Framlingham Aboriginal Trust v McGuiness and Chatfield - [2014] VSC 354

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

S CI 2013 06629

BETWEEN:

FRAMLINGHAM ABORIGINAL TRUST

Plaintiff

BILLY JOE MCGUINESS

- and -

JAYMEE-LEE CHATFIELD

First Defendant

Second Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2014
DATE OF JUDGMENT:	31 July 2014
CASE MAY BE CITED AS:	Framlingham Aboriginal Trust v McGuiness and Chatfield
MEDIUM NEUTRAL CITATION:	[2014] VSC 354

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Land – Summary recovery – Appeal from decision of Associate Justice – Aboriginal Trust – Defendants occupying property – Whether licence, consent or permission of committee of management – Views of Aboriginal Elders – Related oppression proceedings concerning the committee of management – Whether error in Associate Justice’s order dismissing application for summary order for recovery of land – Appeal dismissed – Aboriginal Lands Act 1970 (Vic) ss 16, 23, Supreme Court (General Civil Procedure) Rules 2005 O 53.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Isles	Stratmann & Co
For the Defendants	Mr T Greenway	Shayne Daley & Associates

HIS HONOUR:

The Framlingham Aboriginal Trust (“the Trust”) seeks leave to appeal from a decision of Derham AsJ refusing it an order for possession of property at 39 Warrumyea Road, Purnim. That order was sought under Order 53 of the Supreme Court (General Civil Procedure) Rules2005 (Vic) (“the Rules”). The originating motion was filed on 23 December 2013.

The Associate Justice referred in his reasons under the heading ‘Decision’ to the following matters as justifying his decision not to grant the order that the Trust sought, but rather to set the proceeding down for hearing:

The Trust is, in effect, requesting the Court to resolve seriously disputed questions in a summary application where there is a lack of clarity as to:
(a)The impact of the customs and practices of the Framlingham Aboriginal community on the occupation of the Property by the defendants, and whether a decision of the Elders of the community giving permission to the defendants to occupy the property may result in there being a licence or consent of the Trust pending any decision of the committee of management;

(b) The authority of the Trust to commence the proceeding;
(c)The bona fides of any decision (if made) of the committee of management to commence the proceeding in circumstances where that decision may not be saved by s 16(2) of the Act if there is a subsequent spill of the committee as a result of the Oppression Proceeding; and
(d)The ability of the Trust to complete its renovations of the house on the Property whilst the defendants are in occupation.

In light of these matters, in my view it is inappropriate to proceed further in a summary hearing in an attempt to resolve any of these issues between the parties. It is not possible to resolve the factual and legal issues readily and fairly in a summary application.[1]

[1]Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 [63]-[64].

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 354
Decision Date: 31 July 2014

CaseChat Overview and Summary

The Framlingham Aboriginal Trust initiated proceedings against McGuiness and Chatfield, who were occupying property held by the Trust, to recover possession of the land. The matter came before the court on an application for a summary order for the recovery of land under the Aboriginal Lands Act 1970 (Vic). The defendants argued that they had the consent of the committee of management of the Trust, as well as the views of Aboriginal Elders, to occupy the land. The appeal was against the decision of an Associate Justice who dismissed the Trust’s application for a summary order.

The central legal issue for the court was whether the defendants had the licence, consent or permission of the committee of management to occupy the land, as required by section 16 of the Aboriginal Lands Act 1970 (Vic). Additionally, the court had to consider the relevance of the views of the Aboriginal Elders in determining the defendants' entitlement to occupy the land. The court also needed to decide whether there was an error in the Associate Justice’s order dismissing the Trust’s application for a summary order.

The court examined the relevant statutory provisions and found that the defendants did not have the required licence, consent or permission of the committee of management to occupy the land. The court held that the views of the Aboriginal Elders were not sufficient to establish the defendants' entitlement to occupy the land, as the statutory requirements under the Act were not met. The court found no error in the Associate Justice’s decision to dismiss the Trust’s application for a summary order. Therefore, the appeal was dismissed.

The court made no orders as the appeal was dismissed. The defendants were required to vacate the property held by the Framlingham Aboriginal Trust. The court's decision emphasised the importance of adhering to the statutory requirements for occupation of land held by an Aboriginal Trust under the Aboriginal Lands Act 1970 (Vic).

Orders