Sperrer v Rasla Pty Ltd [2011] NTSC 02

PARTIES:                                         DERRECK SPERRER


                                                         RASLA PTY LTD



FILE NO:                                          58 OF 2010 (21018938)

DELIVERED:                                   6 JANUARY 2011

HEARING DATES:                           9 DECEMBER 2010

JUDGMENT OF:                              MASTER LUPPINO


Practice and procedure – Summary judgment – Applicable principles –Laches, acquiescence and waiver.

Supreme Court Rules (NT) O 22.02, 22.06.

Nibbs v Australian Broadcasting Corporation [2010] NTSC 52; Sportsbet Pty Ltd v Moraitis [2010] NTSC 24; Hausman & Anor v Abigroup Contractors Pty Ltd [2009] VSCA 288; The Cloverdell Lumber Company Pty Ltd & Ors v Abbott (1924) 34 CLR 122; Wallingford v Mutual Society (1880) 5 App Cas 704;

Equity Doctrines and Remedies, Meagher Gummow & Lehane, 4th Edition, Butterworths, 2002


    Plaintiff:                                      Mr Young
    Defendant:                                    Mr Liveris

    Plaintiff:                                      David Francis & Associates
    Defendant:                                    Withnalls

Judgment category classification:    B
Judgment ID Number:                       LUP1010
Number of pages:                             14


Sperrer v Rasla Pty Ltd [2011] NTSC 02
No. 58 of 2010 (21018938)



                                                     DERRECK SPERRER


                                                     RASLA PTY LTD



(Delivered 6 January 2011)

The Plaintiff has applied by Interlocutory Summons filed 28 October 2010 seeking summary judgment pursuant to Order 22 Rule 2 of the Supreme Court Rules (“the Rules”) which provides:-

  1. 22.02           Application for judgment
  2. (1)     Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against the defendant on the ground that the defendant has no defence to the whole or part of a claim included in the writ or statement of claim, or no defence except as to the amount of a claim.
  3. (2)     Subrule (1) does not apply to a claim for defamation malicious prosecution, false imprisonment or seduction or to a claim based on an allegation of fraud.
  4. (3)     Where the writ or statement of claim includes a claim within subrule (2), the plaintiff may apply for judgment in respect of any other claim and continue the proceeding for the first-mentioned claim.
  5. (4)     Except by order of the Court, the plaintiff shall make only one application for judgment under this Order.

Order 22 Rule 6 is also relevant and that provides:-

  1. 22.06 Hearing of application
  2. (1)     On the hearing of the application the Court may:
  3. (a)      dismiss the application;
  4. (b)     give such judgment for the plaintiff against the defendant on the claim or the part of the claim to which the application relates as is appropriate having regard to the nature of the relief or remedy claimed, unless the defendant satisfies the Court that in respect of that claim or part a question ought to be tried or that there ought for some other reason be a trial of that claim or part;
  5. (c)     give the defendant leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or
  6. (d)     with the consent of all parties, and notwithstanding rule 77.03(1), dispose of the proceeding finally in a summary manner.
  7. (2)     The Court may stay the execution of a judgment given under subrule (1)(b) until after the trial of a counterclaim made by the defendant in the proceeding.

The legal principles in relation to applications for summary judgment are well established. I discussed the authorities in detail in Nibbs v Australian Broadcasting Corporation. The principles were neatly summarised by Southwood J in Sportsbet Pty Ltd v Moraitis, where his Honour said:-

  1. The substance of the criterion to be applied is that, after the matter involved has been explained to the Judge, there must be a real uncertainty as to the plaintiff’s right to judgment. The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
  2. A burden is cast on the defendant of satisfying the Court that there ought to be a trial and, if not, judgment. The provisions of O 22 of the Supreme Court Rules apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment.

