New South Wales v Simpson

[2025] NSWSC 429

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales v Simpson [2025] NSWSC 429

Hearing dates:

22 April 2025

Date of orders:

22 April 2025

Decision date:

22 April 2025

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [178]

Catchwords:

CIVIL PROCEDURE – Application for leave to amend defence – proposed amendments futile – summary judgment for possession of land in favour of registered proprietor

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 5, 8, 17, 56, 57, 58, 64, 90, 92, 98

Commonwealth Constitution, ss 51(xix), 51(xxxi), 73, 75, 122

Crown Lands Act 1989 (NSW), s 6

Crown Lands Management Act 2016 (NSW), ss 1.10, 1.15, 4.4

Interpretation Act 1987 (NSW), s 12

Judiciary Act 1903 (Cth), s 55ZF

Native Title Act1993 (Cth)

New South Wales Constitution Act 1902 (NSW), s 5

Real Property Act 1900 (NSW), ss 3, 13J, 31B, 32, 42, 96B, 96D

Real Property Act Regulations 1970 (NSW), reg 4

Supreme Court Act 1970 (NSW), ss 22, 23

Uniform Civil Procedure Rules 2005 (NSW), rr 4.2A, 6.1, 6.2, 6.9, 7.19, 12.1, 14.3, 14.14, 14.28

Cases Cited:

Agius v The State of New South Wales [2001] NSWCA 371

Alamdo Holdings Pty Ltd v Australian Window Furnishings New South Wales Pty Ltd [2006] NSWSC 1073

Application by Adrian Ashley of the House of Cooper [2017] NSWSC 533

Ausbao (286 Sussex Street) Limited v The Registrar-General of New South Wales [2023] NSWCA 18

Bahr v Nicolay (1988) 164 CLR 604; [1988] HCA 16

Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70

Fejo v The Northern Territory (1998) 195 CLR 96; [1998] HCA 58

General Steel Industries Inc v the Commissioner of Railways (1964) 112 CLR 125

Gumana v The Northern Territory (2007) 158 FCR 349; [2007] FCAFC 23

Horton v Jones (No 2) (1939) 39 SR(NSW) 305

Love v The Commonwealth (2020) 270 CLR 152; [2020] HCA 3

Mabo v Queensland (No 2) (1995) 175 CLR 1; [1992] HCA 23

McGuirk v The University of New South Wales [2009] NSWSC 1424

Mortimer v Auswide Services Limited [2016] ACTSC 282

The Commonwealth v Yunupingu [2025] HCA 6

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff/Cross-Defendant)
Luke Daniel William Simpson (Defendant/Cross-Claimant)

Representation:

Counsel:
A Douglas-Baker (Plaintiff)
Defendant appeared in person
M Ryan (Cross-Defendant)

Solicitors:
NSW Department of Planning, Housing and Infrastructure (Plaintiff)

File Number(s):

2024/00051618

JUDGMENT EX TEMPORE (REVISED)

Introduction

1. These proceedings are brought in the Possession List of the Supreme Court of New South Wales. The Plaintiff is the State of New South Wales which, as registered proprietor of two parcels of land located near Lennox Head, seeks orders for possession and ancillary relief. The first parcel of land is Lot 7003/106584. The second parcel is Lot 7004/96435 (together the “Land”). The Land is adjacent to part of a long stretch of Seven Mile Beach.

2. The orders are sought in circumstances where the Defendant has taken up a degree of occupation of part of the Land and declined a number of requests that he leave. There is no dispute that he is occupying the Land without the consent of the Plaintiff, although he denies that he is a trespasser.

3. Since at least early 2021 a number of structures have been built or brought to the Land including steel and timber buildings, steel and glass buildings, a shipping container, wooden structures, a wooden bathroom, tents, and vehicles. A sign has been erected, which is a fairly substantial sign (professionally written), containing the following text:

4. There are possibly other people in occupation in addition to the Defendant. The Plaintiff does not consent to the occupation and has communicated that to the Defendant on a number of occasions, including on 23 May 2023, 4 July 2023, 13 February 2024, and 17 April 2024.

5. The proceedings were commenced when the Plaintiff filed a Statement of Claim on 9 February 2024. The Statement of Claim was amended on 8 October 2025. By the Amended Statement of Claim the Plaintiff seeks the following relief:

“1 Pursuant to s 92 of the Civil Procedure Act 2005 (NSW), judgment for the Plaintiff for possession of the land comprised folio identifier 7003/1065854 and folio identifier 7004/96435 being the land situate at and known as "Seven Mile Beach" in Lennox Head (Property).

…

1A   Order that the occupier. Luke Daniel Simpson. and any other persons in occupation of, or present on the Property in contravention of s 9.2 or s 9.6 of the Crown Lands Management Act 2016 (NSW) give vacant possession to the Plaintiff within 28 days.

1B Pursuant to rule 39.1(1)(d) of the Uniform Civil Procedure Rules 2005, order that the Plaintiff have leave to issue a writ of possession forthwith.

3   The Defendant and any other Defendants pay the Plaintiffs costs of the proceedings.

4    Any other orders the Court sees fit to make.”

6. The Defendant named in the Statement of Claim is "Luke Daniel William Simpson". I will refer to the Defendant as the Defendant. In an Affidavit affirmed on 23 September 2024, Jade Matthews, solicitor, carried out personal service of the Statement of Claim on the Defendant on 13 February 2024. In accordance with Uniform Civil Procedure Rules 2005 (NSW) r 6.9(1), on 14 March 2024 the Defendant filed an appearance in which he states

"Jaabarun [Luke Simpson] [Defendant] appears".

7. UCPR 14.3(1) provides:

14.3 Defence

Subject to these rules, the time limited for a Defendant to file a defence is 28 days after service on the Defendant of the statement of claim or such other time as the court directs for the filing of a defence.

…

8. As at 28 November 2024, no defence had been filed. On 28 November 2024 the proceedings were listed before me for directions. On that day I made the following orders:

“1.    Note the Plaintiff’s intention to apply for Default judgment in absence of a Defence being filed.

2.    Grant the Plaintiff leave to make an application for Writ of Possession on the condition that the Writ is to lie in the Registry for 14 days.

3.    Direct the Plaintiff to notify Luke Daniel William Simpson of the orders made today.

4.    Grant the Plaintiff and Luke Daniel William Simpson leave to apply on 3 days’ notice on the condition that an Affidavit be provided by the applicant setting out the purpose for the application and the grounds upon which the application is to be made.”

9. On 29 November 2024 the Plaintiff filed a Notice of Motion in which it sought the following orders:

“1.   Judgment for the Plaintiff for possession of the land comprised in folio identifier 7003/1065854 and folio identifier 7004/96435 being the land situate at the end known as “Seven Mile Beach” in Lennox Head.

2.   The Defendant pay the Plaintiff’s costs.”

10. Also on 29 November 2024, in apparent exercise of the leave granted to him on 28 November, the Defendant filed a Notice of Motion in which he sought the following orders:

"1.   Leave is granted to the Defendant to file a defence.

2.   The matter is re-listed for hearing.

3.   The orders made on 28 November 2024 by HH Faulkner J be dismissed.

4.   The Notice of Motion filed by the Plaintiff on 29 November 2024, and received by the Defendant on 2 December 2024 be set aside.”

11. Although the Defendant did not yet have leave, on 2 December 2024 he filed with the Court a document entitled "Defence". I will say more about this document later. For current purposes, it does not generally comply with UCPR Part 14 or the principles which underlie those rules. It does not perform the function of a pleading, which is essentially to permit specification of the real issues in the proceedings with sufficient clarity and precision to permit the proceedings fairly to be prepared for trial, not just by the pleading party but also the opposing party, and efficiently adjudicated by the Court. In McGuirk v The University of New South Wales [2009] NSWSC 1424 at [24] Johnson J said:

“Proper pleading is fundamentally important in assisting the Court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.”

