PARTIES:	FOSTER, Marjorie, FOSTER, Mickey, 
HILL, Maxine, FOSTER, Rhonda, FOSTER, Margaret, STORER, Francis and QUE NOY, Arthur (who bring these proceedings on their own behalf and as representatives of the Kamu people)

		AND

		LINDSAY, Biddy, TAPNGUK, Jimmy
WURRA, Tommy and MYOUNG, Albert

AND

NORTHERN LAND COUNCIL

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE
NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	226 of 1995

DELIVERED:	16 January 1998

HEARING DATES:	20 November 1997

JUDGMENT OF:	MARTIN CJ.

CATCHWORDS:

Procedure - Northern Territory - Supreme Court Rules - Appeal from Master - Disposition without trial - Application for permanent stay or dismissal of writ and statement of claim - Jurisdiction of Court - Whether claim oppressive or vexatious - Separate fora -

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Supreme Court Rules 1987 (NT) O23 r1, r77.05

Barraclough v Brown & Ors (1895-9) All ER 239, distinguished.
Pyx Granite Co Ltd v Ministry of Housing and Local Government & Ors (1959) 3 All ER 1, referred to.
Argosam Finance Co Ltd v Oxby (Inspector of Taxes) & Anor (1964) 1 All ER 791, distinguished.
Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 97 ALR 124, referred to.
Trippe Investments Pty Ltd & Ors v Henderson Investments Pty Ltd & Ors (1992) 106 FLR 215 at 231, referred to.
Tapgnuk & Ors v Northern Land Council & Ors (1996) 5 NTLR 109, discussed.

Supreme Court Rules – Appeal from Master – Disposition without trial – Application for permanent stay or dismissal of writ and statement of claim – Whether cause of action made out on statement of claim or proposed amended statement of claim – Whether plea obviously unsustainable, obviously untenable or manifestly faulty – Estoppel – Relevant detriment –

Supreme Court Rules 1987 (NT) r77.05

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J., applied.
Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387 at 428-9 per Brennan J., referred to.
The Commonwealth v Verwayen (1990) 170 CLR 394, referred to.
Territory Insurance Office v Adlington (1992) 84 NTR 7, per Mildren J., applied.
The Commonwealth v Clark (1994) 2 VR 333 per Omiston J., applied.
Williams, Civil Procedure Victoria, par23.01.15, Butterworths, North Ryde 1997.

REPRESENTATION:

Counsel:

	Plaintiff:	Mr M Hardie
	1st Defendants:	Mr A Lindsay
	2nd Defendant:		Mr R Levy

Solicitors:

	Plaintiff:	M Hardie
	1st Defendants:	Cridlands
	2nd Defendant:		Northern Land Council

Judgment category classification:	B
Judgment ID Number:	mar98001
Number of pages:	17

mar98001

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 226 of 1995

		BETWEEN:

		MARJORIE FOSTER, MICKEY 		FOSTER, MAXINE HILL, RHONDA 		FOSTER, MARGARET FOSTER, 		FRANCIS STORER and ARTHUR 		QUE NOY (who bring these 			proceedings on their own behalf and 		as representatives of the Kamu 			people)
			Plaintiffs

		AND:

		BIDDY LINDSAY, JIMMY 			TAPNGUK, TOMMY WURRA and 		ALBERT MYOUNG
			First Defendants

					AND

					NORTHERN LAND COUNCIL
						Second Defendant

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 16 January 1998)

	Appeals under r77.05 Supreme Court Rules 1987 (NT) from decisions of the Master dismissing the application of the first defendants and second defendant that the writ and statement of claim be permanently stayed, and the action be dismissed pursuant to 023 r1 and the Court’s inherent jurisdiction on the grounds that:

(a)	the statement of claim does not disclose a cause of action;
(b)	the statement of claim is an abuse of the process of the court.

	It is not necessary to distinguish between the submissions made on behalf of each of the defendant parties.

	During the course of the proceedings before the Master, the plaintiffs (“the Kamu people”) had indicated an intention to apply to amend the statement of claim to take into account some of the matters raised in argument.  No steps had been taken in that regard prior to the appeal coming on for hearing.  During the early stages of the argument, however, it became clear that dealing with the application in respect of the original statement of claim would not resolve the issues bearing in mind the contemplated amendments.  The plaintiffs applied for leave to amend.  The first defendants (“the Malak Malak people”) asserted that if the amendments were allowed, that would not remedy the defects in the statement of claim upon which it relied to have the orders made.  Taking into account the Court’s obligation under r1.10, it seemed to me that it was more appropriate to direct argument to the proposed amended statement of claim particularly since, according to the first defendants, the statement of claim even if amended as proposed would not clear away the defects of which they complained.  A copy of the proposed amended statement of claim is annexed.  