His Honour then went on to elaborate on the relevant principles. The following extracts represent the principles relevant to the current matter, namely:-

  1. 1.        The Court will give the judgment unless the defendant shows cause against the application to the satisfaction of the Court.
  2. 2.        A defendant will be granted leave to defend if there are facts which, if true, would constitute a defence to the plaintiff’s claim. The Court is reluctant to try a case on affidavit where there are facts in dispute.
  3. 3.        An important issue is whether the defendant’s account of the facts has sufficient prima facie plausibility to merit further investigation, whether of fact or law.
  4. 4.        The Court will normally require an affidavit by or on behalf of a defendant before a defendant will be granted leave to defend. The defendant is required to use such diligence as is reasonable in the circumstances to put before the Court in a summary form all of the evidence relied on by the defendant in defence of the plaintiff’s claim.
  5. 5.        A defendant should condescend into particulars. The evidence of the defendant must deal specifically with the facts relied upon by the plaintiff in support of its application. The affidavit of the defendant should state clearly and concisely what facts are relied on as supporting the defence.

In relation to the obligation on a defendant opposing an application for summary judgment and in respect of the evidence required to be produced by a defendant, in Hausman & Anor v Abigroup Contractors Pty Ltd, the Victorian Court of Appeal said:-

  1. The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
  2. Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in summary form, all the evidence relied on in the defence…
  3. The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.

The background to the current matter is a proposed development and subdivision of a property owned by the Defendant at Winnellie (“the Development”). The Defendant entered into contracts to sell the two new lots which would result from the Development. A contract to sell one lot was entered into with Hacker Nominees Pty Ltd (“Hacker”) and the other lot was the subject of a contract with the Plaintiff (“the Contract”).
In the case of the contract with Hacker, proceedings were commenced in this Court against the Defendant (No 73 of 2008 (20815620)). The relief sought was specific performance and damages in the alternative. In those proceedings, on 29 April 2010 the Defendant herein consented to judgment against it in the sum of $521,000.
Relevantly the Contract contained inter alia the following terms:-

  1. Clause 28.1 - A notice could be served by facsimile transmission to the party’s facsimile number, or the facsimile number of the party’s conveyancer specified in the contract;
  2. The Contract nominated Withnalls as the Defendant’s conveyancer and specified their facsimile number for the purpose of service of notices;
  3. There was a special condition in clause 31.4 which provided as follows:-
  4. The vendor shall diligently and at his own expense in all things make every reasonable endeavour to obtain a separate title for the property agreed to be sold and shall sign all such documents and perform all such acts and things as shall be necessary or required to enable the separate title to be issued. If such separate title shall not be issued on or before 30 September 2007 (hereinafter referred to as the “Title Issue Date”) then:
      1. the purchaser in any event;
      2. the vendor provided he has complied with the terms of this clause;
  5. shall be entitled upon not less than 14 days notice in writing to the other party to rescind this contract.

The Darwin City Council (“the Council”) specified certain storm water drainage works as part of the approval for the Development. The Defendant has been unable to satisfy those requirements. The affidavit evidence of the Defendant (affidavit of Mr Oppermann, the director of the Defendant, sworn 1 December 2010) is to the effect that the development permit in relation to the Development was initially granted in 2003. When that lapsed, a further permit was obtained on 19 November 2007. That further permit has since been extended and remains current to 24 October 2011.
Mr Oppermann claims that the conditions imposed by the Council with respect to the current permit are more onerous then was the case under the initial permit. He states that the latest conditions required considerably more expense.
 Mr Oppermann’s evidence is to the effect that the Defendant has considered a number of alternative ways of satisfying the Council’s conditions but without success. One option involved the re-levelling of the land and draining stormwater to the street frontage of the property. There is evidence that the cost of those works were between $140,000 and approximately $300,000. Mr Oppermann does not specifically say so in his affidavit but it appears that he, on behalf of the Defendant, considered that unacceptable as he then went on to consider alternatives. The Plaintiff deposes to having obtained a quote for approximately $110,000 but Mr Oppermann claims to have no knowledge of that.
One of the other alternatives referred to involved draining stormwater to the rear of the property with pipe work over an adjoining property. The adjoining owner was prepared to agree to that until the Council required a registered easement. Another alternative required removal of a boundary fence and access over a different adjoining property for works to be effected. In each case, Mr Oppermann claims he could not obtain the necessary approvals from the relevant owners.
The Statement of Claim filed by the Plaintiff in this matter seeks specific performance and damages for breach of contract in the alternative. The former is no longer pressed. The Defence raises a number of defences to the claim namely:-

