Tiwi Aboriginal Land Trust v Munupi Wilderness Lodge Pty Ltd

[2014] NTSC 5

Tiwi Aboriginal Land Trust & Anor v Munupi Wilderness Lodge Pty Ltd [2014] NTSC 5

PARTIES:TIWI ABORIGINAL LAND TRUST

AND

TIWI LAND COUNCIL

v

MUNUPI WILDERNESS LODGE PTY LTD (ACN 106 081 065)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:No.  25 of 2013 (21311040)

DELIVERED:  13 February 2014

HEARING DATES:  21-23 October & 25-26 November 2013

JUDGMENT OF:  HILEY J

CATCHWORDS:

ABORIGINALS – Aboriginal land – Aboriginal land held by Land Trust - Rights to enter or remain on Aboriginal land and waters - Permits - Meaning of “the traditional Aboriginal owners” - Whether a permit can be issued by one or more persons who are members of the group of persons comprising the traditional Aboriginal owners - Rights of broader group to be consulted - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 70, 71, 73 - Aboriginal Land Act 1978 (NT) ss 5, 5(2)

ABORIGINALS – Aboriginal land - Functions and powers of a Land Trust - Functions and duties of a Land Council - Dealing with the estates and interests in Aboriginal land - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - ss 4, 5, 6, 19,23, 27

CONTRACTS – Construction and interpretation - Implied terms - Application of tests in B.P.  Refinery (Westernport) Pty Ltd v Hastings Shire Council

LANDLORD AND TENANT – Possession - Re-entry and forfeiture - Validity of statutory notice - Need to identify the lease referred to – substantial compliance - Prescribed form - Law of Property Act 2000 (NT) s 137

LANDLORD AND TENANT - Relief against Forfeiture - Relevant principles - Breach of obligation to pay rent – Conditions - Law of Property Act 2000 (NT) s 138

LANDLORD AND TENANT - Relationship between lease and licence annexed to the lease - Rights and interests conferred under the lease - Implied terms linking lease with licence

LANDLORD AND TENANT - Exercise of option to renew lease - Equitable lease - Law of Property Act 2000 (NT) s 143(2)

Alderson v Northern Land Council (1982) 20 NTR 1; B. P. Refinery (Westernport) Pty. Ltd. v. Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20; Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157, applied.

Ex parte Taylor [1980] Qd R 253, distinguished.

Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd [2007] QSC 394; Ex parte Whelan [1986] 1 Qd R 500; Hace Corp Pty Ltd v F Hannan (Properties) Pty Ltd (1995) 7 BPR 14,326; Jam Factory v Sunny Paradise Pty Ltd [1989] VR 584; Legione v Hately [1983] 152 CLR 406; Legune Land Pty Ltd v Northern Territory Land Corporation and Northern Territory of Australia [2012] NTSC 99; McKay v Blumson [2000] QSC 65; Mercantile Credits Ltd v The Shell Company of Australia Ltd (1975) 136 CLR 326; Northern Territory of Australia & Ors v Arnhem Land Aboriginal Land Trust & Ors (2008) 236 CLR 24; Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 (NSWSC); Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; Riviera Holdings Pty Ltd v Fingel Glen Pty Ltd [2013] SASC 77; Shiloh Spinners Ltd v Harding [1973] AC 691; Suga Pty Ltd v Trust Co of Australia Ltd BC200103681 (unreported, 5 June 2001, Jones J); Wurridjal v The Commonwealth of Australia [2009] HCA 2; (2009) 237 CLR 309, referred to.

Aboriginal Land Act 1978 (NT) ss 4, 5, 5(1), 5(2), 5(4), 5(5), 5(7),
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3, 4, 4(1), 5, 5(1), 5(2), 6, 12, 19, 19(3), 19(4A), 19(13), 21, 23, 23(3), 27, 70, 70(1), 71, 71(1), 73, 77A.
Interpretation Act 1980 (NT) s 68.
Law of Property Act 2000 (NT) ss 136, 137, 137(1), 137(2), 137(3), 137(5), 138, 143, 143(2).
Native Title Act 1993 (Cth) s 251A, 251B.
Northern Territory National Emergency Response Act 2007 (Cth) ss 31, 34(4), 35(1).
Property Law Act 1974 (Qld) s 124(8).
Supreme Court Act 1980 (NT) s 84.

REPRESENTATION:

Counsel:

First and Second Plaintiffs:        L. Silvester

Defendant:T. Anderson

Solicitors:

First and Second Plaintiffs:        Midena Lawyers

Defendant:Mylne Lawyers

Judgment category classification:    A

Judgment ID Number:  Hil1303

Number of pages:  134

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tiwi Aboriginal Land Trust & Anor v Munupi Wilderness Lodge Pty Ltd [2014] NTSC 5

No.  25 of 2013 (21311040)

BETWEEN:

TIWI ABORIGINAL LAND TRUST
   First Plaintiff

AND:

TIWI LAND COUNCIL
   Second Plaintiff

AND:

MUNUPI WILDERNESS LODGE PTY LTD (ACN 106 081 065)
   Defendant

CORAM:    HILEY J

REASONS FOR JUDGMENT

(Delivered 13 February 2014)

Introduction

These proceedings

Main issues

The parties

Facts

Prior to 1 July 2010

From 1 July 2010

Statutory framework

Dealing with Aboriginal land

Right of entry onto Aboriginal land

Right to conduct a business on Aboriginal land

The Lease

Rights and interests

Rent

Permitted use - clause 6.

The Licence

Rights and interests

The Licensed Area

Termination, revocation and renewal

The licence fee

Relationship between the Lease and the Licence

Were the Lease and the Licence “inextricably intertwined”?

Implied terms

Conclusions

Rights and interests after 30 June 2010

Monthly licence under clause 10(d)

Equitable licence

The Munupi permits

Termination / revocation of Lease & Licence

Notices in January 2013

Breach of the Lease

Validity of the Notice to Remedy Breach of Covenant

Estoppel

Re-entry and forfeiture of the Lease

Revocation of the Licence

Relief against forfeiture

Legal principles

Relevant conduct

Conclusions

Conditions of any relief granted

Conclusions and relief

Summary

Remedies for unlawful access following revocation of the Licence

Amendments to Originating Motion

Interest

Costs

Orders

Introduction

These proceedings

1. By Originating Motion and Summons on Originating Motion, both filed on 14 March 2013, the Tiwi Aboriginal Land Trust (the TALT) and the Tiwi Land Council (the TLC) (the plaintiffs) sought orders under s 137 of the Law of Property Act2000 (NT) (the LPA) for possession of the premises and land subject of a lease to the defendant, and for re-entry and forfeiture under the lease, and payment of arrears of rent and interest.

2. The premises and land comprise an area of approximately 1.86 ha near Pirlangimpi on Melville Island shown on a survey plan attached to a Memorandum of Lease between the TALT and the defendant (the Lease) and are described therein as “the Demised Land”.  The Lease was for a term of 5 years commencing 1 July 2005. 

3. The Lease referred to and attached a document entitled “Grant of Licence Pursuant to a Lease” which was also for a term of 5 years commencing 1 July 2005 (the Licence).  The Licence permitted the Licensee to take its guests fishing and hunting on certain areas which belonged to any of five land-owning groups, Marrikawuyanga, Munupi, Wurankuwu, Malawu and Jikilaruwu (the Licensed Area).

4. In addition to resisting the plaintiffs’ claim the defendant sought relief against forfeiture under s 138 of the LPA in the event that the plaintiffs are otherwise successful in establishing their entitlement to orders for possession, re-entry and forfeiture.

   Main issues

5. Although these proceedings were commenced by Originating Motion, the parties prepared and filed pleadings thereby better identifying the relevant issues.  Most of the evidence was adduced by affidavit and documents annexed thereto.  There was some cross-examination of deponents at the hearing which occurred from 21 to 23 October 2013.

6. Much of the trial concerned what rights, if any, the defendant had to occupy the Demised Land and to use the Licensed Area after the initial terms of the Lease and Licence expired on 30 June 2010.  In their written submissions of 7 November 2013 the plaintiffs conceded that the Lease was duly renewed and that it continued as an equitable lease from 1 July 2010 on the same terms and conditions as the Lease apart from the option to renew.  Consequently they now concede that the defendant was entitled to have such a lease perfected at law from 1 July 2010. 

7. Accordingly some of the evidence tendered during the hearing regarding the exercise of the option to renew and the conduct of the respective parties and their solicitors is of more limited relevance than it otherwise appeared to be.  However much of that evidence is still relevant to other issues including the defendant’s application for relief against forfeiture and costs.

8. In relation to the rights of the defendant to continue to take its clients to fish on waters of any of the five land-owning groups after 1 July 2010:

   (a)the plaintiffs contend that such rights continued under the Licence, pursuant to the holding over provisions in clause 10(d), until the Licence was revoked by the Notice of Revocation served in January 2013;

   (b)the defendant contends that it held, and still holds, such rights:

   (i)   pursuant to the Lease, in particular under clause 6.5; alternatively

   (ii)    pursuant to an equitable licence in the same terms as the Licence, it having been renewed when the Lease was renewed, because the Licence was effectively incorporated into the Lease; alternatively

   (iii)  pursuant to permits issued by various Munupi people.

9. In respect of the period from soon after 15 January 2013:

   (a)The plaintiffs contend that the Lease was terminated following service of one or both of two notices served under s 137 of the LPA, as a consequence of which the TALT

   (b)is entitled to re-entry and possession and payment of arrears of rent and mesne profits.

   (c)The defendant contends that the Lease was not validly terminated and continues to operate; alternatively that it should be granted relief against forfeiture.

   The parties

10. The first plaintiff, the Tiwi Aboriginal Land Trust, is a Land Trust established under s 4 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA).[1] It is the holder of an estate in fee simple in the land known as the Tiwi Islands, including Melville and Bathurst Islands, pursuant to deeds of grant made under s 12 of ALRA.[2]

11. The second plaintiff, the Tiwi Land Council, is a Land Council established under s 21 of ALRA for the area in which the Tiwi Islands are situated. Its functions include giving directions to Land Trusts holding Aboriginal land in its area.

12. Mr Hicks, who has been the Chief Executive / Secretary of the TLC since 1986, gave evidence about the structure and decision-making processes of the TLC and the TALT.  The land and waters which are held by the TALT under its deeds of grant comprise the lands and waters of eight groups of Aboriginal people, referred to as “land-owning groups” or “decision-making groups”.  The names of each of those groups and the areas of land and waters which belong to those groups are depicted on a map a copy of which is attached to the Licence referred to below.  Since its formation in 1978 the TLC has maintained registers on which are listed the names of the members of each of the decision-making groups.  The TLC recognises each decision-making group as being the “traditional Aboriginal owners” of their particular part of the Tiwi Islands and adjacent seas. 

13. Mr John Wilson Wuribudiwi, who has been a member of the TALT for about 6 years and a member of the TLC since 1994 provided a detailed affidavit about Tiwi traditional laws and customs including those concerning land ownership and decision-making.

14. Mr Hicks deposed that each of the eight decision-making groups chooses one of its members to be a member of the TLC.  Each such member is referred to as the “Trustee” for their decision-making group.  The Trustee then chooses four other persons from their decision-making group to be members of the TLC.  Thus the TLC comprises those 40 people, five from each decision-making group. 

