Moran v Armidale Local Aboriginal Lands Council

[2019] NSWCA 220

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Moran v Armidale Local Aboriginal Lands Council [2019] NSWCA 220
Hearing dates:	5 September 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Before:	Macfarlan JA; Payne JA
Decision:	(1) Application for leave to appeal out of time dismissed. (2) Summons seeking leave to appeal filed on 4 June 2019 dismissed. (3) Applicant to pay the costs of the respondent.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – filed out of time – no prospects of success – application dismissed
Legislation Cited:	Inclosed Lands Protection Act 1901 (NSW), s 4 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Armidale Local Aboriginal Lands Council v Moran (Supreme Court (NSW), Fagan J, 11 July 2018, unrep) Gallo v Dawson [1990] HCA 30; 64 ALJR 458 The Age Company Ltd v Liu [2013] NSWCA 26
Category:	Principal judgment
Parties:	Kerry Jean Moran (Applicant) Armidale Local Aboriginal Lands Council (ABN 74 878 382 043) (Respondent)
Representation:	Counsel: D C Eardley (Respondent)   Solicitors: Applicant (self-represented) Legal Minds (Respondent)
File Number(s):	2019/00174408
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2018] NSWSC 1133 Date of Decision: 20 July 2018 Before: Schmidt J File Number(s): 2018/00213158

Judgment

1. THE COURT: This is an application for leave to appeal from the decision of Schmidt J delivered on 20 July 2018 in Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133.

2. Leave to appeal is required as the applicant has not demonstrated that an amount in excess of $100,000 is engaged: Supreme Court Act 1970 (NSW), s101(2)(r). An extension of time is also required as the summons seeking leave to appeal was filed on 4 June 2019, many months out of time.

Relevant facts

3. In the Court below, the respondent, the Armidale Local Aboriginal Lands Council, sought a declaration that Ms Moran had no right to enter, occupy, or remain on land of which it is the registered proprietor at Armidale, where it alleged she was squatting.

4. The building being occupied by Ms Moran had been seriously damaged by fire, making its occupation hazardous, with the result that approval for its demolition had been obtained from the Armidale Regional Council. Contractors had been engaged by the respondent to effect demolition of the building. Nevertheless, Ms Moran refused to vacate the premises: Armidale Local Aboriginal Lands Council v Moran (Supreme Court (NSW), Fagan J, 11 July 2018, unrep).

5. Fagan J in that case observed that there did not seem to be any basis upon which Ms Moran could claim a right to possession of the property, but the steps the respondent had pursued to have police deal with her apparent breach of s 4 of the Inclosed Lands Protection Act 1901 (NSW) had not been successful, for reasons which were not apparent. Accordingly, the respondent brought proceedings in the Common Law Division seeking declaratory relief. The matter was listed for urgent hearing on 17 July 2018 before Schmidt J.

6. The hearing that day was adjourned to 19 July 2018, there having been no appearance for the respondent by reason of an administrative error by the Court in failing to notify the respondent of the correct date.

7. On the adjourned date, Ms Moran relied on: a handwritten document in which reference was made to a building inspector, Mr Rees, of Armidale Regional Council; the application for demolition of the building; copies of documents relating to apprehended violence orders sought by Ms Moran in relation to Mr Briggs, the Land Council’s chief executive officer; correspondence sent in June by the Armidale Regional Council to Ms Moran about the complying development application lodged by the Land Council, which proposed the demolition of the building and which had been approved; and a copy of a complaint made to the Land Council by Ms Moran about alleged fraud and corruption, as well as a complaint to the Judicial Commission of NSW. Ms Moran also relied upon another bundle of documents which contained some of the same documents, as well as other documents, including photographs of the building and documents referring to 000 calls which she had made.

8. Affidavits sworn by Mr Briggs and Mr Doyle, who was employed by the Land Council’s solicitors, were read by the respondent. Those documents established its title to the property and the service of the documents relied on.

9. Ms Moran gave oral evidence before Schmidt J in which she spoke of how she had come to live at the property, which she described as then being unsafe, unfenced and in a very dangerous condition. She claimed that she had been given authority to move into the property by “the family”, but there is no evidence as to anyone other than the respondent, who is its registered proprietor, having the right to give Ms Moran such authority.