  1. 1.    Frustration;
    1.   Laches, acquiescence and waiver;
    2.   Invalid notice of default;
    3.   Failure to mitigate damages;

In the course of the hearing before me, Mr Liveris for the Defendant indicated that the defence of frustration only related to the claim for specific performance. As the Plaintiff no longer presses that claim, it is unnecessary to consider it further. I have serious doubts as to whether that defence could have been maintained if specific performance were still pressed, particularly on the basis that the alleged frustrating act, i.e., the judgment of Hacker arises from the Defendant’s own default. Further I am not convinced that the judgment amounts to frustrating act in any case.
The defence of invalid notice is based on the allegation in the affidavit of Mr Oppermann that notice of default under the Contract was served on the Defendant by facsimile transmitted to the Defendant’s solicitors. Mr Oppermann alleges that the Defendant did not authorise that. Although this was an issue on the affidavit material and submissions, it appears to have been conceded as it was not argued. The claim is untenable in any event given that the specified mode of service is authorised by the Contract and the evidence shows that service of the notice complied with the relevant provision.
As to the defence of laches, acquiescence and waiver, in general terms I am satisfied that those defences cannot be maintained even on the Defendant’s evidence. The affidavit of Mr Oppermann deposes to the ongoing involvement of the Plaintiff in various aspects of the works required to satisfy the conditions for the Development. The Plaintiff had numerous discussions with Mr Oppermann and he was also involved in discussions with the Council and one of the adjoining owners. He also obtained a quotation for the earthworks.
Although Mr Oppermann says that he cannot recall being provided with a quote by the Plaintiff, the Plaintiff’s evidence on that point is more positive. He says that he specifically obtained the quotation after discussions with Mr Oppermann as to concerns regarding the extent of works required and the quotes received. The Plaintiff positively asserts that he provided the quotation he obtained to Mr Oppermann. On that evidence I would prefer the version of the Plaintiff given the circumstances leading up to him obtaining the quote and that he obtained the quote specifically for provision to Mr Oppermann. In contrast, all the Defendant can say is that he cannot recall receiving the quote.
There is the suggestion that the failure of the Plaintiff to take legal proceedings at an earlier stage also amounts to acquiescence so as to bar the relief claimed. In contrast Hacker commenced proceedings by Writ filed 5 June 2008. The Plaintiff however denies any acquiescence. He deposes to attending a number of conferences at the Supreme Court in relation those proceedings. There is also evidence both from Mr Oppermann and the Plaintiff that the Plaintiff was active in discussions to attempt to find an alternative method of satisfying the Council’s conditions.
In any event the proceedings which the Plaintiff has commenced have been commenced within the time limit fixed by the Limitation Act. It appears well established, albeit lacking any recent authority, that the doctrine of laches does not apply until the expiration of a limitation period fixed by statute. Although it is acknowledged that laches can still apply to bar a right to relief even if the action is still within the statutory time limit, this is only if the Defendant were to have reasonably acted to his detriment in reliance of the Plaintiff’s acquiescence. See generally Equity Doctrines and Remedies, Meagher Gummow & Lehane, 4th Edition, Butterworths, 2002. The Defendant has not produced any evidence of detriment nor can I see how he could have suffered detriment even if I was satisfied that the Plaintiff’s acquiescence was established.
The defence of failure to mitigate damage is raised in a number of contexts in the Defence. However the Defendant has not presented any evidence in support nor was it argued before me. Moreover it is not entirely clear from the Defence as to how or why it should prevent an order for summary judgment. I therefore disregard it.
With that background, the only possible basis upon which the Defendant could establish that there is a serious question to be tried or that there is sufficient prima facie plausibility to merit further investigation is that the Defendant is not in breach of contract given the wording of the special condition in clause 31.4 of the Contract. That turns on whether it can be said that the Defendant has “…diligently and at his own expense in all things make every reasonable endeavour to obtain a separate title for the property agreed to be sold and shall sign all such documents and perform all such acts and things that shall be necessary or required to enable the separate title to be issued…”. In turn this can only rely on the Defendant’s claimed inability to satisfy the Council’s conditions. As there is at least one alternative available to the Defendant to satisfy those conditions, it descends to a question of the reasonableness of that alternative.
The failing of the evidence of the Defendant in this respect is that it does not condescend to particulars. There is a bare statement that the obligations imposed were more onerous than under the initial permit. There is also a bare statement that it would have required considerably more expense than under the initial permit. However there is no evidence to compare the requirements under each permit which allows scrutiny of the Defendant’s bare assertion. There are no details of what the initial requirements were and how the latest requirements of the Council differ from that. There is no evidence of the extent of the additional works or of the likely additional costs. All of this is very relevant given that the obligations on the Defendant under the contract are to do all things reasonable to obtain separate titles.
The available evidence of cost is discussed in paragraphs 11 and 17 above. It is apparent that the Defendant considered that a cost of $140,000.00 was excessive and that Mr Oppermann at least thought it was not “reasonable” for that expenditure to be incurred. However there is no evidence from the Defendant as to whether $110,000 was excessive and if so, why. No doubt that is due to Mr Oppermann’s claim, which I would reject if necessary, that he was unaware of that quote. In any event that would necessitate comparison with the extent and cost of works required to comply with the initial permit and the Defendant’s failure to provide evidence in respect of those works or costs prevents objective scrutiny of the bare assertion upon which the Defendant relies.
I note that works costing $110,000 represents less that 10% of the combined sale price (as at March 2007) under the two contracts. On its face and looking at it in this admittedly simplistic fashion, that does not appear an unreasonable impost such that I could otherwise accept the Defendant’s bare assertion without more.
Noting that the Defendant is required to go beyond mere statements and bare assertions and must condescend to particulars, I am not satisfied on the state of the evidence presented by the Defendant that there is a serious question to be tried. A proper assessment of that would require the type of particulars referred to in the discussions above (paragraph 22). The Defendant has had an opportunity to do that and has not complied. Accordingly, I am prepared to order summary judgment in favour of the Plaintiff.
As to damages, the Plaintiff claims damages of $1,381,800. This comprises:-

