Pappin v Balranald Local Aboriginal Land Council
[2001] NSWLEC 53
•01/30/2001
Reported Decision: (2001) 113 LGERA 240
Land and Environment Court
of New South Wales
CITATION: Pappin v Balranald Local Aboriginal Land Council [2001] NSWLEC 53 PARTIES: APPLICANT
RESPONDENT
Pappin
Balranald Local Aboriginal Land CouncilFILE NUMBER(S): 40154 of 2000 CORAM: Cowdroy J KEY ISSUES: Aboriginal :- powers of aboriginal land council to acquire land subject to conditions - applicant claiming land acquired by aboriginal council was held subject to a condition - application for summary dismissal - claim not futile - application dismissed LEGISLATION CITED: Aboriginal Land Rights Act 1983 s 38 CASES CITED: Birmingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 ;
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 ;
Bayne v Riggall (1906) 6 CLR 382 ;
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 ;
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 ;
New South Wales Aboriginal Land Council v Worimi Local Aboriginal Land Council (1994) 84 LGERA 188 ;
Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (unreported, Hunt J, Supreme Court NSW CL No 16824/79);
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 ;
Wentworth Securities Ltd v Jones [1980] AC 74DATES OF HEARING: 29/11/00 DATE OF JUDGMENT:
01/30/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr M Dengate (Agent)SOLICITORS
n/aRESPONDENT
SOLICITORS
Mr T Robertson (Barrister)
Henrietta J Dean Solicitors
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40154 of 2000
CORAM: Cowdroy J
DECISION DATE: 30/01/01
The notice of motion
1. By application class four filed on 9 October 2000, (“the application”) Gary Jean Pappin (“the applicant”) seeks declarations that various land parcels collectively known as ‘Auley Station’ (“the station”) should not be dealt with by the New South Wales Aboriginal Land Council (“NSWALC”) or by the Balranald Local Aboriginal Land Council (“the respondent”) except in accordance with a condition allegedly agreed to by the respondent at the time the station was acquired. The applicant claims that the station was acquired for the purpose of allowing the indigenous owners of the area, the Muthi Muthi people, to utilise the property to continue the traditions, observances, customs and beliefs of the Muthi Muthi people. The applicant relies on s 38(3) of the New South Wales Aboriginal Land Rights Act 1983 (“the Act”) as it existed prior to its amendment by the Aboriginal Land Rights Amendment Act 1990 (“the ALRA Act”) as providing the foundation for the alleged condition.
2. By notice of motion filed on 17 November 2000 the respondent seeks an order that the proceedings be summarily dismissed on the ground that no reasonable cause of action is disclosed by the application because:-
1. Section 38(2) of the Act does not authorise the acquisition of property on a condition which is not a condition of a gift, devise or bequest; and further or alternatively;
2. The Act does not authorise the purchase of property by a Regional Aboriginal Land Council (“RALC”) in its own right or on behalf of a Local Aboriginal Land Council (“LALC”) on the condition alleged in the application.
3. The application for summary dismissal depends solely on the statutory interpretation of s 38 of the Act. For the purpose of this motion the Court has been requested to make a determination upon the hypothesis that a condition as alleged by applicant exists.
4. The respondent submits that the operation of s 38 of the Act provides no cause of action to the applicant and accordingly that there is a clear and demonstrable absence of a triable action sufficient to warrant summary dismissal of the proceedings. Part 13 r 5 of the Supreme Court Rules 1970 enables summary dismissal of proceedings and its provisions are adopted by Part 6 r 1(1) of the Land and Environment Court Rules 1996.
Background
5. The Western Regional Aboriginal Land Council (“WRALC”) purchased the station on behalf of the respondent on 4 September 1987 for the sum of $560,000. The title to the station is partly held pursuant to the provisions of the Real Property Act 1900 and partly pursuant to the provisions of Western Lands Act 1901.
6. Clause 11 Pt 3 of Schedule 4 to the Aboriginal Land Rights Amendment Act 1990 provides that all property vested in a Regional Aboriginal Land Council immediately before 17 October 1990 was on and from that day vested in the NSWALC.
7. In the principal proceedings the applicant claims that at the date of acquisition of the station it was agreed by the relevant parties that the purchase was subject to a condition that the traditional indigenous owners would be permitted to utilise the station for the continuation of the traditions, observances, customs and beliefs of the Muthi Muthi people.
