Jali Local Aboriginal Land Council v Lois Cook

[2018] NSWSC 950

Supreme Court

New South Wales

Medium Neutral Citation:

Jali Local Aboriginal Land Council v Lois Cook [2018] NSWSC 950

Hearing dates:

15 June 2018

Decision date:

22 June 2018

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) The writ of possession to be executed on 26 June 2018 is stayed for a period of one week from that date until 3 July 2018.

(2) The defendant is to pay the plaintiff’s costs of the motion.

 (3) The motion is otherwise dismissed.

Catchwords:

CIVIL PROCEDURE – Application for stay of proceedings – Where plaintiff obtained default judgment for possession of land and subsequently obtained a writ of possession to be executed on 26 June 2018 – Whether stay of proceedings is in the interests of justice – Whether default judgment could be set aside - Whether legitimate explanation for the defendant’s failure to comply with procedural requirements – Whether defendant has a viable defence

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW), ss 3, 36, 42D 42E, 42G, 51, 52, 52AA, 53, 176
Ballina Local Environmental Plan 1987, cll 6, 24
Civil Procedure Act 2005 (NSW), ss 98, 135
Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 121B
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds, and Movable Dwellings) Regulation 2005 (NSW), reg 77
Native Title Act 1993 (Cth)
Protection of the Environment Operations Act 1997 (NSW), s 120
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 42.1

Cases Cited:

In the matter of Webuildem Pty Limited and in the matter of Maroun Investments Pty Limited [2012] NSWSC 708
McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1497

Category:

Principal judgment

Parties:

Jali Local Aboriginal Land Council (Plaintiff)
Lois Cook (Defendant)

Representation:

Counsel:
L Teoh (Plaintiff)
Defendant (self-represented)

  Solicitors:
CH Law (Plaintiff)
Defendant (self-represented)

File Number(s):

2018/44038

Publication restriction:

Nil

Judgment

1. By notice of motion filed on 14 May 2018, Lois Cook, the defendant in these proceedings, seeks a stay of the writ of possession for the land at 146 Byron Bay Road, Lennox Head comprised in folio identifier 146/8200310 (“the property”). The property is undeveloped bushland. The plaintiff in this matter is the Jali Aboriginal Land Council (“Jali ALC”) which is responsible for Aboriginal land in the Lennox Head area. It is the registered proprietor of the property. Ms Cook has been squatting on the property in a tent with other persons. The writ of possession is due to be executed by the NSW Sheriff on 26 June 2018.

2. The hearing of this motion came before me on 15 June 2018 in my capacity as Duty Judge. Ms Cook appeared unrepresented in these proceedings. She relied upon her affidavit sworn on 19 June 2018 and made lengthy oral submissions in support of her application. Mr Teoh of counsel appeared on behalf of Jali ALC. He relied upon the affidavit of Clarissa Louise Huegill sworn on 8 June 2018 and made submissions opposing any stay in this matter.

3. At the conclusion of the hearing it became apparent that Ms Cook had raised a number of arguments for the first time that took Mr Teoh by surprise. In order to afford Jali ALC procedural fairness, I stood the proceedings over part heard and fixed a short timetable for the filing of supplementary evidence and/or submissions. I conditionally fixed a further hearing date of 21 June 2018 in the event that Jali ALC wished to rely on evidence in reply to some of the allegations made by Ms Cook.

4. On Tuesday, 19 June 2018, Jali ALC filed further written submissions by way of email. It did not rely upon any further evidence. Later that same day, Ms Cook filed a proposed defence and other additional material as well. Jali ALC subsequently informed the court that it did not object to the additional material filed by Ms Cook being considered on this application but submitted that it was not relevant to the motion before the court. It was also submitted that the draft defence does not disclose any actual defence to Jali ALC’s claim. Finally, it was submitted that the fact that Ms Cook is a self-represented litigant does not excuse her from compliance with the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and Jali ALC should not be prejudiced by Ms Cook’s consistent non-compliance with court rules and procedure. As a result of this correspondence, the proposed additional hearing date of 21 June 2018 was vacated.

5. After the hearing date of 21 June 2018 was vacated, Ms Cook wrote to the Court indicating that she wished to address the further material she had provided to the Court at a further hearing of the matter. Ms Cook was informed that there was no further hearing in this matter listed and that judgment would be delivered at 2pm on Friday, 22 June 2018. She was also informed that there was no requirement for her to travel to Sydney to obtain judgment as a copy of the judgment could be emailed to her.

Background

6. These proceedings arise from longstanding efforts by Jali ALC to evict Ms Cook and others from the property in order to avoid the costs associated with being in potential breach of various Acts and Regulations administered by the Ballina Shire Council (“Ballina SC”).

