Woods v Gandangara Local Aboriginal Land Council; Thatcher v Gandangara Local Aboriginal Land Council

[2011] NSWLEC 42

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Woods v Gandangara Local Aboriginal Land Council; Thatcher v Gandangara Local Aboriginal Land Council [2011] NSWLEC 42

Hearing dates:

27 April 2010

Decision date:

23 March 2011

Before:

Pepper J

Decision:

In proceedings 40152 of 2010 the Court:

1. declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was:

(a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and

(b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983;

2. declares that the decision was without power, unlawful and invalid;

3. restrains the Land Council, by itself, its servants and agents from:

(a) taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 28 September 2009 given to the applicant; and

(b) taking any step in the further execution of its decision in September 2009 to give a notice of termination to the applicant;

4. orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and

5. orders the exhibits to be returned.

In proceedings 40153 of 2010 the Court:

1. declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was:

(a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and

(b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983;

2. declares that the decision was without power, unlawful and invalid;

3. restrains the Land Council, by itself, its servants and agents from:

(a) taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 31 August 2009 given to the applicant; and

(b) taking any step in the further execution of its decision in August 2009 to give a notice of termination to the applicant;

4. orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and

5. orders the exhibits to be returned.

Catchwords:

Aboriginal Land Rights:- whether decisions to terminate residential tenancy agreements were "dealings with land" for the purpose of the Aboriginal Land Rights Act 1983 - if so, whether the decisions could be made by a delegate of a Local Aboriginal Land Council or whether they were required to be made by resolution by the voting members of the Land Council - meaning of "dealing, with land" and "dealings with land" under that Act - whether the applicants were denied procedural fairness in the making of the decisions - whether the Court has jurisdiction to determine the proceedings - factors relevant to the exercise of discretion - application upheld

Legislation Cited:

Aboriginal Land Rights Act 1983, ss 3(a) and (d), 40(1) and (2), 40B(2)(a) and (2A), 42A, 51, 52E(1)(a), 52G(e), 52H, 235(2), 236, Sch 3 Pt 1
Aboriginal Land Rights Regulations 2002, cl 88
Consumer, Trader and Tenancy Tribunal Act 2001, s 22
Interpretation Act 1987, s 33
Land and Environment Court Act 1979, ss 20(1)(dd), (2) and (3)
Real Property Act 1900, Pt 7 Div 2
Residential Tenancies Act 1987, ss 3, 13, 14, 18, 53, 58, 64, 71
Supreme Court Act 1970, s 66(1)
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:

Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Laurie v NSW Aboriginal Land Council [2010] NSWCA 199; (2010) 175 LGERA 247
Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106
Minster Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

Category:

Principal judgment

Parties:

Mr Jeffery Woods
(Applicant)

Ms Ann Thatcher
(Applicant)

Gandangara Local Aboriginal Land Council (Respondent)

Representation:

Mr Nick Eastman (Applicants)
Mr Michael Wright (Respondent)
Grant Arbuthnot, Tenants' Union of New South Wales (Applicants)
Gye Associates Lawyers (Respondent)

File Number(s):

40152 and 40153 of 2010

Judgment

Introduction

1. These proceedings seek declaratory and injunctive relief, the effect of which is to prevent the respondent, the Gandangara Local Aboriginal Land Council ("the Land Council"), as lessor, from pursuing possession proceedings in the Consumer Trade and Tenancy Tribunal ("the CTTT") against each of the applicants as tenants, namely, Ms Ann Thatcher and Mr Jeffery Woods, pursuant to residential tenancy agreements.

Issues

1. The arguments and evidence before the Court gave rise to the following issues for determination:

(a) first, does the Court have, pursuant to the Aboriginal Land Rights Act 1983 ("the ALRA"), jurisdiction to decide whether the Land Council has validly exercised its power in deciding to terminate the residential tenancy agreements held by each of the applicants;

(b) second, does the giving of a notice of termination of a residential tenancy agreement constitute a "dealing with, land" or "dealings with land" for the purpose of ss 52E(1)(a) and 52G(e) of the ALRA respectively;

(c) third, if so, is a resolution of the voting members of the Land Council necessary for a notice of termination to be given as required by s 52G(e) of the ALRA or can the issuing of a notice be delegated pursuant to s 52E(1) of the ALRA; and

(d) fourth, did the applicants have a right to procedural fairness relating to the issuing by the Land Council of the notices of termination? And if so, was there a denial of procedural fairness in all the circumstances; and

(e) fifth, does the Court have the power to grant an injunction preventing the Land Council from pursuing proceedings in the CTTT against the applicants?

Disposition of the Proceedings

1. In summary, I have determined the following:

(a) first, the Court has jurisdiction to determine the applications;

(b) second, the decisions to issue the notices of termination were a function concerning the "use, management, control, holding or disposal of, or otherwise dealing with, land" pursuant to s 52E(1)(a) of the ALRA;

(c) third, as a consequence, a resolution of the voting members of the Land Council was required pursuant to s 52G(e) of the ALRA in order for the decisions to issue the notices of termination to be valid;

(d) fourth, as a further consequence, this function could not be delegated to the Chief Executive Officer ("the CEO") of the Land Council. In order to pass a resolution to issue the notices of termination, the Land Council was required to follow the procedure prescribed in s 52H of the ALRA. These requirements were not met by the passing of the resolution on 21 March 2007; and therefore

(e) the decisions to issue the notices of termination were invalid and there being no discretionary reasons not to do so, the relief sought in the summonses ought to be granted.