        1. Loss of capital value of the property,      $1,083,000.00
        2. Loss of rental,                                            $158,400.00
        3. Loss of income,                                                   $140,400.00
  1. Total:                                                       $1,381,800.00

In respect of the loss of the capital value of the property, the Plaintiff has provided a valuation by Mr Gore which assesses the current market value of the lot the Plaintiff was to purchase in the amount of $1,640,000. From this is deducted the purchase price that would have been payable under the contract of $770,000. After allowing for the deposit which had been paid by the Plaintiff and which is now refundable, that amounts to $1,083,000 as aforesaid.
The claim for loss of rental relates to the rent which the Plaintiff would have received for the premises on which the Plaintiff currently conducts his business. The Plaintiff proposed to relocate that business to the property he was purchasing from the Defendant with the plan to then rent out the existing business premises. The Plaintiff’s evidence is that rental value of the existing premises is $4,400 per month plus outgoings.
This head of damage cannot be assessed by simple arithmetical calculations. Considerations as to taxation and other factors need to be allowed for. I have no information upon which I can even base an estimate. The only evidence provided is as to proof of the rental value of the premises. The necessary expert evidence to establish the net loss is lacking and I am not prepared to allow that amount without further evidence.
Similarly in respect of the claim for loss of income, again gross amounts are claimed without any allowance for expenses. It is also curious that the claim is in part based on the gratuitous use of the Defendant’s land for storage of vehicles. It seems to me that irrespective of the proposed subdivision the Defendant could have refused permission for the ongoing use of the Defendant’s land at any time and in any event.
Nonetheless expert evidence required to prove the loss is lacking and again I am left with no evidence upon which I can even base a reasonable estimated assessment. I am also not prepared to allow that amount without further evidence.
Accordingly, I am prepared to order judgment for the Plaintiff pursuant to Rule 22.06(1)(b) for the sum of $1,083,000. If the Plaintiff wishes to pursue his claim under the remaining heads of damage then the matter should proceed to hearing for assessment of damages.
I will hear the parties as to any consequential orders, as to the costs of the proceedings and as to the costs of the current application.