15. The decision-making group in relation to the land and waters at Pirlangimpi, including the Demised Land, is the Munupala group, whose members are usually referred to as Munupi people.  As at December 2012 there were approximately 340 members of the Munupala group, of whom about 260 were adults.

16. Mr Lawrence Costa, one of the defendant’s witnesses, said that he is a Munupi Traditional Owner and is also a senior member of the Tunganompila group.  He said that the Munupi “clan” are the traditional owners of the north-western part of Melville Island.  The Munupi clan has four distinct landholding groups within it, one of which is the Tunganompila group.  He said that the Tunganompila group is the “group for the area that includes the town of Pirlangimpi (also known as Garden Point)” and that the fishing lodge at Pirlangimpi is on Tunganompila land.

17. The defendant, Munupi Wilderness Lodge Pty Ltd (MWL), is a company registered under the Corporations Act 2001 (Cth)[3].  The company was incorporated in August 2003.  Michael Benton and David Taat were the original shareholders; however David Taat subsequently transferred part of his shareholding to Kerri-Ann Benton, and retained a 20% interest.  Mr and Mrs Benton first came to Melville Island in October 1990 and have spent most of their lives since then at Pirlangimpi.  Mr Taat has lived on the Tiwi Islands since the age of 11 (apart from a few years spent boarding at Kormilda College in Darwin).

    Facts

18. Since the 1990s there has been a building on the Demised Land known as the Munupi fishing lodge (the Lodge).  From about 1997 a local resident Mr Mark Nesbitt operated a fishing business from there.  The defendant took over the business from Mr Nesbitt in about September 2003 and rented the fishing lodge from the Pirlangimpi Progress Association.  Mr Benton estimates that the defendant and those involved in running the business have spent about $250,000 on improvements over the years. 

19. The proposed lease was discussed and agreed to at a meeting of the Munupala group on 30 September 2005.  The proposed lease and licence were also discussed and agreed to at a meeting of the Munupala group and four other land-owning groups, Marrikawuyanga, Wurankuwu, Malawu and Jikilaruwu, on 15 December 2005.  The defendant was requested to prepare the lease and licence for execution.

20. The tenure and the scope of the defendant’s fishing business were formalised in 2005 by the agreement(s) reflected in the Lease and the Licence. 

    Prior to 1 July 2010

21. From early 2008 there were discussions between Mr and Mrs Benton and Mr Taat and a significant number of Munupi people regarding amending the Lease in order to provide the defendant with a longer term.  Mr Lawrence Costa gave evidence about and produced a document signed by about 100 Munupi people in 2008 requesting the TLC to amend the Lease so that it would commence on 1 December 2008, be for a term of 10 years and contain an option for a further 10 years subject to the consent of the TALT.  He said that the TLC ignored that request.  He said that in March 2009 the Tunganompila group met and decided to ask the TLC again to grant a new lease for the Lodge.  He provided a copy of draft minutes of a meeting held at Garden Point for Tunganompila land owners on 10 March 2009.  He said that this request was also ignored by the TLC.

22. On 16 June 2009 the defendant wrote to the TALT and the TLC requesting that the Lease and Licence be renewed for the further term of five years specified at Item 11 of the Schedule of the Lease, and also foreshadowing negotiations regarding the grant of a further term of the Lease for five years in accordance with clause 43 of the Lease.  There is no evidence of any written response to this letter.

23. On 16 September 2009 the defendant’s then solicitors, De Silva Hebron, wrote to the TLC.  That letter referred to the defendant’s letter of 16 June and to a subsequent discussion with Mr Hicks who advised that it was premature for the defendant to be making such requests.  The letter set out the relevant provisions of clause 21 of the Lease regarding renewal and repeated the request that the Lease be renewed.  It also referred to clause 12 of the Licence which does contemplate that a request for a further licence can only be made during the last two months of the term granted under the Licence, and suggested that “given that we are requesting the option to renew pursuant to the Lease we would request your client consider granting a further licence at this time so that the two issues can be dealt with together and run concurrently with one another.”  The letter also requested other information, some of which had been requested in an earlier letter of 9 June 2009.

24. None of these requests were acceded to. Rather the TLC expressed concerns, which it passed on to the defendant, about its unsatisfactory compliance with the requirements of the Lease and Licence, in particular the irregular payments of rent and failures to provide proper notice of bookings. Complaint was also made about the defendant’s method of calculating the licence fees (which I discuss below at [133]). For example, on 15 January 2010 the TLC wrote to the defendant expressing these and other complaints and threatening to revoke the Licence pursuant to clause 8(e)(i) of the Licence and to issue a “Notice to Remedy Breach of Covenant” under s 137 of the LPA pursuant to clause 17.1 of the Lease. The defendant’s solicitors, Mylne Lawyers, Bundall, Queensland, wrote back to the TLC on 25 January 2010 and addressed various complaints that had been made and also sought clarification of some points.

25. The TLC responded by letter of 18 March 2010 and insisted upon “strict compliance with the Lease and the Licence … at all times”.  Under a heading “No renewal” the letter pointed out that the “Licence’s current term expires on 30 June 2010”, stated that “the Tiwi Aboriginal Land Trust does not intend to renew or grant a further licence to the Licensee beyond that date of 30 June 2010 whether in the same terms, substantially the same terms or similar terms” and advised that “any permits previously / later granted to enter Aboriginal land and which relate to, or are / were granted under, that Licence will lapse on 30 June 2010 if they have not lapsed or expired or been revoked beforehand.” The letter concluded by saying: “Accordingly, you should bear the above in mind in respect of your future arrangements.”

26. Further correspondence ensued between Mylne Lawyers and solicitors retained by the TLC, Middletons, Melbourne, Victoria.  By letter of 11 June 2010 Middletons repeated that the “Licence will not be renewed and will expire on 30 June 2010” and reserved all “rights in relation to the Lease and Licence including without limitation taking action in relation to previous or ongoing breaches of the same.”  On 17 June Mylne Lawyers responded to this letter complaining of the lack of particularisation of the complaints and suggesting mediation.

27. By letter dated 21 June 2010 Mylne Lawyers wrote to Middletons giving notice that “pursuant to clause 21 of the lease” the defendant “wishes to exercise its option to renew the lease for the further term”.  The letter also stated that the “lessee also requests a parallel extension of the licence pursuant to the lease.” 

28. Mylne Lawyers wrote again on 24 June, complaining about the TLC’s refusal to provide the defendant “with a lease for the further term for execution”, referring to clause 21 of the Lease, enclosing a copy of the letter of 16 June 2009 when the defendant first exercised its option to renew and referring to subclauses 21.1.1 and 21.1.2 of the Lease and s 143(2) of the LPA. The letter went on to assert that:

    “from 1 July 2010 our client has the benefit of a lease in equity, which as between the parties is the equivalent of a lease at law.  Correspondingly, your client has a duty to execute a renewal of the lease (see Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121 and the authorities referred to therein). This necessarily carries with it an obligation to renew the licence (clauses 6.4 and 6.5).”

29. The letter again suggested mediation, and sought assurances that the TLC would not take any step to regain possession of the leased premises, would continue to issue permits as required for the conduct of the defendant’s business, would not interfere with the conduct of the defendant’s business and would not take any action which may prejudice the defendant in obtaining a legal lease of the premises in place of its equitable lease.  The letter threatened the commencement of legal proceedings in this Court and stated that the defendant would rely on the letter and earlier correspondence for the purposes of Practice Direction No. 6 of 2009 and costs.

1. Middletons wrote back on 28 June 2010 and acknowledged the Mylne Lawyers’ “letter of 21 June 2009 [sic] purporting on behalf of your client to exercise the option to renew the Lease under clause 21” and stating that “my client is considering its position in relation to the same.”  In relation to the reference to clauses 6.4 and 6.5 of the Lease the letter said that “those clauses relate only to areas covered by the Lease (not the Licence) and have no relevance to the Licence.”  The letter reiterated that “the Licence will not be renewed and will expire on 30 June 2010.”

   From 1 July 2010

2. The next communication was Middletons’ letter of 2 July 2010 (which I shall refer to as the 2 July 2010 letter).  It provided as follows:

   “I refer to previous correspondence in this matter regarding the Lease previously granted to your client (the Lodge Lease).

   My client has now considered its position.

   Under Section 31 of the terms of the Northern Territory National Emergency Response Act 2007 (Cmwlth) (NTNER Act), the relevant leased premises fall within the boundaries of the 5 year intervention lease imposed by the Commonwealth on the township of Pirlangimpi.

   As your client’s Lodge Lease is not registered, then sections 34(4) and 35(1) of the NTNER Act have the effect of making the Commonwealth the lessor in respect of the Lodge Lease.

   You have provided no evidence that your client’s purported exercise of option was served on the Lessor in respect of the Lodge Lease on or by 30 June 2010, as required by the terms of the Lodge Lease.

   Accordingly, the Lodge Lease has expired and your client is overholding.

   Accordingly, my client does not recognize your client’s purported exercise of option or any continuing proprietary interest in the subject premises.

   Accordingly, your client should be taking steps to vacate the subject premises as soon as practicable.”

3. On 18 August 2010 the TLC received a letter dated 13 August 2010 addressed to its Chairman from the Acting Branch Manager, Land Reform, Department of Families, Housing, Community Services and Indigenous Affairs, Australian Government.[4]  It included the following:

   “Thank you for your letter of 14 July 2010 to the Minister … the Hon Jenny Macklin MP, about the expiry of a lease and requesting that the Commonwealth evict a tenant at Pirlangimpi.  …

   On 1 April 2009, the originally legislated five-year lease boundaries were reduced, at which time the land on which Munupi Wilderness Lodge sits was excluded from the Pirlangimpi five-year lease area (see map at Attachment A).  Since the Lodge site falls outside the current five-year lease boundary for Pirlangimpi, the Commonwealth has no tenure over that land which would enable the Commonwealth to evict Mr Benton.

   I note that the day-to-day operation of the permit system, including the issuing and revocation of permits remains a matter for the Land Councils, traditional owners and the police as required.”

4. Unfortunately, neither this letter nor its contents were conveyed to the defendant, apparently until some time after those proceedings commenced. A copy of the letter was attached to Mr Hick’s affidavit of 7 August 2013. In his affidavit of 15 October 2013 Mr Hicks provided more information about the “5 year Statutory Lease at Pirlangimpi” created in favour of the Commonwealth pursuant to s 31 of the Northern Territory National Emergency Response Act 2007 (Cth) and said (and I accept) that since he had made his previous affidavit he become aware that the Minister, Jenny Macklin MP, had written to the TALT care of the TLC a letter dated 26 February 2009 which “advised that the 5 year Statutory Lease boundary at Pirlangimpi would be reduced, effective from 1 April 2009, so that, and I verily believe that, the leased premises ceased, on 1 April 2009 to be subject to the five-year Statutory Lease at Pirlangimpi.” That letter attached a description of the “new lease boundary” and an aerial photograph which clearly showed the new lease boundary and that the Demised Land was to be excluded.