Factual Background

1. The factual background giving rise to both disputes was not contested. It was contained in two sets of agreed statements of facts, together with agreed tender bundles.

1. The Land Council was constituted under the ALRA pursuant to s 5, following Gazettal on 2 February 1984.

1. Ms Thatcher and Mr Woods are members of the Land Council.

1. The Land Council is the lessee of the premises known as 8 Ruth Place, Panania, New South Wales, Lot 15 DP 31355 ("the Panania premises") and 34 Tomago Court, Wattle Grove, Lot 6248 DP 834353 ("the Wattle Grove premises"). The registered proprietor of the premises is the New South Wales Aboriginal Housing Office.

1. On 23 August 1997, Ms Thatcher entered into a residential tenancy agreement with the Land Council to become the tenant of the Wattle Grove premises. She entered into a second residential tenancy agreement on 12 December 2002. Entry into neither of the residential tenancy agreements was authorised by the members of the Land Council by resolution at a meeting.

1. On 16 November 2001, Mr Woods entered into a residential tenancy agreement with the Land Council to become the tenant of the Panania premises. On 2 December 2002, Mr Woods, entered into a second residential tenancy agreement. Entry into the residential tenancy agreements was likewise not authorised by members of the Land Council by resolution at a meeting.

1. The agreements were residential tenancy agreements within the definition of that term contained in s 3 of the Residential Tenancies Act 1987 ("the RTA").

1. On 21 March 2007 the Land Council passed a resolution stating:

Motion 6

That the process for collection of Rental Arrears and Eviction be as prescribed within the Residential Tenancy Act and that all tenants failing to comply with agreements, policy or the Residential Tenancy Act be pursued by the CEO in accordance with the Residential Tenancy Act.

1. Ms Thatcher received a notice of termination on 31 August 2009 from the Land Council requiring her to give vacant possession of the Wattle Grove premises by 3 November 2009.

1. On 2 October 2009, Mr Woods received a similar notice of termination dated 28 September 2009 from the Land Council that required vacant possession of the Panania premises by 1 December 2009.

1. Both notices of termination were issued pursuant to s 58 of the RTA. Both notices did not specify any grounds for the termination.

1. At no time prior to issuing any of the notices of termination had there been a vote of the membership of the Land Council specifically approving the termination of any of the agreements.

1. Neither Ms Thatcher nor Mr Woods complied with the notices of termination.

1. On 4 November 2009, the Land Council lodged an application in the CTTT seeking orders to terminate the residential tenancy agreement with Ms Thatcher and to take possession of the Wattle Grove premises.

1. On 15 December 2009, the Land Council lodged a similar application in the CTTT in respect of Mr Woods.

1. Neither Ms Thatcher nor Mr Woods have requested the Registrar under the Act to issue a compliance direction relating to any alleged failure by the Land Council to comply with a provision of the Act with respect to the agreements and thus no compliance direction has been issued to the Land Council by the Registrar.

Statutory Framework of the Act

1. The purposes of the ALRA are set out in s 3:

3 Purpose of Act

The purpose of this Act are as follows:

(a) to provide land rights for Aboriginal persons in New South Wales,

(b) to provide for representative Aboriginal Land Councils in New South Wales,

(c) to vest land in those Councils,

(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,

(e) to provide for provisions of community benefit schemes by or on behalf of those Councils.

1. The objects of Local Aboriginal Land Councils are set out in s 51 of the ALRA:

The objects of each Local Aboriginal Land Council are to improve, protect and foster the best interests of all Aboriginal persons within the Council's area and other persons who are members of the Council.

1. Further provisions in the ALRA that have a bearing on the resolution of the proceedings are set out in ss 40B(2)(a), 40B(2A) and 42A. They relevantly provide that:

40B Lease, use etc of land

...

(2) A Local Aboriginal Land Council may, subject to the provisions of any other Act and with the approval of the New South Wales Aboriginal Land Council:

(a) lease land vested in it for a period of 3 or more years (including any option to renew the lease), and

...

(2A) A Local Aboriginal Land Council may, subject to the provisions of any other Act, lease land vested in it for a period of less than 3 years (including any option to renew the lease), but only if the lease has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present.

Section 42A Unlawful land dealings

(1) A person must not deal with land, or enter into a transaction or arrangement to deal with land, vested in an Aboriginal Land Council knowing that the dealing is not authorised or permitted by this Act.

Maximum penalty: 100 penalty units.

(2) In this section:

deal with land means sell, purchase, exchange, mortgage or otherwise dispose of land or lease or grant or release an easement over land.

1. Since the notices of termination were issued, amendments have been made to the Act which now define "deal with land" in relation to Pt 2 Div 4 of the ALRA to mean:

40 Interpretation

(1) In this Division and Division 4A:

agreement includes an arrangement.

deal with land means:

(a) sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land...