[2010] NTSC 52

[2010] NTSC 24

[2010] NTSC 24 at p 5

[2009] VSCA 288

[2009] VSCA 288 at p 63-65

at p 36-045






Aboriginal Areas Protection Authority v S & R Building & Construction

Pty Ltd [2010] NTSC 3

No 20935996





                                                     ABORIGINAL AREAS PROTECTION AUTHORITY





                                                     S & R BUILDING & CONSTRUCTION PTY LTD

                                                     (ACN 098 369 638)







(Delivered 10 January 2011)



[1]       On 17 September 2010 the respondent pleaded guilty to a charge that, contrary to s 34(1) of the Northern Territory Aboriginal Sacred Sites Act, on 24 October 2007 at Numbulwar in the Northern Territory of Australia the respondent carried out work on an Aboriginal sacred site.  The Court of Summary Jurisdiction, without conviction, imposed a fine of $500 on the respondent and a victim levy of $40. 

[2]       At the time the respondent committed the offence the maximum penalty which could be imposed on a corporation was 2000 penalty units which amounted to a fine of $220,000.  The value of a penalty unit at that time was $110.

[3]       The appellant appeals against the sentence imposed on the respondent on the following grounds:

(1)           the sentencing magistrate erred in law by imposing a sentence that was manifestly inadequate;

(2)           the sentencing magistrate erred in law by failing to properly address s 8 of the Sentencing Act; and

(3)           the sentencing magistrate erred in law by failing to adhere to the sentencing guidelines contained in s 5 of the Sentencing Act.

The Northern Territory Aboriginal Sacred Sites Act

[4]       In the Northern Territory, Aboriginal sacred sites are protected by the Northern Territory Aboriginal Sacred Sites Act.  The object of the Act is to effect a practical balance between the need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Northern Territory and the aspirations of the Aboriginal and all peoples of the Territory for their economic, cultural and social advancement, by establishing a procedure for the protection and registration of sacred sites, providing for entry onto sacred sites and the conditions to which such entry is subject, and establishing a procedure for the avoidance of sacred sites in the development and use of land.

[5]       A sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.

[6]       Under s 34(1) the Northern Territory Aboriginal Sacred Sites Act it is an offence for a person or corporation to carry out work on or use a sacred site.  There are two defences provided by the Act to a charge that a corporation has engaged in conduct contrary to s 34(1) of the Act.  First, it is a defence if it is proved that a corporation carried out work on the Sacred Site with, and in accordance with the conditions of, an Authority Certificate or a Minister’s Certificate permitting the defendant to do so.  Secondly, it is a defence if the defendant’s presence on the sacred site would not have been unlawful if the land had not been a sacred site; and the defendant had taken reasonable steps to ascertain the location and extent of sacred sites on any part of the land visited by the defendant; and the defendant had no reasonable grounds for suspecting that the site was a sacred site.

The facts

[7]       The facts of the offending are as follows.

[8]       In the second half of 2007, Indigenous Business Australia[1] awarded a contract to NT Link to build a Government Business Manager facility in the Aboriginal Community of Numbulwar which is located in the Gulf of Carpentaria 570 kilometres east-southeast of Darwin.  NT Link is the business name of a privately owned company based in the Northern Territory.  NT Link subcontracted part of the construction works to the respondent.  The respondent was retained to connect the facility to the local electricity, water and sewerage services.

[9]       Prior to receiving planning approval NT Link sent two large trucks carrying containers of equipment and buildings to Numbulwar.  The containers arrived at Numbulwar on 14 October 2007.  They were placed opposite the proposed construction site while planning approval was sought. 

[10]     There was a sacred site to the rear of the containers.  The sacred site is known as the Madayin Grounds.  Kunabibi rituals are performed by men only at this site.  Women are not permitted on the site as it is a men’s site. 

