Lawson v South Australian Minister for Water and the River Murray

[2014] NSWLEC 158

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lawson v South Australian Minister for Water and the River Murray [2014] NSWLEC 158

Hearing dates:

29 September 2014

Decision date:

29 September 2014

Jurisdiction:

Class 3

Before:

Biscoe J

Decision:

(1) The matter is stood over part heard to 20 November 2014.

(2) Leave is granted to Mark Dengate to appear as the applicant's agent up until the time of commencement of the resumed hearing.

(3) The applicant is to notify the Registrar and the respondents in writing of the name and full contact details of her legal representative for the resumed hearing, within three weeks if possible, otherwise as soon as possible thereafter.

(4) If it is not possible for the applicant's legal representative to attend the resumed hearing on the date referred to in Order 1, the applicant is to promptly notify the Registrar and the first respondent in writing and a directions hearing will be arranged as soon as possible thereafter, which the parties may attend by telephone.

(5) Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005, the Court refers the matter to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(6) Liberty to apply on three days' notice.

Catchwords:

PRACTICE AND PROCEDURE - whether matter should be stood over part heard to give applicant the opportunity to obtain legal representation and assistance - referral to Registrar for referral to a barrister or solicitor on Pro Bono Panel for legal assistance.

Legislation Cited:

Land and Environment Court Act 1979 s 63
Public Works Act 1912 s 102
Land and Environment Court Rules 2007 r 7.7
Uniform Civil Procedure Rules 2005 r 7.36

Category:

Procedural and other rulings

Parties:

Dorothy Lawson (Applicant)
South Australian Minister for Water and the River Murray (First Respondent)
Crown Solicitor for New South Wales (Second Respondent)

Representation:

COUNSEL:
M Dengate, agent (Applicant)
D F O'Leary (First Respondent)
Submitting appearance (Second Respondent)
SOLICITORS:
N/A (applicant)
Crown Solicitor for South Australia (First Respondent)
Crown Solicitor for New South Wales (Second Respondent)

File Number(s):

30281/14

EX TEMPORE Judgment

1. In these proceedings in Class 3 of the Court's jurisdiction, the applicant Dorothy Lawson, an Aboriginal woman, applies for an order under s 102 of the Public Works Act 1912 extending the time in which to make a compensation claim for the compulsory acquisition in 1922 of lands at Lake Victoria. She says that an aboriginal ancestor obtained title by adverse possession (ie possessory title) in 1848, and that she is a successor to the statutory entitlement to compensation consequent upon the compulsory acquisition. The first respondent, the South Australian Minister for Water and the River Murray, opposes the application. The second respondent, the Crown Solicitor for New South Wales, has filed a submitting appearance.

1. At the commencement of the final hearing today, the applicant sought and I granted leave to Mr Mark Dengate to appear as her agent at the hearing. With the earlier permission of the Court, the applicant and Mr Dengate attended the final hearing by telephone, as Mr Dengate requested last week having regard to the poor health of the applicant. Earlier, the Court had granted leave to Mr Dengate to appear as her agent at pre-trial directions hearings. During the final hearing today, Mr Dengate indicated that on an earlier occasion the Court had refused him leave to appear as agent at the final hearing, and that if he had been granted leave earlier he would have arranged for the applicant to be legally represented today. I indicated that I was unaware of both those asserted facts. I was under the impression during the hearing that he did not wish to press that matter. However, shortly after the hearing concluded today he contacted and, I understand, substantially reiterated those statements to a Court officer at the Registry. In the circumstances, I reconvened the hearing. The first respondent then read from a transcript of a directions hearing on 13 June 2014 when Craig J brought to Mr Dengate's attention s 63 of the Land and Environment Court Act 1979 which provides that a person may not appear before the Court by an agent except with the leave of the Court, and r 7.7 of the Land and Environment Court Rules 2007 which provides that before the Court determines whether to grant leave the agent must acknowledge to the Court in writing (unless the Court waives the requirement) that the agent has provided the applicant with information prescribed therein. This was in order to assist Mr Dengate with any subsequent leave application. It appears that no subsequent leave application to appear at the final hearing was made until today.

1. I am concerned that, perhaps through a misunderstanding, the applicant is not legally represented when she might otherwise have been legally represented in a matter that raises significant and difficult issues, including consideration of dicta concerning adverse possession by Aboriginal people in the landmark native title cases of Mabo and Wik, particularly per Brennan and Toohey JJ. In the circumstances, I consider that the appropriate course is not to reserve judgment as I had earlier proposed, but to stand over the matter part heard for a period sufficient to afford the applicant a reasonable opportunity to obtain, if possible, legal representation for the resumed hearing and to otherwise obtain legal assistance. The first respondent does not object to that course. The parties are agreeable to orders along the lines of those set out below. Being satisfied that it is in the interests of the administration of justice, they include an order pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 referring the applicant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. I have taken into account that the applicant appears to be without the means or capacity to otherwise obtain legal assistance and that the proceedings and, if time is extended, a subsequent compensation claim raise significant and difficult issues. Rule 7.36(4A) empowers the Registrar to order termination of the referral if she is unable to arrange legal assistance within 28 days.

1. The orders of the Court are as follows:

(1)   The matter is stood over part heard to 20 November 2014.

(2)   Leave is granted to Mark Dengate to appear as the applicant's agent up until the time of commencement of the resumed hearing.

(3)   The applicant is to notify the Registrar and the respondents in writing of the name and full contact details of her legal representative for the resumed hearing, within three weeks if possible, otherwise as soon as possible thereafter.

(4)   If it is not possible for the applicant's legal representative to attend the resumed hearing on the date referred to in Order 1, the applicant is to promptly notify the Registrar and the first respondent in writing and a directions hearing will be arranged as soon as possible thereafter, which the parties may attend by telephone.

(5) Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005, the Court refers the matter to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(6)   Liberty to apply on three days' notice.