1. This definition of "deal with land" is in turn picked up in the current version of s 52G(e) which states (emphasis added):

52G Functions to be exercised by Council resolution

The following functions are to be exercised, in accordance with this Act, by resolution of the voting members of a Local Aboriginal Land Council:

...

(e) approval of dealings with land and land dealing approval agreements (within the meaning of Division 4 of Part 2) ...

1. As enacted at the time the notices of termination were issued, ss 52E(1)(a), 52G(e) and 52H relevantly provided (emphasis added):

52E Delegation of functions by Local Aboriginal Land Councils

(1) Local Aboriginal Land Council may, by resolution, delegate to any person or body the exercise of any of the functions of the Council, other than the following :

(a) the acquisition of land and the use, management, control, holding or disposal of, or otherwise dealing with, land vested in or acquired by the Council ...

52G Functions to be exercised by Council resolution

The following functions are to be exercised, in accordance with this Act, by resolution of the voting members of a Local Aboriginal Land Council:

...

(e) approval of dealings with land ...

52H Meetings of Local Aboriginal Land Councils

Part 1 of Schedule 3 has effect.

Schedule 3 Part 1

...

5 Voting

(1) A decision supported by a majority of the votes cast at a meeting of a Local Aboriginal Land Council at which a quorum is present is the decision of the Council ...

Relief Sought in the Summons

1. In order to determine the jurisdictional issue, regard must be had to the prayers for relief sought by the applicants in their respective summonses. They are:

3. Declare that the decision of the Respondent to issue a notice of termination of the Applicant's residential tenancy agreement pursuant to s.58 of the Residential Tenancies Act 1987 (' the decision ') is and was:

a. A function exercisable pursuant to s.52G(e) of the Aboriginal Land Rights Act 1983 by the means prescribed in s.52H of the Aboriginal Land Rights Act 1983 ;

b. A function that has not been exercised pursuant to s.52G(e) of the Aboriginal Land Rights Act 1983 by the means prescribed in s.52H of the Aboriginal Land Rights Act 1983

4. Declare that the decision purported to be exercised in a manner otherwise than pursuant to s.52G(e) of the Aboriginal Land Rights Act 1983 by the means prescribed in s.52H of the Aboriginal Land Rights Act 1983 is without power, unlawful and invalid.

5. Declare that the decision was vitiated by the Respondent's failure to accord to the Applicant procedural fairness in the making and exercise of the decision.

6. The Respondent, by itself, its servants and agents to be restrained from:

a. Taking any step in legal proceedings in reliance upon the notice of termination given to the Applicant and dated 28 September 2009;

b. Taking any step in the further execution of its decision in September 2009 to give a notice of termination to the Applicant.

The Land and Environment Court has Jurisdiction to Hear the Claims

1. The Land Council argued that the Court did not have jurisdiction to determine the proceedings because, first, the declarations sought were not in relation to any rights that the applicants held. Second, because what the applicants were seeking by their sixth prayer for relief was an anti-suit injunction against the CTTT in respect of a dispute under the RTA, which the Court was not empowered to order. And third, the CTTT has exclusive jurisdiction to determine claims for possession in respect of residential tenancy agreements, which is what the applicants' claims, in effect, amount to. In short, it was submitted, was jurisdiction under the RTA (which is not a planning and environment law) conferred on the Court, the jurisdiction of which is precisely delineated by statute.

1. In response, the applicants submitted that the Land and Environment Court had the power to exercise jurisdiction in relation to the Act as a result of s 20 of the Land and Environment Court Act 1979 ("the LEC Act"), which relevantly provides that:

20 Class 4 - environmental planning and protection and development contract civil enforcement

(1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following:

...

(dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983 ...

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function...

(2A) The Court has jurisdiction to hear and dispose of proceedings referred to in subsection (1) (dd).

(3) For the purposes of subsection (2), a planning or environmental law is:

(a) any of the following Acts or provisions:

Aboriginal Land Rights Act 1983 (other than Div 5 of Pt 7)...

1. Division 5 of Pt 7 of the ALRA, referred to in s 20(3) of the LEC Act, is concerned with preparation and implementation of a community, land and business plan. It is not relevant to the issues raised by either set of proceedings.

1. Leaving aside s 20(1)(dd) of the LEC Act, s 20(2) and (3) of the LEC Act make it plain that the Court has jurisdiction to hear and dispose of proceedings to, amongst other things, enforce, review or make declarations in relation to rights, obligations, duties or exercises in respect of functions, conferred or imposed by the ALRA, which is an Act deemed to be a planning and environment law, pursuant to s 20(3) of the LEC Act, for the purposes of s 20(2) of that Act.

1. The question, therefore, becomes whether the relief sought by the applicants engages the power of the Court to determine the matter within the confines of its jurisdiction contained in s 20(2) of the LEC Act.

1. Leaving aside the strength of the applicants' claims and, for present purposes the injunctive relief sought (which is discussed later in this judgment), as framed the relief plainly seeks declarations in respect of functions conferred on, and exercisable by, the Land Council. There is no warrant for excluding this relief from the scope of s 20(2) of the LEC Act and thus excluding the jurisdiction of the Court.