12. Despite this, it is convenient to refer to the document filed by the Defendant on 2 December 2024 as a Defence.

13. In view of the filing of the Defence, on 22 January 2025 the Plaintiff filed a further Notice of Motion.

“1 Pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment in favour of the Plaintiff against the Defendant for possession of the land comprised in identifier 7003/1065854 and folio identifier 7004/96435 being the land situate at and known as "Seven Mile Beach" in Lennox Head (Property).

2   Order that the occupier, Luke Daniel Simpson, and any other persons in occupation of, or present on, the Property in contravention of s 9.2 or s 9.6 of the Crown Lands Management Act 2016 (NSW) give vacant possession to the Plaintiff within 28 days.

3 Pursuant to r 39.1(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW), leave to the Plaintiff to issue a writ of possession to enforce the judgment of the Court.

4    Order that the Defendant pay the Plaintiff's costs of the proceedings.

5    Any other orders the Court sees fit to make.”

14. On 12 February 2025 the proceedings were listed for directions before the Possession List Registrar. On that occasion, the Registrar listed the Defendant's Notice of Motion filed on 29 November 2024 and the Plaintiff's Notice of Motion filed on 22 January 2025 before me on 6 March 2025. The Registrar also made directions about service of further evidence, which directions have now been overtaken by events.

15. When the proceedings were listed before me on 6 March 2025, counsel appeared for the Plaintiff and the Defendant appeared in person. The Plaintiff was ready to proceed with its Motion. Upon hearing the parties, I was not completely satisfied that the Defendant was expecting to proceed with a final hearing of the Motions on that day, and there may have been a basis for confusion in the terms of the orders which the Registrar was asked to make on 12 February 2025. In any event, it appeared the Defendant wished to consider making amendments to his Defence and I considered it appropriate to ensure that the Defendant have that opportunity. I therefore ordered the Defendant to provide an Amended Defence and any further Affidavits to both my chambers and the Plaintiff by 5 April 2025 and listed the matter for hearing today.

16. The Defendant complied with these directions. On 4 April 2024 a further Affidavit by the Defendant was filed with the Court. On 15 April 2024 a document entitled "Defence" was emailed to my chambers and copied to the solicitors for the Plaintiff. I will refer to this document as the "Proposed Amended Defence". A further copy of the Defendant's Affidavit dated 4 April 2024 was provided with the email.

17. When the case was called for hearing this morning, counsel appeared for the Plaintiff and the Defendant appeared in person.

18. The best way to address the issues arising in these applications is first to consider the Plaintiff's substantive claim for relief, the basis for that claim, and the evidence relied upon by the Plaintiff. After that, I will consider the arguments identified by the Defendant first in the Proposed Amended Defence, then in the Defence, then in the other documents relied upon by the Defendant, whether in the nature of submissions, affidavits or evidence. To the extent they add to the documentary material provided by the Defendant, I will also address the submissions made orally by the Defendant today.

The Plaintiff’s claim for possession of the Land

19. It is the duty of this Court to determine all the issues in this case in accordance with the law.

20. As pleaded in the Statement of Claim, the Plaintiff's claim is simple. It alleges that it is the registered proprietor of the Land. The Defendant is an occupier of the Land. The Plaintiff has demanded vacant possession of the Land for which it particularises orders, notices and requests on 27 May 2023, 4 July 2024, 7 February 2024, 13 February 2024 and 17 April 2024. The Defendant has failed to vacate the Land. Each of these elements is amply and incontrovertibly proved by the evidence before the Court.

21. Lot 7003 was created on 8 March 2004 when Deposited Plan 106584 was registered by the Registrar-General in the Register maintained by the Registrar-General under s 31B of the Real Property Act1900 (NSW). Lot 7004 was created on 7 February 1999 when Deposited Plan 96435 was registered.

22. One of the constituent elements registered by the Registrar-General under s 31B(1) is the folio: s 31B(2)(a). Section 32(1) provides:

32 Folios of the Register

(1)   The Registrar-General creates a folio of the Register for land by making a record of:

(a)    a description of the land and of the estate or interest therein for which it is created,

(b)    a description of the proprietor for the time being of the estate or interest and the fact that any such proprietor is a minor if the Registrar-General knows that to be the case and;

(c)    such particulars, as the Registrar-General thinks fit, of—

(i)    other estates or interests, if any, affecting the land, and

(ii)    other information, if any, that relates to the land or any estate or interest therein and is included in that record pursuant to this or any other Act (including an Act of the Parliament of the Commonwealth) or an instrument made under any such Act, and by allocating a distinctive record so made.

…

23. As such, in addition to the lot number for each parcel of land, the deposited plan in which the lot number appears and historic dealings such as registration of deposited plan, each folio records the estate or interest in the land for which the folio is created and the registered proprietor of that estate or interest.

24. Part 11A of the Real Property Act1900 provides for the conduct of searches of the Register generally and individual folios in particular. Section 96B(1) provides that the Register is a public record. Section 96B(2) provides that information may be made available in accordance with such conditions as the Registrar-General, with the approval of the Minister, determines. There are other ways to obtain information from the Register, but obtaining information under s 96B(2) is relevant to the current case.

25. The evidence before the Court includes the Affidavit of Craig Samuel Wood dated 20 January 2025 to which he exhibits what he describes as a copy of the current certificate of title for Lot 7003/106584, together with an historic search. The exhibited document is entitled "NSW Registry Services-Title Search". It refers to Lot 7003/106584 and specifies “The State of New South Wales” as the registered proprietor (Schedule 1) subject to the exceptions, encumbrances, interests and entries as they appear in Schedule 2. Originally introduced in Form 1 by Regulation 4 of the Real Property Act Regulations 1970 (NSW), arrangement of the information in the Register by reference to Schedules 1 and 2 is now the standard form: Baalman & Wells Land Titles Office Practice, 5^th ed (1988) at [205.600]; Ausbao (286 Sussex Street) Limited v The Registrar-General of New South Wales [2023] NSWCA 18 at [17] (Beech-Jones JA with whom Bell CJ and Mitchelmore JA agreed). None of the exceptions, encumbrances, interests or entries in Schedule 2 of the Certificate of Title for Lot 7003/106584 are relevant to the current case. The title search is certified as having been provided electronically by the Registrar-General in accordance with s 96B(2) of the Real Property Act 1900.

26. The same document has been adduced into evidence for Lot 7004/96435.

27. The documents have not been certified by the Registrar-General as contemplated by s 96D and therefore they are not "computer folio certificates" as defined in s 3(1)(a). The conclusive presumptions specified in s 40(1A) do not therefore arise. Nonetheless, the documents exhibited to Mr Wood's Affidavit are evidence of matters stated in them and, in the absence of challenge, are to be accepted.

28. Section 13J of the Real Property Act 1900 provides:

13J Estate in land where the State is recorded as proprietor

Where “The State of New South Wales” is recorded as the registered proprietor of land in accordance with this Act, the estate to which the recording relates is an estate in fee simple.”

29. Section 42(1) of the Real Property Act 1900 provides:

42 Estate of registered proprietor paramount

(1)   Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except…

30. There are five specified exceptions to the registered proprietor’s indefeasibility of title, but each is very confined to specific circumstances and none is relevant to the facts in this case.

31. Section 42 also contains an exception in the case of "fraud". The Defendant does not plead fraud in the Proposed Amended Statement of Claim, nor in the Defence, which would be necessary for the Court to consider that issue under UCPR 14.14. However, the Defendant raised fraud in his oral submission today, and it ought to be considered on this application as a matter of substance.