5. It appears that the defendant did not become aware of the true situation until Mr Benton read those affidavits of Mr Hicks sworn on 7 August and 15 October 2013.[5]  Mr Hicks said that had the defendant enquired of the plaintiffs about the effect of the five-year Statutory Lease or “about the meaning or effect of” the 2 July 2010 letter, he would have, at least after receiving the letter dated 13 August 2010, informed the defendant that the five-year Statutory Lease at Pirlangimpi ceased to apply to the leased premises as of 1 April 2009 and that the defendant should continue to pay the rent to the TLC in accordance with the terms of the Lease.

6. In their final submissions the plaintiffs conceded that the 2 July 2010 letter was wrong and misleading in two respects: first, that the lessor was in fact the TALT, not the Commonwealth; second, that the defendant had in fact exercised the option of renewal contained in clause 21 of the Lease as a result of which the Lease had in fact been renewed.  It follows that the plaintiffs had no right to require the defendant to take “steps to vacate the subject premises as soon as practicable”.

7. From 2 July 2010 the defendant ceased paying any rent to the TLC and paid it instead into the trust account of its solicitors, Mylne Lawyers.  It also ceased providing the TLC with notice of bookings.  The defendant obtained permits from individual Munupi people which purported to confer rights upon the defendant’s guests (the Munupi permits).

8. Mr Benton said that the defendant did this for several reasons.  These included the fact that by then the plaintiffs had not accepted that the option to renew the Lease had been duly exercised and had clearly indicated that a new licence would not be issued and that the TLC would no longer issue permits.  Added to this was the assertion in the 2 July 2010 letter that the Commonwealth was the lessor.

9. He said that pending contact from the Commonwealth and resolution of how the Lease was to be administered by them, the defendant continued to trade as normal and obtained permits for its guests from various Munupi people who were traditional Aboriginal owners of the land.  He said that they operated in this way with the full knowledge and support of the Munupi clan.  He said that he and his wife consulted with a number of Munupi elders, and informed them of the proposal to obtain permits from them and to “put the appropriate amount of money aside pending a resolution of the problem created by TLC’s refusal to deal with us further.”

10. Mr Lawrence Costa said that:

    “By the middle of 2010 the Tunganompila were aware that the TLC had refused to renew the lease for the lodge.  Michael Benton spoke to us about it.  We told them to stay and keep operating the business.  Michael told us that he planned to keep the rent and licence fees in a trust fund until the lease problem could be sorted out.  We agreed that was a good idea.

    We knew that the TLC would not give the lodge’s fishing tourists permits to come to the islands.  The Munupi people agreed to give their own permits to the fishing tourists so the business could continue without anyone breaking the law.  We did that.  Many Munupi TOs signed such permits.”

11. Mr Emmanuel (Manny) Rioli gave similar evidence, including the following:

    “We knew that the TLC would not give the lodge’s fishing tourists permits to come to the islands.  But we also knew that the law allowed us to give such permits.  The Munupi people agreed to give their own permits to the fishing tourists so the business could continue without anyone breaking the law.”

12. He also said that he thought the licence fees collected should be paid into the Munupi Family Trust account.  He considered that the Munupi permits would only apply to Munupi land and waters and agreed that Munupi people had no right to authorise fishing on the waters of other “clans”.  Several other witnesses called by the defendant, including Sister Barbara Tippolay and Clinton Rioli, also considered that the Munupi permits only applied to Munupi land and waters.

13. The defendant continued to occupy the Demised Land and to conduct its fishing business, apparently in much the same way as it had previously been doing.  The plaintiffs were aware of this.  For example there were two TLC Executive Management meetings in July 2010 when discussions took place concerning the ongoing situation.   

14. At a meeting of the Munupala land-owning group on 22 November 2010, some people expressed concerns about the defendant’s apparent lack of compliance with its obligations to pay rent.  Mr Lawrence Costa informed the meeting that he had spoken with the defendant’s lawyers and was told that all monies owed by the defendant were being paid into “an account until things clear up” and that “all money is put into a trust fund until an agreement is reached between the Traditional Land Owners and the Land Council.”  Mr Hicks says, and I accept, that he has no recollection of those notes, and that had the TLC received such advice from the defendant or its solicitors it would probably have sought an explanation.  

15. During this time the defendant was still engaged in discussions with a number of Munupi people about the possible grant of a fresh lease and licence which would give the defendant a longer term. 

16. In late 2010 over 30 people, said to be Tunganompila people, signed a document entitled “The Tunganompila people and Munupi Wilderness Lodge” (which I shall refer to as the Tunganompila document).  It included:

    “We the Tunganompila people put forward our agreement, along with other members of the Munupi clan on 10 March 2009, that Munupi Wilderness Lodge be given a 10 years lease with a 10 years option on the land is presently occupies.

    …

    During March 2009, 103 people of the Munupi clan signed a document that we wanted the owners of Munupi Wilderness Lodge to have a longer term lease to provide the owners with security, and we the Tunganompila people with certainty as to who would occupy our traditional land and live together with us in our small community.  

    At that time, when we sought a 10 years lease with a 10 years option to be granted to Munupi Wilderness Lodge, nothing was done about our decision by the Tiwi land Council.

    …

    In much the same way as we have fought hard for our land rights, we support the standard of Munupi Wilderness Lodge and its owners to remain on our land, even though its formal lease may have expired.

    We think it is reasonable, and gives security to Munupi Wilderness Lodge, its owners and the Tunganompila people, that Munupi Wilderness Lodge be granted a 20 years lease with a 20 years option over the land it presently occupies.

    As a commercial enterprise engaged in fishing and other recreational pursuits for visitors, we support the provision of a further fishing licence to Munupi Wilderness Lodge to run with the lease.

    We have considered this matter both individually and collectively as Traditional Owners of the land, and attach our signatures to this letter fully supporting the views it contains.”

17. Mr Benton said he was given a copy of the Tunganompila document in late 2010 and did not know what to do because he had not heard anything from the Commonwealth.  He contacted his local member, Ms Scrymgour, and gave her a copy of the Tunganompila document.  She arranged for him to meet with Mr Kelvin Leitch, a Commonwealth public servant to discuss the matter.  He met with Mr Leitch in his office in Darwin on 4 March 2011.  During that meeting Mr Benton discussed with Mr Leitch both the Tunganompila document and the defendant’s desire to be granted a longer lease, and his uncertainty about the Commonwealth’s interest as lessor under the current lease.  Mr Leitch was not able to answer his questions and said in his evidence that he had asked Mr Benton to provide him with details as to where the Lodge was situated before he could do so.  Mr Benton had a different understanding as to what was to happen.  He said that Mr Leitch said that he would make enquiries and get back to him but never did.

18. Unfortunately, notwithstanding that both the TLC and the Commonwealth had been aware of the true situation regarding the five-year Statutory Lease since February 2009, and that both were in the possession of an aerial photograph clearly showing the excision of the Demised Land, the defendant remained unaware that the position asserted in the 2 July 2010 letter was wrong.

19. On 27 April 2011 the Chairman of the TLC wrote to the defendant.  The letter referred back to “various notices from 2006 through 2010 requesting compliance with payments and conditions” pursuant to the Licence, repeated that the TLC had determined not to extend the Licence beyond 30 June 2010, stated that “all permits granted to the Licensee to enter Aboriginal land which related to or were granted under the Licence, lapsed” and asserted that the defendant was continuing to operate its tourist fishing business “illegally”.  The letter foreshadowed legal action and raised a number of questions for response.  These included information regarding details of guests, length of stays, areas where they have fished, and an “account of revenue owing to Tiwi land owners from the last 10 months of fishing, calculated on the basis of the fee arrangements under the now expired Licence which would otherwise have applied to operations over the last 10 months.”  The letter also sought explanations as to the legal authority by which the defendant’s guests have entered Aboriginal land including details as to the alleged grantor of any permit, and “an explanation of by what and whose authority you continue to occupy the Munupi Wilderness Lodge premises at Pirlangimpi / Garden Point.”  Apart from the last item, the letter made no reference to the Lease or to the reference in the 2 July 2010 letter to the Commonwealth being the lessor.

20. On 26 July 2011 the defendant’s solicitors, Mylne Lawyers, responded to the TLC letter of 27 April.  Amongst other things the letter said:

    “We note the demand that you make of our client to provide certain information and, under the threat of litigation, it is not appropriate that our client respond other than to advise that funds are being separately held, which would be the equivalent to the sum payable to the Tiwi Land Council pursuant to the agreement. Clearly the impasse is that the Tiwi Land Council will not issue the permits itself, therefore our client cannot pay the Tiwi Land Council a permit fee for a permit it will not issue. Equity supports that the funds set aside by our client belong to somebody, and that somebody is yet to be determined.”

    The letter also repeated an earlier proposal that a mediator be engaged.

21. Mr Benton said that the TLC letter of 27 April 2011 was the only letter he (or his lawyers) received from the TLC or its lawyers between 2 July 2010 and late October 2012.

22. On 19 October 2012, Paul Maher, then the solicitor for the plaintiffs, wrote a detailed letter to the defendant, for the purposes of Practice Direction 6 of 2009 of the Supreme Court (PD6).  Amongst other things the letter asserted that “… the TALT was not obliged to grant a lease for a further term [from 1 July 2010] and has not done so.  Munupi is therefore holding over pursuant to clause 19 [of the Lease].” It referred back to breaches of the Lease prior to 30 June 2010 and asserted that “the preconditions for the grant of a new lease for a further term set out in clause 21 of the lease (namely that Munupi had remedied any default and had not persistently defaulted throughout the term) were not satisfied.”  The letter also referred to the Licence and alleged various breaches of the Licence between 1 July 2005 and 30 June 2010.  The letter asserted that “since 1 July 2010, Munupi has continued to act as licensee pursuant to clause 10(d) of the Licence ‘on a monthly licence from the Licensor on the same terms and conditions … as contained within this Licence’.”

23. Shortly after that, the plaintiffs engaged Midena Lawyers to act for them instead of Maher Lawyers.  On 25 October 2012 Midena Lawyers wrote another letter to the defendant repeating the same information as had been conveyed in the letter of 19 October 2012 from Maher Lawyers.

24. On 17 December 2012 Medina Lawyers wrote to Mylne Lawyers and requested the defendant’s “voluntary agreement to immediately vacate the licensed area for the purposes of clause 10(e)(i) of the Licence dated 15 December 2005” and enclosed a draft of a “Notice of Revocation of Licence.”  The letter advised that if the defendant did not so agree by Friday 4 January 2013 “we will assume that your client does not voluntarily agree to immediately vacate the licensed area.”

25. On 15 January 2013 the plaintiffs executed a “Notice of Revocation of License and of Revocation of Permits” and a “Notice to Remedy Breach of Covenant”, which were subsequently served on the defendant.

26. On 6 March 2013 Mylne Lawyers wrote to Midena Lawyers repeating their assertion that the defendant has a subsisting lease until 2015, repeating the request for mediation, and foreshadowing an application for relief from forfeiture if the plaintiffs did not agree to mediation.  On 12 March 2013 Midena Lawyers responded and repeated a number of requests and demands made in the letters of 19 October, 25 October and 24 December 2012.

