State of New South Wales v Hetherington (No 2)

[2023] NSWSC 670

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hetherington (No 2) [2023] NSWSC 670

Hearing dates:

20 June 2023

Date of orders:

20 June 2023

Decision date:

20 June 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Judgment for the plaintiff pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) against the defendants for possession of the land being Lots 496 and 497 in DP 721310 being the Wollumbin Scout Camp, Cudgen Jetty Trail, Cudgen in the State of New South Wales.

2. Leave to the plaintiff to issue a writ to enforce the judgment of the Court.

Catchwords:

LAND LAW – possession of land – unlawful occupation of plaintiff’s land by defendants and others – where no amended defence filed despite leave being granted – where evidence adduced of the plaintiff’s ownership and right to possession – summary judgment given

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 9.1, 13.1

Cases Cited:

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

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. These proceedings commenced by the filing of a statement of claim on 28 November 2022 seeking possession of land at Cudgeon known as the Wollumbin Scout Camp.

2. The proceedings first came before me on 31 May 2023. On that day I delivered a judgment striking out defences filed by the two defendants on 28 December 2022; State of New South Wales v Hetherington [2023] NSWSC 583. That judgment contains an outline of the matter and the evidence, which I had before me on the plaintiff's behalf, showing the plaintiff's ownership of the land and why the defendants had no right to occupy the land.

3. I gave leave to the defendants, because they were self-represented, to file an amended defence, if they wished to do so, on the basis that any such amended defence should disclose a defence known to the law. No such defence or defences have been filed. However, both the solicitors for the plaintiff and my associate were emailed two documents each entitled "Defence"; one such document purports to be the defence of the first defendant and the other the defence of the second defendant. Both defences are in identical terms.

4. The defences read as follows:

1.   There are two covering pages in the Writ/Claim. In respect to the first covering page, under the "Title of Proceedings" heading, the Plaintiff is described as Secretary, Department of Planning and Environment, Whereas, on the second covering page, the Plaintiff is referred to as The State of New South Wales. This is misleading and ambiguous and does not properly identify the Plaintiff in this action. As a result, the defendants do not know who the Plaintiff or Plaintiffs actually are. To make matters more confusing, within the body of the Claim, the Plaintiff is described in the singular, not the plural.

According, the Defendants deny that the Plaintiff, whichever that Plaintiff actually is, in this case, is the owner of the land described as "The Wollumbin Scout Camp" ('the land').

Particulars

With regard to Clause 1 of the Pleadings and Particulars, the Defendants submit that in Australia there is, in fact, no absolute ownership of the land. However, the law recognizes interests in land such as Fee Simple and Leasehold to name some examples. The Defendants deny that the Plaintiff is the 'owner' of the land at law as claimed by it in the Statement of Claim.

The Defendants submit in their Defence that the true owners of the land are The First Nations Githabul people of New South Wales. Accordingly, the Defendants request further time from this Honourable Court to prepare proper searches and enquiries to clarify this matter. The Defendants also state that at the time the issues in this case commenced, the Plaintiff had in fact completely abandoned the land and left it in a state of disrepair for the Githabul First Nations to take into custody and protect on behalf of the Githabul people's behalf.

Particulars

Photographic/sworn evidence will be filed as to the abandoned state of the land

2.   In relation to Clause 2 of the Pleadings and Particulars, the Defendants do not deny that they are occupiers of the land known as The Wollumbin Scout Camp.

Particulars

The Defendants, along with other persons, are acting as protectors and guardians of the land for the First Nations Githabul people. The Defendants allege that this information is fully known to the Plaintiff or Plaintiffs.

3.   With regards to Clause 3 of the Pleadings and Particulars, the Defendants deny that the Plaintiff requested vacant possession of The Wollumbin Scout Camp on 'a number of dates' given. The Defendants have not completed their investigations into this allegation and do not know if the same is true or false. The Defendants will plead further once their investigations are complete.

4.   In relation to Clause 4 of the Pleadings and Particulars, the Defendants continue to protect and guard the land for the First Nations Githabul people. It is again submitted that the land, being the Wollumbin Scout Camp, was vacated and abandoned. The land forms part of a First Nations Githabul sovereignty claim which are matters of Treaty and Constitutional Law, subject to exclusive Jurisdiction of the High Court of Australia. Some issues relating to "the Land" have already been lodged by the First Nations Githabul elders in the United Nations Human Rights Jurisdiction. Further action is currently underway in the International Court of Justice in The Hague.

5.   The Defendants, in their defence, request this Honourable Court not to grant judgement or costs in this matter without proper time for the Defendants to prepare all facts relating to this case, and to ensure full natural justice in the determination of this matter.

6.   The Defendants, in their defence, refer to Items 1-5 herein and note that they are unable to determine which occupiers, present, future or past, may occupy the The Wollumbin Scout 

7.   The Defendants seek to issue a Counterclaim against the Plaintiff and request leave of this Honourable Court to do so pursuant to the timing of the Court.

5. What is contained in that pleading does not disclose any defence that the law recognises when possession is being sought by the registered proprietor of the land. The defendants do not appear to assert any rights themselves; rather, they assert that a third party, the Githabul people, is the true owner. The highest the matter is put is that the defendants “protect and guard the land” for those said to be the true owners. That does not constitute a defence.

6. A claim that the plaintiff has abandoned the land is not a defence, except in relation to a claim for adverse possession. The plaintiff’s evidence concerning the land demonstrates that no limitation issues giving rise to adverse possession are available to an occupier of the land.

7. Any cross-claim, referred to in paragraph 7, ought to have been filed within the time limited for filing a defence: r 9.1 (1)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

8. Strictly speaking it is not necessary to strike out these further documents because they have not been filed with the Court, but if they had been they would have been struck out as disclosing no defence to the plaintiff's claim.

9. There was no appearance by either defendant today, nor have they appeared on any occasion when the matter has been listed, despite being notified of each listing date.

10. Since there is no defence to the claim, the plaintiff is entitled to judgment. In my opinion it is appropriate that the judgment to which the plaintiff is entitled should be a judgment given pursuant to pt 13 r 1 of the Uniform Civil Procedure Rules2005 (NSW). There is evidence, which I referred to in my earlier judgment, of the facts on which the plaintiff's claim is based.

11. As I noted in my earlier judgment notices to occupier were served on a number of other occupants of the land and were left attached to the land. No person, apart from the two named defendants, has sought to be joined as a defendant to the proceedings.

12. Accordingly, I make the following orders:

1. Judgment for the plaintiff pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) against the defendants for possession of the land being lots 496 and 497 in DP 721310 being the Wollumbin Scout Camp, Cudgen Jetty Trail, Cudgen in the State of New South Wales.

2. Leave to the plaintiff to issue a writ to enforce the judgment of the Court.

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Decision last updated: 20 June 2023