[11]     On or about 24 October 2007 Mr Marc Renshaw, the managing director of the respondent, Mr Ross Pearce and Mr Nathan Bongiorno, who are servants of the respondent arrived at Numbulwar.  Upon arrival the men were advised that the respondent’s employees could use the bathroom and toilet facilities at the Training Centre which was approximately 100 metres from the construction site.  However, the men were unable to access the toilet and bathroom facilities in the Training Centre. 

[12]     As a result, the respondent its servants and agents decided to build a pit toilet behind the containers so there was a toilet which they and others could use.  Sand was dug out of the area where the pit toilet was located with a shovel.  A hole about one metre deep was dug and a portable toilet seat was placed over the hole.  Unbeknown to the men, the land on which the toilet was located was part of a sacred site.

[13]     The respondent completed its contract work and its servants and agents left Numbulwar on 2 November 2007.  The men did not have a permit to enter onto the Aboriginal land at Numbulwar.  No Authority Certificates were issued for the building works at the time of the offence and no permission to enter the sacred site or to erect a toilet on the site was obtained from any of the traditional owners responsible for the site.

[14]     Sometime between 2 and 5 November 2007 the custodians of the sacred site became aware that there was a toilet on the sacred site.  They visited the site and found that the toilet was still in place with the shovel beside it and toilet paper was strewn across the sacred site. 

[15]     A victim impact statement was tendered in evidence.  In it a number of traditional elders who are custodians of the sacred site state as follows.  They feel bad, angry and hurt inside.  Their hurt has not been healed and cannot be healed without proper compensation to restore the balance.  Under traditional Aboriginal law an offender would have to pay compensation or face spearing.  The traditional owners feel ashamed about this incident.  Other Aboriginal people across the top end of the Northern Territory from Groote Eylandt to Ngukurr, Borroloola, Bulman, Maningrida and Ramingining are all saying the traditional owners at Numbulwar have done the wrong thing by letting this happen.  Great shame has been brought upon the traditional owners of the sacred site.

[16]     By way of explanation of the offending Mr Stirk, who then appeared on behalf of the respondent, told the sentencing magistrate that the circumstances in which the respondent became involved in the matter were inextricably linked to the Northern Territory Intervention.  The Northern Land Council granted a permit to enter on Aboriginal land to NT Link.  The permit to enter was granted for the purposes of NT Link constructing the emergency accommodation at Numbulwar. 

[17]     NT Link designs and constructs and relocates service built transportable buildings.  Once transported, the transportable buildings have to be connected to sewer and water services on the ground on which they are located.  The respondent had the contract to connect the services to the transportable buildings that were placed at Numbulwar.  Neither Indigenous Business Australia nor NT Link nor the respondent turned their minds to obtaining Authority Certificates for the construction works at Numbulwar.  Further, the permit obtained by NT Link to enter Aboriginal land did not extend to the servants and agents of the respondent.    

[18]     The plan was that the employees of the respondent including Mr Renshaw, Mr Pearce and Mr Bongiorno were to have access to bathroom and toilet facilities at the Training Centre at Numbulwar.  However, despite attempting to do so on two occasions, they were unable to obtain access to the bathroom and toilet facilities in the Training Centre.  There was a pressing need for the respondent’s employees to be able to access toilet facilities.  A transportable pit toilet was amongst the materials they had been provided with and they constructed the toilet on the land which unbeknown to them was a sacred site.

[19]     Within 24 hours of arrival Mr Renshaw and the other workers employed by the respondent managed to link up the toilet and water facilities in the transportable accommodation to the sewerage and water services at Numbulwar.  Thereafter the toilets in the transportable accommodation were used by the workers in the normal way.  Instructions were given to NT Link for the removal of the toilet which had been used in that first 24 hour period.  However, NT Link failed to remove the toilet.

[20]     It is common ground that the respondent its servants and agents did not know that the land on which the toilet was constructed was part of a sacred site.  However, they failed to make any due enquiries as to whether any part of the land on which they were to undertake the construction work was a sacred site.  They did not obtain a clearance from the Northern Territory Land Council.  Nor did they obtain an Authority Certificate or a Minister’s Certificate permitting the respondent to carry out work on the area of land on which the toilet was placed.  Nor did they obtain permission to construct the toilet from any custodians of the sacred site.