27. On 14 March 2013 the plaintiffs instituted these proceedings by Originating Motion, under s 137(3) of the LPA. The plaintiffs sought the following orders:

    “1.The first plaintiff is authorized to exercise its rights of re-entry to the leased premises (described below) and forfeiture under the lease the subject of the Memorandum of Lease executed on or about 15 December 2005 by which the first plaintiff granted a lease to the defendant of certain land near Pirlangimpi, Melville Island, Northern Territory (“the leased premises”); the leased premises being more particularly described in Item 1 of the Schedule of, and the survey plan attached to, the said lease, a copy of which survey plan is attached to this order, being an area of approximately 1.86 hectares within Northern Territory Portion 1644 from Compiled Plan 004194.

    2.On and from the date of this order, the first plaintiff have possession of the leased premises.

    3.The defendant pay such reasonable costs and expenses of the plaintiffs, properly incurred, as are agreed or taxed.”

28. On the same day the plaintiffs also filed a Summons seeking the same orders, and affidavits of Brett Ian Medina, Simon Dennis Harari and John Sydney Hicks.  The plaintiffs subsequently filed another two affidavits of Mr Hicks, the first sworn on 7 August 2013, the other on 15 October 2013, an affidavit of John Anthony Wilson Wuribudiwi of 5 August 2013 and two further affidavits of Mr Medina made on 28 August 2013 and 9 October 2013.

29. On 14 May 2013 the defendant filed a Summons seeking the following orders:

    “1.The plaintiffs grant the defendant a lease and licence consistent with the defendant’s exercise of its option to renew the lease the subject of the proceedings.

    2.The plaintiffs reimburse the defendant all rent paid pursuant to the lease the subject of the proceedings for the period 17 February 2008 to 17 August 2012.

    3.The defendant pay all rent owing pursuant to the lease the subject of the proceedings for the period 17 February 2008 to 17 August 2012 to the Commonwealth of Australia.

    4.The defendant pay all rent owing pursuant to the lease subject of the proceedings for the period after 17 August 2012 to the plaintiffs.

    5.The defendant be granted relief from forfeiture pursuant to s 138 of the Law of Property Act (NT).

    6.The plaintiffs pay the defendant’s costs.”

30. On 14 and 15 May 2013 the defendant filed affidavits of Michael Craig Benton, Kerri-Ann Benton, Clinton Rioli, Emmanuel (Manyi) Rioli, David Taat, Lawrence Costa, Sister Barbara Tippolay and Peter Glen Mylne.  The defendant subsequently filed a second affidavit of Mr Milne on 24 May 2013.

1. On 16 October 2013 the defendant filed an Amended Summons removing paragraphs 2 and 3 and amending paragraph 4, acknowledging that the rent for the period after 1 July 2010 was payable to the plaintiffs, not to the Commonwealth of Australia.

2. The hearing began on 21 October 2013.  The affidavits filed were read, with certain parts omitted or corrected by agreement.  The plaintiff called Kelvin Russell William Leitch and John Sydney Hicks to give oral evidence, and the defendant called Michael Craig Benton, Clinton Rioli, Emmanuel (Manyi) Rioli, Sister Barbara Tippolay and Kerri-Ann Benton.

3. Written submissions were filed on behalf of the plaintiffs on 7 November and amended on 18 November, and on behalf of the defendant on 18 November.  The plaintiffs filed submissions in reply on 22 of November.  Oral submissions occurred on 25 and 26 November.  In light of a number of issues that arose during those oral submissions the parties were given liberty to file further written submissions.  The plaintiffs filed a “Supplementary Submission in Reply” on 25 November and “Further Submissions in Reply” on 4 December, and the defendant filed “Further Written Submissions” on the 11 December 2013.

4. On 24 October 2013 $163,444.72 was paid into court by Mylne Lawyers, being the monies which it had held in its trust account on account of rent and licence fees payable under the Lease and Licence.

   Statutory framework

5. The Demised Land is Aboriginal land within the meaning of ALRA, and is owned by the TALT. So too is the other land on the Tiwi Islands that is the subject of this litigation, but only to the low water mark. The land and waters seaward of the low water mark (which I shall refer to as the sea) are not the subject of any formal legal title but they may well be lands and waters to which the Native Title Act 1994 (Cth) (NTA) applies.[6]

6. The TALT holds the title “for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission” (s 4(1) ALRA). Its functions are to hold title to the land and to exercise its powers as owner of the land “for the benefit of the Aboriginals concerned” (s 5(1) ALRA).

7. Any dealings in relation to Aboriginal land are regulated by ALRA and complementary legislation of the kind contemplated by s 73 ALRA, in particular by the Aboriginal Land Act 1978 (NT) (ALA). 

   Dealing with Aboriginal land

8. The ALRA identifies the functions and powers of Land Trusts, and also those of Land Councils both in relation to Aboriginal land (held by Land Trusts) and other land within the area of the Land Council.

9. Although the TALT is the legal owner of the relevant land it can only exercise its functions in relation to the land in accordance with directions given to it by the TLC. Section 5(2) of ALRA provides that:

   “A Land Trust:

   (a)shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and

   (b)where such a direction is given to it—shall take action in accordance with that direction.” 

10. A Land Trust is not empowered to accept moneys (s 6 ALRA).

11. An Aboriginal Land Trust is not permitted to “deal with or dispose of, or agree to deal with or dispose of, any estate or interest in [relevant] land” except as provided by s 19 of ALRA (s 19(1)). A reference in s 19 to an estate or interest in land includes a licence granted in respect of that land (s 19(11)).

12. Section 19(4A) provides that:

    “With the consent, in writing, of the Minister[7], and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.”

13. Section 19(5) provides that:

    “A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that:

    (a)the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;[8]

    (b)any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and

    (c)in the case of a grant of an estate or interest—the terms and conditions on which the grant is to be made are reasonable.”

14. Section 23(1) sets out the various functions of a Land Council. They include ascertaining, expressing and protecting the interests of traditional Aboriginal owners and of other Aboriginals interested in Aboriginal land within their area, consulting with such people in relation to any proposals concerning the use of such land, negotiating with persons desiring to obtain an estate or interest in such land,[9] and assisting Aboriginals to carry out commercial activities.

15. Section 23(3) provides that:

    “In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connection with land held by a Land Trust, unless the land Council is satisfied that:

    (a)the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

    (b)any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.”

16. Section 27 sets out the powers of a Land Council. These include the power to “do all things necessary or convenient to be done for or in connexion with the performance of its functions” including to “give lawful directions to Land Trusts holding land in its area concerning the performance of their functions” and to “receive moneys due and owing to Land Trusts holding, or established to hold, land in its area and give a valid discharge for those moneys.”

    Right of entry onto Aboriginal land

17. Entry to and remaining on Aboriginal land is heavily regulated.  

18. Section 70(1) of ALRA prohibits a person from entering or remaining on Aboriginal land. However s 70(2)(a) permits a person to enter and remain on Aboriginal land where that person has an estate or interest in it, but only for “any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest”.

19. Section 19(13) of ALRA provides that if a Land Trust grants an estate or interest in Aboriginal land under s 19 it may “authorise a specified person, or any person included in a specified class of persons, to enter or remain on the land for a specified purpose that is related to that estate or interest.” Section 70(2B) provides that it is a defence for an offence against subsection (1) if the person enters or remains on the land in accordance with such an authorisation.

20. Section 71 of ALRA confers rights for Aboriginal people to enter, use or occupy Aboriginal land to the extent that such entry, occupation or use is in accordance with Aboriginal tradition governing rights with respect to that land.

21. Where a person does not have the right to enter and remain on Aboriginal land, for example as the holder of an estate or interest and or an authorisation of the kind referred to in sections 19, 70(2)(a) and 70(2B) or under some other provision of ALRA such as s 71, he or she may still be permitted to do so in accordance with a law of the Northern Territory of the kind contemplated by s 73 ALRA, such as the ALA. See s 70(2A)(h) ALRA.

22. Section 4 of ALA provides that, subject to any contrary provisions elsewhere, “a person shall not enter onto or remain on Aboriginal land … unless he has been issued with a permit to do so in accordance with this Part.”

23. Section 5 provides for the issue of permits for a person to enter onto and remain on Aboriginal land. Permits to enter onto and remain on Aboriginal land may be issued by the Land Council for the area in which that land is situated (s 5(1) ALA) or by “the traditional Aboriginal owners of” that land (s 5(2) ALA). Such permits must be in writing (s 5(3)).

24. The permit system under the ALA would operate in circumstances where an individual did not otherwise have permission to enter or remain on Aboriginal land, for example under a lease or licence or some other provision of ALRA. For example in the Blue Mud Bay case,[10] it was clear that the mere holding of a fishing licence would not constitute such authorisation.

25. Accordingly where a person who does not have a right of entry under one or other of the provisions of ALRA wishes to access and remain on Aboriginal land or waters, such a person can seek and obtain a permit under the ALA.

    Right to conduct a business on Aboriginal land

26. The plaintiffs contended that such permits (under s 5 ALA) cannot also authorise activities such as the conduct of a commercial enterprise involving the taking of paying guests fishing on Aboriginal land or waters. They pointed to the fact that various parts of s 19 of ALRA refer to particular businesses and purposes. However those provisions refer to the granting of an estate or interest in Aboriginal land for such purposes, not to the conduct of the business per se. Of course if the conduct of the business required a licence in respect of particular Aboriginal land which constituted an estate or interest in land of the kind covered by s 19, a Land Trust would not be entitled to grant such a licence except in accordance with that section.

27. In the present matter s 19 was utilised both for the purposes of the Lease, which authorised the defendant to use the Demised Land for tourist and staff residential accommodation and for conducting the fishing business under the Licence, and for the purposes of the Licence which authorised the defendant to access and use the Licensed Area for conducting its fishing business.

28. Although the word “licence” can have a very broad meaning which would include permits to access and remain on land (of the kind contemplated by the ALA), I do not consider that by deeming a licence to be an estate or interest in land for the purposes of s 19 it was intended to bring every kind of licence within the ambit of s 19.

29. I would think that permits are and can often be granted under the ALA for people to enter and remain on Aboriginal land for any number of reasons, including fishing. In the Blue Mud Bay decision it seems to have been assumed by the plurality (at [61]) that such permission could be given to a commercial fisherman.  That person’s right to fish for commercial purposes was conferred under his or her fishing licence granted under the Fisheries Act 1988 (NT). It was not suggested that he or she would also require a licence under s 19 of ALRA in order to access and use the waters overlying Aboriginal land for such commercial purposes.

30. I consider that the power to issue a permit under s 5 ALA also enables the Land Council to authorise a person to enter and remain on Aboriginal land for certain purposes, including commercial fishing. The Land Council can impose conditions as to the purpose for which and the manner by which the permit holder can enter and remain on the land. (Of course, if the person also required some other authority to engage in such activity, such as a commercial fishing licence under the Fisheries Act 1988 (NT), or for example a practising certificate under the Legal Profession Act 2006 (NT) if one wanted to give legal advice while on the relevant land, such other authority would also need to be held, and such a requirement might be included as a condition to the s 5 ALA permit.)

31. Before commencing to issue permits under s 5 ALA, the Land Council must consult with and come to an agreement with the traditional Aboriginal owners of the relevant area as to the terms and conditions upon which the Land Council may issue such permits (s 5(7) ALA). Consequently the relevant Aboriginal traditional owners would have much the same rights to be involved in the process as they would have in the case of a dealing under s 19 of ALRA.

