Australian Capital Territory v Revolve Limited
[2011] ACTSC 61
•15 April 2011
AUSTRALIAN CAPITAL TERRITORY v REVOLVE LIMITED
[2011] ACTSC 61 (15 April 2011)
PRACTICE AND PROCEDURE – judgment for possession of land – land previously subject of licence agreement – application for stay of execution – defendant arguing that land subject to native title – argument misconceived – application for stay dismissed – further brief stay granted
Constitution, s 125
Judiciary Act 1903 (Cth), s 78B
Native Title Act 1993 (Cth)
Mabo v Queensland (No 2) (1992) 175 CLR 1
Wilson v Anderson (1999) 156 FLR 77; [1999] NSWSC 8
No. SC 344 of 2010
Judge: Master Harper
Supreme Court of the ACT
Date: 15 April 2011
IN THE SUPREME COURT OF THE )
) No. SC 344 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AUSTRALIAN CAPITAL TERRITORY
Plaintiff
AND:REVOLVE LIMITED
Defendant
ORDER
Judge: Master Harper
Date: 15 April 2011
Place: Canberra
THE COURT ORDERS THAT:
the defendant’s application in proceeding dated 9 February 2011 be dismissed.
the plaintiff’s costs of the application be paid by the defendant.
execution upon the judgment for possession be stayed until midnight on Thursday 28 April 2011.
The plaintiff commenced the present proceeding by originating claim on 18 May 2010, seeking an order for possession of a rectangular area of some 2.3 hectares of land being part of Block 2 Section 26 Hume. The land is situated a short distance north of the junction of Mugga Lane and the Monaro Highway, on the western side of the highway.
The plaintiff asserted in the statement of claim that it is the registered proprietor of the block, and that the area of land is located entirely within the boundaries of the block. By a licence agreement of 1 June 2007, the plaintiff granted the defendant a licence to occupy the premises for a year. The defendant continued to occupy the area of land after the end of the term as a monthly licensee. The licence agreement provided that either party could terminate it on one month’s written notice. On 11 March 2010 the plaintiff gave the defendant written notice terminating the licence and requiring the defendant to vacate the land, to remove all fixtures and fittings and to leave the land clean and tidy by 12 April 2010. The defendant did not do so.
I was informed on the hearing of the application that the land is fenced with a locked gate. There are some sheds and other items on the land but no permanent buildings.
A defence was filed in July 2010. The defence asserted that the defendant had entered the licence agreement as a result of unconscionable conduct by the plaintiff, said to be the subject of another action between the parties (SC 425 of 2007). The defence asserted that in that action, the defendant (as plaintiff) was seeking an order that the licence agreement was not enforceable. The defence referred to a third set of proceedings between the parties (SC 343 of 2010), a money claim by the present plaintiff, and asserted a setoff of an amount greater than the sum claimed.
Following a reply filed in August 2010, the plaintiff applied for summary judgment for possession. A copy of the licence agreement is in evidence. The agreement provided for the payment of a licence fee of $28,507.50 plus GST per annum, and the land was to be used solely for the purpose of resource recovery and sales. This expression was not defined in the agreement: I accept that both parties understood it to mean dealing in second-hand goods including furniture, electrical appliances and motorcycles, and generally the recycling and sale of items discarded as rubbish by their previous owners.
On 30 September 2010, with both parties represented by counsel, I made unopposed orders against the defendant for possession and costs.
On 12 October 2010 the defendant applied for a stay of the order for possession. That application came before Refshauge J on 19 November 2010. His Honour made orders which had been agreed between counsel, staying the judgment for possession until 19 December 2010 and restraining the defendant from receiving any further goods from the public upon the land.
On 9 February 2011, the defendant filed an application in proceeding supported by an affidavit. The solicitors who filed the defence and instructed counsel at earlier stages remain formally on the record, but the February documents were filed, and presumably prepared, by the company without legal assistance. The application sought, in effect, a stay of the judgment for possession. The application is not entirely intelligible but made reference to section 125 of the Constitution and to native title at common law. The application sought the determination of a question of law expressed as follows:
The ACT Executive did not and has not the right to “lease” or “licence” territory land defined as “unalienated Crown land” in defiance of common law native title rights and without compensation
The grounds of the application were said to be:
the plaintiff [sic] Revolve Limited will request that the identified land and “licence” granted to Revolve under “territory land” by the ACT Executive is void ab initio because no “full or beneficial” proprietary rights followed section 125 of Australian Constitution to either the Commonwealth or on to the ACT Executive to grant or dispose of until addressing existing common law native title.
