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

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