By Statement of Claim filed on 17 June 2015, the Plaintiff, Aboriginal Housing Co Ltd (hereinafter referred to as "AHC") seeks orders:
1. A declaration that the Defendant has no present right to enter, occupy, or remain upon the land comprised in the folio identifiers (or parts thereof) listed in Part A of the First Schedule, being the open space land bounded by Louis, Vine, Eveleigh and Caroline Streets in Redfern, New south Wales (Occupied Land).
2. An order that the Defendant and any other person in occupation of, or present on, the Occupied Land give vacant possession to the Plaintiff within 5 days.
3. An order that the Defendant be restrained from attempting to interfere with the Plaintiff's possession of the land comprised in the folio identifiers (or parts thereof) listed in Part A of each of the First Schedule, the Second Schedule and the Third Schedule (Open Space Pemulwuy Land).
4. Leave to issue a write for possession of the Occupied Land.
5. The issue of a writ for possession of the Occupied Land.
6. Costs.
7. Such other order as the Court thinks fit.
The Plaintiff alleges it is the registered proprietor of the "Pemulwuy Land" and has an immediate right to possession of it. The "Pemulway Land" includes the "Occupied Land". The Plaintiff alleges that the Defendant established a group known as the "Redfern Aboriginal Tent Embassy" (hereinafter referred to as "RATE") and that on or about 26 May 2014, the Defendant and others entered the "Occupied Land" and erected tents and other structures there.
The Plaintiff also alleges that neither the Defendant nor any other member of RATE had the Plaintiff's permission to enter or remain on the land but that since about 26 May 2014, the Defendant and other members of RATE have occupied the "Occupied Land", commonly referred to as "The Block".
The Plaintiff further asserts that on 20 February 2015 all persons occupying the occupied land were notified they were trespassing, that the Defendant has represented that she intends to obstruct use of the Pemulwuy Land by the Plaintiff and physically resist any attempt to evict persons occupying the Occupied Land, and that the Defendant intends to act in accordance with the said representations.
By a Defence filed on 9 July 2015, the Defendant has admitted most of the allegations in the Statement of Claim, albeit qualifying a number of admissions by asserting that the Plaintiff's ownership and right to possession are in the capacity of a trustee of a trust for charitable purposes.
The Defendant agrees that she intends to act in a manner consistent with the tenor of the representations alleged but that:
1. She has reasonable grounds for believing that the Plaintiff's intended use of the Pemulwuy Land is outside the purposes of the trust;
2. That by letter dated 3 May 2015 RATE requested the Attorney General to commence charitable trust proceedings within the meaning of s 6 of the Charitable Trusts Act 1993 or to authorise RATE to do so;
3. That she intends to act in accordance with any reasonable request by the Plaintiff in its capacity as trustee acting in furtherance of its charitable purpose; and
4. She does not admit that any action by RATE has denied the Plaintiff any use of the land which accords with the charitable purposes.
In her Defence, the Defendant contends that the orders sought in prayers 1 and 3 of the Statement of Claim should be refused in the exercise of discretion and that any writ for possession which the Court directs should lie in the Registry until 14 days after the Attorney General notifies the Defendant of her intention with respect to the said letter. A further regime was sought in the event that the Attorney General acquiesced in the request made to her.
By Notice of Motion filed on 15 July 2015, the Plaintiff has sought summary judgment. It is that application with which these reasons are concerned. On the hearing of the Application senior counsel appearing for the Plaintiff disclaimed any claim for damages or costs and said that if it was otherwise successful the Plaintiff did not need the Declaration sought. Counsel also indicated that if the Plaintiff received the orders it sought it would not execute them in the next 7 days to allow the persons on The Block involved with RATE to gather up their effects and depart without greater haste.
Tendered on the application were title searches and the like which it was accepted showed the Plaintiff's ownership of the relevant land together with photocopies of newspaper articles and the like wherein the Defendant was recorded as having made representations more or less to the effect of those alleged in the Statement of Claim. Counsel for the parties also provided detailed and very helpful written submissions. The first paragraph of the submissions advanced on behalf of the Defendant was in terms.
