court gave the matter considerable priority. Chief Justice Doyle, Justice Debelle and Justice Lander heard the appeal on 1 November and on the next day, 2 November, they delivered reasons for judgment dismissing the appeal. The applicant then instituted in this Court an application for special leave to appeal against the decision of the Full Court of the South Australian Supreme Court.

It is important to appreciate what would be the nature of that appeal to this Court if special leave were to be granted. The question would be whether the Full Court erred in its application of the principles respecting applications for interlocutory injunctions when it decided that Justice Nyland had not erred when she dismissed the application. There has been no trial of the action and no determination of the case on a final basis.

It is against that background that by summons filed 8 November the applicant seeks relief, first by way of an order for expedition of the special leave application. Secondly, paragraph 2 states:

An interim injunction restraining until further order the respondents or any of them, their servants agents or otherwise howsoever, from implementing the purported decision to commence construction of the proposed bridge at the proposed site at Goolwa.

It appears that section 2 should be understood, and I speak after having heard oral submissions, as seeking an interlocutory injunction pending the determination of the special leave application against the fourteenth to seventeenth respondents, for whom Mr Ericson appears today. It should be noted that it was against those parties that the relief was sought in the Full Court, though not against all of them, before Justice Nyland.

The approach to be taken in dealing with an application seeking an order in the nature of order 2 is indicated in various decisions of Justices of this Court. These include Elliott v Seymour [1993] HCA 70; (1993) 68 ALJR 173 at 175 to 176, and Marsden v Amalgamated Television Services Pty Ltd [1996] HCA 13; (1996) 70 ALJR 535 at 537 to 539.

In particular, the question arises whether the prospects of success on the application for special leave are substantial or not insubstantial. Like Justice Gaudron in Elliott v Seymour, if there be a shade of difference between these concepts, I find it of no significance in the present application.

I can detect no misunderstanding at either level in the Supreme Court of South Australia of the principles governing the grant of interlocutory injunctions nor any error in their application. Indeed, the case against the making of the orders sought appears to have been a strong one. In the judgment at first instance, Justice Nyland referred to various matters. They included the absence of an adequate undertaking as to damages, and the lack of a satisfactory explanation of the delay in bringing the application.

Although the application before Justice Nyland was against the fourteenth and fifteenth respondents only, her Honour did indicate that as paragraph 3 of the originating summons before her referred to all respondents, she should say that she declined to make an order against any of the respondents.

The Full Court, as I indicated, had before it an application for injunctive relief directed to the fourteenth to seventeenth respondents. The Full Court referred to various matters including the absence of a serious question to be tried, inadequate explanation of delay and the failure to offer a satisfactory undertaking for damages. The Full Court indicated that the balance of convenience favoured the respondents.

In oral submissions this afternoon it was urged that the case for the grant of relief to the effect of order 2 had to be understood against the principle of what in some of the cases is called exceptional circumstances. In particular, there was emphasis upon a backlog of injustice, it was said, over a long period of time to Aboriginal Australians including, in particular, those whose interests are said to be imperilled by the proposed development. However much that might present issues to be ventilated at trial, these matters do not amount to exceptional circumstances as that expression is understood when weighing the case for interlocutory injunctive relief.

I conclude that the prospects of success in the special leave application are insubstantial and certainly well below what will be required to obtain the relief sought in order 2. Nor - and this is connected with what I have just said - is there a case then made out to expedite the hearing of the special leave application.

Accordingly, I would dismiss and I do dismiss the summons filed 8 November, 1999. I would certify for counsel but the costs of the summons will be the costs in the special leave application.

AT 3.10 PM THE MATTER WAS CONCLUDED