Robert Penfold and Hunt Australia Pty Ltd v Bernard Higgins and Northern Land Council

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 11 December 2002
• Neutral Citation: [2002] NTSC 65
• Date: 11 December 2002
• Docket Number: FILE NO: 279 of 1997 (9726456)

[2002] NTSC 65

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Mildren J

FILE NO: 279 of 1997 (9726456)

Between:

Robert Penfold and Hunt Australia Pty Ltd

Plaintiffs

and

Bernard Higgins and Northern Land Council

Defendants

REPRESENTATION:

Counsel:

Plaintiffs: P Heywood-Smith

Defendants: M Lynch

REASONS FOR JUDGMENT

(Delivered 11 December 2002)

Introduction

1 This is an action for damages for defamation. The plaintiff Robert Penfold (Mr Penfold), is and was at all times a director of the plaintiff Hunt Australia Pty Ltd (Hunt Australia) which, since 1981, has carried on business in the Northern Territory of Australia and elsewhere in Australia as a safari hunting operator. The only other director of Hunt Australia is Mrs Kathleen Elizabeth (Kay) Penfold, Mr Penfold's wife.

2 The defendant Bernard Higgins (Mr Higgins), was at all material times an employee of the defendant Northern Land Council (NLC). The NLC is a body corporate established pursuant to s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Part of the NLC's functions is to assist and negotiate on behalf of traditional owners of Aboriginal land in its area with third parties who may wish to obtain rights, such as the right to enter and to hunt wild animals on such land. Mr Higgins' duties included, inter alia, the carrying out of these functions on behalf of the NLC. Mr Higgins was employed as a project officer in the Parks and Tourism section of the NLC.

3 Hunt Australia's clients came entirely from overseas, mostly from Europe and the United States. Many of the hunters came to shoot trophy-sized beasts, especially boar, deer, banteng cattle, buffalo and goats. Some others were not so particular. Those animals were available in the Top End of the Northern Territory in broadly three locations: (1) at Gurig National Park, Cobourg Peninsula, administered by the Northern Territory Parks and Wildlife Commission on behalf of the Cobourg Peninsula Sanctuary Board where deer, banteng cattle and buffalo were available; (2) Aboriginal land, more particularly in or near Arnhem Land where goats and buffalo were available and (3) on privately owned pastoral leases where boar and some buffalo were available.

4 Gurig National Park was the only location where hunting of banteng and a rare breed of deer was available.

5 The plaintiffs also offered shooters “culling” of donkeys and other feral animals on some pastoral leases from time to time.

6 During the period from 1981 to 1994, Hunt Australia's business grew from small beginnings to a total of 75 clients who attended hunts in the Northern Territory. (This figure includes both hunters and non-hunters.) Arrangements to enter the land and conduct hunts in the areas indicated, varied considerably during this period. In some cases, Hunt Australia's clients utilised another safari operator who held a licence to operate in the particular area in question. In some cases, Hunt Australia held a licence to hunt on Aboriginal land with the NLC. In other cases, Hunt Australia obtained permission from a pastoral lease-holder.

The defamatory publication.

7 On 2 December 1994, at Darwin, Mr Higgins published to Mr Darryl Pearce, the then Director of the NLC, a document headed:

Briefing Notes for Director NLC NT Tourist Commission Board Meeting 2 December 1994

(hereinafter called ‘the briefing notes’). Mr Pearce was also then a Commissioner for the Northern Territory Tourist Commission.

8 The text of the briefing notes is as follows:

Issue

Bob Penfold of Hunt Australia Pty Ltd was unsuccessful in securing a bantang concession in Gurig National Park. The NLC Full Council has an Agenda Item dealing with Penfold at next weeks Full Council meeting. Penfold owes the Arnhem Land Aboriginal Land Trust and the NLC money. The most recent buffalo that Penfold shot was in the stock yards at Bulman. He did not obtain the correct permission to shoot this buffalo. If Full Council supports the recommendation put forward Penfold will not obtain any Licence on Land Trust land until all outstanding money is paid and he agrees to operate by strict conditions.

In the meantime Penfold has been rubbishing other operators in the NT who do have Licences with either the Gurig Board or the Arnhem Land Aboriginal Land Trust both here and while he is overseas seeking business. This will be to the detriment of the traditional Aboriginal owners, the licensed safari operators and the reputation of the NT as a hunting destination.