7. During the hearing, I asked Ms Cook how long she had been continuously living on the property. Although she first stated “about 23 months or something” she then proceeded to deny actually living at the property. Instead, she told the Court that she had been engaging in cultural ceremonial practices for this period of time.

8. On 24 August 2016, Ballina SC wrote to Jali ALC raising a number of concerns arising from the occupation of the property. Jali ALC was asked to take steps to immediately stop people accessing the land for campsite purposes without first obtaining approval for a safe design to be constructed. Concerns about hygiene and bushfires were also raised. The letter concludes: “given the seriousness of the above issues; Ballina Council asks Jali to take immediate steps to stop the current unauthorised uses until such time as necessary enquiries and applications are made to the Ballina Council and approvals are obtained. In this respect your urgent response outlining the current situation and Jali’s proposed actions and timeframes are requested and would be appreciated.”

9. Jali ALC did not respond to the above letter. Following a site inspection, Ballina SC sent a further letter to Jali ALC dated 11 November 2016 again highlighting a number of concerns. Those concerns are as follows.

10. First, there was a residential encampment on the property with insufficient washing and hygiene facilities including the erection of buildings. Second, there was signage erected advertising “Aboriginal Heritage Tours” and a “sacred women’s lore camp” being conducted on the premises ( Third, council has received a number of complaints in relation to vehicles entering and exiting the property causing an adverse impact on through traffic on Byron Bay Road which has a 100km speed limit. Fourth, the encampment had been erected on “bushfire prone land” in bushfire season and there was a concern that those occupying the property may be in physical danger should a significant fire take place.

11. It was noted that the property is in an “Environmental Protection (Wetlands) Zone”. Under the Ballina Local Environmental Plan 1987 (“BLEP 1987”), any development which would destroy or damage the wetland ecosystem is prohibited. The only exception to these objectives is the development of public works and services in cases of demonstrated and overriding public need and subject to the impact on the wetland ecosystem being minimised as much as reasonably practicable. It was noted that there is some capacity to get a development consent for environmental educational facilities to be erected (with council approval) but not residential occupation of the land: cl 7 of BLEP 1987.

12. Clause 24 of BLEP 1987 provides that there can be no clearing, draining, excavation or filling of the land without the consent of council and that Council shall not consent unless it has considered the likely effects of any development on the flora and fauna, the water table and the wetlands of any proposed clearing, draining, excavating or filling.

13. Ballina SC also noted that s 120 of the Protection of the Environment Operations Act 1997 (NSW) creates an offence for polluting waters and s 142A of that Act provides an offence for polluting the land. The council raised concerns about the disposal of human effluent on the subject premises. Also, under reg 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds, and Movable Dwellings) Regulation 2005 (NSW), the installation of not more than two caravans, campervan or tents for more than two days at a time or 60 days in total requires the prior approval of the council.

14. It was also asserted that Jali ALC may be in breach of s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”) by developing the property without prior consent. The letter ended, “should you fail to respond to adequately address the issues raised above Council may serve a formal Notice Order under the provisions of s121B of the [EPA Act].”

15. I note that, although Ms Cook admits that she does run a business, she disputes that she was doing so from the property.

16. On 22 December 2016, solicitors acting for Jali ALC wrote to Ms Cook and the other occupiers of the property noting that they were “occupying the above land without the permission of Jali ALC, the registered owner of the land”. It was demanded that all persons occupying the land vacate it, taking with them all of their belongings, and that failure to do so would result in legal action to remove all persons and belongings from the land.

17. On 27 March 2017, Ms Cook wrote to Jali ALC giving notice that no officer of Jali ALC has permission to enter the property, that all rights of entry had been removed and that “no trespassing” signs had been erected at all points of entry to the premises. The letter went on to state that any council officer ignoring the notice would be charged with trespass “with minimum penalty of $10,000.00 personally per person per each [b]reach of trespass in addition to other charges.” The letter goes on to state “[f]or Each Council officer or entity authorised by you, or any other council officer in lieu of you, that is charged with trespass, you or in lieu of you any other Council officer, should be charged as a correspondent in each case with penalties and charges applicable to you. Take notice that: Notice to Principal is notice to Agent, Notice to Agent is Notice to Principal.” The letter then set out the schedule as follows:

“Schedule of my Charges at my discretion:

To process a charge payable regardless of legal outcome: $500,000.00

To reply to a letter or email: $1,000.00

To answer a phone: $1,000.00

To Attend Meeting: $5,000.00”

18. Ms Cook signed the letter on behalf of the “Nyangbul Sovereign Land Trust” under which the following words appear: “All Rights Reserved - By Order of the Living Woman/Man occupier.”

