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Editors --- "Carriage v Duke Australia Operations Pty Ltd - Case Summary" [2001] AUIndigLawRpr 29; (2001) 6(3) Australian Indigenous Law Reporter 20

Court and Tribunal Decisions - Australia

Carriage v Duke Australia Operations Pty Ltd

Supreme Court of New South Wales (Young J)

10 March 2000

[2000] NSWSC 239

Native Title — effect of s 41(1) of the Native Title Act 1993 (Cth) — injunctions — damages as an adequate remedy — undertaking as to damages — action brought by members of a native title claimant group personally, not in a representative capacity — meaning of ‘land disturbance’

Facts:

A native title consent agreement was entered into in 1997 between certain native title claimants and a predecessor of the defendant (the ‘Agreement’). The Agreement authorised the Defendant to acquire an easement for the construction of a gas pipeline carrying gas from Bass Strait through southeastern Australia to Sydney. The Agreement provided in part that the defendant would employ at all stages of construction involving land disturbance (clearing, grading and trenching) an Aboriginal Archaeological Consultant and two Aboriginal Monitors nominated by the native title groups who were parties to the agreement. The plaintiffs sought an injunction to restrain alleged breaches of the Agreement by the defendant, in that it had prevented the monitoring of trenching in solid rock and some other areas as well as the backfilling process. The plaintiffs had signed the Agreement in a representative capacity. The plaintiffs however sought the injunction as individuals who, while acting in the interests of their people who were secured by the Agreement, did not appear in Court formally in a representative capacity.

When the matter first came before the Court the plaintiffs were granted an interim injunction.

Held, granting an interlocutory injunction:

1. ‘Land’ could include soil, surface or general topography: at para [10] of the judgment.

2. The word ‘disturbance’ is usually widely construed and accordingly land disturbance can include the work of backfilling a trench: Corkill v Forestry Commission of NSW (No 2) (1991) 73 LGRA 126 at 139 applied: at para [9].

3. Section 41(1) of the Native Title Act 1993 (Cth) means there is a deemed contract that is enforceable at equity, if, in the present circumstances, not at law: at para [13].

4. The defendant as assignee of the original contract could be subject to the burden undertaken by the assignor: De Mattos v Gibson (1859) 4 De G & J 276; 45 ER 108 applied: at para [13].

5. Damages are not an adequate remedy where:

(a) there is an equitable contract (at para [13]); and
(b) the cultural significance of what might be lost cannot be assessed in money by way of damages (at para [15]).

6. Despite the incapacity of the plaintiffs to give the usual undertaking as to damages the injunction was granted by an arrangement that involved the defendant putting money into a trust account pending the final hearing: at paras [22]–[24]. l