Nyangbul v State of New South Wales

[2025] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nyangbul v State of New South Wales [2025] NSWCA 119

Hearing dates:

26 May, 02 June 2025

Date of orders:

02 June 2025

Decision date:

02 June 2025

Before:

Griffiths AJA

Decision:

(1) The notice of motion filed 14 May 2025 be dismissed.

(2) The applicant pay the respondent’s costs of and incidental to the notice of motion filed 14 May 2025.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay pending appeal — whether the applicant has raised sufficiently serious issues to warrant stay — motion seeking stay of execution of writ of possession dismissed

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Australian Human Rights Commission Act 1986 (Cth)

Civil Procedure Act 2005 (NSW), s 67

Crown Lands Management Act 2016 (NSW), ss 9.4, 9.5, 9.6

Judiciary Act 1903 (Cth), s 78B

Real Property Act 1900 (NSW), s 42

Uniform Civil Procedure Rules 2005 (NSW), r 50.7

Cases Cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9

Belcastro v ORDE Mortgage Custodian Pty Ltd [2025] NSWCA 1

Commonwealth v Yunupingu [2025] HCA 6

Dogra v Dogra (No 3) [2024] NSWCA 208

Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650

Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

Michael Hill Jeweller (Australian) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128

New South Wales v Simpson [2025] NSWSC 429

Portugal v Australia [1995] ICJ Rep 90

Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295

Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Jaabarun Nyangbul (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Applicant in person
CLW Street (Respondent)

Solicitors:
Department of Planning, Housing and Infrastructure (Respondent)

File Number(s):

2025/165853

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2025] NSWSC 429

Date of Decision:

22 April 2025

Before:

Faulkner J

File Number(s):

2024/00051618

JUDGMENT

1. By notice of motion filed 14 May 2025, the applicant seeks a stay of a writ of possession issued by Faulkner J on 22 April 2025 in New South Wales v Simpson [2025] NSWSC 429 (PJ or primary judgment). The applicant on the motion is the same person as the defendant below but prefers to use his Indigenous name.

2. A notice of appeal was filed 30 April 2025. It raises the following nine grounds of appeal:

1. Jurisdictional Error

The learned judge failed to determine whether the Supreme Court had lawful jurisdiction to proceed, given the absence of any valid evidence of sovereignty, cession, or consent from the Nyangbul people. This failure renders the orders void ab initio.

2. Constructive Denial of Procedural Fairness

The Court refused to consider the Appellant's oral submissions at hearing, dismissed all filed evidence as "futile" without examination, and failed to allow proper argument on jurisdictional objections, thereby denying natural justice.

3. Suppression of Cross-Claim

The Court issued final orders in the possession proceedings without determining the Appellant's live cross-claim, which raised jurisdiction, compensation, and counter-possession issues. This constitutes a serious procedural failure and miscarriage of justice.

4. Denial of Constitutional Right to Uplift

The Appellant raised constitutional and public law matters requiring referral under section 78B of the Judiciary Act 1903 (Cth). The judge failed to afford that right or refer the matter to the High Court, in breach of judicial duty and federal law.

5. Improper Joinder and Identity Misrepresentation

The Appellant was joined under a misrepresented name and date of birth, without resolution of formal objections. The Court proceeded to judgment against a party who was improperly identified and did not lawfully consent to the proceedings.

6. Breach of Filing Procedure Induced by the Court

The Appellant was directed by the judge's associate to file defence documents via email instead of through the Registry. The same documents were then dismissed as "out of time" and "futile," despite the Court's own procedural misdirection.

7. Misapplication of Registered Title Law

The Court accepted the Respondent's Crown Land title claim via private registration (Pty Ltd) without requiring evidence of native title extinguishment, treaty, or lawful acquisition, violating the rule of law and the presumption in favour of original ownership.

8. Breach of International Law and Customary Obligations

The Court failed to consider binding international obligations under the United Nations Declaration on the Rights of Indigenous Peoples, including Articles 3, 4, 8, and 26, and ignored customary international law under the Vienna Convention on the Law of Treaties, Article 38.