19. On 17 May 2017, Mr Smith, the CEO of Jali ALC, wrote to Ms Cook in response to the above letter and noted that Jali ALC does not recognise “Nyangbul Sovereign Land Trust” on the schedule of charges issued by that Trust. The letter goes on to state:

“Jali LALC have repeatedly requested that you vacate our property... You have repeatedly disregarded Trespass Notice from Ballina Shire Council, NSW Police and Jali legal representatives to vacate Jali property.

You are hereby given final notice to vacate the subject property by 1st June 2017. Should you fail to remove all property owned by you or your associate, all property will be removed by Jali LALC. Jali LALC may seek compensation for costs associated with removal of your property from the subject Property.”

20. On 25 July 2017, Kerry Watts, the Acting Group Manager of Development and Environmental Health at Ballina SC, wrote to Jali ALC and served a formal order on it in relation to breaches of the EPA Act. The letter states, “This formal Order is a legally binding document, which you can provide to NCAT to indicate the level of seriousness of the matter to both council and yourselves as the landowners.”

21. At a meeting of Jali ALC on 31 July 2017, which Ms Cook attended, it was agreed that all persons trespassing on the property must vacate it. By notice in writing dated 30 August 2017 sent by Ms Huegill, the solicitor for Jali ALC, Ms Cook and others were again notified that they were trespassing on Jali ALC’s land. Ms Cook and others were advised that if they did not leave the property, Jali ALC and its representatives and contractors would be attending the property on 16 October 2017 to remove them. A notice in writing was served on Ms Cook on 26 September 2017. The notice was left at the property.

22. On 12 September 2017, Vince Hunt, Acting Group Manager of Development and Environmental Health at Ballina Shire Council, wrote to Jali ALC solicitors confirming that the council would not take any action to enforce the order before 27 October 2017 given that the premises would be vacated by 15 October 2017.

23. On 1 November 2017, Ms Huegill wrote to Ballina SC indicating that Jali ALC was unable to take possession of the land on 27 October 2017 without affecting a breach of the peace and that accordingly she had been instructed to commence proceedings in the Supreme Court for a writ of possession. She sought that Ballina SC withhold any action under the outstanding order until those proceedings had been finalised. A subsequent letter from Ms Huegill to Ballina SC on 19 December 2017 confirmed that a statement of claim would be lodged in early February 2018 and it was hoped that, if there was no defence filed, default judgment would be entered in mid-March 2018. Further correspondence between Ms Huegill and the Council took place for several months thereafter.

24. By notice in writing dated 22 January 2018, Ms Cook was required to provide vacant possession of the property on or before 2 February 2018. That notice was personally served upon an adult present on the property on that date. Ms Cook did not provide vacant possession following the issue of that notice.

25. By statement of claim filed in the Supreme Court on 9 February 2018, Jali ALC sought orders that it be granted possession of the property and that it be given leave to issue a writ of possession forthwith.

26. The evidence of the process server was that on 2 March 2018 he attended the property with Mik Smith, who is the CEO of Jali ALC. With Mr Smith’s permission, he entered the property and attended a tent structure. He spoke to a female occupant lying on a mattress on the tent and asked whether she was the occupant of the property. That female occupant would not speak to him and refused to accept service of the statement of claim. He then placed the relevant documents outside her tent and said, “I now serve these documents in your presence.” Ms Cook does not deny that this occurred.

27. No defence was filed to the statement of claim within 28 days and on 13 April 2018, default judgment was entered against Ms Cook. On 24 April 2018, Jali ALC filed a notice of motion seeking leave to issue a writ of possession of the property. That motion was subsequently granted on the same day and the writ of possession is to be executed on 26 June 2018.

28. On 14 May 2018, Ms Cook filed a notice of motion seeking to stay the execution of the writ of possession. On 31 May 2018, Ms Cook appeared before the Registrar. There was no appearance on behalf of Jali ALC on that occasion. The Registrar ordered that Ms Cook serve Jali ALC’s solicitor by 6 June 2018 with a copy of the notice of motion and affidavit in support and ordered that he motion be returnable on 14 June 2018. When the matter came before the Registrar on 14 June 2018, it was stood over until 15 June 2018 to be referred to the Duty Judge. On 15 June 2018, it was referred to me in that capacity.

