SUPREME COURT OF QUEENSLAND

[1] McMURDO J:  The present proceedings were commenced in the High Court on 13 April 2000 and were remitted to this court on 28 August 2001.  The relief claimed by the writ was an order for the payment of $285,000 by the defendants to the plaintiffs as damages upon several bases. 

[2] The first and second defendants worked for the Queensland Parks and Wildlife Service, a department of the State of Queensland, which is the third defendant. I will call these three defendants the Queensland defendants.  The fourth defendant is the Commonwealth.  The writ contained some detail of the plaintiffs’ case which in some ways resembles a pleading.  The claim or claims endorsed upon the writ arise from events on Fraser Island on 17 August 1999.  It is said that the plaintiffs, other than Mr Jones, were found by the first and second defendants with “a quantity of turtle meat, two live turtles, a spear and wop (a spear for turtle and dugong) and other equipment”.  They were asked by the first and second defendants “Who gave you authority to take turtles?” and they answered “Our Elders” to which the officers said “If your Elders told you to rob a bank would you do that?”  The officers asked those plaintiffs to accompany them to their office at Maryborough, which they did.  It is claimed that the officers told them “not to make a scarper” and they later conducted an “interrogation” of each of the detainees separately in a closed room.

[3] The same sum of $285,000 was claimed for “wrongful seizure of Property, the action of detinue for witholding property, the act of false imprisonment and the suffering and anguish caused by these actions.” as well as humiliation said to have been caused by certain media statements by the officers.  The claim by the first plaintiff, Mr Jones, is that as an Elder of the Dalungbara Aboriginal People, he was defamed by a question “If your Elders told you to rob a bank would you do that?”

[4] Again, according to the writ, the State of Queensland is liable not simply for the  alleged wrongs of its employees, but because of alleged statutory responsibilities for the management of Fraser Island, its environment and an alleged trusteeship under which it is said to be the trustee for the “Property of the Dalungbara People”. The  Commonwealth is sued upon bases which are discussed below.

[5] The plaintiffs have filed a statement of claim from which some of these claims would seem to be abandoned.

The present applications

[6] The Queensland defendants have applied for the proceedings to be dismissed for want of prosecution or, in the alternative, for the plaintiffs’ pleading to be struck out or declared to be of no effect.  The Commonwealth applies for the same orders and in the alternative, an order that pursuant to Uniform Civil Procedure Rules 1999 (Cth) (“UCPR”), r 69(1)(a), it be removed from the proceeding.  The plaintiffs apply to amend to add a further cause of action, in relation to different events on Fraser Island involving the removal of wild horses, and they seek an injunction to restrain any such further conduct in relation to the horses.

The proceedings so far

[7] When the case was remitted to this court in August 2001, there had been no progress apart from the filing of entries of appearance.  Nor had it been progressed by the time the Commonwealth filed on application which was heard and determined by Byrne J on 31 March 2003.  According to that application as filed, the Commonwealth sought orders that the writ in respect of the Commonwealth “be struck out on the ground that it discloses no reasonable cause of action” and that the action as against the Commonwealth be dismissed.  Byrne J dismissed the application and reserved costs.  According to his Honour’s reasons, the application as argued for the Commonwealth was somewhat different to the application as filed, for his Honour observed that:

“I am not now confronted with an application to strike the proceedings out … on the footing that no reasonable cause of action is disclosed.  Rather, the application seeks an order pursuant to UCPR 69 that the Commonwealth be removed from the proceedings upon the basis that it has been improperly or unnecessarily included as a party.” 

[8] His Honour concluded that the Commonwealth had not established that its joinder was “improper” in the relevant sense for UCPR, r 69.  He said that:

“It will therefore be quite necessary for a statement of claim to be delivered to facilitate what, it seems, will be the inevitable contest concerning the Commonwealth’s contention that its joinder is improper or unnecessary or that, if it is minded to make the allegation, the claim against it should be dismissed upon the footing that it has no arguable prospect of success.”

[9] But no statement of claim was filed until 29 March 2005.  I was told by the plaintiff Mr Jones, who appeared representing all plaintiffs, that he has been unable to attend to this case because he has been seriously ill.  I accept this explanation which was unchallenged.

[10] Each of the defendants says that the filing of that pleading is affected by the operation of UCPR r 389.  The Queensland defendants argue that the last step taken before this pleading was the hearing and dismissal of the Commonwealth’s application on 31 March 2003.  They say that the plaintiffs should have given notice pursuant to r 389(1) of their intention to proceed, and that although the consequence of their failure to give notice is not to nullify the step,[1] I should set aside the statement of claim and declare it to be ineffectual pursuant to r 371(2).   The Commonwealth argues that the last step had been the filing of an entry of appearance on behalf of the first and second defendants on 10 May 2000, so that more than two years had elapsed and that by r 389(2) the statement of claim could not have been filed without an order of the court.  It is unnecessary to decide when the last step had been taken for the purposes of r 389.  Upon any view, the statement of claim was filed contrary to r 389 and the question is whether it should be set aside and declared ineffectual or whether it should be declared to have been an effective step.  In this case, that question is answered by the pleading’s many defects in complying with the requirements of a proper pleading and, in the case against  the Commonwealth, the absence of any apparent basis for the plaintiffs’ claim.