10. Ms Moran claimed that the property had been owned by her grandparents, Frank and Sarah Archibald, and that, under a “family will”, “the house and the land [were to] be passed down to family generations of descendants”. Ms Moran did not tender a copy of such a document. Neither its existence nor its terms were established by her evidence. Further, there was in evidence a copy of an application made by Ms Moran to the Armidale Regional Council for permission to renovate the building. The application is undated but was perhaps lodged in 2017-2018. There was no evidence that the application was ever granted.

11. Ms Moran also described her objection to photographs of the house and her standing near it being taken, with the result that she made a 000 call, having felt threatened and intimidated and the photography having breached her privacy. She also claimed that what had occurred was in breach of an AVO, but the documents she tendered did not establish the existence of any AVO. The photographs were, however, then tendered without her objection and it was confirmed that she was not depicted in them.

12. Schmidt J found:

“[10] In the result, it must be concluded that on the evidence, the Lands Council has established both its title to the property and its right to the relief which it pressed at the hearing. Section 42 of the Real Property Act 1900 (NSW) provides the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register, except in case of fraud and subject to such other estates and interests and such entries, if any, as are recorded in that folio, holds title otherwise “absolutely free from all other estates and interests that are not so recorded”. There are statutory exceptions provided in s 42, but Ms Moran did not seek to establish any of those.

[11] Ms Moran did make allegations as to fraud, but neither the documents she relied on, the evidence which she gave, nor the case which she advanced, establish any fraud. Nor has Ms Moran established that she has any relevant interest in the property the subject of these proceedings, of which the Lands Council is the registered proprietor. In the result, she has also not established any basis upon which the Court could refuse to exercise its discretion to grant the relief finally pressed.

[12] On the evidence the building is in a dangerous condition, having been damaged by fire. The Lands Council having obtained advice as to its condition from the TAFE Building Unit, an application was made to the Regional Council for permission to demolish the building. That application was granted. That the Lands Council has a legitimate basis for concern as to the danger which this building poses, must be accepted.”

13. Ms Moran described the connection which she felt to the property and her desire not to lose her home, which Schmidt J accepted, but that is not a basis on which the Court can justly refuse the respondent’s application in relation to the property of which it is the legal owner and she is not. Schmidt J rejected the claims advanced by Ms Moran based on an alleged fraud in whole:

“[14] Further, while her submissions were undoubtedly deeply felt, by her evidence Ms Moran has not established any basis for the serious allegations she advanced about matters such as lies, forgery, corrupt written documents, corrupt verbal conversations or corrupt meetings or gatherings of groups and people. Nor was there a basis established for the criticism she directed at police or the office of the Attorney General, or for her allegations of racial prejudice, coercion and withholding of evidence at trial.

[15] In the circumstances, the Land Council having established its title in the property, that Ms Moran has no right to remain there and that it has given her notice that she must vacate the property, which she has refused to comply with, I am satisfied that the declarations sought must be made.”

Consideration and proposed orders

14. Ms Moran participated in the hearing in this Court by telephone. The material she relied upon essentially reproduced the material before the primary judge.

15. Ms Moran requires leave to appeal. Generally speaking, it is only appropriate for this Court to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Company Ltd v Liu [2013] NSWCA 26 at [13]. Ms Moran also requires leave to proceed out of time for which she made an oral application before the Registrar; such leave will not ordinarily be granted where an applicant has no prospects of success: Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459 (McHugh J).

16. Ms Moran in her submissions simply repeated a variety of matters put to the primary judge. She has not identified any basis to conclude that the decision of Schmidt J was even arguably incorrect. In those circumstances granting leave to appeal out of time would be futile as there are no prospects of Ms Moran succeeding in having the orders made by the primary judge set aside.

17. We wish to make clear that there has been no stay of the orders made by the primary judge and none has been sought in this Court.

18. The Court makes the following orders:

1. Application for leave to appeal out of time dismissed.

2. Summons seeking leave to appeal filed on 4 June 2019 dismissed.

3. Applicant to pay the costs of the respondent.

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Decision last updated: 10 September 2019