Ms Cook’s evidence and submissions

29. In her affidavit sworn on 27 April 2018, Ms Cook states that she is a senior law woman and custodian of Nyangbul country. Her father is Lewis Cook who is an 85-year-old senior Elder and Custodian of Nyangbul land. He was passed responsibility for the land through his great-grandfather, Bubba Jack Cook, who was an initiated “lawman and ceremonial headman”. Her father has in turn passed responsibility to her. Ms Cook was reared in her father’s country and was taught where the sacred places were and their significance according to the history and legends of the land. She provides detail as to other family members associated with the land as well. For example, she states that her uncle Douglas Cook, who died in 1987, told her of a camp on the property that is associated with the first blood ceremony where kidnapped wives and children were returned to heal. The land is a “sacred woman site”. She has found artefacts including tools and core materials within the women’s camp area. She has been practising law culture and ceremonial religious practices on that land where a sacred ceremonial fire burns.

30. Ms Cook states that she is an original claimant under the Aboriginal Land Rights Act 1983 (NSW) (“the ALR Act”) for the land. She asserts that the bushland has been abandoned by Jali ALC for 30 years. She has made submissions to manage the land but this has been unsuccessful. She deposes that the property needs to be a part of a process of restoring identity and balance in the community. She asserts that Jali ALC proposes to sell the land to developers and that her cultural association with the land has not been considered.

31. She claims the right to occupy the land pursuant to the traditional law and customs of the Nyangbul people to be used and enjoyed in accordance with traditional customs and rights. She states that, since the enactment of the ALR Act, her people are like “lost souls having little or no say over country because [their] rights have been legislated to a corporation with an ABN”. She states “[w]e are outnumbered by others who came here to live and became members of Jali lalc.” She goes on to allege that the chairperson of Jali ALC, Troy Anderson, does not declare his interests in meetings and that “he and his family have been verbally attacking and laterally abusing our family at land council meetings and other meetings. She states the board of Jali ALC is primarily “the chairperson family and in-laws” and that “[t]he Administration of Jali has had many inquiries related to Fraud, mismanagement and miss appropriation [sic] of funds whenever this family group is involved.”

32. In addition to this evidence in her affidavit, Ms Cook made a number of oral submissions during the hearing of this motion. In short, she considers herself to be the true owner of the land. She feels duty bound to perform cultural rituals on the land but says that Jali ALC wants to sell the land to property developers. This is inconsistent with the purpose of the ALR Act. Other breaches of the ALR Act were also relied upon, including ss 42E and 42G.

33. Ms Cook accepted that she was present at the meeting of the Jali ALC at which time a vote was taken that she had to leave the land. Despite this, she states that there are ulterior motives for Jali ALC wanting her off the land. She is concerned they want to sell the land because of its high value being in the Byron Bay area. She alluded to there being some bad faith in the decision that she had to leave the land. She stated that Ballina SC and Mr Anderson had colluded to get her off the land so it could be sold. She also submitted that, under the ALR Act, any Indigenous person can join a Local Land Council even if they do not have a connection with the land in that area. That person then has the same voting rights as someone like her with a strong connection to country. This means that persons without a traditional connection to country have the power to remove someone with a strong connection to country from the land.

Jali’s submissions and evidence

34. Mr Teoh of counsel stated that he was not aware until the hearing that Ms Cook alleged any impropriety on the part of any member of Jali ALC. He sought leave to file supplementary evidence and/or submissions on this issue. He otherwise relied upon the affidavit of Clarissa Louise Huegill sworn on 8 June 2018 which annexed correspondence setting out the procedural history of the matter.

35. In a recent letter addressed to Ms Huegill from Ballina SC on 6 June 2018, the Council reiterated its ongoing concerns in relation to occupation of the property. It repeated all of the complaints referred to above and restated that the council has serious concerns about the public health implications to the persons occupying the land. The Council also raised concerns about the buildings that have been constructed and in particular about the electrical connections to these buildings been installed. The electrical works have not been the subject of any approval process and the integrity of such cannot be confirmed and may pose a hazard to occupants. There was also concern that the gate erected across the access track may impede the access of emergency vehicles should a bushfire occur within the site. It is noted that Ballina SC can enforce a formal order against Jali ALC in relation to breaches of the EPA Act but has deferred doing so pending the conclusion of these Supreme Court proceedings.

36. Mr Teoh’s submissions were directed to the fact that the interests of justice do not favour the stay being granted in this matter. Ms Cook has not demonstrated any explanation for the delay in defending these proceedings and nor could it be said that she has any arguable defence.

37. Mr Teoh’s supplementary submissions filed on 19 June 2018 address the assertions by Ms Cook that Jali ALC has failed to comply with its obligations under the ALR Act. It was submitted that these assertions are completely irrelevant to the possession proceedings brought before the Supreme Court. Jali ALC rejects Ms Cook’s assertion that she is an original claimant to the land. Pursuant to s 36 of the ALR Act, only the NSW ALC or a relevant Local ALC can make claims to “claimable Crown lands”. There is nothing in that legislation that permits an individual or a person purporting to act on behalf of an undefined group of Indigenous individuals from making a claim or receiving land. On that basis, Ms Cook has no right to claim or possess the land under the ALR Act.