The statement of claim

[11] Paragraphs 1 through 11 of the pleading allege matters apparently directed to the plaintiffs’ respective entitlements to sue.  Paragraph 1 alleges that, with one exception, they are persons of Aboriginal descent and that that other plaintiff, Reginald Thegea, “is in a long term de facto relationship with [the plaintiff] Tania Brown and Is accepted in the aboriginal community”.  There are then pleaded various matters relating to the connection of one or more plaintiffs with the Dalungbara Land Council and with certain proceedings in the Federal Court in which there is a claim for native title.  There are allegations of events in other proceedings in this court.  One example is in paragraph 5, where it is alleged that the Aboriginality of the plaintiff Mr Jones is acknowledged by a document said to have been compiled by the Queensland Government and tendered on its behalf in other proceedings.  Paragraph 6 pleads that in yet other proceedings in this court an order was made whereby Mr Jones could represent certain Aboriginal people, and in paragraph 7, it is pleaded that Mr Jones’ Aboriginality “is attested” when regard is had to his participation as the representative of the children of the late Elliot Bennett in another case.  Paragraphs 8, 9 and 10 make further reference to matters within those and other proceedings in this court, apparently for the purpose of arguing a case that Mr Jones is of Aboriginal descent and is an Elder of the Dalungdalee people.  Paragraph 11 repeats a similar claim in relation to Mr Jones by reference to what is described as a “Proclamation of rights of the Dalungdalee People of Fraser Island Dated 4th June 1991”.

[12] Paragraphs 12 through 15 then plead matters relating to what is described as the Great Sandy Region Management Plan of 1994, which is described as “legislated by the State of Queensland [and] sanctioned by the Commonwealth and the United Nations World Heritage Commission”.[2]  Paragraph 14 alleges that the document provides that:

“Local Government, the Queensland Government and the Commonwealth Government are involved in management and administration within the region.

Within each level of government, a number of departments, agencies and authorities have responsibilities for various matters.”

Paragraph 15 pleads that the document further provided that the Commonwealth has “an international obligation” to protect and conserve World Heritage listed properties.

[13] Paragraph 16 pleads the constitutional validity of the World Heritage Properties Conservation Act 1983 (Cth) (although that Act has now been repealed[3]).

[14] Paragraph 17 pleads:

“Subsequently the Senate Inquiry into the Jabiluka Uranium Mine Project Report outlined the responsibilities of the Commonwealth and the enactment of the Environment Protection and Biodiversity Conservation act 1999.”

Paragraph 17 then sets out paragraphs (d), (e), (f) and (g) of s 3 of that Act which is an expression of some of its objects.  The pleading does not go on to refer to any provision of that Act by which the Commonwealth could be liable for the actions of employees of the State of Queensland.

[15] Paragraphs 18 to 21 plead references to certain anthropological material, in relation to Aboriginal groups on Fraser Island, after which there is an unnumbered paragraph which reads:

“The above outlines the Responsibilities of the Commonwealth of Australia Regarding World Heritage Fraser Island, and the Duty of Care to not only The DALUNGBARA, BATCHALA AND NGULUNGBARA Aboriginal People of World Heritage Fraser Island but to all Aborigines across Australia.”

Despite this reference to a duty of care, there is no claim endorsed on the writ which is for damages for negligence.

[16] Paragraph 22 simply repeats what is endorsed on the writ in relation to the Commonwealth, which is that it has “the over riding responsibility of the FRASER ISLAND AND GREAT SANDY REGION WORLD HERITAGE park to the United Nations and pursuant to World Heritage Properties Conservation Act 1983”.  Paragraph 23 pleads that from this responsibility of the Commonwealth, “the Queensland State Agencies must be subject to this responsibility”.  Paragraph 26 is pleaded simply in these terms: “The State of Queensland is directly responsible to the Commonwealth”.

[17] Paragraph 24 pleads that the plaintiffs’ claims against the first and second defendants are as described in the writ, and it refers to the causes of action I have mentioned in paragraph 3 above but with the notable exception of a claim for damages for defamation.  Paragraph 25 pleads that the first and second defendants are “Agents for the State of Queensland who are responsible for the day to day management of the World Heritage Fraser Island”.  Paragraph 27 pleads that the State of Queensland and the Commonwealth “can not legally abrogate their responsibilities to oversee the management of Fraser Island World Heritage Park claiming that they are not responsible for the criminal actions of their Agents”.  Paragraphs 28 and 29 are as follows:

“28It is for the Court to decide as the Plaintiffs claim for relief-

(2)The Court to determine which of the Defendants be liable or if liability is to be shared.

