Bropho v Western Australia [1990] HCA 24

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Bropho v Western Australia [1990] HCA 24

ORDER Appeal allowed with costs. Set aside the orders of the Full Court of the Supreme Court and in lieu thereof order that the appeal to that Court be allowed with costs. Set aside the orders of Master White striking out the appellant's statement of claim and dismissing his action and in lieu thereof order that the summons brought by the respondents be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 20 Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The appellant, Robert Bropho, instituted proceedings in the Supreme Court of Western Australia against the respondents, the State of Western Australia and the Western Australian Development Corporation. His action was founded upon provisions of the Aboriginal Heritage Act 1972 W.A. ("the Act"). In it, he sought a declaration that certain land in Perth, which may conveniently be referred to as "the Swan Brewery Site", is "situated within an Aboriginal site or sites to which Section 5 [of the Act] applies" and an injunction restraining the respondents "from using or permitting to be used" the Swan Brewery Site or any land within the alleged Aboriginal site or sites "for the erection of walls or buildings or digging or tunnelling or in any way altering the Aboriginal site". The respondents applied for orders striking out the statement of claim and dismissing the action. Master White made such orders on the ground that the provisions of the Act did not bind the Crown. The Full Supreme Court (Malcolm C.J. and Brinsden J., Wallace J. dissenting) dismissed an appeal from the Master's orders. The appeal to this Court is from the judgment and orders of the Full Court.