Lester v New South Wales Aboriginal Land Council
[2001] NSWSC 891
•11 October 2001
CITATION: Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891 CURRENT JURISDICTION: Common Law Division
Administrative Law ListFILE NUMBER(S): SC 30059/01 HEARING DATE(S): 11 October 2001 JUDGMENT DATE:
11 October 2001PARTIES :
Robert John Lester (plaintiff / respondent on motion)
New South Wales Aboriginal Land Council (defendant / applicant on motion)JUDGMENT OF: Dunford J
COUNSEL : J Griffiths SC (plaintiff)
R Forster SC (defendant)SOLICITORS: Horowitz & Bilinsky (plaintiff)
Woolf Associates (defendant)CATCHWORDS: PRACTICE & PROCEDURE - jurisdiction of courts - purported removal of Treasurer of Aboriginal Land Council - jurisdiction of Supreme Court LEGISLATION CITED: Land and Environment Court Act 1979, ss 16, 20, 71, 72
Aboriginal Land Rights Act 1983, ss 20, 22, 23, 24, 56A, Schs 5 & 6CASES CITED: Bathurst City Council v Saben (No. 2) (1986) 58 LGRA 201
Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494
Annetts v McCann (1991) 170 CLR 596
Manly Vale Pty Limted v Frances (1986) 4 NSWLR 635DECISION: See para 13
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
30059/01
Dunford J
Thursday, 11 October 2001
JudgmentROBERT JOHN LESTER v NEW SOUTH WALES ABORIGINAL LAND COUNCIL
1 By an Amended Summons filed 26 September 2001, the plaintiff seeks a number of declarations and orders to the effect that his removal from office as Treasurer of the New South Wales Aboriginal Land Council (the Council) was invalid and void on the ground that in purporting to remove him the Council acted beyond any power conferred on it by the Aboriginal Land Rights Act 1983 (the “ALR Act”) or otherwise, and alternatively, that he was denied procedural fairness and had a legitimate expectation that the Council would follow procedures set out in the Code of Conduct contained in the Council’s Policies and Procedures Manual (the Code of Conduct). The relevant contentions of the parties are set out in the Points of Claim and Points of Defence which have been filed.
2 The defendant Council has now filed a Notice of Motion seeking an order that the proceedings be struck out, or alternatively transferred to the Land and Environment Court, on the ground that this Court lacks jurisdiction by reason of the combined effect of the provisions of ss 16, 20(1)(e), (2), (3) and 71 of the Land and Environment Court Act 1979 (the “LEC Act”). Those sections, in effect, provide that the Land and Environment Court has jurisdiction (s 16) and this Court does not have jurisdiction (s 71) in cases arising under of a number of Acts including the ALR Act (s 20(3)a) where the proceedings are, so far as is presently relevant:
- (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law …
(b) to review or command the exercise of a function conferred or imposed by a planning or environmental law . . . or
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function . . . (s 20 (2)).
3 If it is held that the proceedings come within the exclusive jurisdiction of the Land and Environment Court, there is power to transfer them to that Court (s 72), but it is agreed that there is no power to transfer parts of such proceedings to that Court, see Bathurst City Council v Saben (No. 2) (1986) 58 LGRA 201.
4 For the defendant Council, it was submitted that what the plaintiff is seeking to do is to enforce a right which he claims is conferred by the ALR Act to remain as Treasurer until after the first meeting of the Council following the next election of councillors, or alternatively, his right not to be removed from such office except upon observance of the procedures and requirements set out in the Code of Conduct, or otherwise in accordance with the principles of procedural fairness.
5 On behalf of the plaintiff on the other hand it was submitted that he is not seeking to enforce any right, obligation or duty conferred or imposed by the ALR Act but merely seeks to prevent the Council exceeding its statutory powers.
6 The ALR Act provides for the establishment and constitution of the Council (s 22) and for its functions (s 23), whilst s 24 makes provision for rules in relation to the Council’s functions and operations which are subject to approval by the Registrar or the Court. Schedule 5 contains provisions relating to Councillors, while Schedule 6 contains provisions relating to the procedures of the Council. Clause 2 of Schedule 6 is as follows:
- “The councillors are to elect a Chairperson, a Secretary and a Treasurer at the Council’s first meeting on or after each election of all councillors in accordance with Division 2 of Part 4 (which regulates the election of councillors).”
7 This, as far as I can see, is the only reference to the Treasurer and contains no reference to the replacement of the Treasurer between elections of the Council. In Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 at 512-3, affirming (1996) 92 LGERA 212, it was held that proceedings based on a claim that the Council was acting beyond its statutory powers did not fall within the category of proceedings described in s 22(2), and therefore such proceedings could be brought in the Supreme Court.
8 In my view this is really the crux of the first ground of the plaintiff’s claim in that he claims that in purporting to remove him as Treasurer, the Council is acting beyond its statutory power, and therefore he is not seeking to enforce a right conferred on him by the ALR Act. The Batemans Bay case makes it clear that the mere fact that it is necessary to construe the ALR Act to determine whether the Council is or is not acting beyond power, does not necessarily bring the proceedings within the prescription of s 20(2). The plaintiff’s primary challenge, as I understand it, is based on the proposition that there is no express statutory power to remove him.
9 The position of the Code of Conduct is somewhat more perplexing. The Points of Claim refer to it as being contained in the Council’s Policies and Procedures Manual adopted by the Council in March 1999, but it appears from the Points of Defence that there is dispute, not only to the extent to which it is binding on the Council, but also as to its content and its construction. Nowhere is it alleged in the Points of Claim or Points of Defence, that it forms part of the rules specified in s 24 of the Act or that they are rules of conduct determined by the Minister pursuant to s 56A of the ALR Act. In my view it should therefore be regarded as a procedural code relating to the internal management of a Council similar to a procedural code which any other body corporate may adopt. Even if it did form part of the rules referred to in s 24 or formed part of rules of conduct determined by the Minister under s 56A, the Code would in my view still only have the status of an internal management code. Its terms are not laid down by the Act or by the regulations made thereunder, and it follows that insofar as the plaintiff seeks to enforce the Code of Conduct, he is not seeking “to enforce any right, obligation or duty conferred or imposed by [the ALR Act] or to review the exercise of a function conferred or imposed by such Act.”
10 The other arm of the plaintiff’s challenge to the defendant’s actions is the claim that he has been denied procedural fairness. The rules of natural justice, including the right to procedural fairness, are common law rights: Annetts v McCann (1991) 170 CLR 596 at 598, and therefore do not have their source in the ALR Act. Consequently this basis in the plaintiff’s claim likewise is not an attempt to enforce any right etc conferred or imposed by the ALR Act.
11 Accordingly I am satisfied that none of the plaintiff’s claims come within the terms of s 20(2) and this Court has jurisdiction in respect of each of them. However, if I am in error in relation to the claim based on lack of power and/or the claim based on the Code of Conduct, the claim based on the denial of procedural fairness must be within the jurisdiction of this Court and not within the jurisdiction of the Land and Environment Court.
12 In those circumstances it would appear that this Court would have jurisdiction to deal with all the plaintiff’s claims for relief notwithstanding s 71 of the LEC Act, see Manly Vale Pty Limited v Frances (1986) 4 NSWLR 635 per Priestley JA at 641 to 643. To hold otherwise would produce a procedural nightmare.
13 Accordingly the Notice of Motion will be dismissed. I order that the costs of the motion be the plaintiff’s costs in the proceedings, and the proceedings are stood over to the Directions List at 9.30am on Tuesday 16 October 2001.
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