AUTHORITIES:

World Heritage

1.Environment Protection (Impact of Proposals) Act 1975

2.National Parks and Wildlife Conservation Act 1975

3.World Heritage Properties Conservation Act 1983

4.Environmenr (sic) Protection and Biodiversity Conservation Act 1999

Native Title

Native Title Statutes –

1.Racial Discrimination Act 1975 (Cmwlth)

2.Native Title Act 1993

3.Human Rights and Equal Opportunity Commission Act 1986

Fiduciary Duty Statutes

All Queensland Aboriginal Protection Act since 1897 including Present Community Services (Aborigines) Act 1994

Constructive Trusteeship

As declared by the High Court Australia in the Murray island Case 1992.

29.As the Plaintiffs are of aboriginal descent and are Beneficiaries of the Constructive Trusteeship created by numerous State and Commonwealth Statutes, Statutes of Limitations can not be imposed and Costs must be born By the Trustees when an aborigine seeks redress against the Trustee in any Court of Australia.

The case against the Commonwealth

[18] It appears then that the case which is purportedly pleaded is one which depends upon the wrongdoing of the acts of the first and second defendants.  From paragraphs 24 to 27, it appears that the suggested basis for the claim against the Commonwealth, like the claim against the State of Queensland, is that it is vicariously liable for the wrongs committed by the first and second defendants.  The basis for attributing responsibility to the State of Queensland is clear; it was their employer.  The basis for attributing responsibility to the Commonwealth does not at all appear.  The link between the conduct of employees of the State of Queensland and the alleged liability of the Commonwealth is that the Commonwealth has a responsibility for the environmental protection of Fraser Island.  That responsibility is now pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth).  Undoubtedly that imposes responsibilities upon the Commonwealth.  In particular, by s 322 the Commonwealth and each Commonwealth agency[4] owes certain duties in relation to a property that is a declared World Heritage property.  But the question is whether in the facts and circumstances of this matter, there is a basis for alleging that the relationship between the Commonwealth and the first and second defendants is such that the Commonwealth could be vicariously liable for their wrongdoing.

[19] There is nothing pleaded about the particular relationship between the Commonwealth and these two men by which it could be said that they were representing the Commonwealth.  No facts are pleaded to suggest that they were in any sense performing work for the Commonwealth or providing a service on its behalf.  Nor is there any pleaded fact to the effect that they acted under the control of the Commonwealth or that the Commonwealth in any sense purported to direct or supervise their work.  The Environment Protection and Biodiversity Conservation Act does provide for arrangements whereby certain officers or employees in the Public Service of a State or Territory could perform or exercise the functions or powers of  a warden, rangers or inspectors under that Act: s 393, s 398.  But there is no allegation that there was such an arrangement which is relevant to this case.  Instead, as I have mentioned, the plaintiffs put their case upon the basis of the broad responsibilities of the Commonwealth for the protection of Fraser Island and the notion, as pleaded in paragraph 26, that the “State of Queensland is directly responsible to the Commonwealth”.

[20] In my conclusion the plaintiffs’ case against the Commonwealth satisfies the test expressed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130.  The case as pleaded cannot succeed and it is “manifestly groundless”.  In this context, allowance must be made for the fact that the plaintiffs are not legally represented.  As Kirby P, with whom Hope and Samuels JJA agreed, said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7:

“… the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law.  Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage.  Courts should approach the peremptory termination of the litigation with special care to ensure that, with a possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form.  If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the court from examining any merits of the case, once the statement of claim is struck out. … If such a viable cause of action could be found, although not stated properly in the statement of claim, it could give rise to leave to amend and the avoidance of the peremptory termination of the litigation sought by the respondent.”

Those observations are particularly relevant to the application by the Queensland defendants, as I will discuss.  In relation to the claim against the Commonwealth however, the writ and this statement of claim demonstrate that it is founded upon a false premise, which is that the Commonwealth, through its statutory responsibility for the protection of the environment of the relevant area, is vicariously liable for the alleged wrongs of the first and second defendants.  The proceedings against the Commonwealth should be dismissed.

The case against the other defendants

[21] The pleading against the Queensland defendants is defective in a number of respects.  But it is not so plain that the case against them is manifestly groundless or, put another way, is so obviously untenable that it cannot possibly succeed.[5]

[22] As the Queensland defendants submit, much of the pleading consists of evidence rather than allegations of material facts, and the pleading is embarrassing at least for its numerous references to irrelevant material such as unrelated proceedings.  Moreover, it is not realistic to endeavour to dissect that which is embarrassing from that which might not be.  The pleading as a whole must be disallowed. 

