Justice Peter Vickery in the Victorian Supreme Court has found that a cultural heritage expert, who was required to advise Wyndham City Council about its obligations under the Cultural Heritage Act 2006 (Vic) and the Aboriginal Cultural Heritage Regulations 2007 (Vic), failed to exercise reasonable care, skill and diligence.

As a result of that failure, the council proceeded with a road construction and wetlands development in Werribee which ultimately disturbed an area of cultural sensitivity where Aboriginal artefacts had been found.

This case represents the first time the standard of care required of a cultural heritage adviser under the Act has been considered in the Supreme Court of Victoria.

The plaintiff, Wyndham City Council, alleged that the defendant, Terra Culture Pty Ltd, breached an implied term in its contract of retainer to exercise reasonable care, skill and diligence in providing advice; was negligent in providing advice and services; and had engaged in misleading and deceptive conduct.

The judge found for Wyndham City Council on all three of these grounds, but only in respect of a certain instance of Terra Culture’s conduct, namely, what transpired during a telephone call in early 2010.

The defendant provided the council advice about its obligations under the Act in two written due diligence reports in 2008 and 2009. Justice Vickery found the defendant was not liable for the advice provided in the due diligence reports.

It was, however, liable for the advice it gave during the January 2010 telephone call in which Terra Culture advised the council it did not need to prepare a Cultural Heritage Management Plan under the Act, despite artefacts having recently been found near the works area. His Honour found this advice was provided on the basis of clearly inadequate instructions, without the defendant seeking the necessary detail and making the necessary enquiries.

The council is claiming for loss and damages. This will be considered in a separate hearing at a later date.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Read the Court's full judgment on AustLII (External link)

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Supreme Court of Victoria
Supreme Court of Victoria
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