	The dispute arises in relation to part of the land (“the country”) within the boundaries of the Daly River (Malak Malak) Land Trust.  It has been ongoing for many years, and the background to the more recent events appears in the decision of Angel J. in Tapgnuk & Ors v Northern Land Council & Ors (1996) 5 NTLR 109.  In those proceedings representatives of the Malak Malak people sought from this Court declarations that they and the people they represent were found by Toohey J., as Aboriginal Land Commissioner, to be the traditional Aboriginal owners of the Daly River (Malak Malak) Land Trust area and that those findings were binding upon the second defendant (“the Council”).  Representatives of the Kamu people were parties to those proceedings as defendants.  The application of the Malak Malak people for declaratory relief was dismissed, and his Honour provided a detailed examination of the relevant provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Commonwealth) during the course of his reasons, and in particular the role of a Land Council with special reference to s24.  At p116 his Honour observes “The section illustrates a recognition by Parliament that traditional Aboriginal owners of land can change over time; ...”.  His Honour also dealt at length with the issue of the significance of the identification of traditional Aboriginal owners of Aboriginal land under the scheme of the Act.

	Both parties sought to rely on affidavit evidence, to much of which objection was taken.

	The application was brought under r23.01 upon the grounds that:

(a)	The claim is bad in law in that the facts pleaded, if made out at trial, could not lead to the orders sought by way of relief or, as some authorities put it, “it is plainly untenable”.  For that purpose the allegations of fact are assumed to be true and no evidence is admissible, and in so far as the affidavit material was directed to that proof, I disregard it.

(b)	The claim is an abuse of process because the Council is authorised by s24 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to compile and maintain a register setting out the names of the persons who, in the opinion of the Council, are the traditional Aboriginal owners of the land in question; it is “Aboriginal land” within the definition in that Act.  This case will require the Court to resolve the question of traditional Aboriginal ownership, and the Court can not or, as a matter of discretion, ought not to involve itself in matters of that kind.

	As to the role of the Council in that regard see Tapgnuk.  

	The evidence discloses that the Council has commenced enquiries into the question of who are the traditional Aboriginal owners of the country and has provided funds to the Malak Malak people and Kamu people to enable “claim books” to be prepared.  The Malak Malak people have agreed to participate in the proceedings before the Council to enable the issue of traditional Aboriginal ownership of the country to be resolved.  The Kamu people are not prepared to participate until these proceedings are determined.  They say that the issue here, that is, the estoppel relied upon against the Malak Malak people, is not a matter for determination by the Council.  Unless the orders sought here are made, then the Malak Malak people will be at liberty to contest the assertions of the Kamu people that they are the traditional Aboriginal owners of the country before the Council.

	Turning to the proposed amended statement of claim, it will be noted that in pars1 and 2, the plaintiffs refer to the Kamu people who “have at all times material claimed to be the traditional Aboriginal owners” of the country.  In par3, however, it is alleged as a fact that those people share a common spiritual affiliation with the country, and in par4 that they are entitled by Aboriginal law to certain foraging rights (see definition “traditional Aboriginal owners”, s3 Aboriginal Land Rights (Northern Territory) Act).  In par5 there is a reversion to the allegation that the Kamu people claim to have primary spiritual responsibility for sites on the country and the country by reason of the previous allegations.  They do not seek a declaration that they are the traditional Aboriginal owners of the country, but seek to clear the way so that their representations to the Council in that regard will not be inhibited by the Malak Malak people.  The Malak Malak people had recognised the Kamu people’s claim to the country in 1988 and instructed the Council to also recognise it (pars15,16 and 16A).  On that basis the Kamu people did not seek to make out their claim at any time upon which they could have done so prior to the grant of the estate in fee simple over the land under the Act.  They were not recognised as the traditional Aboriginal owners to the country in the procedures leading to the grant, and now the Malak Malak people insist on their proving their claim in contested proceedings before the Council (par22A).