9. Apprehended Bias and Prejudgment

The Court's blanket dismissal of all affidavits and submissions as "futile" without analysis reveals prejudgment and bias, amounting to a failure to exercise judicial function in accordance with law.

3. I gather that the State also contends that leave to appeal is required and a direction has been made for the appellant to file and serve by 4 June 2025 a White Folder for that purpose. The proceedings are listed for directions on 16 June 2025.

4. The applicant relies on the following affidavits:

1. a document styled “Living Testimony Supplementary Affidavit of Jaabarun Nyangbul” filed 8 May 2025;

2. a document styled “3^rd Supplementary living testimony in form affidavit for Jaabarun Nyangbul” filed 15 May 2025;

3. a document styled “Living testimony of Jaabarun Nyangbul in form of Affidavit 4^th Supplementary Affidavit” filed 20 May 2025; and

4. a document styled “Living testimony Fifth Supplementary Affidavit of Jaabarun Nyangbul” by way of reply to the State’s affidavits, filed 29 May 2025.

5. The State opposes the stay application and relies on the following affidavits:

1. affidavit dated 23 May 2025 by Ms Jade Matthews; and

2. affidavit dated 23 May 2025 by Mr Craig Samuel Wood.

6. The appeal has not yet been listed for hearing. As matters stand at present, it is proposed to enforce the writ of possession the following day, 17 June 2025.

7. The motion initially came before me as Referrals Judge on 26 May 2025. The hearing was adjourned until today to give the applicant more time to consider and reply to the State’s two affidavits.

8. The applicant has filed three outlines of written submissions filed 22, 26 and 29 May 2025, respectively. The State filed an outline of submissions on 23 May 2025.

Background facts summarised

9. The proceedings relate to parcels of land located near Lennox Head of which the State is the registered proprietor (Lot 703/106584 and Lot 7004/96435) (the Land). The Land is adjacent to part of a long stretch of Seven Mile Beach. The primary judge found at PJ[3] that, at least since as early as 2021 several structures have been built or brought to the Land, including steel and timber buildings, steel and glass buildings, a shipping container, various wooden structures, tents and vehicles. It is evident that the applicant resides on the Land, along with other unidentified people. After the applicant failed to remove the structures, the State filed a statement of claim on 9 February 2024 seeking a writ of possession.

10. On 28 November 2024, at which time no defence had been filed, the primary judge made orders which noted the State’s intention to seek default judgment. Leave was granted to the State to apply for a writ of possession, together with orders requiring the applicant to be notified of the directions and to respond as specified.

11. The following day, the State filed a motion seeking judgment for possession of the Land. On the same day, the applicant on the present motion filed a separate motion in which he sought leave to file a defence.

12. On 2 December 2024, although no leave had been granted for the filing of a defence, the applicant filed a document styled as “Defence”.

13. There were several subsequent procedural developments, which are described by the primary judge at PJ[13]-[16]. They include the fact that, on 15 April 2024, the applicant provided a further document which the primary judge described as the “Proposed Amended Defence”.

14. The primary judge gave comprehensive reasons for striking out all 24 paragraphs of the Proposed Amended Defence (as well as the earlier Defence) on the basis that they were untenable.

15. In brief:

1. The contention that the Court lacked jurisdiction was futile having regard to the location of the Land in the State of New South Wales and the effect of s 42 of the Real Property Act 1900 (NSW) was that the State, as registered proprietor of the Land, held title in fee simple.

2. The applicant’s claims of historical aggression and foundational crimes were incapable of depriving the State of its right, title and interest conferred by s 42 of the Real Property Act.

3. The applicant’s claims that legislation such as the Crown Lands Management Act 2016 (NSW) and Real Property Act were invalid against him and the Nyangbul people were without merit.

4. The applicant’s reliance on Commonwealth v Yunupingu [2025] HCA 6 in support of his contention that his rights had not been extinguished was misconceived because the State was the registered proprietor of the Land and the facts and circumstances here are distinguishable from those in that case.

5. The applicant’s reliance on international law and a right to self-determination, including that the State had no legal or moral authority to take action against him under colonial legislation, was untenable.