The respondent’s submissions
8. The respondent submits that s 20 of the Act as it existed at the date of the acquisition of the station prescribed and thereby limited the functions of a RALC to acquire property. Section 20 of the Act relevantly provides:-
(1) A Regional Aboriginal Land Council shall have the following functions:
…(b1) the purchase of private lands on its own behalf or on behalf of or to be vested in a Local Aboriginal Land Council and the transfer of lands acquired on behalf of the Local Aboriginal Land Council to the Council;
...
Although not of relevance in this motion, it should be noted that the ALRA Act repealed this section and a substitute s 20 was inserted.
(j) such other functions as are conferred or imposed on it by or under this or any other Act.
...
9. In addition to the functions of a RALC set out in s 20 of the Act, s 38 of the Act conferred additional powers with respect to the acquisition of property. Section 38 of the Act (which for all practical purposes is in similar terms to the current section) relevantly provided:-
The respondent submits that s 38(3) only has application to those circumstances when property was ‘ acquired ’ by gift, devise or bequest, and not to any purchase of property.
10. Additionally, the respondent submits that no provision existed which suggested that one of the functions of the RALC was to act as a trustee. The respondent relies upon the judgment of Bannon J in New South Wales Aboriginal Land Council v Worimi Local Aboriginal Land Council (1994) 84 LGERA 188 at 193 wherein His Honour held that such a Council lacked the capacity to act as a trustee. Thus the respondent submits that there is no provision in the Act for the applicant to support a cause of action.
Construction
11. When ascertaining the intention of Parliament a court is required to promote the purpose or object of the statutory instrument in preference to any construction that would not promote that purpose or object (see s 33 Interpretation Act 1987 (NSW); see also Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304 per Mason and Wilson JJ).
12. In the construction of s 38 of the Act the juxtaposition of sub-paragraph 38(3) to the preceding sub-paragraphs of s 38 may suggest that Parliament intended to draw a distinction between ‘property acquired’ and ‘property purchased’ or taken on lease. The respondent relies upon such a construction and submits that if property is acquired subject to the condition of any gift, devise or bequest, the NSWLAC or a LALC is authorised by the Act to hold such property subject to that condition but if property is purchased no corresponding power is granted by the terms of s 38 of the Act.
13. There are however other possible interpretations of s 38 of the Act. An alternative interpretation may be that Parliament did not intend to draw a distinction between property ‘acquired’ and property ‘purchased’ but rather a distinction between property ‘acquired’ (in a general sense, including by purchase) and property ‘acquired by gift, devise or bequest’ (in a specific sense). So construed s 38(2) and s 38(3) would comprise separate grants of power with the consequence that property acquired by any means, but subject to a condition or conditions, would be binding on an Aboriginal Land Council.
14. The respondent’s submissions are predicated upon the term ‘acquired’ in s 38(3) meaning ‘acquired by gift, devise or bequest’. However such a construction may not be capable of uniform application to the Act. Section 20(1)(b1) of the Act gives to a RALC the function of:-
…the purchase of private lands on its behalf or on behalf of or to be vested in a Local Aboriginal Land Council and the transfer of land acquired on behalf of the Local Aboriginal Land Council to the Council
The term ‘ acquired ’, at least in the context of s 20(1)(b1) of the Act, appears to have a general meaning encompassing purchase and including all other acquisitions. The distinction which the respondent makes in its submissions concerning the interpretation of s 38(2) and s 38(3) of the Act may therefore be unsupportable.
15. In Birmingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 McHugh JA said at 302:-
In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.
In view of the foregoing the Court is unable to conclude with certainty upon this motion that the words ‘ acquired by gift, devise or bequest ’ should be construed as submitted by the respondent.
Summary Dismissal
16. The principle is well established that summary dismissal will only be granted in very limited circumstances. In Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944-945 Cross J said that it is a ‘fundamental principle...that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases’ (see also General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
17. The construction of s 38 is prima facie capable of at least two interpretations. Such ambiguity is sufficient to raise a ‘doubt or difficulty’ as well as a ‘debatable question of law’ (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J) warranting a hearing. Lastly, the applicant’s case could not be said to be ‘futile’ (Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (unreported, Hunt J, Supreme Court NSW CL No 16824/79) and accordingly the power to strike out the proceedings should not be exercised. Such an exercise of power must be reserved for ‘actions that are absolutely hopeless’ (see Dey at 91 adopting the comments of Barton J in Bayne v Riggall (1906) 6 CLR 382 at 398).
Orders
18. The Court orders:-
1. The notice of motion for summary dismissal be dismissed.
2. Costs Reserved.
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