38. As for Ms Cook’s assertion that Jali has not complied with s 42G of the ALR Act, it is submitted that there is no “land dealing” in this case and thus there is no requirement for Jali ALC to consult with Ms Cook before requiring her to quit the premises. In any event, she was present at the meeting in which it was decided that she must leave the land. Jali ALC also relies upon the fact that Ms Cook has not particularised what Mr Anderson’s interests are that allegedly give rise to any conflict on his part. Section 176(2) of the ALR Act was noted in this respect. It is submitted that the complaint against Mr Anderson is irrelevant to the possession proceedings.

39. Finally, in relation to Ms Cook’s claim that Jali ALC proposes to sell the land it is noted that there was no evidence to support this except for verbal assertions from Ms Cook. In any event, even if a sale was to take place, Ms Cook has the avenue of bringing proceedings for judicial review in the Land and Environment Court. It was submitted that those matters are not relevant to the question of whether the court should order the defendant to give possession of the land in this matter.

40. Overall, Jali ALC submitted that it was not in the interests of justice to grant a stay having regard to the fact that Jali ALC has been ordered by the Ballina LC to remedy potential breaches and that Jali ALC may be forced to pay substantial penalties if it does not comply with Council’s requirements.

Additional material filed on behalf of Ms Cook after the hearing

41. In Ms Cook’s affidavit of 19 June 2018, she sets out additional information explaining the delay in this matter. She notes that when she was served with a statement of claim on or about 2 March 2018, she was not legally experienced and did not understand court documents. When she saw that the statement of claim was filed on 9 February 2018, she thought the 28 days to respond was from that date and that she was thus already out of time. She states that she was expecting another letter as to when to attend court but did not receive any. She noticed subsequently that in paragraph 3 of the notice to occupier attached to the statement of claim there was a reference to “10 days after this notice is served on you” but that on page 3 of the statement of claim the reference is to “28 days after being served”. She states that this made it confusing for her to understand what she was supposed to do.

42. Ms Cook deposes that, on 24 April 2018, she telephoned the Supreme Court to find out what was happening and was told that orders had already been made. She telephoned the Sheriff’s office and prepared an application for staying the writ on or about 27 April 2018 but had to make a number of changes to the documents and thus it was not lodged until 14 May 2018. She states that this shows she tried to act quickly even though she did not understand the procedures.

43. Ms Cook has also provided a copy of the defence she proposes to file in these proceedings. She asserts that Jali ALC is acting in bad faith in bringing the proceedings against her. She repeats a number of matters raised in the proceedings either in her affidavit or oral submissions. She notes the ongoing issues between her family and Troy Anderson’s family over cultural issues, land development and personal matters for many years. She states that the proceedings are a continuation of a process of harassment to prevent her from carrying out her cultural responsibilities as a traditional owner and custodian of Nyangbul country. She also states that Jali ALC has failed to look after the property and notes that non-Indigenous campers have been on the land many times but nothing was done to remove them at a time when Troy Anderson was on the board of Jali ALC.

44. Ms Cook sets out in her defence how, in traditional times, custodians of Nyangbul country had responsibility to occupy the site. She notes that the ALR Act was enacted prior to the Native Title Act1993 (Cth) and asserts that, had the Native Title Act been enacted first, her continuing rights as a traditional owner in custody would have been recognised in law. She alleges a breach of s 52 of the ALR Act and complains that Jali ALC’s Community, Land and Business plan is inadequate. She was not consulted in relation to it thus Jali ALC has not complied with its functions. She concludes by stating that it is the best interests of the parties to negotiate and enter a 99-year lease.

45. In addition to this affidavit, Ms Cook provided a copy of the Aboriginal Cultural Heritage Bill 2018 (NSW) and some provisions of the ALR Act. She also provided correspondence going back some years in relation to alleged violence against individuals in her community. I do not propose to go into this correspondence in any detail. I note that in general terms it supports the oral submissions made by Ms Cook at the hearing of this matter that there is long-standing animosity between her family and the Anderson family dating back to at least 2003.

46. Ms Cook was also provided a letter purporting to be from her father, Lewis Cook. It is in these terms:

“I am a 86-year-old man. Since native title came in it started a lot of friction among Aborigines. The people in control of the Jali LC are NT applicants. They all have a conflict of interest and eager to sell the land for the money. They been angry with Lois over this for years and attack her a lot.”