32. For the reasons given below when I discuss the Munupi permits, I agree with the plaintiffs’ contentions that the references in s 5 of the ALA to the traditional Aboriginal owners are references to the group of people who comprise the traditional Aboriginal owners and not to one or more individual members of that group. I also agree with the contentions that the relevant group would make such decisions using such processes as may be required under their traditional law and custom and, if there were no such processes, pursuant to a decision-making process agreed to and adopted by them in relation to the particular decision.[11]

33. I also note the concession of the plaintiffs that because s 71(1) ALRA permits an Aboriginal or a group of Aboriginals to enter upon Aboriginal land and use and occupy that land to the extent that such entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that person or group with respect to that land, such a person or group may invite someone else to enter use and occupy the land if permitted by the relevant Aboriginal tradition. Whilst one can readily assume that the relevant Aboriginal tradition would enable an Aboriginal or a group of Aboriginals to invite another person or persons onto their land, it could not so readily be assumed that the Aboriginal tradition extended to permitting another person to engage in a commercial enterprise such as fishing, without first consulting the broader group of traditional Aboriginal owners.

    The Lease

34. The Memorandum of Lease included the following:

    “Tiwi Aboriginal Land Trust … (called the “Lessor”) … being the proprietor of an estate in fee simple in the Northern Territory, over all that land comprised in Slap Datum Pirlangimpi 411 NTS 1054, Northern Territory Portion 1644 (Townsite of Pirlangimpi, Melville Island) and 1.86 ha over part of the Northern Territory Portion 1644 shown on survey plan CP 4194 Melville Island and comprised in Certificate of Title Volume 639 Folio 210 (called the Land”) and having received written directions from the Tiwi Land Council pursuant to subsection 19(3) of the Aboriginal Land Rights (Northern Territory) Act 1976, those written directions having been given by the Tiwi Land Council on its being satisfied that:

    A.the traditional aboriginal owners of the Land understand the nature and purpose of this lease and, as a group consent to it;

    B.that the aboriginal communities and groups which may be affected by the lease have been consulted and have had adequate opportunity to express their views to the Tiwi Land Council; and

    C.the terms and conditions of this Lease are reasonable

    hereby grants to Munupi Wilderness Lodge Pty Ltd … trading as Munupi Wilderness Lodge (“the Lessee”) a lease of part of the Land being that land described in Item 1 of the Schedule (herein called the “Demised Land”) together with a Licence for the Lessee and the Lessee’s Employees and Visitors to have access to the Demised Land subject to the covenants, terms and conditions of this Lease to be held by the Lessee for a term of 5 years (“the Term”) commencing on the date specified in Item 2 of the Schedule (“ the Commencement Date”) at the Rent specified in the Item 3 of the Schedule (“ the Rent”).

    The Lessee hereby acknowledges and agrees that Tiwi Land Council may, subject to legislation providing otherwise, enforce this Lease on behalf of the Lessor.”

    (emphasis added by me)

35. The lease document then sets out various definitions and terms and conditions.  These include provisions regarding rent (clause 2), permitted uses (clause 6), holding over (clause 19), renewal (clause 21), waiver (clause 28) and negotiation of a further term (clause 43). 

36. The “Demised Land” is defined as the Land described in Item 1 of the Schedule, which is “that area of land shown outlined in red on the attached survey plan.”  The attached survey plan bears the description “Proposed lease area over part of NT Portion 1644 on Plan CP 4194 Melville Island”.  It identifies the area of 1.86 ha.  It also shows the location of an “existing jetty” and the Aspley Strait apparently adjacent to the western boundary of the Demised Land.

37. Unfortunately the Lease and Licence documents contain a number of errors and ambiguities. Indeed, the first paragraph of the grant erroneously refers to s 19(3) ALRA rather than s 19(4A) as being the provision which would have been relevant.

    Rights and interests

38. At various points the Memorandum of Lease refers to licences, permits and other authorities.  These include:

    (a)the “Licence for the Lessee and the Lessee’s Employees and Visitors to have access to the Demised Land” which is expressed to be granted “together with” the lease of the Demised Land;

    (b)a “Licence for Operations” referred to in clauses 6.1 and 34;

    (c)“the attached Licence herewith being a Licence to Fish and a Licence to Hunt within areas defined by the Lessor” referred to in Item 8 of the Schedule;

    (d)a “Licence for Operational Purposes” referred to in Item 13 of the Schedule;

    (e)the permission for accessing the Demised Land and for carrying out works on the Demised Land, referred to in clause 6.4; and

    (f)the permit granted by the TLC “for the purposes of section 5 of the Aboriginal Land Act (NT) permitting the Lessee and the Lessee’s Employees and Visitors all rights of access to Aboriginal Land as reasonably necessary to exercise its rights under clause 6.4” referred to in clause 6.5.

39. Despite the different terminology used at different points I consider that the Memorandum of Lease contemplates three kinds of rights and interests, namely:

    (a)the leasehold interest in the Demised Land;

    (b)the right of access to the Demised Land referred to as part of the grant and also in clause 6.4 (which I shall refer to as the Access Authority); and

    (c)the rights conferred under the Licence.

40. I consider that the leasehold interest in the Demised Land and the Access Authority are part of the Lease, having been granted under the Memorandum of Lease. I also consider that the permit referred to in clause 6.5 was a permit thought to be necessary for the purposes of satisfying the statutory requirements of s 4 of the ALA, notwithstanding that it relates to the same right of access as that conferred by the Access Authority.

[100]I consider that the references to licences in clauses 6.1 and 34 of the Memorandum of Lease, and in Items 8 and 13 of the Schedule, are references to the Licence and the rights and interests conferred thereunder.

Rent

[101]Clause 2 of the Lease requires the Lessee “to pay to the Lessor or at its direction the Rent in the manner specified in Item 4 of the Schedule.”  “Rent” is defined in clause 1.1 to mean the amount specified in Item 3 of the Schedule.  (I shall refer to this as the Rent.)  Item 3 of the Schedule identifies the Rent as comprising:

(a)a yearly amount of $480 for the first year increased by CPI over the remaining 4 years plus Goods and Services Tax (which I shall refer to as the Base Rent)

(b)“plus Licence fees as calculated under ‘Permit Use’.” 

[102]Unfortunately there is no definition of “Permit Use”.  However there are references in the Lease to “Permitted Use”, for example in clause 1.1 (the definition clause), in clause 6 (which is headed “Permitted Use”) and in Item 8 of the Schedule.  Item 8 provides as follows:

“Permitted Use: (1)       Tourist and Staff Residential accommodation by way of lease.  Off lease purposes as defined in the attached License herewith being a License to Fish and a Licence to Hunt within areas defined by the Lessor.”

[103]Clauses 1, 2, 3, 7 and 8 of the Licence provided for the payment of licence fees based upon the numbers of paying guests.  The fee stipulated was $49.50 (including GST) “per paying guest, per 24 hour day or part thereof”.  It was accepted by the parties that these were the “Licence fees” referred to in Item 3 of the Schedule and thus formed part of the Rent.

[104]Clause 3 of the Lease states that the Rent will be indexed in accordance with the “CPI Formula” set out in Item 6 of the Schedule.  Although the Licence fees were the largest component of the Rent as defined in Item 3, there does not appear to have been any suggestion elsewhere that the CPI increase was to apply to that part of the Rent.  Rather, the parties have assumed and accepted that the daily licence fee of $49.50 per guest was to remain the same, at least during the five year term of the Licence.

Permitted use - clause 6.

[105]Clause 6.1 of the Lease provides as follows:

“The Lessee must not without the prior written consent of the Lessor, also defined as a LICENCE for operations pursuant to this lease, use or permit the Demised Land to be used for any purpose other than as specified in the LICENCE FOR OPERATIONS and Item 8 of the Schedule (“the Permitted Use”).

[106]I construe this provision as permitting the Lessee to only “use or permit the Demised Land to be used” for:

(a)“tourist and staff residential accommodation” - see Item 8, first sentence; and

(b)“off lease purposes as defined in the” Licence - see Item 8, second sentence and my conclusions in [100] above.

[107]I appreciate that this construction does not appear to give separate recognition to other parts of clause 6.1 which referred to purposes:

(a)“specified in the LICENCE FOR OPERATIONS”; or

(b)with the “prior written consent of the Lessor, also defined as LICENCE for operations pursuant to this lease” - see first two lines of clause 6.1.

[108]Apart from the Lease and the Licence there does not appear to have been any other document that appears to constitute or evidence a “Licence for operations” or any “prior written consent of the Lessor” of the kind referred to in clause 6.1.  Thus there does not appear to be any basis for concluding that those parts of clause 6.1 referred to some other licence or document.  Accordingly I consider that the purposes permitted under clause 6.1 of the Lease were confined to those set out in [106] above. 

[109]As is common with other commercial leases the Lease specifies the kind of activity or business that may be conducted on the leased land.  Thus it would not be permissible for the lessee to use the land for some other kind of business, such as a bakery or car repair business.  The ability to use the Demised Land for the “off lease purposes as defined in the attached Licence” would enable that land to also be used for purposes ancillary to activities carried out under the Licence, for example storing and maintaining fishing and hunting equipment and vessels, cleaning fish and carrying out administrative work associated with the business being operated under the Licence.

[110]Whilst clause 6.1 only related to the Demised Land, clause 6.4 provided authorisation for the Lessee and its employees and visitors to have “access to the Demised Land for the Permitted Use in accordance with this Lease” and to bring transportable dwellings onto or off the Demised Land.  It also permitted the Lessee to construct or alter access roads and carry out other works ancillary to obtaining and maintaining such access.  This is the Access Authority referred to at [98] and [99] above.

[111]Clause 6.5 purported to be a permit by the TLC for the purposes of s 5 of the ALA “permitting the Lessee and the Lessee’s Employees and Visitors all rights of access to Aboriginal Land as reasonably necessary to exercise its rights under clause 6.4”, namely the access rights conferred by the Access Authority. Whilst clause 6.4 permitted access to the Demised Land, clause 6.5 permitted access to such other Aboriginal Land as was reasonably necessary in order to obtain access to the Demised Land.

[112]Neither clause 6.4 nor clause 6.5 conferred any rights of access to or use of any other land (or waters).  Nor did any other provision in the Lease provide any rights of access or otherwise in respect of any land or waters apart from the Demised Land and access thereto.

The Licence

[113]The cover page of the Licence document included the words “Grant of Licence Pursuant to a Lease.  June 2005.”  The document included the following:

“The Tiwi Aboriginal Land Trust … (called the “Licensor”), is vested as the owner of the land on Melville and Bathurst Islands, Northern Territory, more particularly described as NT Portion 1640 from Plan CP004186, NT Portion 1644 from Plan CP004194 and NT Portion 3042 from Plan CP004186, being all the land comprised in Certificate of Title Register Book Volume 536 Folio 188 (called “the land”) AND having received written directions from the Tiwi Land Council pursuant to sub-section 19(4A) of the Aboriginal Land Rights (Northern Territory) Act 1976, those written directions having been given by the Tiwi Land Council on it being satisfied that:

A.the traditional Aboriginal owners of the land understand the nature and purpose of this Licence and, as a group, consent to it;

B.the Aboriginal communities and groups which may be affected by the Licence have been consulted and have had adequate opportunity to express their view to the Tiwi Land Council; and

C.the terms and conditions of this Licence are reasonable;

hereby grants to Munupi Wilderness Lodge Pty Ltd … trading as Munupi Wilderness Lodge (called “the Licensee”) a non-exclusive Licence to enter certain land, sea and inland waterways on and around Melville Island in the Northern Territory of Australia, namely the waters of Marrikawuyanga; Munupi, Wurankuwu; Malawu and Jikilaruwu Land Owning groups adjacent to the waters of the northern coast of Melville and Bathurst Islands and Apsley Strait and the Timor Sea as marked on the plan annexed to this Licence (called “the licensed area”) and to operate a business enterprise providing recreational fishing and hunting tours (called “the licensed activities”)

together with a licence for the servants, directors, members, guests and invitees of the Licensee to have access to the licensed area, to be held by the Licensee for a term of five years (5) years commencing on 1 July 2005 and expiring on 30 June 2010.”