16. The primary judge also gave detailed reasons for dismissing other arguments raised by the applicant. His Honour ordered at PJ[170] that the document styled “Proposed Amended Defence” be struck out. Noting that the applicant had had more than 12 months to put forward a proper defence and had failed to do so in the two documents relied upon by him, the primary judge granted the final relief sought by the State in its motion filed on 22 January 2025.

Relevant legal principles summarised

17. The relevant legal principles guiding the Court’s discretion to grant a stay pending an appeal under s 67 of the Civil Procedure Act 2005 (NSW) and/or r 50.7 of the Uniform Civil Procedure Rules 2005 (NSW) are well settled. They are described in leading cases such as Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 and Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20]. They were conveniently summarised by Payne JA in Michael Hill Jeweller (Australian) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5]:

The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694–5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.

18. As noted in Dogra v Dogra (No 3) [2024] NSWCA 208 at [19]:

The above summary of the general principles does not preclude the potential relevance of other matters in considering whether or not to grant a stay pending an appeal. Two of those matters are identified in Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 at 695. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and the stay is not granted, the discretion is normally exercised in favour of granting a stay. Accordingly, where it appears that an appeal will be rendered nugatory unless a stay is granted, this will be “a substantial factor” in favour of granting a stay.

19. There is no requirement for the applicant to demonstrate that there are special circumstances which justify a stay.

20. The Court is not required to conduct a detailed assessment of the grounds of appeal for the purposes of granting a stay, but it needs to be satisfied that one or more serious questions are raised by the appeal (see Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103 at [12] per Gleeson JA and Belcastro v ORDE Mortgage Custodian Pty Ltd [2025] NSWCA 1 at [15]-[17] per Griffiths AJA).

21. Broadly, the notice of appeal raises the following questions for determination:

1. the lawfulness of the State’s title to the Land;

2. procedural irregularities, including whether there was a denial of procedural fairness because the primary judge failed to consider the applicant’s Proposed Amended Defence; and

3. jurisdictional questions, including Crown authority over what is described as unceded Nyangbul land and associated sovereignty.

Consideration and determination

22. For the following reasons, I do not consider that any of the nine grounds of appeal raise sufficiently serious issues as to warrant a stay.

23. First, the claims that the Court lacked jurisdiction because of the separate sovereignty of the Nyangbul people is contrary to binding authority and must be rejected. A similar claim was raised in separate proceedings in Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650. At [32]-[34], I explained why the argument must be rejected:

To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point:

43    The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held:

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.

44    That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110–111 per Deane and Gaudron JJ:

Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power.

45    Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J:

[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. … Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided.

46    Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia:

Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.

47    That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48–9 per Mason CJ; McDonald v DPP (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]–[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]–[17] per Connolly J.

It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt her Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71].

Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original):

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

24. An appeal against that decision was dismissed, including in relation to the claims regarding sovereignty (see Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9 at [111]). In response to the claim there that particular Indigenous People had title or rights in land under a different legal system, Kirk JA (Stern JA and Simpson AJA agreeing) stated at [106] that any such rights, to the extent that they are recognised within the Australian legal system, are recognised as native title rights. No native title rights were claimed there, nor in the present case. For completeness, nor was it suggested that the Land was affected by any claim under the Aboriginal Land Rights Act 1983 (NSW).

25. Justice Kirk added at [110] that the assertion that the common law of Australia recognises “some type of traditional Indigenous title distinct from native title is not one that it is open to this Court to accept”.

24. Secondly, the applicant has failed to demonstrate that his grounds of appeal raise sufficiently strong claims so as to overcome the indefeasible title held by the State as registered proprietor of the Land. In particular, he has not persuaded me that his appeal grounds are an adequate answer to the principle of indefeasibility which is inherent in s 42(1) of the Real Property Act:

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—[then follow five exceptions, none of which apply to the applicant]

27. The principle of indefeasibility is the bedrock of the Torrens System. The validity of that statutory principle, as embedded in s 42 of the Real Property Act, is not affected by any of the treaties or international instruments cited by the applicant in his submissions filed 29 May 2025, including the United Declaration on the Rights of Indigenous Peoples, the Rome Statute of the International Criminal Court, the International Covenant on Civil and Political Rights and the four Geneva Conventions (1949). Nor is it affected by the Australian Human Rights Commission Act 1986 (Cth).