Jenny Munro does not accept that the Aboriginal people ever ceded sovereignty of this land to the English crown. Jenny Munro does not accept that she can be held a trespasser on land by a person claiming title to the land through a purported grantee of the English crown. However, she accepts that this Supreme Court of NSW must apply the law of this Court. By the law of this Court, Jenny Munro is a trespasser. This Outline proceeds accordingly. Jenny Munro is liable to suffer judgment in the usual form:
Judgment for the Plaintiff, Aboriginal Housing Co Ltd, for possession of [the land referred to as "the Occupied Land" in the Statement of Claim.
Even without the concessions in that paragraph, the terms of the pleadings lead to the conclusion that the Defendant and others occupying The Block are trespassers and that the Plaintiff is entitled to judgment in the terms just quoted. Given the manner in which the proceedings before me were conducted, the form or order set out in italics is more appropriate than orders 1 and 2 as sought in the Statement of Claim.
In expressing that conclusion, it is appropriate to acknowledge, as authorities cited by Counsel for the Plaintiff establish, that "a trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it" - Barker v The Queen (1983) 153 CLR 338 at 370 - and "as legal owner, and subject to any disposition of the right, such as would occur upon the granting of a lease, [a] trustee has at law the right to possession of the land … He may maintain trespass against anyone who infringes that possession, and ejectment against any person who, without his consent, takes possession. At law, a cestui-que-trust has no right to possession" - DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 519. Of course, neither the Defendant nor any other member of RATE could be a beneficiary of a charitable trust - Cant v Kirby [2011] NSWSC 1193 at [44].
It follows also that even were it established that the Plaintiff's actions were in breach of trust, that would not assist the Defendant in resisting the claim for possession.
Whether the Court should postpone the issue of a writ of possession or direct that it lie in the office for a period was the subject of more debate and in that connection it is convenient to set out, albeit briefly, some of the events that have led to the current dispute. In or about 1973 the Minister for Aboriginal Affairs in the Federal Government announced that he had authorised negotiations to proceed for the purchase of 41 terraced houses in the inner city suburb of Redfern for development by an aboriginal co-operative housing society and that when registered, the society would receive a Government grant of $530,000 to cover the cost of the houses and immediate necessary improvements.
Soon afterwards the Plaintiff was incorporated and acquired houses at Redfern. It is to be inferred that it did so with the money referred to in the Minister's announcement. Other houses were acquired later and Everleigh Lane which runs between many of the houses purchased was transferred to the Plaintiff in 2014.
The evidence seems to make it clear that there has never been a formal declaration of trust. However the Plaintiff's Memorandum of Association records as some of the objects for which it was established:-
1. To rent, let, licence, provide housing, accommodation, premises, land, property real and personal, services to members and their dependents on such terms and conditions as the members see fit.
2. To provide or assist in providing of emergency and temporary accommodation for persons of Aboriginal and Island descent and their dependents on such terms and conditions as the members deem fit.
3. To establish half-way house accommodation for persons of Aboriginal and Island descent and their dependents and to assist such persons in the smooth and secure entry into independent life.
4. To establish, develop or assist in establishing, developing Aboriginal and Island housing projects.
5. …
(k) To do anything calculated to improve the conditions of urban or rural life in relation to the objects of the Company.
…
(t) In furtherance of the objects of the Company to improve, manage, develop, lease, turn to account or otherwise deal with all or any part of the property and rights of the Company.
The Memorandum of Association said nothing about the qualifications for membership. The Articles of Association provided that initially the number of members of the Company should be 100 and also said nothing about their qualifications for membership. However, an article which provided for further members required that they be persons of Aboriginal or Islander descent.