	I deal firstly with what might be called the jurisdictional issues.  The Malak Malak people and the second defendant argue that however it is put in the statement of claim, the issue of whether the Kamu people are the traditional Aboriginal owners of the country will have to be resolved by this Court if the proceedings continue.  One question that arises goes to whether the acceptance by the Malak Malak people of the claims of the Kamu people to the traditional Aboriginal owners of the country was occasioned by misleading statements made by them.  The truth of the Kamu's claims to be traditional Aboriginal owners of the country is relevant to the estoppel because there would be no unconscionable conduct on the part of the Malak Malak people if they had been misled (see Trippe Investments Pty Ltd & Ors v Henderson Investments Pty Ltd & Ors (1992) 106 FLR 215 at p231 and the cases there cited).

	In my opinion the primary issue in the suit is not whether the Kamu people are the Aboriginal traditional owners of the country, but whether the Malak Malak people are estopped from denying that they are.  Whether by reason of the pleadings, or as a consequence of the matter being put in issue by the Malak Malak people, it appears that the claims of the Kamu people to be the traditional Aboriginal owners may well fall to be litigated.  However, in this Court the plaintiffs’ primary objective is to preserve the benefit of the bargain which they say was struck with the Malak Malak people in relation to the conduct of the land claim before the Aboriginal Land Commissioner.  They call in aid a jurisdiction not possessed by the second defendant.

	In Alderson & Ors v Northern Land Council (1983) 20 NTR 1 at p8 Muirhead J. said that “the task of finally determining who are traditional Aboriginal owners” vests in the Land Council “as the only determinative body”.  The Council was then obliged by s24 to compile and maintain the register, but the Act has since been amended to make that power discretionary.  Be that as it may, I do not take his Honour’s remarks as governing a situation such as arises in this case so as to effectively exclude the jurisdiction of this Court.  It may be that the evidence before the Court and its determination, if any, as to traditional Aboriginal ownership will assist the Council in forming the opinion upon which to compile the register.  The Kamu people’s right being asserted here is for relief based upon estoppel, and there is nothing in the Act which deprives them of that right nor this Court of jurisdiction in respect of it.  Cases such as Barraclough v Brown & Ors (1895-9) All ER 239 and Argosam Finance Co Limited v Oxby (Inspector of Taxes) and Anor (1964) 1 All ER 791 are distinguishable on this basis.  The plaintiffs’ position is supported by Pyx Granite Co Limited v Ministry of Housing and Local Government & Ors (1959) 3 All ER 1.

	However, the submission of the Malak Malak people under this heading goes further.  They say that the claim should be dismissed or stayed as being oppressive or vexatious because, upon the assumption that the Council proceeds with its hearing, the issue of whether the Kamu people are the traditional Aboriginal owners of the country will be before the Court and the Council.  That, they say, would be seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment (see Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 97 ALR 124 and the cases there referred to to do with inappropriate forum arguments).  But I do not think this line of reasoning assists, because the very issue before this Court is whether they are at liberty to contest the question of traditional Aboriginal ownership before the Council.  Whether they are to be oppressed as they suggest depends upon the outcome of these proceedings, and it cannot therefore be said that they must contest the issue in separate fora.  The Court is not an inappropriate forum to deal with the estoppel issue.

	These reasons have proceeded thus far to consider whether the Court has jurisdiction to entertain a suit of this kind and whether it should entertain it, and I hold that it does and should.

	It is now necessary to turn to consider whether a cause of action is made out on the statement of claim or proposed amended statement of claim.  It is advanced in the following way:

•	The Kamu people have at all material times claimed to be traditional Aboriginal owners of land in the Daly River region;

•	In 1978 the Council lodged a land claim over land in that region, including the land over which the plaintiffs claim to be traditional Aboriginal owners;

•	The plaintiffs were not put forward as traditional Aboriginal owners by the Council in that claim;

•	In 1981 the Council represented to the Kamu people that they may not succeed in the land claim (it is common ground that the identity of claimants often change prior to and indeed during the course of hearings of land claims) and it was intended to put forward the Malak Malak people as claimants to the whole of the land, the subject of the claim, but that following the land claim (just when is not particularised) a meeting be held to recognise the Kamu as traditional owners of the country;

•	The report of Toohey J. as Aboriginal Land Commissioner was delivered to the Minister in 1982, and from then until 1988 the Kamu people have sought to have their claims recognised by the Council;