28. Similarly, the decision of the International Court of Justice in Portugal v Australia [1995] ICJ Rep 90 which was also cited by the applicant, is plainly distinguishable and did not involve the Torrens System.

29. The applicant also cited several judicial authorities in support of his claim that courts have granted relief to protect Indigenous cultural and legal interests. There can be no doubt that courts have those powers in an appropriate case. Significantly, however, none of the authorities involve a party seeking to enforce its rights and interests to an indefeasible title, as is the case here.

30. Thirdly, the principle of indefeasibility is not circumvented because Ballina Shire Council has acknowledged that the Ballina Coast and Hinterland is “the traditional Nyangabul country of the Bundjalung Nation…whose custodianship of the Ballina Shire area dates back many thousands of generations”. Recognition of such custodianship is entirely fitting, but it does not displace the statutory principle of indefeasibility.

31. Fourthly, contrary to the applicant’s claim, the proceeding does not raise any constitutional or public law matter requiring referral under s 78B of the Judiciary Act 1903 (Cth). Mere assertion that there is such a matter is insufficient to warrant a stay (see Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295).

32. For these reasons, I consider that appeal grounds 1, 4, 7 and 8 do not raise any serious issue for determination on appeal.

33. Turning now to the grounds of appeal which relate to matters of procedure and procedural fairness (grounds 2, 3, 5, 6 and 9), the applicant has failed to demonstrate that any of them raises a serious issue for determination on appeal. Ground 2, which is styled “Constructive Denial of Procedural Fairness”, is essentially a challenge to the merits of the primary judge’s decision and his conclusion that the applicant’s Proposed Amended Defence was futile. The applicant pointed to no evidence to support the claim that the primary judge refused to consider his oral submissions or failed to allow proper argument on jurisdictional objections. And the detailed reasons for judgment indicate that the primary judge gave close attention to the applicant’s case as presented in both writing and orally.

34. Ground 3 complains that the primary judge made final orders without determining the applicant’s “live cross-claim, which raised jurisdiction, compensation, and counter-possession issues”. By way of background, on 17 April 2025, the applicant filed a cross-claim. The primary judge addressed it at PJ[174]-[177]. In brief his Honour noted that the applicant wished 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 cross-claim related to events which occurred not on the Land but on a place called Cabbage Tree Island. The primary judge noted the cross-claim raised the same claims as the applicant had earlier raised in proceedings the applicant commenced in the District Court on 14 March 2025 (DC 2025/116791).

35. The cross-claim was dismissed on two grounds:

1. the cross-claim related exclusively to land other than the Land in the present proceedings; and

2. it was an abuse of process for the purposes of UCPR 14.28(1)(c) for the applicant to have on foot proceedings in separate courts arising from the same incident and claiming the same relief.

36. Accordingly, the cross-claim filed on 17 April 2025 was struck out under UCPR r 14.28. The applicant has failed to demonstrate any serious issue to be tried in relation to the dismissal of his cross-claim. The two reasons given by the primary judge are plainly correct.

37. Ground 5 alleges error by the primary judge in entering judgment for the State against the party “who was improperly identified and did not lawfully consent to the proceedings”. While it should be acknowledged and accepted that the applicant prefers to be called by his Indigenous name, there is no substance in ground 5 in circumstances where the name “Luke Daniel William Simpson” was used in the State’s statement of claim and subsequently, on 14 March 2024, the applicant filed an appearance in proceedings below in which he stated:

38. “Jaabarun [Luke Simpson] [Defendant] appears”.

39. Thus, the applicant submitted to the Court’s jurisdiction and expressly acknowledged that he was also known as Luke Simpson. No arguable error is demonstrated in the primary judge additional reasons at PJ[131]-[135].

40. Appeal ground 6 claims that the Court issued a misdirection when the applicant was told by the primary judge’s associate to file his defence documents via email rather than in the Registry. He said that these documents were then dismissed as being “out of time” and “futile”. Again, this ground reflects the applicant’s fundamental dissatisfaction with the merits of the primary judgment as opposed to identifying any arguable error of fact or law.