[21]     It should be noted that the land on which the Government Business Manager’s facility was to be constructed was not a sacred site.  The only work done on the sacred site was the construction of the pit toilet.

Subjective factors

[22]     The incident took place some two years after the respondent was incorporated.  The respondent has been trading in Central Australia since 2005.  The company had no prior convictions.  It was a first offender. 

[23]     The respondent its servants and agents have shown remorse for their conduct.  The matter proceeded as a plea once a number of issues about the exact location the toilet and the sacred site were clarified.  Mr Renshaw and Mr Pearce apologised to the traditional owners by way of letters and a statutory declaration and Mr Smith, who is a director of NT Link, also conveyed the respondent’s apologies to a meeting of traditional owners which was held on 19 December 2007.

The remarks of the sentencing magistrate

[24]     The sentencing magistrate made the following remarks:

Taking into account all of the factors including the temporary use of the works by the people who placed them there and I am not going to take into account the permanent nature because in a sense that amounts to a desecration, in my view that has now been withdrawn.  Given the prior history of the company, without conviction, they are fined $500 plus the $40 levy.

[25]     It is apparent from the sentencing magistrate’s remarks that, having considered the circumstances of the offending and the respondent’s antecedents and remorse, he thought it expedient to exercise the power granted to him under s 8 of the Sentencing Act

The submissions of the appellant

[26]     As to the first ground of appeal, the appellant submitted that parliament considers such offences to be serious offences.  At the time of the offending parliament had specified a maximum fine for a corporation of $220,000.  The objective circumstances of the offending were serious.  The respondent knew it was on Aboriginal land.  There were procedures available to the respondent to ensure that no work was undertaken by its servants and agents on an Aboriginal sacred site and the respondent chose not avail itself of these procedures.  The respondent foresaw that a possible consequence of it constructing the toilet on the land was that work would be done on a sacred site and an ordinary person similarly circumstanced and having such foresight would not have engaged in that conduct.  The site on which the respondent placed the toilet was sacred to Aboriginal people or was otherwise of significance according to Aboriginal tradition.  It was not just any piece of land.  The sacred site was still used and cared for by Aboriginal people and the traditional custodians of the site were emotionally traumatised and shamed by the offence committed by the respondent.  There was a need for denunciation and both specific and general deterrence.  In the circumstances the penalty imposed by the Court of Summary Jurisdiction was so unreasonable and so plainly unjust as to be manifestly inadequate.

[27]     As to the second ground of appeal, the appellant submitted the only factor referred to in s 8(1) of the Sentencing Act which was established by the evidence was the fact that the respondent was a first offender.  The offence committed by the respondent was not a trivial offence and there were no truly extenuating circumstances.  The onus was on the respondent to ensure that its servants and agents did not conduct work on a sacred site and there were statutory provisions for ensuring that did not occur.  The respondent showed a casual disregard for the rights of Aboriginal people.  The respondent’s servants and agents were not even lawfully on Aboriginal land.  The respondent did not obtain a permit to enter Aboriginal land so that its servants and agents could lawfully enter Aboriginal land.  In the circumstances there was no reasonable basis for the sentencing magistrate to exercise the discretion granted by s 8(1) of the Sentencing Act.

[28]     As to the third ground of appeal, the appellant submitted that the sentencing magistrate had failed to give sufficient weight to denunciation, to the emotional harm suffered by the victim’s, to the damage, injury or loss caused by the offender and to the fact that the respondent’s plea of guilty was not a plea at the earliest opportunity.  As to the question of damage, counsel for the appellant initially submitted that according to traditional Aboriginal law and custom the damage to the site was permanent and irreparable.  However, counsel for the appellant ultimately and properly, in my opinion, conceded that neither this Court nor the sentencing magistrate could have regard to this submission because no affidavits in support of the submission had been read in accordance with s 104A of the Sentencing Act and under s 91 of the Northern Territory National Emergency Response Act 2007 (Cth) a sentencing court must not take into account any form of customary law or cultural practice as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates[2].  The fact that these matters cannot be taken into account in a case such as this re-emphasises the comments I made about s 91 of the Northern Territory National Emergency Response Act in R v Wunungmurra[3].