Aboriginal Land Rights Act 1983

47. Before turning to consider the respective arguments of the parties, I note some relevant provisions of the ALR Act. Section 3 of the ALR Act provides that the purposes of the act are as follows:

“(a) to provide land rights for Aboriginal persons in New South Wales,

(b) to provide for representative Aboriginal Land Councils in New South Wales,

(c) to vest land in those Councils,

(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,

(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.”

48. Division 2 of Pt 2 of the ALR Act concerns “Claimable Crown Lands”. Section 36 provides how such claims are to be made. Significantly, s 36 provides that only the NSW ALC or relevant Local ALC (such as Jali ALC) may make a claim for claimable Crown lands.

49. Division 4 of Pt 2 of the ALR Act concerns “Land Dealings by Aboriginal Land Councils”. A number of definitions for the purposes of that part are provided in s 40 of the ALR Act. “Deal with land” is defined therein. The definition does not include a notice to evict a person said to be trespassing on land owned by an ALC.

50. Section 42D of the ALR Act provides that the NSW ALC must not “deal with land” vested in it unless:

“(a) it has notified the Local Aboriginal Land Council (if any) for the area in which the land is situated in writing of the land affected and the type of proposed dealing, and

(b) it has considered any comments made by that Council within 28 days of that notice being given, and

(c) (Repealed)

(d) it has had regard to its community, land and business plan and any of its policies that are applicable, and

(e) if it is appropriate to do so in the circumstances, it has considered the cultural and heritage significance of the land to Aboriginal persons in determining whether to deal with the land, and

(f) the land dealing complies with a resolution of the New South Wales Aboriginal Land Council approving the dealing.”

51. Section 42G(2) of the ALR Act provides that

“(2) Refusal if contrary to LALC members’ interests The New South Wales Aboriginal Land Council may refuse to approve a land dealing if it considers that the dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council.

(3) In considering whether a land dealing is contrary to any such interests, the New South Wales Aboriginal Land Council may consider (and is not limited to considering) the following:

(a) the community, land and business plan of the Local Aboriginal Land Council and whether, and to what extent, the land dealing is consistent with that plan,

(b) the terms of the land dealing and whether those terms are fair and equitable to the Local Aboriginal Land Council in all the circumstances,

(c) whether the Local Aboriginal Land Council, in passing the resolution, had proper regard to the cultural and heritage significance of the land to Aboriginal persons,

(d) any assessment of the application for approval of the land dealing by an expert advisory panel under this Division,

(e) whether it is likely that the proceeds of the land dealing will be managed and applied in the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of the Council,

(f) any applicable policy of the New South Wales Aboriginal Land Council in relation to land dealings by Local Aboriginal Land Councils.”

52. Section 51 of the ALR Act provides that the objects of each Local ALC are “to improve, protect and foster the best interests of all Aboriginal persons within the Council’s area and other persons who are members of the Council.” Section 52 of the ALR Act sets out the functions of the local ALCs. Subs (2), (3) and (4) are as follows:

“(2) Land acquisition A Local Aboriginal Land Council has the following functions in relation to the acquisition of land and related matters:

(a) in accordance with this Act and the regulations, to acquire land and to use, manage, control, hold or dispose of, or otherwise deal with, land vested in or acquired by the Council,

(b) functions relating to the acquisition of land and any other functions conferred on it by or under Part 4A of the NPW Act,

(c) to submit proposals for the listing in Schedule 14 to the NPW Act of lands of cultural significance to Aboriginal persons that are reserved under the NPW Act,

(d) to negotiate the lease by the Council or by the Council and one or more other Aboriginal Land Councils of lands to which section 36A applies to the Minister administering the NPW Act,

(e) when exercising its functions with respect to land that is the subject of a lease, or proposed lease, under Part 4A of the NPW Act, to act in the best interests of the Aboriginal owners of the land concerned,

(f) to make written applications to the New South Wales Aboriginal Land Council for the acquisition by the New South Wales Aboriginal Land Council of land on behalf of, or to be vested in, the Local Aboriginal Land Council,

(g) to make claims to Crown lands or to enter into Aboriginal Land Agreements.

(3) Land use and management A Local Aboriginal Land Council has the following functions in relation to land use and management:

(a) to consider applications to prospect or mine for minerals on the Council’s land and to make recommendations to the New South Wales Aboriginal Land Council in respect of such applications,

(b) to protect the interests of Aboriginal persons in its area in relation to the acquisition, management, use, control and disposal of its land.

(4) Aboriginal culture and heritage A Local Aboriginal Land Council has the following functions in relation to Aboriginal culture and heritage:

(a) to take action to protect the culture and heritage of Aboriginal persons in the Council’s area, subject to any other law,

(b) to promote awareness in the community of the culture and heritage of Aboriginal persons in the Council’s area.”