[114]The document then sets out a number of terms and conditions including:

(a)provisions concerning the quantum of the licence fee (clauses 1, 2 & 7);

(b)the requirement that the licence fee be payable on the last Friday of each month to the office of the TLC (clauses 3 & 8);

(c)permission for the Licensee “to access the licensed area to conduct recreational fishing activities with its guests and invitees, and to access the licensed area to conduct hunting activities for male water buffalo, pigs and wild fowl with its guests and invitees” (clause 4);

(d)various covenants on the part of the Licensee (clause 9) and covenants on the part of the Licensor (clause 10);

(e)provisions regarding the serving of notices (clause 11), the grant of a further licence (clause 12) and waiver (clause 14(f)).

[115]Attached to the document is a map of the Tiwi Islands entitled “Map 2 - Land Ownership”.  It shows the 8 areas comprising the Tiwi Islands and identifies the land-owning group for each area.

[116]The covenants on the part of the Licensee in clause 9 include covenants:

(a)Not to “use or permit the licensed area to be used for any purpose other than for the provision of recreational fishing and hunting activities for paying guests and invitees, and the accommodation of paying guests” without the prior written consent of the Licensor (clause 9(a)).

(b)That it will comply with all applicable laws and regulations such as “the Firearms Act 1997 (NT) and Regulations” (clause 9(b)).

(c)“That the Licensee will provide notice to the Licensor in advance of all guest and non-guest bookings and shall permit the Licensor to regularly each month sight the advance bookings obtained and confirmed by the Licensee” (clause 9(c)).  (This was referred to in these proceedings as the “accounting obligations”).

(d)“That the Licensee will employ at least one Tiwi person to work on the Tiwi Islands and where possible encourage and assist other Tiwi persons to gain employment with the Licensee” (clause 9(d)).

(e)“That the Licensee will only employ those non-Tiwi staff who have been approved by the Licensor in writing prior to that person’s employment, such approval not to be unreasonably withheld, and the Licensee shall maintain permits for those staff to visit and remain on the licensed area and any land being the property of the Licensor” (clause 9(e)).

(f)That the Licensee will be responsible for insurance in relation to the safety of all employees, guests and invitees (clause 9 (f)).

(g)“That the Licensee will duly and punctually pay the licence fee to the Tiwi land Council in accordance with this Licence without deduction or set off” (clause 9(g)).

(h)That the Licensee will conduct its operations in an orderly and respectable manner, keep the Licensed Areas in satisfactory condition, remove fixtures or plant and equipment when requested to do so, and ensure compliance with relevant laws (clauses 9(h) to (j)).

(i)“That this Licence is an annexure to a lease granted in favour of the Licensee and is personal to the Licensee … and terminates in accordance with the terms of the lease other than should the Licensee cease to conduct the licensed activities, or fails to conduct the licensed activities for eight (8) months” (clause 9(k)).

(j)“That the Licensee acknowledges that this Licence creates no grant of an interest in any fish or water buffalo, pigs or wild fowl taken or shot by the Licensee or an interest in anything in or about the land or the licensed area” (clause 9(l)).

(k)“That the Licensee acknowledges that this Licence creates no interest in favour of the Licensee in any land of the Licensor other than a lease granted for the purposes of the accommodation of guests and staff of the Licensee, and that this Licence is revocable by the Licensor under the conditions of that lease” (clause 9(m)).

[117]The covenants on the part of the Licensor in clause 10 include covenants:

(a)For the Licensee to conduct its activities on the Licensed Area without any interruption or disturbance, and that the Licensor will not “issue a Licence to conduct the licensed activities on the licensed area to any person while this Licence is in force” (clause 10(a)).

(b)Reserving the rights of Tiwi people to enter and use the Licensed Area for various purposes without notice (clause 10 (b)).

(c)Reserving the rights of Tiwi people to enter into arrangements with other people for the purpose of providing “access to and egress from the licensed area or adjoining lands” (clause 10 (c)).

[118]Clause 10(d) provides for what happens upon expiry of the (five year) term:

“At the expiration of the term should this Licence not be renewed or in the event that no further licence is granted to the Licensee and in the event that the Licensee with the Licensor’s consent express or implied continues and remains in occupation of the licensed area the Licensee shall hold the licensed area on a monthly licence from the Licensor on the same terms and conditions (unless repugnant to a monthly licence) as contained within this Licence.”

[119]Clause 10(e) provides remedies to the Licensor where the licence fee is in arrears or remains unpaid for one month after it is payable or where there are other defaults on the part of the Licensee.  These include a right to give the Licensee a Notice of Revocation of Licence requesting the Licensee to leave the Licensed Area within 48 hours, and after that a right to issue a Trespass Notice to the Licensee and remove fixtures, plant and equipment of the Licensee.

Rights and interests

[120]I consider that the rights and interests conferred under the Licence were merely usufructuary rights in the nature of rights to enter and use the Licensed Area, and that the Licence did not confer any proprietary rights in the land or waters.  So much is apparent from the terms of the grant itself, the clear expression in clause 4 of the primary rights conferred, and the provisions of subclauses 9(k), (l) and (m).

[121]I have reached this conclusion despite the reference in clause 11(m) to “a lease granted for the purposes of the accommodation of guests and staff of the Licensee”.  This would seem to be a reference to the Lease and the rights and interests conferred thereunder, not to some other leasehold rights intended to be conferred under the Licence.

[122]In summary, the rights conferred by the Licence were to enter the Licensed Area and to provide recreational fishing and hunting tours on that area.

The Licensed Area

[123]The plaintiffs contended that “the licensed area” included all of the land and waters of the Munupi and of the other four land-owning groups, namely the Marrikawuyanga, Wurankuwu, Malawu and Jikilaruwu, and therefore included the Demised Land. 

[124]I consider that the Licensed Area was confined to the waters of the five land-owning groups, and did not include land above the high water mark.  This would include waters overlying the intertidal zone, waters in creeks and rivers, and waters further out to sea which although not overlying Aboriginal land vested in the TALT would be considered to be part of the “sea country” of one or other of the land-owning groups according to Aboriginal law and custom.

[125]The main reason for me reaching this conclusion is that the grant confers a right to “enter certain land, sea and inland waterways … namely the waters of” the five land-owning groups (emphasis added by me). 

[126]The plaintiffs’ argument was mainly based upon the fact that the description of the Licensed Area went on to refer to the markings on the “plan” annexed to the Licence.  However I consider that the only purpose of those markings was to identify the eight areas of land (and waters) forming part of the Tiwi Islands and the relevant land-owning groups for each of those areas.  There is nothing on the plan or in the terms of the grant to suggest that the Licensed Area was to include all of the lands and waters of those groups.  The reference in the grant to the markings on the plan was a reference to the relevant land-owning groups and their respective traditional country, not to the “waters” subject of the grant.  Indeed the plan contains no markings that would indicate the extent of the waters.

[127]The plaintiffs also pointed to the fact that the Licence also permits hunting of animals which would be found on or over land, namely water buffalo, pigs and wild fowl.  Whilst this does provide some support to the plaintiffs’ argument there is no reason to suppose that such hunting activity could not also take place from waters within the Licensed Area or when the tide is out. 

[128]Despite this possible anomaly I think that the clear words of the grant confine the Licensed Area to the relevant waters.  Had it been intended to include the lands of the five land-owning groups it would have been simple for whoever drafted the document to use the common expression “land and waters” instead of “waters” when identifying the “certain land, sea and inland waterways” subject of the grant.

Termination, revocation and renewal

[129]Unlike the Lease, the Licence did not confer any right of renewal.  All that it provided, apart from the “monthly holding over” provision in clause 10(d), was a “right” for the Licensee to make a written request for a further licence (clause 12).  However such request could only be made during the last 2 months of the existing term of the Licence.

[130]More importantly, there was no requirement for the Licensor to accede to such a request.  And, even if the Licensor was inclined to grant a further licence, the period, licence fee and other terms and conditions of such a further licence would have to be agreed.  In reality I do not consider that clause 12 conferred any right at all, beyond acknowledging the possibility that the parties could negotiate for a fresh licence if they both wished to do so.  There was no obligation on the Licensor to renew the Licence.

[131]The Licence contained some provisions which contemplated its earlier termination, in some cases even while the Lease continued.  These included:

(a)where the Licensee ceased to conduct the licensed activities, or failed to conduct the licensed activities for eight months (clause 9(k));

(b)following the giving of a Notice of Revocation of Licence and a Trespass Notice, following a relevant breach of the Licence (clause 10(e)); and

(c)“under the conditions of” or “in accordance with the terms of” the Lease (clauses 9(k) and (m)).

[132]Whilst there are references in the Lease to the Licence and vice versa there is nothing in either document that says that the Licence cannot be revoked even where the Lease continues.  More relevantly, there is nothing in either document that says that the Licence can be renewed or otherwise continued upon the expiry of its five year term (otherwise than under the holding over provision).

The licence fee

[133]Questions have arisen as to how the licence fee was to be calculated, and what it was for.   

[134]The “licence fee” is referred to in various parts of the Licence including clauses 1, 2, 3, 7, 8, 9(g), 10(e) and 12.

[135]Clauses 1, 2 and 3 of the Licence provided as follows:

“1.The licence fee payable for this Licence shall be calculated on the basis of per paying guest of the Licensee per 24 hour day or part thereof but shall not include a payment in respect of non-paying guests of the Licensee who may include promotional, advertising and tour familiarisation invitees of the Licensee, such invitees not to exceed twenty (20) per year.

2.The licence fee shall be a payment of forty-nine dollars and fifty cents ($49.50) (including GST) per paying guest, per 24 hour day or part thereof, and include any payment made pursuant to clause 7 of this licence.

3.The licence fee shall be payable on the last Friday of each month of the term of this Licence to the office of the Tiwi Land Council at the address specified in clause 11 of this Licence and each payment shall be noted “Munupi Wilderness Lodge Fishing and Hunting Licence payment.”

[136]Clause 7 provided that the licence fee would also include additional payments in respect of animals shot by guests engaged in hunting activities.

[137]I have previously noted that the Licence was an annexure to the Lease and could be terminated in accordance with the terms of the Lease (clause 9(k)), or in various other circumstances such as for failure to pay the licence fee (clause 10(e)).

[138]I consider that the licence fee was payable for, and only for, the Licence.  This is evident from the clear wording at the beginning of clause 1: “The licence fee payable for this Licence is …”.  The licence fee is the consideration provided in exchange for the rights conferred under the Licence, namely for the Licensee to conduct its business on the Licensed Area and to take guests onto the Licensed Area at any time during the (5 year) term of the Licence.