1. The Land Council referred to a number of authorities in support of its contention that no jurisdiction was conferred on the Court, which, when closely analysed, were readily distinguishable. Two merit particular attention. First, is the decision of Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891 per Dunford J. In Lester the plaintiff sought declarations and orders to the effect that his removal from office as treasurer of a Land Council was invalid because the Council had acted beyond the power conferred on it under the ALRA. The Land Council sought to have the proceedings struck out or transferred to this Court on the basis that the Supreme Court lacked jurisdiction to hear the claim. His Honour refused to strike out or transfer the matter. This was because, he held, the mere fact that it was necessary to construe the ALRA to determine whether or not the Land Council was acting beyond power did not necessarily bring the proceedings within s 20(2) of the LEC Act.

1. However, the reasoning in that decision may be contrasted with the more recent decision of this Court in Laurie v NSW Aboriginal Land Council [2010] NSWCA 199; (2010) 175 LGERA 247. In Laurie , the Court of Appeal upheld a first instance decision by Pain J that this Court, first, could make declarations concerning the ability of Ms Laurie to exercise functions as a councillor of the State Land Council in circumstances where she had been elected to the Council despite having been ineligible to hold office by reason of a prior conviction for driving whilst disqualified and, second, could make declarations concerning the validity of the poll. Basten JA (at [34], with whom McColl JA and Handley AJA agreed on this point) held that this Court had jurisdiction to determine these issues and that s 20(2) of the LEC Act "being a jurisdiction or power conferring provision, it would be inappropriate to read in any implied limitation not appearing in the express words."

1. Second, the Land Council relied on the decision of Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162 per Biscoe J. In that case, a dispute arose concerning a residential tenancy agreement entered into in respect of a cottage by an Aboriginal person and a Local Aboriginal Land Council. The applicant relevantly sought declarations that the residential tenancy agreement was void, that the notice of termination was void and that she had been the owner of the cottage since it was constructed in about 1990. The Land Council submitted that the Court had no jurisdiction over the claims made by the applicant.

1. After finding that the two central planks in the applicant's case could not be maintained under the ALRA, his Honour stated that "it was difficult to see" how the applicant's remaining contentions could come within the jurisdiction of the Court, noting that the cottage fell within the definition of "residential premises" in s 3 of the RTA and that this Act was not planning and environment law within s 20(3) of the LEC Act (at [22]).

1. However, in my view little comfort may be derived from the reasoning in Anderson when that decision is applied to the present facts. This is because once the applicant in Anderson was deprived of the two principal tenets of her argument, the remaining claims of invalidity in respect of the residential tenancy agreement were squarely rooted in the RTA and not the ALRA. Therefore, it was held that the Court did not have jurisdiction to hear the remaining claims. The decision may be distinguished from the present case on this basis.

1. Finally, to the extent that it was argued that the CTTT retained exclusive jurisdiction (s 22(3) of the Consumer, Trader and Tenancy Tribunal Act 2001, or the "CTTTA", and s 71 of the RTA) in respect of orders for possession following the termination of residential tenancy agreements (s 64 of the RTA) which thereby precluded this Court from entertaining the claims, while this submission may be correct it was, in my opinion, not to the point. This is because the direct consequence of this application will not and cannot result in an order by this Court terminating the residential tenancy agreements or orders for possession. Put another way, there is nothing in either the CTTTA or the RTA that confers jurisdiction on the CTTT to engage in judicial review of the exercise by the Land Council of the functions conferred upon it under the ALRA that resulted in the termination of the agreements. Either way, the jurisdiction of the CTTT remains untrammelled.

1. Accordingly, there is no impediment to the Court determining whether the relief sought in the summonses ought to be granted.

Were the Notices of Termination a "Dealing With Land" for the Purposes of the ALRA?

1. Central to the proceedings were the applicants' submissions that the decisions to terminate the residential tenancy agreements were a species of "dealings with land" that were precluded from being delegated to the CEO of the Land Council, as the Land Council had purportedly done. If so, then pursuant to s 52G(e) of the ALRA, the Land Council did not have the power to terminate the agreements unless the voting membership passed a resolution approving the decisions to do so. Because this had not occurred, the decisions to issue the notices of termination were invalid.

1. In reply, the Land Council submitted that, properly construed, the expressions "dealing with, land" in s 52E(1)(a) and "dealings with land" in s 52G(e), ought to be understood as operating only in respect of dealings concerning the ownership of, or title to, land. Otherwise, the construction posited by the applicants would require a resolution of the Land Council for each and every mundane management decision made by the Land Council in respect of its properties. This, it was submitted, could not have been the intention of Parliament in enacting the provisions.

1. Furthermore, the Land Council contended that an absurdity would result from the applicants' interpretation insofar as the logical corollary of their argument was that the residential tenancy agreements entered into between the applicants and the Land Council would be void because they were not entered into with the requisite resolution of the voting membership of the Land Council.

"Dealing with Land"

1. Neither the expression "dealing with, land" nor "dealings with land" (ss 52E(1)(a) and 52G(e) respectively) in Pt 5 Div 1A, that concerns the "Functions of Local Aboriginal Land Councils", are defined in the ALRA as it stood at the time the notices of termination were issued.

1. The proposition that in the interpretation of statutory provisions the construction that promotes the purpose or object of the underlying enactment is to be preferred (s 33 of the Interpretation Act 1987), is almost trite. However, experience demonstrates that its application can often lead to, as the present case demonstrates, considerable complexity. Nevertheless this is the task assigned to courts in construing statutes.