53. Section 52AA(1) of the ALR Act provides that a Local ALC “may do or suffer in relation to its property any act or thing that it could lawfully do or suffer if it were a natural person having, in the case of land, the same estate or interest in the property as the Council.”

54. Section 53(2A) of the ALR Act provides that a person is qualified for membership if:

“(a) the person is an adult Aboriginal person who resides within the area of the Local Aboriginal Land Council concerned and is accepted as being qualified on that basis to be a member by a meeting of the Council, or

(b) the person is an adult Aboriginal person who has a sufficient association with the area of the Local Aboriginal Land Council concerned (as determined by the voting members of the Council at a meeting of the Council) and is accepted as being qualified on that basis to be a member by a meeting of the Council, or

(c) the person is an Aboriginal owner in relation to land within the area of the Local Aboriginal Land Council concerned and has made a written application for membership in accordance with subsection (3).”

55. Section 176(2) of the ALR Act provides

“(1) Every councillor, Board member and member of staff of an Aboriginal Land Council or an advisory committee, must:

(a) act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act, and

(b) act for a proper purpose in carrying out his or her functions under this or any other Act, and

(c) not use his or her office or position for personal advantage, and

(d) not use his or her office or position to the detriment of an Aboriginal Land Council.

(2) Although this section places certain duties on officers and members of staff of a Council, and on councillors, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.”

Consideration

56. It is clear that the Court can make directions regarding the enforcement of orders: s 135 of the Civil Procedure Act 2005 (NSW) (the CPA”). Section 135(2)(b) of the CPA specifically provides that the Court may make an order prohibiting the Sheriff from taking any further action on a writ. It has been held that the power to grant a stay under s 135 of the CPA is exercisable where the interests of justice so demand. That is, the applicant must satisfy the Court that the interests of justice require a stay: In the matter of Webuildem Pty Limited and in the matter of Maroun Investments Pty Limited [2012] NSWSC 708 at [13]. The Court has a wide discretion as to whether or not to grant a stay and upon what terms.

57. If I was to grant a temporary stay of the writ of possession, Ms Cook would next need to apply to have the default judgment set aside. In order to satisfy the Court that the default judgment should be set aside, she would need to satisfy the court not only that she was able to explain her delay in defending those proceedings but also that she has an arguable case in relation to the substantive proceedings. It would not be in the interests of justice to stay the writ of possession in this matter unless I was satisfied that there was an arguable defence to Jali ALC’s claim.

58. Turning first to the question of delay, I accept that the explanation for not filing a defence within time is somewhat unsatisfactory. Despite this, default judgment was entered very shortly after the time for filing a defence had lapsed and Ms Cook contacted the Court shortly thereafter. This is not a case where the delay between the proceedings being commenced and the writ of possession being issued was significant. For the purposes of this application I am prepared to accept that although Ms Cook may have initially taken a “head in the sand” approach to the litigation given its acrimonious background, she does in fact wish to defend these proceedings.

59. The real question for my determination is whether I am satisfied that Ms Cook has an arguable defence to the statement of claim. If she can establish that to be the case then it would be in the interests of justice to stay the execution of the writ given the relatively short period of time which has elapsed since these proceedings were commenced. The difficulty is that, although Ms Cook has identified a number of issues which give rise to some concern as to how her rights as a senior law woman and custodian of Nyangbul country are to be exercised, no actual defence has been identified. I shall address each of Ms Cook’s arguments in turn.

60. First, although I am satisfied on the material before me that Ms Cook has a deep cultural and historical connection to the property, the fact remains that Jali ALC is the registered proprietor of the property. There is no legal basis for Ms Cook’s assertion that she is in fact the legal owner. She does not rely upon any doctrine of adverse possession; she admits that she has only been squatting on the property for 23 months. Nor does she suggest that any arrangement was ever made with Jali ALC such as to give rise to some expectation on her part that she would be permitted to reside on the land. Rather, Ms Cook’s contention is that she considers herself the legal owner, not Jali ALC. I accept the submission made on behalf of Jali ALC that the ALR Act does not permit an individual to make a claim for land even if they can establish that they are a traditional owner of the land.

61. Second, although Ms Cook has raised some valid concerns in relation to the practical operation of the ALR Act, those are matters more appropriately vented in another forum. I am not satisfied that there has been any breach of the ALR Act which would give rise to a defence to the claim in this matter. The request by Jali ALC that Ms Cook cease trespassing on the property is not a “land dealing” within the meaning of the ALR Act, thus there is no requirement to comply with ss 42E and 42G of that Act. In any event, Ms Cook accepted during the hearing that she was present at the meeting when the decision was made that she be ordered to leave the property.