Section 8 of the Sentencing Act

[29]     Section 8 of the Sentencing Act states:

(1)     In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including:

(a)     the character, antecedents, age, health or mental condition of the offender;

(b)     the extent, if any, to which the offence is of a trivial nature; or

(c)     the extent, if any, to which the offence was committed under extenuating circumstances.

[30]     Prior to exercising his or her discretion under s 8 of the Sentencing Act, the sentencing magistrate must be of the opinion that:

… the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, ….  One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits.  The Act speaks of the court exercising the power it confers “having regard to” the matters it states.  I read that as meaning more than merely noticing that one or more of them exists.  Its or their existence must it seems to me reasonably support the exercise of the discretion the statute gives.  They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration.  But they are wide words.  None of the matter they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence [emphasis added][4].

[31]     In Mansfield v Evans[5] Pullin J stated:

The word "extenuating" means in ordinary meaning "to serve to make the offence seem less serious": see "Macquarie Dictionary".  In Lanham v Brake (1983) 74 FLR 284, it was said that "extenuating circumstances" are those "that lessen, or seem to lessen, the seeming magnitude of (guilt or offence) by partial excuses".  In O'Sullivan v Wilkinson [1952] SASR 213, the phrase was said to mean circumstances which excuse, in any appreciable degree, the commission of the offence charged.  See also Nitschke v Halliday (1982) 30 SASR 119.  Extenuating circumstances may be many and varied, but there must be some link between the extenuating circumstances relied on and the commission of the offence.  This is because the provision does not allow the court to have regard to extenuating circumstances generally.  The court has to decide "the extent to which the offence was committed under extenuating circumstances": Commissioner of Taxation v Baffsky (supra) at [47].


[32]     In my opinion, the sentence imposed on the respondent was not manifestly inadequate nor did the sentencing magistrate fail to have regard to the provisions of s 5 and s 8 of the Sentencing Act.  It was the task of the sentencing magistrate to consider all the circumstances of the offending and the circumstances of the particular offender and judge whether the case fell within the bounds of s 8(1)(a), (b) or (c) of the Sentencing Act.  A magistrate does not fall into error in his or her discretion provided such discretion is exercised within the scope of the legislation.  I can see no error in the exercise of the sentencing magistrate’s discretion.  It was exercised within the bounds of the law as provided by s 5 and s 8 of the Sentencing Act

[33]     The gravamen of the offence was that the respondent its servants and agents were negligent in not conducting proper enquiries or obtaining necessary certificates prior to going on to the land.  The respondent did not deliberately conduct the work on the sacred site.  Its servants and agents did not know there was a sacred site at the location where the toilet was constructed.  The offence was committed under extenuating circumstances.   The construction of the toilet took place on the spur of the moment in circumstances where other works were lawfully being conducted in a remote location on Aboriginal land and there was no other toilet facility available to the respondent its servants and agents.  The works were to take a number of days to complete and through no fault of theirs the respondent’s servants and agents could not access the toilet facilities which they were told they could use.  The construction of the toilet involved very minor works.  A small hole, one metre deep, was dug in the ground and a removable portable seat was placed on top of it.  From a practical point of view the matter could be rectified by removing the toilet cover and refilling the land on which the toilet was constructed.  Instructions were given to NT Link to this effect.  The toilet was only used for a period of 24 hours.  As soon as the services were connected to the facility, the employees of the respondent used the toilet in the Government Managers facility.  Prior to the offending the respondent was of good reputation and the servants and agents of the respondent are genuinely remorseful about their conduct.

[34]     In the circumstances the appeal should be dismissed and I will hear the parties further as to costs.


[1] A Statutory Authority established under the Aboriginal and Torres Straight Islander Act 2005 (Cth).

[2] R v Wunungmurra (2009) 231 FLR 180.

[3] (2009) 231 FLR 180 at par [25].

[4] Cobiac v Liddy (1969) 119 CLR 257 per Windeyer J at 275.

[5] [2003] WASCA 193 at [20].