•	During 1988 members of the Malak Malak people represented to the Kamu and the second defendant that:

“(i)	they recognised the Kamu’s claim to have their country formally recognised by the Second Defendant;

(ii)	the Kamu people not seek to reopen or review the Land Claim;

(iii)	that following the grant of the Land Trust Area to the Land Trust, the names of the Kamu people would be added to the list of traditional owners of the Land Trust Area;

(iv)	Kamu Country included the sites attributed to Old Timbak by the Land Commissioner in his report; and

(v)	that the boundary between the Kamu Country and Malak Malak Country should fall on the western side of those sites.”
(See par15 of the proposed amended statement of claim).

•	Further, during 1988, “members of the Malak Malak people instructed and requested that the Second Defendant pass a resolution recognising the Kamu people as the traditional owners of the Kamu country” (par16).

	The foregoing is the background and the representations made in 1988 relied upon by the Kamu people to found their claim against the Malak Malak people.

	It is then asserted in par16B that the Kamu people assumed that following the land claim and the grant of the land to the Land Trust, the Council would hold a meeting and the Kamu people would be formally recognised as the traditional Aboriginal owners of the country.  On reliance upon all that, the Kamu people did not seek to have their claims to be Aboriginal traditional owners of the country reviewed or reopened prior to the grant of the land to the Land Trust in 1990.

	In par17A of the proposed amended statement of claim, the plaintiffs set out details of the things that they say they omitted to do which, if done, could have resulted in their position as traditional Aboriginal owners of the country being recognised.  They also say that certain evidence is no longer available to them because of the death of people.  All those things amount to relevant detriment, they say, because had they not so restrained themselves they would have had the opportunity to prove their traditional Aboriginal ownership to the country.  However, it is alleged that the Malak Malak people resiled from the representations after the grant to the Land Trust (see pars20, 21 and 22).

	The Kamu people do not assert that they have lost the opportunity to make out their case to the Council.  What they say they have lost is the opportunity to do so unhindered by the Malak Malak people.  It is not contended that any authority having jurisdiction to determine who are the traditional Aboriginal owners of a particular piece of land, including the Council, would as a matter of course make such a determination in favour of claimants simply because the claim was not opposed.  No where is it suggested that the Kamu people have not been obliged, and are not obliged, to prove their case before whatever forum the issue arises, and that in the face of whatsoever may be put against them from whatsoever source.

	It is submitted that the pleading of the estoppel is deficient in that it fails to disclose that the Kamu people changed their position to their detriment.  To succeed on this ground it must be shown that the plea is “obviously unsustainable”; “obviously untenable”; “manifestly faulty” and see the cases referred to in Williams Civil Procedure Victoria, par23.01.15 and the well known words of Dixon J. in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at p91.  

	As to the elements of estoppel, it is sufficient for this case to refer to the judgment of Brennan J. in Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387 at 428-9.

	The authorities as to what can amount to relevant detriment, are collected and considered by Mildren J. in the Court of Appeal of the Northern Territory in Territory Insurance Office v Adlington (1992) 84 NTR 7 (Asche CJ. and Martin J. agreeing).  To found an estoppel it is necessary to plead that the party seeking to establish it has altered his position to his detriment on the faith of the representation made by the other party (pp10 and 11).  The detriment alleged must be “material” or “real”; a speculative possibility of detriment is not sufficient (pp15 and 17); the detriment alleged must be considered at the “moment when the representator proposes to resile from his representation” (p18).  Sometimes the word “disadvantage” is used instead of “detriment”.  The question of “detriment” is dealt with extensively in the separate reasons of the members of the High Court in The Commonwealth v Verwayen (1990) 170 CLR 394, and I have found the analysis of those reasons undertaken by Ormiston J. in The Commonwealth v Clark (1994) 2 VR 333 to be particularly helpful, with respect.  At p356 his Honour says that the principle is more correctly expressed by having regard to “the real detriment or harm from which the law seeks to give protection [being] that which would flow from the change of position if the assumption were deserted that led to it”, and see the references to support that proposition.

	Commencing at p369 his Honour looks at what the members of the High Court said in Verwayen as to detriment, and at p373 quotes what is said by Brennan J. at p429 of Verwayen: 

“The relevant detriment in a case of equitable estoppel is detriment occasioned by reliance on a promise, that is, detriment occasioned by acting or abstaining from acting on the faith of a promise that is not fulfilled.  The relevant detriment does not consist in a loss attributable merely to non-fulfilment of the promise.”