[23] Nevertheless, the position of the Queensland defendants, at least for the present, differs from that of the Commonwealth in that there is an apparent basis for a claim for damages against them, although not yet an apparent basis for those damages being assessed at $285,000.  There are specific acts complained of against the first and second defendants who are undoubtedly employed by the State of Queensland.  So there is a claim for wrongful seizure of property and certain property as identified.  The plaintiffs’ rights in relation to those items would appear to be sourced from an alleged native title, although the facts to make out such a claim are not pleaded.[6]  At present, the proceedings against the Queensland defendants are not so obviously devoid of merit that they should be summarily dismissed upon that ground.

[24] The Queensland defendants argue that the proceedings should be dismissed upon the basis that they have not been duly prosecuted.  They point to the extensive delays since the proceedings were commenced in the High Court in April 2000.  It is now six years since the events occurred and the issues could well involve some contest as to precisely what occurred on the day in question.  I have mentioned the explanation for the delay since March 2003, but the delay until then is unexplained.  In Cooper v Hopgood & Ganim [1999] 2 Qd R 113, McPherson JA at 124 mentioned some of the factors relevant to the exercise of the discretionary power to dismiss an action for want of prosecution.  They are the duration of the time lapse involved, the cogency of an explanation for delay, the probable impact of procrastination on fading recollection, the death of disappearance of critical witnesses and records, costs already or likely in future to be expended or thrown away, the apparent prospects of success or otherwise at the trial of the action, and the problem of hearing and determining questions of fact arising out of events which had taken place many years before.  The prospects of success cannot be fairly assessed at present.  There is no suggestion of the death or disappearance of critical witnesses or records.

[25] In my conclusion the plaintiffs should have at least one more opportunity to plead their case.  In the assessment of the impact of delay for a fair trial, it is relevant to note that less than six years, which is the relevant limitation period for any of these claims, has passed since the events in question.  That is not fatal to the defendants’ submission, but that matter makes this case compare favourably with others in which proceedings have been struck out for undue delay.  And although the case is yet to be properly pleaded, the commencement of these proceedings in April 2000, where the inclusion of relatively great detail within the writ of summons, and the hearing before Callinan J in which the case was remitted, which took place in August 2001, gave the defendants some opportunity to begin to prepare their response to this claim at a point not long after the day in question.  The application for dismissal for want of prosecution should itself be dismissed and the plaintiffs should be ordered to file an amended statement of claim by 1 August 2005.

Plaintiffs’ application to add a new case

[26] The plaintiffs have applied to add three individuals as the fifth, sixth and seventh defendants.  Like the first and second defendants, they are officers of the Queensland Parks and Wildlife Service.  They seek “an Order for a prohibitory Injunction so that no more horses, the property of the Plaintiff (sic) be removed from Fraser Island. By the Defendants (sic)” and they seek to add a claim in detinue for the horses.

[27] The plaintiffs’ complaint is that they are the owners of horses which were rounded up by officers of the Parks and Wildlife Service and taken from Fraser Island.  The plaintiff, Mr Jones, claims that as a descendant of a Mr Harry Aldridge and his Aboriginal wife, Labbi Dalungdalee, who are said to have been the owners of horses from which the subject animals were descended, he has a proprietary interest affected by the actions of rounding up and removal.  The horses were rounded up earlier this year and events the subject of this proposed claim are quite distinct from those of the present proceedings.  Mr Jones made it clear the claim in relation to the horses does not involve a claim of native title. 

[28] The proposed case has not been articulated by a draft pleading.  It would be better to determine whether there is an arguable case on the basis of a pleading.  But at present there appear to be at least two problems with it.  The first is in the proof that as a descendent of Mr Aldridge and his wife, and simply from that fact, he is entitled to what remains of their property.  The second is that it appears that these horses were wild animals in which there was no property.[7]  It is unnecessary to resolve those questions at present.  It is sufficient to say that the case Mr Jones has in mind has no basis which is yet demonstrated as to make it a serious case.  Although the filed application claims an injunction of final effect, I understood Mr Jones to ask for some interlocutory order.  As I have said, he has not yet demonstrated a serious case to be tried.  In addition, Mr Jones has not advanced facts which are persuasive in a consideration of the balance of convenience.  Assuming everything else in his favour, his claim is that certain chattels belonging to him have been removed from Fraser Island.  He does not explain how any interference with his proprietary rights in relation to chattels cannot be compensated by damages.  As I have said, it is no part of this claim that he has a native title.  The plaintiffs’ application filed on 20 April 2005 should be dismissed.

[29] Subject to any further submissions, the plaintiffs must pay the Commonwealth’s costs of the proceedings against it, and the costs of the other defendants of their application of the plaintiffs’ application.