Madgwicks is pleased to have successfully defended Martang Pty Ltd in a fiercely contested high profile public interest Supreme Court claim by Djab Wurrung Elder, Marjorie Thorpe against the State Government relating to the proposed Victorian Western Highway road project and protection of alleged “culturally significant” trees.

In an 80-page judgment delivered on 23 November, Her Honour Justice Forbes dismissed all claims made by plaintiff, Marjorie Thorpe, against four State of Victoria government defendants and our client, fifth defendant, Martang. Martang was the former registered aboriginal party (RAP) appointed under the Aboriginal Heritage Act 2006 (Vic).  In 2013, Martang had approved a cultural heritage management plan (2013 CHMP) sponsored by Vic Roads which would have allowed the State Government to proceed with a road duplication of a section of the Western Highway (Project).

In 2020, Ms Thorpe initiated Supreme Court proceedings contending that construction of the Project in reliance on the 2013 CHMP would involve harm to Aboriginal cultural heritage in contravention of the Aboriginal Heritage Act and would also breach her rights under the Victorian Charter of Human Rights.  Ms Thorpe’s allegations as against Martang included that Martang’s approval of the 2013 CHMP was invalid because Martang had breached its statutory and common law duties by actions that placed it in a conflict of interest or by conduct that gave rise to actual or apprehended bias.

Martang, a family company with Aboriginal heritage, defended its position that it had undertaken considerable investigations with the assistance of numerous experts, including archaeologists and Aboriginal elders, into the specified area. Those inquiries had determined that Aboriginal cultural heritage was not threatened or compromised by the Project. Further, Martang asserted that Ms Thorpe had failed to adequately plead facts to substantiate the serious allegations of conflict of interest and bias by Martang.

Martang’s legal team comprised Madgwicks partner, Rick Goldberg, and senior associate, Lisa McNicholas and barristers, Patrick Noonan and Priya Wakhlu.

Rick Goldberg said:

“Marjorie Thorpe’s allegations against Martang in the Supreme Court of Victoria were wrong and unfair. The allegations had already been examined by the Ombudsman and dismissed. Marjorie Thorpe made the same allegations in the Supreme Court of Victoria as part of her litigation against the State. She had the assistance of four barristers, including a leading QC, and experienced and well-resourced solicitors. The Court has found that the resulting proposed statement of claim did not even identify the facts necessary to make out the allegations against Martang and dismissed the claim.”

Tim Chatfield, Chairperson/CEO of Martang and Djab Wurrung Elder said:

My family is extremely appreciative of the excellent legal support provided by our entire legal team. The whole experience has been extremely distressing. The protection of Aboriginal cultural heritage is so important.  Martang hopes that the community can move forward together for the protection of Aboriginal cultural heritage.”

The State is now progressing with a new CHMP with the current RAP of the relevant area, the Eastern Maar Aboriginal Corporation.

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