32. In his oral submissions the Defendant spoke about “fraud” and similar issues at some length with a restrained and respectful, but nonetheless sincere, passion. With a quietly-spoken and steady dignity he addressed in general terms the circumstances in which the Australian continent was settled by Europeans in the 18th century and afterwards, and how the Indigenous people were dispossessed from the land. He spoke about the Nyangbul people, the Nyangbul Jagan, and his allegiance to what he sometimes described as a “higher law” or a “higher authority”, amongst other things. He referred to a want of self-determination variously for himself, the Nyangbul people and others, the want of a treaty or other agreement and the fiction of terra nullius which was rejected by the High Court in Mabo v Queensland (No 2) (1995) 175 CLR 1; [1992] HCA 23.

33. Without specifics, the Defendant argued that the "fraud" exception to s 42 of the Real Property Act1900 was enlivened by these general circumstances.

34. In accordance with the law of New South Wales, this argument must be rejected. The meaning of the word "fraud" has received close consideration since the advent of the Torrens system in the middle of the 19th century. It does not mean fraud at large. In Bahr v Nicalay (1988) 164 CLR 604 at 614; [1988] HCA 16 at [13], Mason CJ and Dawson J described the necessary fraud as “dishonesty on the part of the registered proprietor in securing his registration as proprietor”. It is not sufficient for the registered proprietor to procure registration with knowledge of another person's unregistered interest in the land, even though the registered proprietor knows that the unregistered interest will be defeated on registration. For the relevant conduct to be “fraud” for the purposes of s 42, it must be directed to the specific act of registration.

35. The circumstances about which the Defendant spoke today were not directed to the particular events in this case. They were directed to the whole system of land registration in New South Wales and maybe even more broadly than that. Nothing was said, much less written, which was capable of attracting the fraud exception in s 42.

36. The system constituted by s 42, and the various other provisions ancillary to it, is sometimes called the Torrens System. The key principle upon which the Torrens system operates is that pre-existing estates and interest in New South Wales land are not registered on the register maintained by the Registrar-General under s 31B. Rather, estates and interest in the land are created by registration. The principle was explained by the High Court in Breskvar v Wall (1971) 126 CLR 376 at 385; [1971] HCA 70 at [15] (Barwick CJ with whom McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ agreed) as follows:

“The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.”

37. It follows that under the law of New South Wales the Plaintiff is the registered proprietor of the estate in fee simple of the land over which it now seeks orders for possession. The phrase I have just used, "registered proprietor of an estate in fee simple" is precise and the correct way to describe the Plaintiff's legal relationship with the Land. Another common way of saying the same thing is that "the Plaintiff owns the land".

38. The Plaintiff's estate in fee simple is for almost all practical purposes the equivalent of full ownership of the land and confers the lawful right to exercise over, upon and in respect to the land all rights of ownership save to the extent that any such right has been abrogated, qualified or varied by statute: Gumana v The Northern Territory (2007) 158 FCR 349 at 370-371; [2007] FCAFC 23 at [83] (French, Finn & Sundberg JJ).

39. It goes without saying that at the forefront of the rights which comprise an estate in fee simple is the right to possession of the land.

40. An estate in fee simple does not permit the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor of title: Fejo v The Northern Territory (1998) 195 CLR 96 at 126; [1998] HCA 58 at [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

41. A registered proprietor of land may permit other people to use or occupy the land or even to take possession of it to the exclusion of all the world, including the registered proprietor. The position is significantly different in this case because the Land is a designated reserve within the meaning of Part 5 of the Crown Lands Act 1989 (NSW) (as proved by Mr Woods' affidavit and the title searches attached to it). Section 6 of the Crown Lands Act 1989 provides that Crown land shall not be occupied, used, sold, leased, licensed, dedicated, reserved or otherwise dealt with other than as authorised by the Crown Lands Act 1989. The successor statute, the Crown Lands Management Act 2016 (NSW), contains the same prohibition in s 1.15.

42. The short point is that the Plaintiff is not able to permit the Defendant to even use the Land other than by complying with specific statutory procedures.

43. Ultimately this issue does not arise because there is no suggestion that the Plaintiff has granted or purported to grant the Defendant a right to enter upon, remain upon, or otherwise use the Land or any part of the Land. There is no dispute about this. The Defendant does not claim to have any right conferred on him by the State of New South Wales. Quite apart from the Plaintiff permitting the Defendant to use the Land, the evidence shows that the Plaintiff does not consent to the Defendant's occupation of the Land as I have set out above.

44. Further communication of the absence of the Plaintiff's consent to the Defendant's occupation of the Land occurred on 9 February 2024 when the Plaintiff filed the Statement of Claim by which these proceedings were commenced, or shortly thereafter when service occurred.

45. Subject to a consideration of the Defendant's documents and submissions, the Plaintiff is entitled to an order for possession.

The Defendant’s arguments

46. As set out above, on 15 April 2025 the Proposed Amended Defence was emailed to my chambers. Within the procedural framework described above, the provision of this document is to be understood as an informal application for leave to amend the existing Defence.

47. Under s 64(1) of the Civil Procedure Act 2005 (NSW) the Court has power to grant leave to amend any document in the proceedings. Section 64(2) provides:

64 Amendment of documents generally

Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

48. Section 58 relevantly provides:

58 Court to follow dictates of justice

(1)   In deciding—

(a)   whether to make any order or direction for the management of proceedings, including—

(i)   any order for the amendment of a document

…

the court must seek to act in accordance with the dictates of justice.

(2)   For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57

…

49. Section 56 relevantly provides:

56 Overriding purpose

(1)    The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)    The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

…

50. Section 57 specifies the objects of case management to which the Court is to have regard. It provides:

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects—

(a)    the just determination of the proceedings,

(b)    the efficient disposal of the business of the court,

(c)    the efficient use of available judicial and administrative resources,

(d)    the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2)    This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

51. It is a well-established principle that leave to amend may be declined if the claims contemplated by the amendment are so obviously futile that they would be liable to be struck out if they appeared in the original pleading: Horton v Jones (No 2) (1939) 39 SR(NSW) 305; Alamdo Holdings Pty Ltd v Australian Window Furnishings New South Wales Pty Ltd [2006] NSWSC 1073 at [10] (Barrett J). If anything, the principle applies with greater importance following the introduction of ss 56 and 57 of the Civil Procedure Act2005.

52. The test for futility is to be applied in the terms used by Barwick CJ in General Steel Industries Inc v the Commissioner of Railways (1964) 112 CLR 125 at 129; [1965] HCA 69 at [8] (Barwick CJ), namely:

"So obviously untenable that it cannot possibly succeed",

"Manifestly groundless",

"So manifestly faulty that it does not admit of argument",

"Discloses a case which the Court is satisfied cannot succeed",

"Under no possibility can there be a good cause of action", and

"Where it is manifest that to allow them [the pleading] to stand to involve useless expense"

53. As I have already indicated the assessment of futility is to be carried out in accordance with law.

54. Turning then to the Defendant's Proposed Amended Defence, it is a compact document, leaving aside the impermissible annexures. It is useful to set out all 24 paragraphs.

“Amended Defence

I, Jaabarun Nyangbul (and for Luke Daniell William [Simpson]), am an Original Sovereign bloodline Tribal man of the Nyangbul Jagun (Lands) and Nation, file this Defence not in submission to jurisdiction, but to preserve my position and assert the absence of lawful authority underpinning the Plaintiff's claims.

1. Jurisdiction Denied

1.    The Defendant denies the jurisdiction of the Supreme Court of New South Wales and denies that the Crown in right of New South Wales has lawful authority over lands belonging to the Nyangbul people.