56. Third, there is nothing before the Court to suggest, as was argued by Ms Cook, that there is any conspiracy between Ballina SC and Jali ALC to concoct the breaches of the various Acts and Regulations just to remove her from the property.

57. Fourth, there is nothing before the Court to support Ms Cook’s assertion that the only reason that Jali ALC wants Ms Cook to leave the property is so that it can be sold to property developers. If indeed Jali ALC ever wishes to sell the property in the future, then the relevant provisions of the ALR Act will have to be complied with. This would include obtaining the views of the traditional owners such as Ms Cook. If in fact a “sacred woman’s site” has been identified on the property, that is a matter that may well affect the ability to develop the property commercially in the future but that is a matter to be addressed if and when that occurs. The fact that Jali ALC may seek to sell the property in the future is not a defence to Jali ALC’s claim for possession of the property now.

58. Finally, I have had regard to the suggestion that the decision to evict Ms Cook from squatting on the property was made in bad faith and as part of an ongoing process of intimidating Ms Cook and her family. There is certainly material before me to support the proposition that there is longstanding hostility between Troy Anderson and his family and Ms Cook and her family. That is most unfortunate given their respective roles in the local Indigenous community. The difficulty is that there is clear evidence that the reason a decision was made to evict Ms Cook from the property is the attitude of Ballina SC and the alleged breaches identified by it. The fact that Jali ALC made the decision to evict Ms Cook following the correspondence from Ballina SC weighs heavily against any suggestion that the decision was made for any ulterior purpose.

59. As for Ms Cook’s desire to perform traditional rituals on the property, there is no reason why arrangements could not be made with Jali ALC to permit her to do so in the future. On the limited material available to me, the problem does not seem to be with Ms Cook having access to the property to perform such ceremonies. Rather, the problem is that Ms Cook claims ownership of the land and refuses to leave in circumstances where Ballina SC has warned Jali ALC that it is potentially in breach of various regulations that must be rectified.

60. I am satisfied that Ms Cook has raised some heartfelt concerns as to the operation of ALR Act but unfortunately none of the material she relies upon gives rise to a defence to Jali ALC’s claim. As the matter currently stands, she is trespassing.

61. I have had regard to the fact that Ms Cook is an Indigenous woman of apparently limited means. She explained during the course of the hearing that the Aboriginal Legal Service cannot act for her because they will not represent Indigenous persons in litigation against other Indigenous persons. She explained that she would not be able to get help from Legal Aid NSW either. UCPR r 7.36 provides that the Court may make an order that a litigant be referred to a barrister or solicitor on the pro bono panel for legal assistance if the Court is satisfied that it is in the interests of the administration of justice to do so. In this regard I note the observations of Beech-Jones J in McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1497 at [9] that “[g]enerally, the facility of the pro bono panel is not to be unduly tested by referrals of cases or cases which lack strength or utility particularly in circumstances where the litigant can probably do a serviceable job of putting forward their own case”. In order for me to refer Ms Cook to this scheme, I would need to be satisfied that she potentially has an arguable case but is unable to properly plead it. Unfortunately, for the reasons set out above, I am not satisfied that is the case.

62. Despite Ms Cook’s eloquent submissions regarding the need for the cultural traditions in the land covered by Jali ALC to be preserved and her concerns that Jali ALC do not always have those concerns at the forefront of their dealings, I am not satisfied that it is in the interests of justice to stay the writ of possession in order to give Ms Cook time to seek to have the default judgment set aside in this matter. Despite this, there is now only one working day after today before the writ is to be executed on 26 June 2018. In those circumstances, I am prepared to stay the writ of possession for a short specified period of time in order for Ms Cook to make arrangements to leave the property.

63. As for the question of costs, I note that Jali ALC seeks the costs of the motion against Ms Cook. Section 98(1)(a) of the CPA provides that costs are in the discretion of the Court and s 98(1)(b) of the CPA provides that the Court has “full power to determine by whom, to whom and to what extent costs are to be paid”. Among the fetters on the discretion to award costs are the rules of the Court contained in Pt 42 of the UCPR. The usual rule is that costs follow the event, unless it appears to the Court that some other order should be made: UCPR r 42.1. Although I propose to allow Ms Cook some time to leave the property, her motion has otherwise been unsuccessful. In the circumstances it does not appear to me that any other order should be made other than than costs will follow the event.

ORDERS

70. Accordingly, I make the following orders:

1. The writ of possession to be executed in this matter on 26 June 2018 is stayed for a period of one week from that date until 3 July 2018.

2. The defendant is to pay the plaintiff’s costs of the motion.

3. The motion is otherwise dismissed.

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Decision last updated: 25 June 2018