Recommendation

That the NT Tourist Commission Board supports the licensed safari operators and the traditional Aboriginal owners in their endeavour to maintain and develop a high class safari product. Penfold spreading disinformation for his own personal gain or ‘sourness’ is of detriment to this aim.

That the NT Tourist Commission prepares a letter to be given to the licensed safari operators for use as publicity and showing the support of the Commission in encouraging the safari industry in the NT. The letter could be displayed at hunting conventions by the operators. The letter would assist in countering any disinformation that Penfold may seek to relay.

The letter could serve as confirmation of a similar letter to be prepared by the Northern Land Council.

Matters for Consideration

Is is possible or even advisable to refer by name to either Hunt Australia Pty Ltd or Bob Penfold in the letter (sic).

Should a copy of the letter be sent to the Safari Club International in America?

The Minister for Tourism has already been approached by Davidson's Arnhemland Safaris concerning Penfold's activities. The NLC has informed the licensed safari operators of its desire to seek support from the NT Tourist Commission Board on this matter. The approach by the NLC has the support of the operators.

Additional Explanatory Notes

The hunting safari industry in the NT survives because of its access to Land Trust land. Included here is Gurig National Park.

The two big game animals in the NT are buffalo and bantang. The only location for bantang is within Gurig National Park. The largest remaining ‘game’ populations of buffalo are in Arnhem Land. Without hunters visiting the NT to shoot bantang and buffalo there would not be a hunting safari industry in the NT.

Other animals shot are goat, deer, dingo and pig. None of these though are unique to the NT and can be shot elsewhere in Australia and the world. The buffalo and bantang in the NT are unique and prized trophy animals.

Buffalo are also hunted on Mainoru, Mountain Valley and Urapunga Stations but are in limited and decreasing numbers. It has also been stated by safari operators that some of the buffalo are in fact shot in Arnhem Land but as the access is through the stations it is the stations who receive the royalty. The buffalo on Melville Island are a smaller animal and do not produce trophies of the standard from Arnhem Land.

Hunting Safari Operators operating or intending to operate on Land Trust land

Business	Principal Individual
Wimray Safaris	Noel Bleakley
Davidson's Arnhemland Safaris	Max Davidson
Territory Buffalo Safaris	Brenton Hurt
Access Northern Australia	Francois Giner
Roper River Safaris	Grant Angel
Arafura Safaris	Simon Kyle-Little
Illiwan Safaris	Matthew Kelman
Muckadilla Hunting Safaris	Glen Giffin

Comments on Penfold

— Penfold has no respect for others with his only interest his own — he actively deals in disinformation — the last buffalo he shot in the NT was in the Gulin Gulin Buffalo Company yards at Bulman — this was shot without the proper authority or the payment of correct money.

— it is probable that if traditional owners monitored Land Trust boundaries in the vicinity of stations currently operating buffalo safaris fewer buffalo would be available to the safari market from those stations. One operator previously associated with those stations is now seeking access to the Arnhem Land Aboriginal Land Trust to take between 20 — 30 buffalo next year.

— there are traditional owners seeking operators of a reputable standard — people like Penfold and his associates are not reputable. Penfold though does travel the hunting conventions and does bring clients to Australia.

— a number of the operators listed above also travel the hunting convention circuit ie January through to March — it is at these conventions that a large number of hunts are sold — the other way hunts are sold is through agents or outfitters overseas who then sell the client a hunt offered by an operator in the NT. The NLC has been informed by one operator that an outfitter he deals with has been approached by Penfold with Penfold seeking to discredit all operators in the NT. Another operator down south who deals with New Caledonia and New Zealand has said that Penfold owes considerable money for hunts conducted in New Zealand and that Penfold has also told lies about his operation. At least five of the operators mentioned above would have a similar story of disinformation being told about them by Penfold.

— Penfold recently applied for one of the hunting concession Licences at Gurig — he was unsuccessful. One of the Aboriginal Board members had previously had Penfold conduct buffalo hunts on his country but kicked him off when he was found to be illegally netting barramundi — the view of this Board member was that for as long as he was a Board member Penfold would never have access to Gurig National Park. Penfold has also publicly criticised the CCNT management of bantang at Gurig and considered CCNT incompetent.

Consequence of Penfold's Activities

It is important to stress that the NT hunting safari industry does not depend on Penfold. Penfold's business though does depend on access to the...