New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the East Lindfield claim)

[2009] NSWLEC 66

Land and Environment Court

of New South Wales

CITATION:

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the East Lindfield claim) [2009] NSWLEC 66

PARTIES:

APPLICANT:
New South Wales Aboriginal Land Council

RESPONDENT:
Minister Administering the Crown Lands Act

FILE NUMBER(S):

31142 of 2005

CORAM:

Lloyd J

KEY ISSUES:

PRACTICE AND PROCEDURE :- motion to vacate hearing on the ground that a related judgment pending appeal is determinative of present claim

LEGISLATION CITED:

Land and Environment Court Act 1979 s 22
Aboriginal Land Rights Act 1983 s 36(1)(a)

CASES CITED:

Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685
City of Sydney Council v Satara [2007] NSWCA 148
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 82 ALJR 1505
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Kinchela claim) [2009] NSWLEC 46

DATES OF HEARING:

24 April 2009

EX TEMPORE JUDGMENT DATE:

24 April 2009

LEGAL REPRESENTATIVES:

APPLICANT:
M L Wright (barrister)
SOLICITORS:
Chalk & Fitzgerald

RESPONDENT:
C Mantziaris (barrister)
SOLICITOR:
I V Knight
Crown Solicitor

JUDGMENT:

- 2 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Friday, 24 April 2009

LEC No. 31142 of 2005

NEW SOUTH WALES ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT (the East Lindfield claim) [2009] NSWLEC 66

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion to vacate a hearing which has been listed on 4 May 2009 and 5 May 2009. The motion is brought by the respondent, the Minister Administering the Crown Lands Act, and is opposed by the applicant, the New South Wales Aboriginal Land Council. The proceeding that has been set down for hearing is an appeal by the Land Council against the Minister’s refusal of a land claim.

2 The only ground now relied upon by the Minister in opposing the claim is that the land, the subject of these proceedings, was not claimable Crown land at the date of the claim in that it was not able to be lawfully sold within the meaning of s 36(1)(a) of the Aboriginal Land Rights Act 1983, because the claimed land was contracted to be sold at auction prior to that date although the reservation of the land for future public requirements was not revoked until after the date of the auction.

3 The reason for the motion to vacate the hearing is that on 16 April 2009, judgment was published in a related matter which is said to be largely if not completely determinative of the present claim: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Kinchela claim) [2009] NSWLEC 46. A notice of intention to appeal in that case was filed on 23 April 2009.

4 Mr C Mantziaris, appearing for the Minister, submits that the issues in the present case are identical with those in the Kinchela claim. Mr M L Wright, appearing for the Land Council says, however, that the factual circumstances in the present case are different from those in the Kinchela claim. Firstly, unlike the Kinchela claim, the notice of intention to revoke the reservation was published after the sale at auction. Secondly, the contract for sale in the present case, unlike the contract in Kinchela, is a conditional contract. Thirdly, the purchaser has rescinded.

5 Mr Mantziaris submits that the outcome of the appeal in Kinchela will result in a high level of certainty in that it will also resolve the issue in the present case. There is thus, in his submission, a strong possibility that this case will settle following the determination of the appeal in Kinchela. He relies upon s 22 of the Land and Environment Court Act 1979 which requires the court to avoid a multiplicity of proceedings and points to the saving of costs of the trial in these proceedings and the saving of costs in any subsequent appeal, assuming that the court in this case follows the decision in Kinchela.

6 I am not persuaded, however, that the hearing should be vacated. I have come to this view for the following reasons. Firstly, on an application to vacate a hearing when an appeal is pending in a related matter there has to be a level of certainty that the point in issue will be addressed: see, for example City of Sydney Council v Satara [2007] NSWCA 148 at [32]. An important consideration here is that the facts in the present case are distinguishable from the facts in Kinchela as I have noted. This suggests that there is not a level of certainty that the outcome of the Kinchela appeal will be determinative of the present proceeding.

7 Secondly, there has been a significant delay already in the finalisation of this appeal. The appeal was filed as long ago as 29 September 2005. The matter has been listed for hearing since November 2008. Subject to the filing of written submissions, the matter is fully prepared and ready to proceed on the allocated hearing dates. I acknowledge that much of the delay in setting this appeal down for hearing was a result of the parties awaiting the outcome of the appeals in the Court of Appeal and in the High Court in the Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 82 ALJR 1505, which has effectively resolved the second issue originally raised by the Minister, namely, that the land was lawfully occupied and used by the Minister for the purpose of preparing it for sale. I note that the Minister only as late as this morning abandoned that ground.

8 Thirdly, the filing of a holding appeal does not necessarily mean that a notice of appeal will be filed. One of the considerations in whether to grant a stay in a pending hearing is whether the appellant has an arguable case in the proposed appeal and this cannot be determined in the absence of any articulated grounds of appeal: see, for example, Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685.

9 Fourthly, despite the factual differences between this case and the Kinchela claim, it would be open to either party to appeal against any judgment in the present case and to have any common questions of law to be dealt with concurrently with the other appeal.

10 The Minister’s notice of motion dated 17 April 2009 to vacate the hearing is dismissed with costs.

I hereby certify that the preceding 10 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate
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