2.    There exists no treaty, no instrument of lawful cession, and no agreement made by the Nyangbul Nation to come under the authority of the Crown or any colonial entity.

3.    The burden of proof lies on the Plaintiff to establish jurisdiction, title, and lawful standing. No such proof has been provided.

2. Historical Aggression and Foundational Crimes

4.    The Defendant draws the Court's attention to the journal of Captain James Cook, which recounts the shooting of a Gwegal Chief in 1770 during Cook's initial arrival. Though the journal is not exhibited herein, its contents are well known in the public record.

5.    This event marked the beginning of an unlawful occupation, invasion, and sustained aggression against the Original Peoples of these lands.

6.    From that moment to present day, there has never been any consent given or lawful agreement made to extinguish sovereignty or cede title.

3. Crown Instruments Invalid Against Sovereignty

7.    Statutes such as the Crown Lands Management Act 2016 (NSW) or related land based legislative schemes are invalid against the Defendant and Nyangbul peoples.

8.    The Defendant was not party to the Commonwealth of Australia Constitution Act 1900 (UK) and never voted to come under that system.

9.    Any purported enforcement under these instruments constitutes an abuse of process and a continued trespass against sovereignty.

4. Even Under Their Law, No Extinguishment

10. The Defendant refers to the case of Commonwealth of Australia v Yunupingu [2025] HCA 6, cited strictly for rebuttal.

11.    In that case, the High Court confirmed that inconsistent grants or leases do not extinguish non-exclusive native title unless just terms are given.

12.    No compensation has ever been made to the Defendant or the Nyangbul people, and thus even under Crown law, no extinguishment has occurred.

5. International Law and Right to Self-Determination

13.    The Defendant asserts the right to self-determination under international customary law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

14.    Continued prosecution under colonial legislation, without a valid treaty, violates international obligations and constitutes systemic discrimination.

15.    The Plaintiff has no legal or moral authority to prosecute or penalise the Defendant under any colonial statute.

6. Specific Denials

16.    The Defendant denies all allegations not expressly admitted.

17.    In particular, the Defendant denies:

a.    That the Plaintiff has valid title.

b.    That the Plaintiff has legal standing.

c.    That the Defendant committed trespass or unlawful conduct.

d.    That the Plaintiff is acting under lawful jurisdiction.

7. Exhibits

18.    The Defendant relies on the following:

Exhibit A: Public summary of Commonwealth v Yunupingu [2025] HCA 6.

Exhibit B: Charter of UNDRIP.

Exhibit C: Affidavit of Jaabarun Nyangbul.

Exhibit D: Prior correspondence rebutting jurisdiction.

Exhibit E: Public ABN records of Crown Land authorities.

8. Ambiguity and Inconsistency in the Plaintiff's Legal Identity

19.    The Plaintiff has amended their Statement of Claim to remove prior references to themselves as the "owner" of the land and now asserts their status as a registered Pty Ltd commercial entity.

20.    This change introduces fundamental legal ambiguity. If they were the rightful owner, such a term would not have been removed.

21.    The deliberate shift suggests evasion of the burden of proving lawful title and undermines the foundation of their entire claim.

22.    It raises serious questions of standing, intent, and possible misrepresentation before the Court.

23.    The Defendant submits that this inconsistency should weigh heavily against the Plaintiff and adds further weight to the claim of lack of lawful authority.

9. Relief Sought

24.    The Defendant seeks:

a.    Dismissal of the Plaintiff's claim with prejudice.

b.    Formal recognition that the Plaintiff has failed to establish jurisdiction.

c.    Costs and compensation for the stress, time, and damage caused by this unlawful proceeding.

d.    A declaration that the Defendant's sovereignty remains intact.”

55. Prior to the specific denials in paragraphs 16 and 17, the Defendant puts forward five arguments.

Jurisdiction Denied

56. The Defendant denies the Court's jurisdiction. It may be argued that it is not open to the Defendant to dispute the jurisdiction of the Court in circumstances where he has filed an appearance, filed a Notice of Motion on 29 November 2025 by which he sought leave to file a defence, a listing of the proceedings and other orders, filed a Defence on 2 December 2024, appeared before the Court on 6 March 2025 on which occasion he made submissions and orally asked the Court to exercise its jurisdiction to make restraining orders against the Plaintiff, filed an Affidavit on 4 April 2025 and subsequently provided to my chambers the Proposed Amended Defence.

57. UCPR 12.11(1)(g) provides that, on application of the defendant, the Court may make a declaration that it has no jurisdiction over the defendant in respect of the subject matter of the proceedings. However, UCPR 12.1(1)(2) provides that such a declaration may not be made unless the defendant files a notice of motion seeking the declaration within the time for him to file a defence, which generally is 28 days and has long since passed in this case.

58. Nonetheless I will disregard the form and address the substance of the Defendant's jurisdiction argument.

59. Section 22 of the Supreme Court Act 1970 (NSW) provides:

22 Continuance

The Supreme Court of New South Wales as formerly established as the superior court of record in New South Wales is hereby continued.

60. Section 23 specifies the jurisdiction of the Court.

23 Jurisdiction generally

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

61. As one would expect for a superior court of record, there are no words of limitation in s 23 other than geographic.

62. As I said above, there is no dispute that the land which is the subject of these proceedings is located in New South Wales.

63. Section 5(1) of the Civil Procedure Act 2005 provides:

5 Jurisdiction of courts

(1)   Nothing in this Act or the uniform rules limits the jurisdiction of the Supreme Court.

…

64. Section 90(1) of the Civil Procedure Act 2005 provides:

90 Judgments Generally

(1)   The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires.

…

65. The power of the Court specifically relied upon by the Plaintiff for the orders of possession is contained in s 92 of the Civil Procedure Act 2005 which provides:

92 Judgments for possession of land

Judgment for possession of land takes the place of, and, subject to the uniform rules, has the same effect as, a judgment for the claimant in ejectment given under the practice of the Supreme Court as it was immediately before 1 July 1972.

66. The Defendant does not identify any reason for why he denies the jurisdiction of the Court. In proceedings for an order for possession of land in New South Wales, there is no reason. This argument is futile.

67. The Defendant also denies that “the Crown in right of New South Wales” has lawful authority over lands belonging to the Nyangbul people. The only land to which these proceedings relate is the Land described at the outset of these reasons.

68. In this context, it is not entirely clear what the Defendant is referring to when he uses the term "the Crown in right of New South Wales". None of the claims made by the Plaintiff in these proceedings relies on the authority of the executive government. The Plaintiff relies upon the New South Wales statutes referred to above, specifically s 42 of the Real Property Act 1900.

69. The Real Property Act 1900 is an enactment of the New South Wales legislature. Section 5 of the New South Wales Constitution Act 1902 (NSW) provides:

5 General legislative powers

The legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever…

70. By reason of s 12 of the Interpretation Act 1987 (NSW), the reference in s 5 to the legislature is a reference to the New South Wales legislature.

71. Beyond observing that the Plaintiff relies upon enactments of the New South Wales legislature concerning land in New South Wales, no further answer is required to the Defendant's denial that the Crown in right of New South Wales has jurisdiction over land belonging to the Nyangbul people. For the purposes of determining the claims made by the Plaintiff in this case according to law, the Defendant's argument that there is no treaty, no instrument or lawful cession and no agreement between the Nyangbul Nation takes the Defendant's case no further.

72. The argument that the Plaintiff bears the burden of proof to establish jurisdiction, title and "lawful standing" appears to refer to a number of different matters. In terms of jurisdiction, once it is accepted that the Land is in New South Wales, the issue is determined by the statutory provisions referred to above. The Defendant is correct to say that someone seeking an order for possession must prove the facts which make out such an entitlement, but in the case of a registered proprietor that it is done by reference to the Register. For the reasons set out above, the Plaintiff has discharged its onus in this case.