[293]It seems to me that there have been fault and misunderstandings on both sides which has resulted in the acrimony between the parties and the pursuit of this litigation.  This includes:

(a)The defendant’s early failures to pay rent and to comply with the accounting obligations with the regularity required by the Licence extending back as far as 2006, but with the apparent acquiescence of the plaintiffs until late 2009.

(b)The plaintiffs’ refusals to acknowledge that the defendant had exercised its option to renew the Lease and their assertion in the 2 July 2010 letter that the lessor was the Commonwealth of Australia, and on the other hand the defendant’s failure to make further enquiries of the plaintiffs in relation to those assertions.

(c)The plaintiffs’ failure to tell the defendant of the true situation regarding the 5-year Statutory Lease until August and October 2013 when it was disclosed by Mr Hicks in his affidavits filed in these proceedings, although the plaintiffs’ had become aware of that position much earlier, on about 18 August 2010, and on the other hand, the defendant’s failure to make proper enquiries about the true situation, either of the plaintiffs or of the Commonwealth.

(d)The defendant’s conduct in paying the rent due from 1 July 2010 into its solicitor’s trust account without clearly advising the plaintiffs of that for some time, and on the other hand, the plaintiffs’ failure to make enquiries of the defendant about unpaid rent until earlier than it did.

(e)The defendant’s conduct in failing to provide the TLC with notice of bookings after 1 July 2010, and on the other hand, the plaintiffs’ failure to enquire about such bookings or to otherwise insist upon compliance with the accounting obligations.

(f)The plaintiffs’ apparent acquiescence in the defendant holding over under the Licence until January 2013 notwithstanding its insistence before 30 June 2010 that a new licence would not be issued and its warning in the 2 July 2010 letter that the defendant “should be taking steps to vacate the subject premises as soon as practicable”.

(g)The defendant procuring the issue of the Munupi permits and not continuing to seek the issue of permits by the TLC after 1 July 2010 as it had previously done and, on the other hand, the plaintiffs’ not objecting to that practice.

Conclusions

[294]I consider that the defendant should have relief against forfeiture of the Lease, subject to conditions.

[295]Of particular relevance in this regard is the fact that the defendant has always been prepared to pay the Rent and has in fact paid what it considered to be the proper amounts into the trust account of its solicitors, Mylne Lawyers, with the intent that it be ultimately paid to whoever was entitled to it. 

[296]Although the failure to pay the Rent to the TLC constituted a breach of the Lease, and also of the Licence, such failure was initially induced by the plaintiffs’ 2 July 2010 letter, and did not constitute wilful or similar conduct of the kind referred to in the authorities relating to relief against forfeiture.  I reject the plaintiffs’ contentions that by withholding the Base Rent and licence fees and obtaining the Munupi permits the defendant engaged in a calculated action “to undermine TLC’s exercise of its statutory responsibilities and its contractual responsibilities in order to bully it into granting a new long-term lease and licence.”

[297]Because of my conclusion that the failure to pay the rent was the only breach of the Lease, the other conduct on the part of the defendant should not be important unless it suggests that there will be further breaches of the Lease if the relief sought is granted.  I do not regard the defendant’s poor conduct prior to 1 July 2010 as very relevant because it occurred so long ago.  The defendant’s failures to comply with the accounting obligations and other obligations since 1 July 2010, whilst wrong, are not as serious as they would have been  if the defendant had done nothing.  Rather the defendant complied with the basic intent of those requirements by dealing, albeit wrongly and mistakenly, with Munupi individuals instead of the TLC. Further, its relevance is limited because the relief is being granted in relation to forfeiture of the Lease, not the revocation of the Licence.

[298]Even if I was wrong about my conclusion that the breach of the accounting obligations in the Licence did not constitute a breach of the Lease, I understand that the defendant has now provided the plaintiffs with full information regarding all of its bookings since 1 July 2010 as a result of which the parties will be able to calculate the licence fees payable since then.  Accordingly that breach has now been effectively  rectified.

[299]Further, the Lease will expire on 30 June 2015.  Accordingly the plaintiffs will be free to deal with the Demised Land after that as they wish.  I have not been informed of any particular prejudice to the plaintiffs as a result of the Lease continuing until then, for example of any other prospective tenant. 

[300]On the other hand the defendant contended that its business will come to a premature end if it is denied relief.  It cannot move to other premises and keep trading as many businesses could, because there are no other premises from which it can trade.  The defendant also contended that third parties will be affected because David Taat will lose his job and his interest in the business, and a number of other Aboriginal people who have been involved in the business will also lose their jobs.  I consider that that submission is largely misconceived as it fails to appreciate that the business would no longer be so busy and successful without the Licence and until and unless a fresh licence can be negotiated.  But I accept that there will be some prejudice to the defendant and possibly third parties if the defendant could not continue to occupy the Demised Land for the balance of the term.

[301]I realise that because the Licence has been terminated, the Lease is of considerably less value to both parties. Indeed the plaintiffs submitted that it would be futile for relief to be granted as the Lease would be of little value without the Licence, that being an essential part of the defendant’s business. I agree that unless the defendant is able to negotiate a further licence, or obtain appropriate permits under the ALA, it will not be able to take its guests fishing and hunting. However, as I have previously noted at [160] and [185](b) above, the defendant accepts that the Lease is still of value to it. Conversely the plaintiffs will only be entitled to the Base Rent, unless they negotiate a further licence with the defendant in lieu of the Licence, or unless they enter into some other arrangement with the defendant or other third parties permitting them access to Tiwi land and waters in exchange for a fee.

[302]I note the assertions of Mr Hicks and various other representatives of the plaintiffs to the effect that they do not wish to continue dealing with the defendant and Mr and Mrs Benton. Whilst that may well make it difficult for a fresh licence to be negotiated, or for some permits to be granted under the ALA, such concerns should not preclude the parties from seeking permits under the ALA and should not prevent the TLC from continuing to act in the interests of and in accordance with the wishes of relevant traditional Aboriginal owners, such as Munupala people who are still prepared to deal with the defendant.

Conditions of any relief granted

[303]It is apparent from s 138 (3) that a broad range of conditions may be imposed when relief against forfeiture is granted.

[304]The plaintiffs have argued that as a minimum the defendant should:

(a)“properly calculate, account for and pay all lease rent and licence fees unpaid since 1 July 2010;

(b)pay the plaintiffs’ costs on an indemnity, alternatively standard, basis;

(c)satisfy the Court that it will henceforth abide by the terms of a lease and licence until they expire on 30 June 2015;

(d)accept that the TLC and the TALT will not renew the lease and licence for any term beyond 30 June 2015; and

(e)accept that the TLC/TALT is the ultimate decision-making authority with regard to (d) above.”

[305]I agree that the parties should calculate the full extent of the rent due and that the defendant must pay that amount to the TLC on behalf of the TALT in full. 

[306]I also agree that the defendant should satisfy the Court that it will abide by the terms of the Lease until it expires on 30 June 2015.

[307]I do not agree that payment of the plaintiffs’ costs should be a condition of the grant of relief.  Unfortunately this sorry situation may well not have eventuated but for the plaintiffs’ conduct in failing to acknowledge the renewal of the Lease and its misrepresentations in the 2 July 2010 letter which it did not correct for many years afterwards.  This conduct, coupled with other conduct of both parties, will be relevant if the Court is required to consider the question of costs of these proceedings.

[308]As to the suggestions that the defendant accepts that the plaintiffs will not renew the Lease and or grant a licence beyond 30 June 2015, and that the plaintiffs are the ultimate decision-making authority in relation to such renewal or grant, I do not consider that such “acceptances” can or should be the subject of conditions.  Whether or not the defendant accepts those propositions cannot derogate from whatever legal rights and obligations and commercial considerations exist at the time.

[309]Although the plaintiffs have not sought interest under clause 20 of the Lease, they have sought interest pursuant to s 84 of the Supreme Court Act 1980 (NT). I find that they are entitled to interest under s 84 and that that amount should also be paid to the plaintiffs as a condition of the relief against forfeiture.

[310]The defendant accepts that it must pay the arrears of rent to the plaintiffs and is prepared to give enforceable undertakings to the Court in relation to the means and regularity of future payments of rent including by making advance payments on account if considered necessary. 

[311]Because of my conclusion that the Licence has been revoked and that since then the licence fee component of the Rent no longer exists, the only rent payable from 29 January 2013 will be the Base Rent.  I consider it reasonable that the defendant pay $500 in addition to what is payable already towards the payment of rent for its ongoing tenancy.

Conclusions and relief

Summary

[312]In summary, I have reached the following conclusions about the Lease:

(a)The Lease was renewed and the defendant continued to hold an equitable lease on the same terms as the Lease apart from the option to renew. 

(b)The defendant breached the equitable lease by failing to pay rent, following which the first plaintiff, the TALT, duly brought this application for leave to exercise its right of re-entry and forfeiture under the equitable lease.

(c)The defendant is entitled to relief against re-entry and forfeiture, on conditions, primarily that the defendant pay all outstanding rent to the second plaintiff on behalf of the first plaintiff together with interest thereon.

(d)The rent payable under the equitable lease comprises the Base Rent plus licence fees calculated to 29 January 2013.

(e)The defendant will be entitled to be granted a lease at law once it has complied with the conditions of the grant of relief against forfeiture.

[313]I have reached the following conclusions about the Licence:

(a)The Licence continued on a monthly basis until it was duly revoked by notice given on 15 January 2013 which I have found was served on 29 January 2013.

(b)No licence fee is payable for the period subsequent to 29 January 2013.

(c)Any access to and use of Aboriginal land or waters that was previously within the Licensed Area as defined in the Licence since 29 January 2013 was not lawful under the Lease, the Licence or the Munupi permits.

Remedies for unlawful access following revocation of the Licence

[314]The plaintiffs submitted that notwithstanding its revocation of the Licence, the TALT should still be paid licence fees for so long as the Lease continued because of the fact that the Rent included licence fees. 

[315]The plaintiffs contended that because the reference to the licence fees in Item 3 of the Schedule was to “Licence fees as calculated under ‘Permit Use’” the fees were still payable.  They point out that Item 3 does not say “Licence fees payable under ‘Permit Use’”.  They submitted that the provisions relevant to calculating, paying and verifying the Licence Fees - that is clauses 1 to 3 concerning calculation and payment of the licence fees, and clause 9(c) concerning advance notice of all bookings and permitting related inspections - must be imported into the Lease.  I have already rejected the last point, namely that the obligations under clause 9(c) of the Licence form part of the obligations under the Lease.

[316]I do not agree with this contention (that the fees are still payable under the Lease because they can still be “calculated under” the Licence even if it no longer exists).  As I have previously concluded, once the Licence came to an end neither party could continue to claim the benefits under it.  The defendant was no longer entitled to the authorisations conferred under the Licence and the Licensor was not entitled to the fees payable under the Licence. 

[317]The plaintiffs also submitted, in the alternative, that if I was to find, as I have, that the licence fees are payable only while the Licence continued to exist, the defendant is liable to pay an amount equal to the licence fees that would have been payable had the Licence continued, by way of equitable compensation or damages. 

