| 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 |
| v | |
| 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]
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- Case
- [2014] VSC 354
- Decision Date
CaseChat Overview and Summary
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).
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