73. I do not know what the Defendant means by "lawful standing". Nothing is revealed by the materials before the Court which throws doubt on the Plaintiff's entitlement to bring these proceedings to seek enforcement of the rights it asserts in respect of the Land.

Historical Aggression and Foundational Crimes

74. The Defendant refers to past events which have happened (such as settlement) or not happened (such as a treaty), as the case may be. For the purposes of considering the Defendant's application to amend the Defence, the Defendant's case ought to be viewed in the most favourable light possible, including by making the assumption in his favour that all the allegations of fact made in the Proposed Amended Defence are true: Agius v The State of New South Wales [2001] NSWCA 371 at [24] (Giles JA with whom Priestly and Powell JJA agreed).

75. Even on that assumption this second argument is futile. Nothing referred to by the Defendant is capable of depriving the Plaintiff of the rights it asserts in these proceedings according to law.

76. The references to “sovereignty not extinguished” and “title not ceded” do not establish in the Defendant or any other person a right, title or interest outside the operation of s 42 of the Real Property Act 1900.

Crown Instruments Invalid Against Sovereignty

77. The Defendant nextly asserts that statutes such as the Crown Lands Management Act 2016 or related land-based legislative schemes are invalid against the Defendant and the Nyangbul peoples. I assume this includes the Real Property Act 1900. No reason is given for this assertion. There is nothing in the Proposed Amended Defence which identifies a reason. As the registered proprietor in fee simple, the Plaintiff's entitlement to possession of the Land against all the world is qualified only by s 42 of the Real Property Act 1900.

78. The Defendant further submits that he is not a party to the Australia Constitution Act 1900 (UK) and never voted to come under that system. There's nothing in the Plaintiff's case which relies upon the Commonwealth Constitution. It does not matter to the Plaintiff's case whether the Defendant is a "party to” it or not. As a matter of law, it does not matter whether the Defendant participated in any vote or even whether there was a vote to participate in.

79. The Defendant asserts that the purported enforcement under “these instruments” constitutes an abuse of process. In the Defendant’s favour, I will assume that this submission is addressed to the Real Property Act 1900 and the Civil Procedure Act2005 upon which the Plaintiff relies. It is not clear what “process” the Defendant says has been abused. The only process relevant to the Plaintiff's claim is the process of the Court in these proceedings. The Plaintiff seeks to enforce its rights according to law. There is no abuse of the Court's process.

77. The Defendant further contends that the enforcement of (I assume) the statutes relied upon by the Plaintiff is a “trespass against sovereignty”. This evidently is a reference to some form of sovereignty which is inconsistent with s 5 of the New South Wales Constitution Act 1902 as set out above. The Defendant's third argument is futile.

Even Under Their Law, No Extinguishment

81. The Defendant refers to The Commonwealth v Yunupingu [2025] HCA 6. The Yunupingu case was a case about land in the Northern Territory over which the Commonwealth had exclusive jurisdiction between 1911 and 1978. In that case, the plaintiffs’ exclusive native title rights had been extinguished before 1911 but they claimed that they had non-exclusive native title rights which subsisted during the period of the Commonwealth’s exclusive jurisdiction. The High Court determined whether the non-exclusive rights had also been extinguished before 1911 by reference to the terms of pastoral lease number 2229 granted on 21 September 1903 and the South Australian statute under which it had been granted, and the nature and content of the non-exclusive rights claimed by the plaintiffs.

82. Having upheld the subsistence of the plaintiffs’ non-exclusive rights, the High Court further had to decide whether four specific acts of executive and legislative function by the Commonwealth Government between 1911 and 1978 (by which the plaintiffs’ non-exclusive rights were extinguished or impaired) constituted "an acquisition of property" as those words are used in s 51(xxxi) of the Commonwealth Constitution so as to entitle the plaintiffs’ to compensation under the provisions of the Native Title Act1993 (Cth).

83. A further aspect of this matter the High Court had to decide was whether the four specific acts of executive and legislative function by which an “acquisition of property” would otherwise have occurred were not subject to s 51 (xxxi) because the Commonwealth was empowered to carry out those functions under s 122 of the Commonwealth Constitution. Under s 122, the Commonwealth Parliament has power to make laws for "territories" such as the Northern Territory (but not New South Wales, which is not a territory but a state).

84. There is nothing in the High Court’s decision or reasoning in the Yunupingu case which is relevant to the Plaintiff's claim to possession of New South Wales land of which it is registered proprietor.

85. No question arises in these proceedings about the terms of pastoral lease number 2229 granted on 31 September 1993 by the Governor of South Australia, nor the nature and the context of the non-exclusive rights to minerals arising from the traditional laws and customs of the Gumatj clan at the Gove Peninsula in the Northern Territory. The other aspects of the Yunupingu case relate to provisions of the Commonwealth Constitution which do not apply to the State of New South Wales. The Defendant's summary of the Yunupingu case in paragraph 11 of the Proposed Amended Defence is incorrect, as is the argument in paragraph 12.

International Law and Right to Self-Determination

86. The Defendant’s fifth argument has three subpoints.

87. First, the Defendant asserts the right to self-determination under international customary law and the United Nations Declaration on the Rights of Indigenous Peoples. Nothing more specific is said in support of the assertion. The evidence before the Court indicates that the UN Declaration is constituted by a resolution of the General Assembly in September 2007. Nothing is said about how the UN Declaration has any legal effect on the private rights claimed by the Plaintiff under the municipal laws of New South Wales in these proceedings.

88. To be relevant, it would be necessary for the Defendant to identify something in international customary law which is capable of depriving the Plaintiff of the private rights it claims. He has not done so. In any event, under Part 4 of the United Nations Charter, the General Assembly is constituted as a body essentially to make recommendations. Its resolutions are not binding.

89. Secondly, the Defendant argues that continued prosecution under colonial legislation without a valid treaty violates international obligations and constitutes systematic discrimination. For the purposes of private rights under the law of New South Wales, the irrelevance of a treaty is addressed above.

90. Assuming the “international obligations” referred to in paragraph 13 of the Proposed Amended Defence means “international customary law” and the United Nations Declaration, paragraph 14 of that document takes the Defendant's case no further.

91. The allegation of “systematic discrimination” does not have sufficient context, content or particularity to disclose a reasonable defence. It does not identify the ground for the alleged discrimination. In these proceedings, the only allegations made by the Plaintiff about the Defendant are in paragraphs 2 and 2(a) of the Amended Statement of Claim, namely that he is in occupation of Land over which the Plaintiff has a right to possession against all the world, as explained above. In paragraph 4 of the Amended Statement of Claim the Plaintiff alleges that the Defendant has failed to vacate the Land.

92. There is no basis for this second subpoint.

93. Thirdly, the Defendant argues that the Plaintiff has no legal or moral authority to prosecute or penalise the Defendant under any colonial statute. The Plaintiff's legal authority to make the claims in these proceedings is addressed above.

94. The Plaintiff's moral authority is not a matter which arises for adjudication by this Court.

Summary

95. In summary, the five arguments set out in the Proposed Amended Defence are futile as that term is explained in General Steel Industries v The Commissioner of Railways. They are each so obviously untenable that they cannot succeed and each is manifestly groundless.

Other parts of the Proposed Amended Defence

96. Paragraphs 16 and 17 of the Proposed Amended Defence contain some specific denials. Essentially the Defendant denies everything in the Amended Statement of Claim.