41. It is plain that the Defence was filed well out of time and the applicant does not contend otherwise. Furthermore, the primary judge’s description of both the Defence and the Proposed Amended Defence as “futile” was correct having regard to the comprehensive reasons given by the primary judge and the applicant’s failure to demonstrate any serious issue to be determined on appeal in relation to those reasons.

42. Finally, appeal ground 9 raises a claim of apprehended bias and prejudgment, with reference to the primary judge’s “blanket dismissal of all affidavits and submissions as "futile" without analysis”. This ground is doomed to fail in circumstances where it is self-evident from the primary judge’s detailed reasons for judgment that he conducted a thorough analysis of the applicant’s affidavits and submissions.

43. In the circumstances, it is strictly unnecessary to consider the balance of convenience. For completeness, however, I can indicate that, were it necessary to do so, I would conclude that the balance of convenience favours the State and not the applicant.

44. First, the primary judge found at PJ[3] that there were a number of physical structures on the Land since at least early 2021. That finding did not purport to relate to the applicant personally and directly, but in his affidavit Mr Wood deposed at [13] that the applicant and others had unlawfully occupied the Land since February 2022. Even if the earlier of those two dates is accepted in the applicant’s favour, his occupation of the Land has been relatively short (and far less than the time required for a claim based on adverse possession). Moreover, the evidence plainly demonstrates that the occupation of the Land had been without the State’s consent or authorisation and that several notices to quit and/or directions to remove structures have been given under ss 9.4, 9.5 and 9.6 of the Crown Lands Management Act as referred to in the primary judgment at [2] and [4].

45. Secondly, in the event that the appeal succeeded, consideration could be given to permitting the applicant to reoccupy the Land in accordance with any relevant statutory requirements. It appears that the structures presently on the Land are moveable.

46. Thirdly, there are several other compelling reasons why the balance of convenience weighs in favour of the State:

1. The structures presently on the Land have been erected without development consent and without any permission from the State for there to be any development to be undertaken on the Land which is Crown land.

2. I accept Mr Wood’s evidence that the unauthorised structures and materials on the Land represent a risk to the occupants and the general public, because they are not the subject of development approval processes. The writ of possession should be immediately enforced to ensure that “these unauthorised structures and materials can be removed to minimise the public safety risk and local environmental risk associated with leaving them in place”.

3. Various members of the public have complained to the Department since 2022 about the restrictions which the applicant and other occupants of the Land have imposed to prevent the community from being able to access the public land, including installing signs which are plainly intended to deter the community from accessing public land.

4. I also accept Mr Wood’s evidence that occupation of the Land has grown since February 2022 and continues to grow. It is in the public interest that vacant possession be returned to the State, which should prevent the continuation of offences against s 9.2(1)(a) of the Crown Lands Management Act.

5. The fire trail which provides access to the Land has become degraded because fire mitigation work had been inhibited by safety concerns relating to the applicant and others occupying the Land and resisting access. I acknowledge that the applicant says he is prepared to work with fire authorities and to provide “evidence of cultural land management predating colonisation”. It is a matter for the authorities to consider that offer but the making of the offer does not justify the applicant’s unlawful occupation of the Land.

47. The Court does not doubt the applicant’s sincerity and the genuineness of his connection with the Land, which is part of what he aptly describes as his Country. But as the Court pointed out several times during the course of the argument, the Court is obliged to apply the law as it stands. That law does not support the application for a stay of the writ of possession on the grounds sought by the applicant.

48. It goes without saying, however, that whether or not the State wishes to enforce the writ of possession prior to the proceedings being finalised is ultimately a matter for it. The Court hopes that the parties will adopt a sensible approach in conducting any discussions on this issue.

Conclusion

49. For all these reasons, the applicant’s motion filed 14 May 2025 will be dismissed, with costs (as sought by the State).

**********

Amendments

03 June 2025 - [3] - last line amended to insert "The" before "proceedings".

[6] - sentence reading "There is a directions hearing scheduled for 16 June 2025" deleted.

[11] - last line amended to replace "in the present motion" with "on the present motion".