1. The expressions "dealing with, land" and "dealings with land" must be construed in their context in the first instance. Context is used in a wide sense and includes the mischief or object to which the statute is directed ( CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 99; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]-[13] and Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 at [42]). The manifest intention of the statute cannot, therefore, be defeated by too literal an adherence to its precise language ( Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at [20]).

1. When regard is had to the objects of the ALRA, especially those expressly referred to in ss 3(a) and 51, and when read in the context of provisions such as ss 40(1) and (2), 40B(2)(a) and (2A) and 42A, it is plain that there is no warrant for narrowly construing the terms "dealing with, land" and "dealings with land" in ss 52E(1)(a) and 52G(e) of the ALRA to exclude the entry into, and therefore the termination of, the residential tenancy agreements the subject of these proceedings.

1. To do so would, in my view, be contrary to the objects of the Act, namely, to protect and foster the rights of Aboriginal persons in New South Wales by providing rights to land, irrespective of whether these rights are by way of freehold, leasehold, or rights akin to leasehold under a residential tenancy agreement, and to facilitate transparency and minimise conflicts of interest in the management of, and dealings with, those rights by Local Aboriginal Land Councils.

1. A broad construction of these expressions would, furthermore, be consonant with the beneficial and remedial nature of the statute ( Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 at 117 and Minster Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 at [31]).

1. The Land Council asserted, by contrast, that both the objects of the ALRA and the remedial nature of the legislation were strongly supportive of a confined construction of these expressions to the extent that this would facilitate the ability of Local Aboriginal Land Councils to more efficiently provide for the acquisition and management of land. That is to say, without the need to obtain on each occasion a residential tenancy agreement is entered into a resolution passed by the voting membership of the Council.

1. On one level, as a stated purpose of the ALRA (see s 3(d)) this proposition cannot be cavilled with. But as a reading of the objects contained in s 3 in the context of the entire Act demonstrates, in my opinion, the legislation was promulgated for the benefit of Aboriginal persons and not for their representative Land Councils. These Councils are no more than the vehicles through which land rights for Aboriginal persons are provided; they are the means and not the ends. In this regard, the ALRA seeks to promote and encourage the participation of Aboriginal persons in the dealings Local Aboriginal Land Councils have with the land vested in them. There is, therefore, nothing antithetical in an interpretation of either ss 52E(1)(a) or 52G(e) that supports to the maximum extent possible the enfranchisement of Aboriginal persons in the dealings by Land Councils with land.

1. That the phrase "dealing with, land" in s 52E(1)(a) ought to be subject to a generous interpretation is reinforced by its surrounding context. The presence of words such as "use", "management" and "control" preceding the expression, which when combined with the phrase "or otherwise", are indicative of an intention by the legislature to use the expression as a catch-all phrase to capture, without the need to be exhaustive, all other activities carried out in relation to the land vested in the Land Council. The presence of the comma between the composite phrase "or otherwise dealing with" and the term "land" strengthens the plenary nature of the expression. To restrict the term "dealing", as was submitted by the Land Council, only to acquisitions of land, dealings with title, or transactions resulting in registrable instruments, would render these preceding words superfluous. An interpretation that avoids this outcome must be preferred.

1. The applicants put before the Court Macquarie Dictionary (5 th ed) definitions of the terms "deal" and "dealing", both of which emphasised concepts of "treatment", "arrangement" and "relations", to support their contention that the entry into, and termination of, a residential tenancy agreement was encompassed in the statutory concept of a "dealing" with land. Even the concept of a business transaction or "trading", it was submitted, which was included within the dictionary definitions, did not preclude the issuing of the termination notices, insofar as the residential tenancy agreements entered into by the applicants required the payment of rent in exchange for exclusive possession, which is, on any view, a business transaction. I am inclined to agree.

1. In my view, not only is the interpretation of the expressions "dealing with, land" and "dealings with land" in ss 52E(1)(a) and 52G(e) consistent with the general functions of Local Aboriginal Land Councils contained in Div 1A of Pt 5 of the ALRA, but it is also harmonious with other provisions within the Act concerning the powers of a Local Aboriginal Land Council to dispose of and use Aboriginal land contained in Div 4 of Pt 2. In particular, it is consistent with the expressions "otherwise deal with land" and "other dealing with, land" in s 40(1) and (2) respectively and the expression "deal with land" in s 42A in Pt 4 Div 4 (concerning the "Disposal and use of Aboriginal Land").

1. Indeed the expressions "otherwise deal with land" and "other dealing with, land" in s 40, positioned as they are after the verbs "sell, exchange, lease, dispose of" and "mortgage", indicate the breadth which is to be afforded to these expressions and in turn to the scope of that provision. Similarly, the expression "deal with land" in s 42A is widely defined to mean to "sell, purchase, exchange, mortgage or otherwise dispose of land or lease or grant or release an easement over land". There is nothing in the structure of the ALRA that is supportive of a considerably more restrictive meaning being ascribed to the almost identical expressions in ss 52E(1)(a) and 52G(e). It is therefore more than arguable that something comparable to a leasehold interest would be sufficient to fall within the scope of ss 52E(1)(a) and 52G(e), for example, the interest created by a residential tenancy agreement.