An extract from the Plaintiff's website dealing with what it proposes for the "Occupied Land" says that its plan is to:-
redevelop the land into a mixed use site which includes social and affordable housing for 62 families, a gymnasium, commercial and retail space, a gallery, student accommodation for 154, a childcare space for 60 children.
As has been indicated, the Defendant contends that this proposal or the way the Plaintiff is said to contemplate its implementation would amount to a breach of trust. Hence the letter to the Attorney General to which reference has been made and the request that any writ for possession lie in the registry until 14 days after the Attorney General replies.
The Plaintiff's response to that request was to the effect that what the Defendant was doing was unlawful and in England the Court of Appeal had held that it had no power to stay an order for possession against a trespasser - see McPhail v Persons Unknown [1973] 1 Ch 447. In return counsel for the Defendant pointed to provisions of the Civil Procedure Act 2005 which stipulate for leave to issue a writ of possession and, in s 135 provide that the Court can give directions with respect to the enforcement of its judgments and orders. There are, of course, other provisions such as s 67 but I do not see them as conferring on the Defendant any benefit beyond such as may be afforded by s 135 which, so far as is presently relevant, provides:-
1. The court may, by order, give directions with respect to the enforcement of its judgments and orders.
Undoubtedly, this provision gives the Court a discretion and the effect of s 58 of the Act is that in exercising the discretion the Court must "act in accordance with the dictates of justice". However, the reference is to justice in accordance with established legal principle, not "palm-tree justice" or in an attempt to right what some people see as the wrongs of European settlement in Australia.
It may be accepted that not uncommonly, perhaps frequently, in cases between mortgagors and mortgagees, the Court will, after judgment for possession has been given, stay or delay further proceedings on the judgment. However, as an incident of deciding whether a similar course should be followed in this case, it is necessary to consider the respective legal positions of the parties. In McPhail v Persons Unknown it was made clear that at Common Law judgments against trespassers entitled an owner to issue a writ of possession immediately and would not be stayed, one rationale being that a person entitled to possession was entitled forcibly to eject trespassers and the courts should not give him any lesser rights. Nor would Courts of Equity assist a wrongdoer. Such considerations provide strong grounds for concluding that the discretions under s 67 and s 135 should not be exercised adversely to the Plaintiff and in favour of the Defendant.
I may perhaps add that, although there is nothing to suggest that the legislation in England at the time McPhail v Persons Unknown was decided, included an equivalent of s 135 and the Court of Appeal made no reference to it, there can be no doubt that the Court then had inherent power to stay proceedings to prevent injustice being done - Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344-5 and the cases there cited.
One might test the matter another way. If the Defendant were not a trespasser and had not wrongly entered upon the Plaintiff's land, what right would the Defendant have, even with the assistance of the Court, to interfere with the activities of the Plaintiff or those engaged by it on the land? Putting aside for a moment the topic of a trust, the answer is "none": No court would grant the Defendant an injunction or the like. What basis is there for affording the Defendant a greater right because she has (wrongfully) gone into occupation? Again the answer has to be "none".
The Defendant's aboriginality, and her contention that the Aboriginal people have never ceded sovereignty to the English Crown does not help her. So much is properly conceded in the paragraph from the Defendant's counsel's submissions that I have quoted. It is also established by R v Murrell (1836) Legge 72, R v Wedge (1976) 1 NSWLR 581 and Mabo v Queensland (No 2) [1992] 175 CLR 1 at page 2 (headnote).]
What of the Defendant's claim that the Plaintiff as registered proprietor is a trustee of a trust for charitable purposes and has reasonable grounds for believing that the Plaintiff's intended use of the land is outside the purposes of the trust? Even if these matters be established they would not provide the Plaintiff with standing to enforce or seek to enforce the trust or give the Plaintiff any legitimate claim to remain in occupation of the land. And that remains the situation even if the purpose of the trust is to benefit Aboriginal people and the Plaintiff falls into that category. Apart from statute, it is only the Attorney General who has standing to invoke the court's supervision over charitable trusts.