	And at p376 said that:

“Each of the members of the High Court stated, explicitly or implicitly, the relevant principle as requiring proof of an act or omission to act in reliance on an induced assumption which “would” (or “will”) cause detriment if the assumption were departed from”.  

	In conclusion, at p380, his Honour said that consistent with principles stated by the High Court in Verwayen’s case and earlier cases:

“… that what must be demonstrated are acts, facts or circumstances from which it can be inferred: 

1.	that detriment to the party claiming estoppel is more likely than not to occur if the other party is permitted to depart from the assumption relied upon; and

2.	that detriment of that kind will derive from the first party’s proven acts or inaction in reliance on the assumption.  

In my opinion those are the elements of “detriment” which must be affirmatively established by a party seeking to rely upon equitable estoppel.”

	With respect, I accept his Honour’s analysis.

	It is submitted that the Kamu people plead no relevant detriment.  There is no detriment in the Kamu having refrained from doing anything to demonstrate their claim prior to the grant to the Land Trust because they have not lost the opportunity to demonstrate their claim in another competent forum, that is, before the Council.  Nothing is pleaded with a view to showing that there is any detriment in proceeding before the Council as opposed to what might have been done by representations in other quarters prior to the grant.  Nor is it suggested in the pleadings that recognition of the Kamu as the traditional Aboriginal owners of the country by the Council, if granted, would be of any lesser significance than if they had made out their claim prior to the grant.  There is no detriment on this account which derives from the inaction of the Kamu people between the time the representations were made in 1988 and the time when it is alleged the Malak Malak people resiled from them in 1990.  In effect, what is put is that the Kamu people are no worse off than if the representations had never been made, they are simply back to where they were in 1988.  I accept that.

	The remaining possible plea of detriment is that alleged in par 17A(e) of the proposed amended statement of claim.  It is singularly lacking in particularity, but all that I am concerned to look at for now, is whether the pleading of the estoppel is, for example, “obviously unsustainable” in that the allegation does not go to the element of detriment.  Assuming that it might be inferred from the plea that it is alleged that because of the inaction of the Kamu in not pursuing their claim to be the traditional Aboriginal owners of the country between 1988 and 1990 they lost the capacity to call evidence relevant to their claim because the people who could give that evidence had died, it does not demonstrate any relevant detriment.  There is no allegation that the evidence, which might have been called from the deceased persons, would have assisted the Kamu.  (It is to be noted that some of the people who were said to have died were Malak Malak people).  Assuming that the plea is directed to the relevant time, and that is by no means clear, all it asserts is that some people have died who could have given evidence, but it cannot be inferred that the Kamu people would suffer any detriment thereby if the Malak Malak people are permitted to depart from the assumption which the Kamu people say they relied upon.

	In my opinion no relevant detriment is pleaded and thus the cause of action based upon estoppel is incomplete.

	That is enough to dispose of the appeal, but it was also submitted that in general terms the proceedings failed to disclose a cause of action.  It now appears that equitable estoppel operates as a source of substantive rights and is thus enforceable as a cause of action in its own right.  A party entitled to equitable relief to make good some detriment suffered in reliance on a promise or assumption has a cause of action rather than a mere defence to a claim made by the other party (Halsburys Laws of Australia, par190-575 and the authorities there cited).  It is also objected that the relief or remedy claimed in the statement of claim pursuant to the requirement of r13.02(1)(c) is not available.  Assuming that were so, that would not be a good ground to dismiss the action bearing in mind that the Court would grant whatever relief is appropriate to the facts proved at trial, even though not specifically claimed in the statement of claim, see r59.01.  Estoppel is intended to serve a fundamental purpose, namely “protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted” per Brennan J. in Waltons Stores v Maher at p419, adopted by Mason CJ. in Verwayen at p409.  The extent of the relief, if any, is flexible, but goes no further than is necessary to prevent unconscionable conduct, per Mason CJ. in Verwayen at pp411-413.  There must be proportionality between the remedy and the detriment, which may well fall short of binding the representor to the representation.

	The appeals are allowed.  The application to amend the statement of claim is dismissed.  The action is dismissed.  The plaintiffs must pay the costs of the first and second defendants of the action including the appeals.

-------------------------------------