1. In any event, the residential tenancy agreements in question were, in my opinion, leases, and were both a "dealing with land" for the purposes of ss 40 and 42A of Pt 2 Div 4 of the ALRA, and as a matter of consistent construction, a cognate "dealing with land" for the purposes of ss 52E(1)(a) and 52G(e) of Pt 5 of Div 1A of the ALRA.

1. Where a right to occupy land is granted by statute, the precise nature of the right will depend on the terms of the statute. The RTA is a code regulating the creation of a specific type of lease (or licence, so much so is evident from the definition of the term "residential tenancy agreement" in s 3(1) of the Act), namely, a residential lease.

1. In the present case, it is tolerably clear that the agreements were a statutory form of lease insofar as exclusive possession in exchange for a fee, or "rent" as it is described in the RTA (s 18), is the defining characteristic of the rights granted under them.

1. It follows, therefore, that leasehold interests are created by the agreements. Whether these interests are legal or equitable does not presently matter, what is important is that a propriety interest was conferred on both Mr Woods and Ms Thatcher as tenants under the agreements.

1. And if the terms "dealing with, land" and "dealings with land" in ss 52E(1)(a) and 52G(e) are construed to include leases, there is, in my view, no sound reason why they would also not capture the present residential tenancy agreements, irrespective of the fact that the agreements are creations of statute pursuant to the RTA.

1. It further follows that if the entry into such agreements is a "dealing with land" for the generic purposes of Pt 2 Div 4 and Pt 5 Div 1A of the ALRA, then so too must the termination of those agreements, insofar as a consequence of their execution is the return of exclusive possession of the land to the Land Council.

1. To the extent that s 40 of the ALRA was amended after the residential tenancy agreements were terminated, to insert into the reworked version of Pt 2 Div 4 of the Act a definition of "deal with land" that would unarguably include the rights created by the entry into a residential tenancy agreement ("deal with land means: (a) sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land") which was picked up in a revised s 52G(e), this does not, in my view, derogate from the conclusions reached above.

1. Considerable caution must be exercised when using a later statutory amendment to reveal earlier legislative intent. On the one hand it can be argued that the amendments are no more than a concrete expression of what had always been the intention of Parliament in the earlier version of the ALRA; on the other hand, it can reinforce the assertion by the Land Council that the version of the ALRA in force at the relevant time deliberately omitted to expansively define "deal with land" in s 40, and thus s 52G(e), because Parliament intended the expression to be narrowly construed.

1. Is the fact that the term "lease" is absent from s 52E(1)(a) as in force at the relevant time fatal to this thesis? In my opinion, it is not. The terms "use", "management" and "control" are more than adequate to fill whatever void may be said to be created by the omission of the word "lease" from that section. Were it otherwise, for example, the employment of the word "use" in s 52E(1)(a) would have a different meaning to the word "use" in s 40B (which deals specifically with leases).

1. Of further significance is the fact that under the RTA a residential tenancy agreement is created and continues whether or not the agreement is in writing or is oral, whether or not the agreement is express or implied (see the definition of a "residential tenancy agreement" in s 3(1)) and whether or not the term of the agreement has expired (s 14). In addition, the agreement is effective even if it is only signed by the tenant, or if the landlord has accepted rent without reservation (s 13).

1. These provisions have the effect of muting the Land Council's contention that the logical corollary of the applicants' arguments was that because the entry into the residential tenancy agreements was not in accordance with the terms of the ALRA, the agreements were therefore void.

1. Likewise, the Land Council's contention that an interpretation of the expressions "dealing with, land" or "dealings with land" that included the entry into, and termination of, residential tenancy agreements, would render unworkable the practical and efficient administration of the Council's business, should be dismissed. This is because similar obligations are already imposed on the Land Council. In Pt 2 Div 4 dealing with the disposal and use of Aboriginal land, s 40B(2A) of the ALRA requires, for example, that:

A Local Aboriginal Land Council may, subject to the provisions of any other Act, lease land vested in it for a period of less than 3 years (including any option to renew the lease), but only if the lease has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present.

1. Irrespective of whether or not this obligation is more or less onerous than that contained in s 52G(e), it illustrates the point that the Land Council is already subject to a similar encumbering administrative regime with respect to the leasing land vested in it.

1. Equally, I do not accept, as the Land Council submitted, that a construction of "otherwise dealing with, land" in s 52E(1)(a) of the ALRA or "dealings with land" in s 52G(e) would, for example, absent a resolution of its voting members at a meeting, prevent the appointment of a real estate agent to manage its properties, preclude the engagement of a tradesperson or hinder the provision of services or utilities. The entry into a residential tenancy agreement under the RTA is a dealing with land to the extent that it transfers rights, in particular, the right to exclusive possession, previously held by the Land Council, to the tenant. The appointment of a real estate agent or the hiring of a plumber, does not create such a transfer and no "dealing with land" has been effected. Thus no resolution by the voting membership of the Land Council would be necessary.