97. For the reasons given above, the evidence establishes the correctness of each of the Plaintiff's allegations, including the allegations that since 23 May 2023 the Defendant has repeatedly been requested to vacate the Land and has failed to do so.

98. The position taken by the Defendant in these proceedings makes clear that he will not vacate the Land unless ordered by the Court to do so.

99. The Plaintiff alleges the Defendant is trespassing, which the Defendant denies. It is not necessary to decide that issue and I do not decide it. To obtain the relief it seeks, all the Plaintiff has to show is that it has requested the Defendant to vacate the Land and that the Defendant has failed to do so. The evidence adduced by the Plaintiff proves these matters, although they are not really in dispute.

100. The Proposed Amended Defence has five exhibits.

101. First, there is a public summary of the Yunupingu case which is consistent with the explanation of the High Court's decision and reasons set out above and inconsistent with paragraphs 11 and 12 of the Proposed Amended Defence. It does not assist the Defendant’s Defence.

102. The second exhibit appears to be a print-out of a United Nations publication which describes itself as a UN Declaration on the Rights of Indigenous Peoples. I have addressed this matter above.

103. The third exhibit is a copy of the Defendant's Affidavit filed in these proceedings on 4 April 2025. Although this document is entitled "Affidavit" and is referred to as such in paragraph 18 of the Proposed Amended Defence, it is not an affidavit. It is a collection of statements, arguments and prayers for relief. I will address its substance.

104. On the front page of the document there is a reference to the Court's case number for these proceedings, but the "Title of Proceedings" is different to the title of these proceedings. There is no named "plaintiff" but there is an "applicant" who is specified as the Defendant. There are two named Defendants, namely:

1. “New South Wales Police Force”; and

2. “DPHI Crown Lands, New South Wales”.

105. The body of the document has six paragraphs, the burden of which is a concern by the Defendant that his name is misspelled in Court documents.

106. In paragraph 1, the Defendant says that he is the highest authority and that his name is correctly and lawfully spelled "Luke Daniell William [Simpson]". The Defendant affirms that identity under "cultural law and natural law", the first of which at least is evidently a reference to the "Original Tribal People of the Nyangbul Jagun".

107. In paragraph 2, the Defendant's document states that his name has been consistently misspelled by "Operatives of the New South Wales justice system". The Defendant gives two examples, one where "Daniel" is spelt with one "l" instead of two and the name "Simpson" is not surrounded by square brackets. In the other example, the name "William" is missing, as well as the square brackets around "Simpson".

108. In paragraphs 3, 4 and 5 the various spellings are said to create confusion, legal prejudice, procedural unfairness, breach of the principle of natural justice and causative of reputational, administrative, financial, spiritual and legal harm. No particulars or specifics are given about any of these assertions and none are apparent.

109. The Defendant also relies on a document called the "Legal Services Directions 2017" made under s 55ZF of the Judiciary Act 1903 (Cth). By s 55ZF, the Attorney General for the Commonwealth may issue directions that apply to the performance of "Commonwealth legal work". Those directions have no application to either the Plaintiff's claims in these proceedings nor to the Court's adjudication of those claims because no "Commonwealth legal work" is involved.

110. The complaint about misspelling the Defendant's name is made not only in relation to the proceedings currently before the Court but also in relation to two sets of proceedings in the Local Court evidently brought in 2023 by the Crown and the Department of Planning and Environment. The material before the Court does not reveal anything further about the Local Court proceedings.

111. The final paragraph of the Defendant's document contains prayers for relief which the Defendant asks the Court to grant, namely:

1. acknowledge the jurisdiction and procedural errors arising from prolonged identity misrepresentation;

2. a declaration that proceedings commenced or continued under the incorrect identity are null and void; and

3. a reservation of the Defendant's right to seek costs and damages flowing from the violation.

112. There can be no doubt of the sincerity with which the Defendant is concerned about the precise spelling, punctuation or even identity of his name. He is not the first person to come before the Court, either as defendant or plaintiff, who has a concern about his or her name: see for example McCallum J's decision in the Application by Adrian Ashley of the House of Cooper [2017] NSWSC 533 at [2].

113. The identity of the parties to proceedings before the Court is a matter of importance. It is not merely a formality to be treated lightly.

114. At the core of a civil proceeding, the Court is asked by one party to make orders against another. If the Court accedes to the application, orders are made against a particular party with which that party becomes obliged to comply. Prejudice may flow from non-compliance. There are procedures for enforcement. In some cases, non-compliance may constitute a contempt of Court for which the sanctions may be severe.

115. In this context, the procedures of the Court have been established in a way which makes the correct identity of the parties a matter of importance. Under s 17(1) of the Civil Procedure Act 2005, the Uniform Rules Committee (as established under s 8) may approve forms for documents to be used in connection with civil proceedings. Once it does so, documents filed with the Court must be in the approved form: s 17(3). Each of the approved forms requires the identification of each party by use of the word "Name". See, for example “General Forms” (Form 1), “List of Parties” (Form 2), “Statement of Claim” (Form 3A) and “Notice of Appearance” (Form 6A). Indeed, the “Title of the Proceedings” to be specified on each document is constituted by the parties' names.

116. Under s 9 of the Civil Procedure Act 2005, the Uniform Rules Committee may also make rules, which it has done by way of the UCPR. Throughout the UCPR, provision is made for the specification of the parties' names. UCPR 7.19 provides:

7.19 Persons to sue and be sued in own name

Subject to [Division 5 and Part 7], persons are to sue and be sued in their own names and not under any business name.

117. There is a specific context for this rule, but it is one particular of the general principle.

118. UCPR 4.2A provides:

4.2A List of parties

(1)   In any proceedings in which there are more than two Plaintiffs or more than two Defendants, the Plaintiff must file, together with the originating process, a list of parties.

…

119. Form 2 is the approved form of the list to be filed under this rule which requires a list of names, together with other information for each listed name.

120. In addition to the final Court orders sought in civil proceedings, identification of the parties by a name has important implications for each party's rights and obligations within the curial process. Under s 56(3) of the Civil Procedure Act 2005, the parties in civil proceeding are under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.

121. Under UCPR 6.9 a Defendant has a right to appear. Once the Defendant appears, he or she has a right to take steps in the proceedings under UCPR 6.1 such as cause the Court to issue subpoenas in accordance with the Rules, apply for disclosure, serve formal offers of compromise etc. Such a person also has the right to be served with documents under UCPR 6.2(3). These are just some examples.

122. Part 42 of the UCPR makes provision for the payment of costs by or to a party, although under s 98 of the Civil Procedure Act 2005 the Court's power to order costs is not limited to the parties.

123. Section 64(4) of the Civil Procedure Act 2005 makes provision for where there is “a mistake in the name of a party" and empowers the Court to make an order that documents be changed so that the name is that of "the person intended to be made a party". The fact that s 64, which contains the Court's general power of amendment, makes specific and explicit provision for amending the name of a party demonstrates the practical importance of the specification of a party's name both to the curial process and the exercise of judicial power.

124. With those principles in mind, the Defendant's concern about his name may be addressed in a principled way.

125. As stated above, the proceedings were commenced on 9 February 2024 when the Plaintiff filed a Statement of Claim with the Court. That document conformed to the approved form. It specifies the “defendant” by the following name:

"Luke Daniel William Simpson"

126. Thereafter, the Statement of Claim, and then the Amended Statement of Claim, make a number of references to “the Defendant". Each such reference is to be understood as a reference to the person specified by that name in the Statement of Claim. Perhaps most importantly for current purposes, in Prayer 1A of the Amended Statement of Claim, the Plaintiff seeks an order in the following terms:

“Order that the occupier, Luke Daniel Simpson, and any other person in occupation of or present on the property in contravention of s 9.2 or s 9.6 of the Crown Land Management Act 2016 (NSW) give vacant possession to the Plaintiff within 28 days.