The Charitable Trusts Act 1993 has widened the class of those who may bring charitable trust proceedings to include persons who have been authorised by the Attorney General or who have leave from the Court to do so and, though this is sheer speculation at the moment, it may be that at some stage the Defendant will obtain such authorisation or leave. However, neither now or if such authorisation or leave is obtained, does this provides a ground, by postponing the exercise of the Plaintiff's rights to evict the Defendant, to simply allow the Defendant to stay where she has no right to be.
A fortiori is this so when regard is had to the history of events. The Aboriginal Tent Embassy was established in or about May 2014. The letter to the Attorney General was written in May 2015. For 12 months the Defendant, and other members of the Embassy sought to impose their will on the Plaintiff by the force inherent in their occupation of the subject land and delayed any resort to legal methods - their approach to the Attorney General. That delay alone would provide a strong argument against interfering with the Plaintiff's rights on any interlocutory basis.
In the result, I do not see that the court's power under s 135 should be exercised so as to postpone the Defendant's eviction.
Of course the Rules also require that a writ of execution may not be issued except by leave of the Court. However, a successful party is prima facie entitled to the fruits of his judgment" - Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] 55 NSWLR 737 at [28] and the purpose of such leave is made clear by the terms of Part 39. The requirement of leave of itself provides no basis for the delay in eviction that the Defendant seeks.
There was also an issue whether the third order sought in the Statement of Claim was necessary and should be made. In my view it should. In its very nature the development proposed by the Plaintiff will be costly and delay or other interference with it is likely to have a similar result. The Defendant's actions in setting up the Tent Embassy on the land and, as the evidence shows, maintaining or assisting in maintaining it until now, and her remarks as recorded in the documents before me and her acknowledgment that she intends to act in a manner consistent with the tenor of her representations can leave one in no doubt as to the depth of her feelings that the Plaintiff's proposed use of the land is contrary to the basis on which the land was acquired.
It is sufficient in this connection to quote but one of her statements:
The only soil that is turned on this block will be the black housing. I can tell you here and now, we will stand in front of whatever we have to stand in front of: be it police, be it bulldozers, be it the commercial hierarchy in this country and the legal hierarchy. We will defy any and everybody that comes to tell us.
In the face of this attitude, it is clear that the Plaintiff is entitled to an injunction calculated to prevent the Defendant interfering with the exercise of the Plaintiff's legal rights as owner of the land and permitting others to conduct activities there also. The evidence shows also that the development proposed by the Plaintiff extends to all of the Pemulway Land and accordingly the injunction should refer to that and not merely the Occupied Land.
To these remarks I should add that senior counsel for the Plaintiff offered to forego such an injunction if on behalf of the Defendant it was indicated that Ms Munro would not return to the subject land if evicted. No such indication was given.
Apart from the matters to which reference has been made, counsel for the Defendant did not argue that the Plaintiff was not entitled to leave to issue a writ of possession and to issue that writ. However, Part 39 Rules 1 and 3 prescribe the evidence that should be adduced in support of applications for such orders and, though it was not addressed, it is not obvious that the evidence adduced by the Plaintiff meets those requirements. Nor was there a submission that the requirements should be waived.
Accordingly, subject to anything the parties may wish to say concerning order (iii) orders to the following effect seem appropriate at this time:
1. Judgment for the Plaintiff for possession of the land referred to as "The Occupied Land" in the Statement of Claim.
2. An order that the Defendant be restrained from attempting to interfere with the Plaintiff's possession of the land comprised in the folio identifiers (or parts thereof) listed in Part A of each of the First Schedule, the Second Schedule and the Third Schedule (Open Space Pemulwuy Land) of the Statement of Claim.
3. Stand over the Plaintiff's applications for leave to issue, and to issue a writ for possession of the Occupied Land.
Of course, particularly in the case of order (i), there should be precise specification in the order of "The Occupied Land". Specification of the land encompassed in order (ii) is obviously desirable.
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Decision last updated: 24 August 2015