[318]They contend that any monies formerly held in the Mylne Lawyers trust account and now paid into Court are “held for the plaintiffs by way of a remedial constructive trust sourced from equity’s concern with unconscionable behaviour.”  They refer back to, and rely upon, a sentence in the letter from Mylne Lawyers dated 26 July 2011 when the author advised the TLC that funds “equivalent to the sum payable to TLC pursuant to the agreement” were being “separately held” and that “equity supports that the funds set aside by our client belong to somebody, and that somebody is yet to be determined.”  However that letter was written at a time when the Lease and the Licence still existed.  The present question concerns monies that may have been paid into the Mylne Lawyers trust account or into Court, in respect of fishing activities on the Licensed Area after the Licence was revoked.

[319]There is considerable force in the point that the defendant should not be unjustly enriched by retaining the benefit of monies that it has collected from its guests for such fishing activities carried out since the Licence was revoked, some or all of which may have been subsequently paid into the Mylne Lawyers trust account or into Court.  However it does not follow from that that either of the plaintiffs is entitled to those monies.  For example, it may well be that guests or other third parties are entitled to some kind of refund or payment out of those funds. 

[320]The plaintiffs also contend that damages would be payable on account of the defendant having trespassed on Aboriginal land.  However, even if this was a trespass claim, I would have thought that the assessment of damages would involve other considerations, for example, evidence and conclusions about circumstances surrounding each particular act of trespass.  I have already referred to the scanty evidence in relation to the defendant accessing the Licensed Area subsequent to 29 January 2013.

[321]I am particularly concerned that even if the TALT was entitled to the fee under the Lease or to some other damages from the defendant, or even if monies collected for activities carried out subsequent to 29 January 2013 should be held in trust by the TLC, that would not cure any unlawful conduct on the part of the defendant, its directors, employees and guests. Any or all of those may still be liable for whatever consequences might flow from any breaches of the ALRA or the ALA. These might involve prosecutions and or civil claims based on trespass. These are different remedies, and may involve different complainants and or plaintiffs, and many and different defendants, than those involved in the present matter. They might also involve defences such as claims of right based upon one or more of the Munupi permits. Such proceedings would probably necessitate the calling of witnesses in order to prove or challenge the fact, frequency and nature of any alleged breaches and or trespasses, and an independent assessment by the relevant court as to the appropriate penalty, damages or other relief.

[322]I did consider whether the conditions of relief against forfeiture of the Lease should include an additional payment commensurate to the licence fee that would have been payable but for the revocation of the Licence.  However I do not consider that would be appropriate, particularly bearing in mind what I have just said.

[323]I consider that the monies which have been collected and paid into the Mylne Lawyers trust account or into Court in relation to fishing activities since 29 January 2013 should not be returned to the defendant until further order of the Court.  Before such an order is made I consider that the parties, and others who may have an interest in any of those monies, should have the opportunity to consider these reasons and what claim if any they might wish to make upon any of those monies.

Amendments to Originating Motion

[324]On 15 October 2013 I gave leave for the Originating Motion to be amended to add the following claims:

“2A.  The defendant pay the rent due but unpaid pursuant to the Memorandum of Lease referred to at order 1 above, or damages in lieu of such rent, to the second plaintiff on behalf of the first plaintiff.

2B. The defendant pay interest on rent due but unpaid pursuant to s 84 of the Supreme Court Act.”

[325]On various occasions in the course of final submissions the plaintiffs sought leave to further amend the Amended Originating Motion.  These applications followed partly from the plaintiffs’ concession that the defendant held an equitable lease, and also following discussions about what remedies were available to the plaintiffs in respect of any unlawful occupation of the Demised Land and any unlawful use of the Licensed Area following any forfeiture of the Lease and revocation of the Licence. 

[326]The final version was that set out in the Plaintiffs’ Further Submissions in Reply filed 4 December 2013.  The plaintiffs sought to:

(a)Amend paragraph 1 to expressly recognise the fact that the application for re-entry and forfeiture relates to the Lease as renewed by adding the words “and which lease was renewed to apply in the period from 1 July 2010 for five (5) years”, and to make a consequential amendment to paragraph 2A.

(b)Amend paragraph 2A by deleting the words struck out and adding the words underlined:

“The defendant pay the such amount for rent as the Court finds is due but and unpaid pursuant to the Memorandum of Lease lease referred to at order 1 above, or damages for trespass, by way of mesne profits or otherwise, in lieu of such rent, after 1 July 2010 to the second plaintiff on behalf of the first plaintiff.”

(c)Adding a new paragraph 2C to read as follows:

“2C. Insofar as the rent referred to in paragraph 2A may be held not to include monies held in Mylne Solicitors trust account or paid into Court in respect of licence fees calculated pursuant to clauses 1 to 3 to the “Grant of Licence” executed on or about 15 December 2005 (“the Licence”), the defendant shall pay such monies to the second plaintiff on behalf of the first plaintiff by way of remedial constructive trust, plus interest (pursuant to section 84 of the Supreme Court Act) until payment.”

(d)Amend paragraph 3, which relates to costs and expenses, to add the words “on an indemnity or, alternatively, standard basis,”.

[327]I allow the amendments referred to in [326](a) and [326](d) above.  It has been common ground from the outset that these proceedings relate to a lease which was either the Lease continuing under the holding over provisions or an equitable lease following the renewal of the Lease.  I do not consider there to be any prejudice caused to the defendant as a result of that amendment, or as a result of the further clarification of the application for costs in the proposed amendment to paragraph 3.

[328]I reject the proposed amendment to paragraph 2A in so far as it is sought to add the words “for trespass … or otherwise”.  Whilst a claim for mesne profits (whether or not it be properly characterised as a form of damages) is commonly recognised as falling within the kind of relief which can be sought and granted in an application such as this,[42] I consider that a claim for trespass involves a different cause of action.  Such a claim would normally be brought in different proceedings and would involve pleadings and additional or different evidence than is the case in a matter such as this.  I consider it far too late for such a claim to be introduced in this proceeding.

[329]I allow the other amendments that are proposed to paragraph 2A.

[330]I reject the proposed addition of paragraph 2C.  As I have said the issue concerning monies collected in relation to activities carried out on the Licensed Area since the Licence was revoked on 29 January 2013 potentially involves a wide range of other people who might have a legitimate interest in some of those monies and therefore might wish to be heard.  Accordingly I do not propose to allow this amendment. 

[331]However there does appear to be a real question as to what should happen to any such monies.  I propose to grant liberty to apply when I deliver these reasons, mainly to enable the parties to perform the necessary calculations in accordance with my findings and then to submit draft orders for me to make.  If in that process it is discovered that there are monies in Court that solely relate to fishing activities carried out on the Licensed Area since the Licence was revoked, I will hear the parties further as to what should happen to such monies.

Interest

[332]The defendant should pay interest on the monies owing to the second plaintiff, under s 84 of the Supreme Court Act 1980 (NT).

Costs

[333]I do not propose to deal with the question of costs until the parties have had the opportunity to consider these reasons and their respective positions.  In light of some of the views which I have expressed in these reasons particularly when I discussed the claim for relief against forfeiture, it may well be that there should be no order as to costs.  However I will of course consider whatever submissions either party wishes to make on costs and determine the question then.

Orders

[334]There are a number of calculations to be carried out, including those concerning the quantum of Base Rent, licence fees and interest.  Also, I expect that the parties will be able to agree on particular wording in relation to some other orders, including the conditions to be applied to the grant of relief from forfeiture and orders regarding payment out of monies held in Court.  I propose that the parties attempt to agree on and file proposed orders that are consistent with these Reasons.

[1]Exhibit JH-1 /1 - Commonwealth of Australia Gazette No. S138, 21 July 1978.

[2]Exhibit JH-1/2 - Deed of grant and certificate of title.

[3]Exhibit JH-1/10 - ASIC company extract.

[4]Ex JH2 – 30.

[5]On 15 October 2013 the defendant sought and obtained leave to amend its Summons to remove the references to the Commonwealth of Australia and to acknowledge that the rent for the period from 1 July 2010 was payable to the plaintiffs. See [60] below.

[6]Unless otherwise stated references in these reasons to land and waters are references to Aboriginal land.

[7]The consent of the Minister is not required for the grant of an estate or interest the term of which does not exceed 40 years (s 19(7)).

[8]Section 77A of ALRA provides a mechanism for the obtaining of such consent, somewhat similar to that provided under ss 251A and 251B of the NTA.

[9]Like s 19(11), s 23(4) expressly provides that this reference to an estate or interest in land includes a reference to a licence in respect of that land.

[10]Northern Territory of Australia & Ors v Arnhem Land Aboriginal Land Trust & Ors (2008) 236 CLR 24 (Blue Mud Bay). See for example [61].

[11]Cf Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ,), s 77A.

[12][2012] WASCA 157.

[13][1977] HCA 40; (1977) 52 ALJR 20 (BP Refinery).

[14]See [109] above.

[15]See [110] above.

[16]See too [175] above.

[17]See Aboriginal Land Rights (Northern Territory) Act 1976, ss 19(1), (4A), (11) & (13) and 70(2) & (2B).

[18]See Ex P2.

[19](1982) 20 NTR 1.

[20]Corporations Act2001 (Cth), s 109X and Evidence (National Uniform Legislation) Act2011 (NT), s 160(1).

[21]A notice in identical terms was also signed by Midena Lawyers as solicitor for the plaintiffs, on 21 January 2013.

[22](1975) 136 CLR 326.

[23][1980] Qd R 253.

[24]Ex parte Taylor [1980] Qd R 253 at p 258 (Ex parte Taylor).

[25]BC200103681 (unreported, 5 June 2001, Jones J).

[26][1986] 1 Qd R 500.

[27][2000] QSC 65.

[28][2007] QSC 394.

[29]Interpretation Act 1980 (NT), s 68.

[30]See Wurridjal v The Commonwealth of Australia [2009] HCA 2; (2009) 237 CLR 309 at 340 [31] and 461-2 [430] – [433].

[31]See for example observations by Lord Wilberforce in Shiloh Spinners Ltd v Harding [1973] AC 691 referred to in various Australian authorities including Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 57 at [55], [58] – [60] and [71], and Riviera Holdings Pty Ltd v Fingel Glen Pty Ltd [2013] SASC 77.

[32]Riviera Holdings Pty Ltd v Fingel Glen Pty Ltd [2013] SASC 77

[33]This expression was used by Hope J in Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 (NSWSC) in a passage quoted by Nicholson J in Riviera Holdings at [13] who went on to identify numerous more recent authorities which have adopted that passage “as a starting point when considering an exercise of the discretion to relieve against forfeiture for non-payment of rent”.

[34]See for example Riviera Holdings at [12] – [16].

[35]Riviera Holdings at [14].

[36]Shiloh Spinners Ltd v Harding [1973] AC 691.

[37]Legione v Hately [1983] 152 CLR 406 at [32].

[38]Supra at [33].

[39]Supra at [34].

[40][1989] VR 584 per Ormiston J.

[41]See for example comments by McLelland J in Hace Corp Pty Ltd v F Hannan (Properties) Pty Ltd (1995) 7 BPR 14, 326; BC9504783.

[42]See for example Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 and Legune Land Pty Ltd v Northern Territory Land Corporation and Northern Territory of Australia [2012] NTSC 99 at [11] et ff.