If I understand the argument sought to be put to the court, its acceptance would cast doubt upon all grants of Crown leases by the Commonwealth in the Australian Capital Territory over almost a century.
On 25 February, I gave leave to Mr Gerard Gillespie, a director of the defendant company, to appear. Also before me was an application made orally a week earlier by counsel for the plaintiff for orders for delivery of possession of the land, with consequential orders authorising the sheriff to enter upon the land, and indemnity costs.
On the hearing, Mr Gillespie informed me, although without calling evidence about it, that the defendant company had entered some form of relationship with the Ngambri Aboriginal people. He asserted that before the Territory could enter a lease or licence agreement for land within its boundaries, it was obliged to consult with any holders of native title in relation to the land at common law. He said that this obligation arose under the general law rather than by statute, and flowed from the decision of the High Court of Australia in Mabo v Queensland (No 2) (1992) 175 CLR 1. Mr Gillespie did not take me to any portion of that judgment which stood for such a proposition. He informed me that the defendant company had given notice to the Attorney-General of the States and Territories pursuant to section 78B of the Judiciary Act 1903 (Cth). That section requires such notice to be given where a cause is pending in, inter alia, a court of a Territory involving a matter arising under the Constitution or involving its interpretation. The only section of the Constitution referred to by Mr Gillespie was section 125, which provides for the determination by the Parliament of the seat of government of the Commonwealth, to be located within territory in the State of New South Wales granted to or acquired by the Commonwealth. It is not apparent to me that the determination of any issue in the present proceedings would require the interpretation of that section.
The present position is that the Territory has a judgment for possession against the defendant company. There has been no application to set that judgment aside. Indeed, the order for possession was made, if not by consent, at least without opposition in open court with the defendant represented by counsel. What the defendant seeks now is a stay of execution of the judgment for possession. It is principally based on what I shall call the native title argument.
The native title argument seems to me misconceived. I would have thought, without having heard detailed argument about it and without having been taken to the authorities, that the combined effect of the fencing and locking off of the land, and the licence agreement, is that native title, if it had continued to exist before that, would now have been extinguished.
The Native Title Act 1993 (Cth) lays down procedures for the assertion and determination of native title. Whilst those procedures may not be exclusive (see Wilson v Anderson (1999) 156 FLR 77; [1999] NSWSC 8 per Levine J), the present proceeding, an application for a stay of a judgment for possession in proceedings between the Territory and a company, with no Aboriginal persons or representative group involved as a party, would scarcely be a suitable vehicle for the consideration of such a question.
The defendant has not made out a case for a stay of the judgment for possession. Its application will be dismissed with costs.
Having regard to the fact that there are other proceedings between the parties, arising generally out of the same facts, listed before me on 28 April 2011, and in the absence of any evidence of prejudice to the plaintiff if there is a further short delay before it is entitled to take possession of the land, I propose to order a stay of execution of the judgment for possession until 28 April 2011. The stay will come to an end on that date unless I am then persuaded to extend it further.
A short extension of the stay will also provide the defendant with some opportunity for the orderly removal of its goods and any improvements from the site so that it can be returned to the territory in generally the condition it was in at the start of the licence agreement.
On the hearing of the application there was no-one present from the firm of solicitors on the record for the defendant. I granted leave to Mr Gillespie, a director of the company, to appear. This is extremely unusual, and it should not be expected that a company will generally be permitted to appear other than by a legal practitioner. Barristers and solicitors are officers of the court and understand that they owe a duty to the court which may from time to time conflict with their duty to the client, and when it does will override it. Barristers and solicitors have a duty of frankness and candour, and a duty to inform the court of any applicable legislation or decision even where it may appear contrary to the interests of the client to do so. Courts are able to rely on the integrity of barristers and solicitors and it is fundamental that the courts be able to do so with confidence. These considerations do not apply to a person who does not hold a practising certificate to practice as a legal practitioner.
I do not make these observations in a way which is intended to be critical of Mr Gillespie or to reflect on his integrity, but rather to make it clear that the course adopted by the court on the hearing of the present application was a most unusual one and that there should be no expectation that such leave will generally be granted.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 15 April 2011
Counsel for the plaintiff: Mr R P Clynes
Solicitors for the plaintiff: ACT Government Solicitor
Appearing for the defendant: Mr G. Gillespie, director (by leave)
Solicitors for the defendant: Collaery Lawyers
Date of hearing: 25 February 2011
Date of judgment: 15 April 2011
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