127. The pleaded basis for the relief is that "the Defendant" is in occupation of the Land and that despite repeated demands "the Defendant" has failed to vacate.

128. In Prayer 3 of the Amended Statement of Claim, the Plaintiff seeks an order that, "The Defendant pay the Plaintiff's costs of the proceedings".

129. The Defendant says that his name has been misrepresented as described above. That complaint is not to be understood as the Defendant saying that he is not the person described in the Statement of Claim and against whom the Plaintiff asks the Court to make orders. This is because of the following facts.

130. On 14 March 2024 the Defendant filed a Notice of Appearance in the proceedings commenced by the Plaintiff's Statement of Claim. As required by the approved form, the Notice of Appearance stated that "Jaabarun [Luke Simpson] [defendant] appears". There was only one person who was entitled to appear in these proceedings as the Defendant, that being the Defendant specified in the Statement of Claim. The fact that the Defendant described himself in the Notice of Appearance variously as "Jaabarun [Luke Daniell William Simpson]" and "Jaabarun [Luke Simpson]" does not mean that the Defendant is not the defendant named in the Statement of Claim. It may mean that he prefers to be referred to by another name or even that he considers or asserts that he has a different name to that specified in the Statement of Claim. Nonetheless, by the Defendant's Notice of Appearance, the Defendant has appeared as the defendant specified in the Statement of Claim.

131. Since filing his Notice of Appearance, the Defendant has exercised a number of rights in the court process which only the Defendant may exercise:

1. On 29 November 2024 the Defendant filed a Notice of Motion seeking orders in relation to his defence;

2. On 2 December 2024 the Defendant filed a Defence;

3. On 6 March 2025 the proceedings were listed before me on which occasion the Defendant exercised his right to appear before the Court and be heard. The transcript for that occasion commences with the following words:

“DEFENDANT:   I am Jaabarun Nyangbul and I am here for this matter today.

HIS HONOUR:    You are the Defendant?

DEFENDANT:     Yes.”

132. During the course of that directions hearing the Defendant sought to call on the jurisdiction of the Court to make an order restraining "the authorities" from taking non-specific steps.

133. Having regard to the Defendant's position and his stated preference for continuation of the proceedings on 6 March 2025, the Plaintiff's application for summary judgment was not heard that day, but rather was adjourned to 22 April 2025. This was an allowance granted to the Defendant and no one else.

134. As I have already said, by these proceedings the Plaintiff seeks orders against Luke Daniel William Simpson and no one else. It may be that those orders will affect other people, but that is the claim the Court has to decide and no other.

135. In these circumstances, the document filed by the Defendant on 4 April 2024 and exhibited to the Amended Defence does not raise any issue requiring adjudication by the Court. It does not deprive the Plaintiff of any rights it otherwise has against the Defendant.

136. The fourth exhibit to the Proposed Amended Defence is another document described as an "Affidavit" of the Defendant, this time filed on 11 November 2024. This document contains further arguments.

137. Although it is irregular to annex a document like this “Affidavit” to a defence, it is appropriate to address the substance of the arguments set out in the document. The first argument is that the Civil Procedure Act 2005 and the UCPR are not valid instruments. The only reason given for that argument is want of a valid head of power under the Commonwealth Constitution. This argument is misconceived. The Civil Procedure Act2005 is an enactment of the Parliament of New South Wales, not the Commonwealth Parliament. The Parliament of New South Wales does not generally require a head of power under the Commonwealth Constitution to make laws for the peace, welfare and good government of New South Wales.

132. The next argument is expressed in a number of ways, the burden of which is that the Nyangbul people retain their Superior Highest Inherent Prerogative Originating Sovereign Rights with respect to the Land over which the Plaintiff now seeks an order for possession. The Defendant states that he is “re-occupying” his homelands. This argument is contrary to s 42 of the Real Property Act 1900 in circumstances where the Plaintiff is the registered proprietor of an estate in fee simple in the Land.

133. The Defendant refers to Love v The Commonwealth [2020] HCA 3 for the proposition that "belonging" is "acknowledged". Love v The Commonwealth was a case about s 51(xix) of the Commonwealth Constitution which provides:

51. Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…

(xix)   naturalization and aliens;

…

140. In Love v The Commonwealth, the High Court had to consider the construction of the word "aliens" in the context of s 51 (xix), and having regard to the position of "Aboriginal Australians" according to the tripartite test in Mabo v Queensland (No 2). There is nothing in Love v The Commonwealth which is relevant to the claims made by the Plaintiff in these proceedings.

141. The Defendant also refers to Mabo (No 2) and the decision of the High Court in that case to reject terra nullius as a fiction. Reference to Mabo (No 2) does not assist the Defendant. On the contrary, the case demonstrates why his arguments in these proceedings are futile. The High Court's decision about terra nullius was only one step, albeit an important step, in the line of reasoning which has created the framework within which principles of native title are to be considered today, and subject to legislative intervention. Another key step in the High Court's reasoning was that native title is extinguished by a grant of fee simple. For example, at paragraph [110], Deane JJ and Gaudron JJ said:

“The personal rights conferred by common law native title does not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent state in the land by the Crown such as a grant in fee…"

142. There are three grants in fee of which the grant in fee simple is the broadest.

143. In Fejo v Northern Territory at 126; [43], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:

“Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title.”

144. I have referred above to s 13J of the Real Property Act 1900, which provides that where, as in this case, the State of New South Wales is recorded as the registered proprietor of land in accordance with this Act, the estate to which that recording relates is an estate in fee simple.

145. The simple point is that the Plaintiff is entitled to possession against all the world. Nothing in the Defendant's second argument demonstrates otherwise.

146. The third argument included in the “Affidavit” dated 11 November 2024 is that:

“That Nyangbul Sead of governance and Helen (Nyangbul Woman) have registered security on the AFSA, 'Personal Property Securities Register' (PPSR) over the Nyangbul lands including the land/s described in the Statement of Claim."

147. There is included as an annexure to the fourth annexure a document which appears to be a PPSR Registration Number Search Certificate provided under s 174 of the Personal Property Securities Act 2009 (Cth). The search states that someone called "Baiame Love" granted someone called "Helen" a "security interest" over commercial property of the class: "financial property-chattels possession". There then follows a description of the collateral in the following words:

“Ngali Na Nyangbul-the land of the Crown, identified as lot 7003 DP 1065854, known as Seven Miles Beach, Lennox Head.”

148. The provenance, meaning and legal effect of this document is unexplained. There is nothing to suggest that it is relevant to any issue before the Court. Nothing is said about the basis upon which Baiame Love might grant a security interest over Seven Mile Beach.

149. So too another document entitled “Verification Statement” provided under s 156 of the Personal Property Securities Act 2009, which is also annexed to the fourth annexure.

150. The Defendant further asserts that the Plaintiff cannot produce "the original title of ownership according to sovereign tribunal law jurisdiction or constitutional law". This is a meanless assertion when the Plaintiff sues as registered proprietor by virtue of a register maintained by the Registrar-General under s 31B of the Real Property Act 1900. As referred to above, the Register may be searched and the content proved as has been done in this case.

151. The Defendant further refers to s 1.10(6) of the Crown Lands Management Act 2016. Section 1.10 applies where the land becomes Crown land because of the operation of a provision of the Crown Land Management Act 2016 or a declaration made under s 4.4 of that statute: s 1.10(1). Neither applies in this case. As set out above, the two parcels of land were created in 1999 and 2004 when the respective Deposited Plans were registered. Each plan specified the State of New South Wales as the registered proprietor, relevantly in fee simple. The Crown Lands Management Act 2016 did not come in force until after 2016.

