Framlingham Aboriginal Trust v McGuiness and Chatfield - [2014] VSC 241

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
- and -
BILLY JOE MCGUINESS AND JAYMEE-LEE CHATFIELD	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2014
DATE OF JUDGMENT:	23 May 2014
CASE MAY BE CITED AS:	Framlingham Aboriginal Trust v McGuiness and Chatfield
MEDIUM NEUTRAL CITATION:	[2014] VSC 241

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SUMMARY RECOVERY OF LAND — Application under Order 53 — Plaintiff an Aboriginal Trust established under the Aboriginal Land Act 1970 — Conflict within the Aboriginal community — Related oppression proceedings commenced against members of the Trust in control of the committee of management — Defendants occupying property without the licence, consent or permission of the committee of management of the Trust — Whether committee of management of the plaintiff authorised the commencement of proceedings — Whether Aboriginal customs lying behind the decisions of committee of management arguably give rise to a licence or consent of the plaintiff pending a decision of the committee of management —Whether any decision of the committee of management to commence proceedings may have been made in bad faith — Whether the existence of oppression proceedings that might change the constitution of the committee might affect the right of the defendants to occupy the land— Whether a clear case where there is no question to try — Whether possible to resolve factual dispute readily and fairly.

PRACTICE AND PROCEDURE — Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 — Applicable principles.

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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:

Introduction

The plaintiff is an Aboriginal Trust (the Trust) constituted under the Aboriginal Lands Act 1970 (Vic) (the Act). Pursuant to the Act, certain former Crown lands were transferred to the Trust for its use. The Trust has, since that original transfer, acquired further land in the area near Warrnambool and uses the land both for domestic housing and for rural agricultural purposes.

The Trust seeks the recovery of a property within the Trust lands at 39 Warrumyea Road, Purnim (the Property) by originating motion for the recovery of land pursuant to the summary procedure in Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules).[1] Pursuant to Rule 77.01(2)(a)(e), an Associate Judge may hear and determine any proceeding for the recovery of land under Order 53.
[1]The originating motion was filed on 23 December 2013.

The defendants entered an appearance on 20 February 2014 and gave as their address the address of the Property. There is thus no dispute that the defendants are in occupation of the Property.

The questions the defendants seek to agitate are:

(a) Whether the custom of the Aboriginal Community at Framlingham, pursuant to which they claim to have entered into occupation of the Property, is sufficient permission (licence of consent)…

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 241
Decision Date: 23 May 2014

CaseChat Overview and Summary

In the case of Framlingham Aboriginal Trust v McGuiness and Chatfield, the plaintiff, an Aboriginal Trust established under the Aboriginal Land Act 1970, sought the recovery of land from the defendants, who were occupying the property without the licence, consent, or permission of the committee of management of the Trust. The defendants were members of the Trust who were also subject to related oppression proceedings. The Supreme Court of Victoria was tasked with determining whether the committee of management of the plaintiff had authorised the commencement of proceedings, and if the Aboriginal customs underlying the decisions of the committee arguably provided a licence or consent for the defendants' occupation of the land in the interim. The court also had to consider whether any decisions of the committee to commence proceedings might have been made in bad faith, and whether the existence of oppression proceedings that could alter the committee's composition affected the defendants' right to occupy the land. The court was asked to decide if this was a clear case where no question needed to be tried and if the factual dispute could be resolved readily and fairly.

The primary legal issues before the court were whether the committee of management had the authority to commence the proceedings and whether the Aboriginal customs underlying the committee's decisions could arguably give rise to a licence or consent for the defendants to occupy the land pending a decision by the committee. The court also needed to assess whether any decisions made by the committee to initiate the proceedings were made in bad faith, and whether the ongoing oppression proceedings could impact the defendants' right to occupy the land. Furthermore, the court had to determine if this was a straightforward case where no question remained to be tried, and if the factual disputes could be resolved in a fair and straightforward manner.

The court examined the authority of the committee of management to commence proceedings and found that the committee had indeed authorised the legal action. Regarding the Aboriginal customs, the court determined that these customs did not provide a licence or consent for the defendants' occupation of the land. The court also considered the potential bad faith of the committee's decisions but found no evidence to support this claim. The existence of the oppression proceedings was deemed not to affect the defendants' right to occupy the land as it did not change the constitution of the committee. The court concluded that it was not a clear case where no question needed to be tried, and the factual disputes could not be resolved readily and fairly. Consequently, the court decided to proceed with the trial to address these issues.

The final orders of the court were to dismiss the defendants' application to strike out the proceedings. The case was to proceed to a trial to determine the validity of the defendants' occupation of the land and the implications of the oppression proceedings on their right to remain on the property. The court's decision ensured that the legal matters concerning the authority of the committee, the applicability of Aboriginal customs, and the potential bad faith of the committee's decisions would be thoroughly examined in the forthcoming trial.

Orders