1. The Court was referred to the Real Property Act 1900 ("the RPA"), where Div 2 of Pt 7 of that Act deals with "Leases" in the context of the more general Part entitled "Dealings". Under that Act a lease may be registered and this will constitute a "dealing" for the purpose of the statute. But it is seldom, if ever, of assistance to construe a word or phrase appearing in one enactment, to the same word or phrase appearing in another enactment, especially where, as in the present case, the statutes do not deal with similar subject matter. Here, the subject matter of the ALRA and the RPA are too remote for any recourse to be had to the manner in which the term "dealings" is employed in its technical sense in the RPA.

1. Finally, the Land Council contended that a notice of termination was not a "dealing with land" for the purpose of ss 52E(1)(a) and 52G(e) because the right to terminate the residential tenancy agreement was merely a part of the initial bundle of rights associated with the formation of the agreement that did not constitute a separate "dealing" with the land.

1. I do not accept this submission. The RTA specifically prescribes the methods by which a residential tenancy agreement may be terminated (s 53 of the RTA). Accordingly, a residential tenancy agreement is not terminated upon the expiration of the term provided for in the agreement. Rather, in order to regain possession the landlord must take positive steps to terminate the agreement usually (absent the CTTT making an order terminating the agreement or by abandonment) by issuing a notice of termination. On any view, the taking of these steps is a "dealing" with the land.

Decision to Issue the Notice of Termination to be Exercised by Resolution of a Local Aboriginal Land Council

1. Accordingly, the decisions to issue the notices of termination were a "dealing with land" for the purposes of both ss 52E(1)(a) and 52G(e) of the ALRA.

1. Consequently, the function of deciding to issue the notices of termination could not be delegated by the Land Council to another person or body, for example the CEO, and could only be exercised by a resolution of the voting members of the Land Council.

Resolution Passed on 21 March 2007

1. If the issuing of the termination notices were "dealings with land" then, the Land Council submitted, the resolution passed on 21 March 2007 by an ordinary meeting of the Land Council was sufficient to meet the requirements of s 52G(e) of the ALRA.

1. Thus the Land Council contented that this resolution, was an "approval of dealings with land", passed by the voting members of a Local Aboriginal Land Council as required by s 52G(e), which was sufficient to authorise the delegation to the CEO to pursue all evictions.

1. But this submission cannot be accepted for two reasons. First, if the 21 March 2007 resolution was sufficient, then the express prohibition in s 52E(1)(a) would be rendered otiose. That is to say, the Land Council would be able to achieve by resolution the very delegation that is specifically verboten by that provision. The submission also ignores the words in s 52G that states that "the following functions", including approval of dealings with land in (e), "are to be exercised, in accordance with this Act " (emphasis added). This must mean in accordance with the prohibition in s 52E(1)(a).

1. Second, as worded, it is unlikely that the resolution and consequential delegation would, in any event, apply to the notices of termination. The resolution appears, on any reasonable construction, to delegate to the CEO the function of dealing with evictions premised upon tenants "failing to comply with agreements, policy or the Residential Tenancy Act" and not, as in the present case, terminations of residential tenancy agreements for "no grounds" as is specified in both notices of termination.

1. It follows that because the issuing of the notices of termination is a "dealing with land" for the purposes of ss 52E(1)(a) and 52G(e), the resolution delegating this function to the CEO of the Land Council is ineffective.

Procedural Fairness Was Not Denied to the Applicants

1. The applicants submitted that the Land Council was under a duty to afford procedural fairness before issuing the notices of termination. This duty arose as a consequence of s 52H which prescribes, by picking up Pt 1 of Sch 3 of the ALRA, the procedures the Land Council must adopt for, amongst other things, the holding meetings, the calling of meetings, voting and the keeping of minutes.

1. Therefore, the applicants submitted, had a meeting been held to pass a resolution by the voting members of the Land Council as required by s 52G(e), the applicants would have received notification of the meeting and would have been able to attend and participate, thereby affording them the opportunity to be heard on the decision to issue termination notices against them.

1. In Anderson the applicant argued that a notice of termination was void because she had been denied procedural fairness on the basis she was not given notice of the Aboriginal Land Council's Executive and Board meetings. The Court held that because there was no obligation to give the applicant notice of these meetings, no denial of procedural fairness had resulted (at [25]).

1. Because in the present case the decisions to issue the notices of termination are invalid, as they were not made pursuant to a resolution passed by the voting members of the Land Council, it is strictly not necessary to consider whether the applicants were denied procedural fairness. Any obligation to give the applicants notification of the meeting pursuant to Pt 1 of Sch 3 of the ALRA (which picks up the Aboriginal Land Rights Regulations 2002, in particular cl 88 of those Regulations), thereby affording them with an opportunity to be heard on whether or not their residential tenancy agreements should be terminated, is somewhat otiose.

1. However, if, contrary to the reasons above, the decisions to issue the termination notices were valid, was there, in any event, a denial of procedural fairness in not permitting the applicants to be heard? In my opinion, there was not for the following reasons:

(a) first, as ordinary members of the Land Council there was nothing preventing the applicants from participating in the meeting held on 21 March 2007, both applicants having entered into their residential tenancy leases prior to that date. There was no evidence before the Court to the effect that the applicants were not notified of the meeting;

(b) second, there is nothing in the residential tenancy agreement itself that gives rise to an obligation to provide procedural fairness. It is a private contract between the parties to it. Any rights of procedural fairness attaching to it must be conferred by the statute creating it, namely, the RTA and not the ALRA; and

(c) third, to the extent that the RTA governs the termination of residential tenancy agreements (in Pt 5), that Act provides the mechanism through which the applicants may be heard, namely, through participation in proceedings in the CTTT (s 64 of the RTA).