152. The Defendant made some further submissions about the Australia Act 1986 (Cth) and the want of a referendum. None of these matters is relevant to the Plaintiff's claims in these proceedings.

153. Having considered each of the arguments put forward by the Defendant, both in the body of the Proposed Amended Defence and in the annexures to it, it is clear that every aspect of the Defence contemplated by that document is futile when considered in accordance with law.

154. I therefore reject the Defendant's application to file the Proposed Amended Defence in accordance with the principles set out above.

The Defendant’s other documents and oral submissions

155. The position then is that the only defence which the Defendant has filed is the Defence filed on 2 December 2024.

156. Apart from two matters, the Defence filed on 2 December 2024 contains a subset of the allegations sought to be made in the Proposed Amended Defence. For the reasons set out above, it is also futile.

157. The first of the two additional matters is the Defendant's reference to a decision of Refshauge ACJ in Mortimer v Auswide Services Limited [2016] ACTSC 282. That case does not assist the Defendant. Refshauge ACJ granted an interlocutory injunction so the plaintiff could obtain legal advice, but ultimately the case was discontinued without a hearing on the merits. Refshauge ACJ's further reasons for not permitting one person to replace another as the plaintiff in that case demonstrates the futility of a person seeking to challenge the whole system of land holding on the basis of a prior indigenous claim, as is entailed in the Defendant's case in these proceedings.

158. The other additional matter in the Defence is that the Defendant says the Land was vacant when he occupied it on 17 January 2022. He says that the only work undertaken by the Plaintiff has been slashing fire trails. The Defendant says that, since his occupation, he personally has maintained the fire trails.

159. For the reasons outlined above, I assume in the Defendant's favour that each of these allegations is true. Nonetheless, it does not improve the Defendant's case in circumstances where the Plaintiff seeks an order for possession as the registered proprietor.

160. In oral submissions today, the Defendant raised two new matters. First, he invoked ss 73 and 75 of the Commonwealth Constitution.

161. Section 73 provides:

73. Appellate jurisdiction of High Court

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:

(i)   of any Justice or Justices exercising the original jurisdiction of the High Court;

(ii)   of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;

(iii)   of the Inter-State Commission, but as to questions of law only;

and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

162. The provision addresses the High Court's appellate jurisdiction. Until such time as there is a judgment, decree, order or sentence of this Court, s 73 has no application to these proceedings.

163. Section 75 provides:

75. Original jurisdiction of High Court

In all matters:

(i)   arising under any treaty;

(ii)   affecting consuls or other representatives of other countries;

(iii)   in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv)   between States, or between residents of different States, or between a State and a resident of another State;

(v)   in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

164. Section 75 addresses the High Court's original jurisdiction. This case does not fall within any of the subparagraphs in s 75. Section 75 therefore does not apply.

165. The second new matter raised by the Defendant in his oral submissions is the "fraud" argument which I have referred to above.

166. UCPR 14.28(1) relevantly provides:

14.28 Circumstances in which court may strike out pleadings

(1)   The Court may, at any stage of the proceedings, order that the whole or any part of the proceedings be struck out if the pleadings:

(a)    disclose no reasonable defence appropriate to the nature of the pleading, or

(b)    has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

…

167. For the reasons given above, the Defence filed on 2 December 2024 discloses no reasonable defence. This is especially so given that the nature of these proceedings, namely a claim by the registered proprietor for possession of the Land.

168. I also consider that the Defence has a tendency to cause prejudice, embarrassment or delay in the proceedings. The word "embarrassment" as used in UCPR 14.28 has a technical meaning. It means that there is a lack of sufficient specificity to permit the person reading the pleading fairly to understand the case that is put.

169. The Defence refers to a multiplicity of matters in generalities without identifying how each matter is relevant to the Defendant's case. If the proceedings are permitted to proceed on the basis of that pleading, then the Plaintiff will be exposed to prejudice because the Plaintiff will not know how the various arguments are to be put and the proceedings will suffer from delay for the same reason.

170. I therefore order that the Defence filed on 2 December 2024 be struck out.

171. In making that order, I will have regard to ss 56(1) and 56(2) of the Civil Procedure Act 2005, as well as the objectives of case management specified in s 57. The limited resources of the Court and the efficient disposal of the business of the Court, including the cases sought to be brought by all litigants, must also be taken into account in deciding how this case should progress.

172. The question then is what is to happen next. The Defendant has now had over a year to put forward a defence. He has put forward two documents, both of which are futile. Given the nature of the Plaintiff's claim, I consider that effect will best be given to the overriding purpose if I grant the final relief sought in the Plaintiff's Notice of Motion filed on 22 January 2025.

Defendant’s cross-claim

173. One other matter needs to be addressed. Last Thursday, before the Easter long weekend, the Defendant filed a further document in the form of a cross-claim.

174. It is not necessary to set out all of the Cross-Claim. It is sufficient to say that, by the Cross-Claim, the Defendant wishes to sue the State for unlawful detention, excessive use of force, violation of procedural rights and cultural protection, interference with lawful occupation and use of aboriginal land, false imprisonment, assault, trespass to person and property, and misfeasance in public office. The Plaintiff is the main Cross-Defendant.

175. There does not seem to be any dispute that the incident out of which the claim arises occurred in September 2023 at a place referred to as Cabbage Tree Island, which is located near but separate to the Land the subject of the Plaintiff's claim in these proceeding. Nor is there a dispute that the claims made by the Defendant in the Cross-Claim are the same as the claims made by the Defendant in District Court proceedings 2025/116791 which were commenced when the Defendant filed a Statement of Claim in the District Court on 14 March 2025.

176. Two things need to be noted. First, there is nothing in the Cross-Claim which warrants a delay in making the orders which the Plaintiff seeks today. As I have indicated, the Plaintiff's claim relates exclusively to the Land described at the beginning of this judgment. Whatever issue might arise under the Cross-Claim or in the District Court proceedings about events on Cabbage Tree Island are not relevant to that claim.

177. Secondly, it is a fundamental principle that any claim be litigated in one court and one court only. The principle is necessary to avoid the risk of inconsistent results from two different courts, which is contrary to the administration of justice. Where proceedings are already on foot in one court, to commence additional proceedings in another court arising from the same incident, and claiming the same relief for the same loss, is an abuse of process for the purposes of UCPR 14.28(1)(c). In those circumstances, the most efficient way to deal with those claims will be to strike out the Cross-Claim filed on 17 March 2025. The Defendant will not suffer any prejudice as a result of that order because, as I have indicated, he already has proceedings on foot in the District Court in relation to the same matter and he will be able there to prosecute those proceedings and vindicate his asserted rights in accordance with the rules and procedures of the District Court.

Final orders

178. In those circumstances, I make the following orders:

1. The application for leave to file the proposed Amended Defence emailed to Faulkner J’s chambers on 15 April 2025 is refused.

2. The Defendant's Notice of Motion filed on 29 November 2024 is dismissed.

3. The Defence filed on 2 December 2024 is struck out pursuant to UCPR 14.28.

4. The Cross-Claim filed on 17 April 2025 is struck out pursuant to UCPR 14.28.

5. Judgment for the Plaintiff for possession of the land comprised in folio identifier 7003/1065854 and folio identifier 7004/96435, being the land situated at and known as "Seven Mile Beach" in Lennox Head.

6. Pursuant to r 39.1(1)(d) of the Uniform Civil Procedure Rules 2005 an order that the Plaintiff have leave to issue a writ of possession forthwith.

7. The Defendant is to pay the Plaintiff’s costs of the proceedings.

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Amendments

07 May 2025 - Minor typographical corrections to paragraphs [11], [72], [121] and [137]