State of New South Wales v Hetherington

[2023] NSWSC 583

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Hetherington [2023] NSWSC 583

Hearing dates:

31 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Defences filed by each of the first and second defendants on 28 December 2022 are struck out.

2. Leave to the defendants to file any amended defences by 13 June 2023.

3. Listed for Directions before Davies J at 9:30am on 20 June 2023.

4. Liberty to apply on 2 days’ notice.

5. Plaintiff and Associate to advise defendants by email and post of the orders made today.

Catchwords:

LAND LAW – possession of land – unlawful occupation of plaintiff’s land by defendants – where defences disclose no defence known to the law – defences struck out – leave to replead

Legislation Cited:

Crown Land Management Act 2016 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Kris Hetherington (First Defendant)
Gary Jagamarra (Second Defendant)

Representation:

Counsel:
I J King (Plaintiff)
No appearances (Defendants)

Solicitors:
Department of Planning and Environment (Plaintiff)
Unrepresented (Defendants)

File Number(s):

2022/358765

Publication restriction:

Nil

Judgment

1. The plaintiff is the registered proprietor of lots 496 and 497 in DP 721310. The land is Crown land. The land appears to be rural land and is near the Cudgen Jetty Trail at Cudgen in Northern New South Wales. It was formerly the Wollumbin Scout Camp. The two defendants, and a number of other people, have been in occupation of this land for some years.

2. In January of 2022, a process server attended at the land with various officers from the Department of Planning and Environment and some police officers, and identified a number of the people who were occupying the property. When these people were identified, they were served with notices under s 9.19 of the Crown Land Management Act 2016 (NSW) requiring them to vacate the property.

3. Subsequently, when the persons had not vacated the land, proceedings were commenced on 28 November 2022. The plaintiff has adopted the course of naming two of the identified persons as defendants and subsequently serving them with the statement of claim and a notice to occupier. In addition, the plaintiff has served a number of other persons in occupation of the land with a notice to occupier, left a number of such notices on the land, and has affixed signs to the land requiring the persons to leave the land.

4. A defence has been filed by each of the named defendants. Each defence is in identical terms. In substance, each defendant admits that he occupies the land, but says that he is entitled to do so. He says that the plaintiff has failed to provide documentation to substantiate the claim that it is the owner of the land, and he disputes that the Crown Land Management Act 2016 (NSW) is a lawful Act because he asserts it has never received the Royal assent in accordance with the Commonwealth Constitution of Australia. The claim by the plaintiff is otherwise admitted.

5. There is no basis for the assertion that the Crown Land Management Act2016 is not an Act of the New South Wales Parliament.

6. Even if it were the case that the plaintiff had not provided documentation at the time of commencement of the proceedings showing that it was the owner of the land, that does not amount to a defence to the claim. In an affidavit subsequently filed by the plaintiff pursuant to directions made by the Court, the ownership of the land is satisfactorily proved.

7. No facts are pleaded to support the defence that each defendant has the right to occupy the land.

8. In those circumstances, each of the defences filed does not disclose a defence known to the law to the claim for possession that the plaintiff seeks.

9. The defendants were notified of the directions hearing this morning, but there has been no appearance by either of them.

10. Since the defendants appear for themselves in the proceeding, my practice is, when striking out a defence not disclosing a defence known to the law, to give one last opportunity for those defendants to file an amended defence which discloses a defence known to the law.

11. Accordingly, I make the following orders:

1. Defences filed by each of the first and second defendants on 28 December 2022 are struck out.

2. Leave to the defendants to file any amended defences by 13 June 2023.

3. Listed for Directions before Davies J at 9:30am on 20 June 2023.

4. Liberty to apply on 2 days’ notice.

5. Plaintiff and Associate to advise defendants by email and post of the orders made today.

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Amendments

20 June 2023 - Typographical error in order 1 on title page and para [11]

Decision last updated: 20 June 2023