1. I therefore reject the argument that there would have been any denial of procedural fairness to the applicants in the present circumstances, assuming the decisions to terminate the residential tenancy agreements were lawful.

Injunctive Relief Sought Against the Land Council Continuing Proceedings in the CTTT

1. Given the findings above, it is necessary to consider whether this Court has the jurisdiction and power to grant injunctive relief against the Land Council from continuing the proceedings it has commenced against the applicants in the CTTT.

1. Given that this Court "has the same civil jurisdiction as the Supreme Court would" to hear and dispose of the proceedings listed in s 20(2) of the LEC Act, it has, in my view, the power to grant the injunctive relief sought (see s 66(1) of the Supreme Court Act 1970).

Discretion

1. None of the discretionary considerations raised by the Land Council to prevent the Court exercising its discretion to grant relief were, in my opinion, sufficient to thwart the relief sought by the applicants in their summonses.

1. First, in terms of delay, Ms Thatcher was issued with the notice of termination on 31 August 2009. Proceedings in the CTTT were commenced by the Land Council against her on 4 November 2009. Her summons was filed in this Court on 8 March 2010. While no reason was given by her for the passage of time between the commencement of the proceedings in the CTTT and the commencement of the proceedings in this Court, I do not consider a delay of four months to be sufficiently long to have any adverse bearing on the exercise of the Court's discretion to grant relief.

1. There was a similar unexplained delay by Mr Woods in commencing his proceedings in this Court (the notice of termination was received by him on 2 October 2009, proceedings in the CTTT were commenced on 15 December 2009 and Mr Woods filed his summons in this Court on 8 March 2010). However, I likewise do not consider the delay by Mr Woods in commencing proceedings in this Court to be sufficiently material to deny him relief.

1. Second, it was submitted by the Land Council that relief ought to be refused because the applicants had failed to avail themselves of the compliance procedures (referred to above) set out in Pt 12 of the ALRA. This submission was premised on the agreed fact that because the applicants had not requested the Registrar of the ALRA to issue a compliance direction under s 235(2) of the Act to the Land Council to comply with the provisions of the ALRA, there was no referral of the non-compliance to this Court for determination pursuant to s 236 of that Act.

1. But Pt 12 of the ALRA is not an exclusive code mandating the procedures to be followed under that Act to remedy the breaches complained of by the applicants. Nor could it be, given that the power of the Registrar to issue a direction is wholly discretionary ("the Registrar may issue a direction": s 235(2) of the ALRA and "may" refer the matter to the Court: s 236). Moreover, if the Land Council decided to issue the notices of termination in the knowledge that they were unauthorised to do so under the ALRA, then it has potentially committed an offence under s 42A of the Act, in which case the Registrar would be prohibited from issuing a direction (s 235(3)(a)).

1. Third, the Land Council submitted that because the applicants had the right to be heard in the CTTT in proceedings within its exclusive jurisdiction, no declaratory or injunctive relief ought to be granted by this Court. While the CTTT undoubtedly has exclusive jurisdiction to hear possession applications in respect of notices of termination of residential tenancy agreements, this jurisdiction would not extend to a determination in respect of the validity of the decision to issue a notice of termination in the first place. Put another way, the CTTT only has power to decide an application for possession on its merits and does not have the power to decide whether a local Aboriginal Land Council is required to follow the procedures mandated by s 52G(e) of the ALRA in issuing a notice of termination. On this basis, this purported discretionary factor must be discarded.

1. If follows from the reasoning above that there are, in my opinion, no discretionary factors that would preclude the Court from granting the relief sought by the applicants.

Costs

1. The presumptive rule in r 42.1 of the Uniform Civil Procedure Rules 2005 is that costs follow the event in Class 4 proceedings. Because the applicants have been successful in both sets of proceedings, the Land Council ought to pay their costs. I propose to make this order unless within seven days the Land Council seeks, by way notice of motion, some alternate costs order.

Orders

1. In proceedings 40152 of 2010 the Court:

(1) declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was:

(a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983;

(b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and

(2)   declares that the decision was without power, unlawful and invalid;

(3)   restrains the Land Council, by itself, its servants and agents from:

(a)   taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 28 September 2009 given to the applicant; and

(b)   taking any step in the further execution of its decision in September 2009 to give a notice of termination to the applicant;

(4)   orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and

(5)   orders the exhibits to be returned.

1. In proceedings 40153 of 2010 the Court:

(1) declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was:

(a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and

(b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983;

(2)   declares that the decision was without power, unlawful and invalid;

(3)   restrains the Land Council, by itself, its servants and agents from:

(a)   taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 31 August 2009 given to the applicant; and

(b)   taking any step in the further execution of its decision in August 2009 to give a notice of termination to the applicant;

(4)   orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and

(5)   orders the exhibits to be returned.

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Amendments

06 September 2011 - Details of party Solicitors were representing were switched.

Amended paragraphs: Coversheet - Representation

Decision last updated: 06 September 2011