Cummeragunja Local Aboriginal Land Council v Nicholson

Background

1. The following background is taken from the affidavits and court documents before me as well as from the reasons of Campbell J.
2. The CLALC covers the area of Cummeragunja, which is in Echuca and forms part of the traditional country of the Yorta Yorta people. It provides residential accommodation to Aboriginal people under s 52A(1)(a) of the Act. That sub-section provides that a Local Aboriginal Land Council may provide community benefits under a community benefits scheme. Section 4 of the Act describes a "community benefits scheme" as a scheme for the provision of community benefits funded wholly or in part by an Aboriginal Land Council. A "community benefit" means a benefit or service provided for the benefit of Aboriginal persons and may include, inter alia, residential accommodation.
3. The three cross-claimants made an application for membership of the CLALC in July 2014. That form was apparently returned to them because it was incorrectly filled out.
4. The three cross-claimants commenced squatting in vacant property owned by the CLALC from about June or July 2014. The premises had been condemned and there was no water or electricity.
5. On 4 September 2016, the second cross-claimant made another application to the CLALC for membership of the CLALC and for accommodation.
6. Under s 54(2A) of the Act, a person is qualified for membership of a Local Aboriginal Land Council if one or more of the following preconditions exists: "54 Local Aboriginal Land Council membership rolls … (2A) A person is qualified for membership if: (a) the person is an adult Aboriginal person who resides within the area of the Local Aboriginal Land Council concerned and is accepted as being qualified on that basis to be a member by a meeting of the Council, or (b) the person is an adult Aboriginal person who has a sufficient association with the area of the Local Aboriginal Land Council concerned (as determined by the voting members of the Council at a meeting of the Council) and is accepted as being qualified on that basis to be a member by a meeting of the Council, or (c) the person is an Aboriginal owner in relation to land within the area of the Local Aboriginal Land Council concerned and has made a written application for membership in accordance with subsection (3)."
7. Under s 54(3) of the Act, certain information must be provided in support of a membership application as follows: "(3) A person seeking to be accepted as a member of a Local Aboriginal Land Council must make and submit to that Council a written application for that membership that: (a) declares that the person is eligible for inclusion on the membership roll, and (b) sets out the grounds (other than acceptance as being qualified at a meeting) on which the person is qualified for inclusion on the membership roll, and (b1) sets out the basis on which the person asserts his or her Aboriginal descent and, if the application declares that the person has a sufficient association with that Council's area, the basis of that association, and (c) if the person is seeking to be accepted as a voting member of the Council - attaches a notice from the Registrar declaring that the person is not a voting member of any other Local Aboriginal Land Council."
8. The second cross-claimant responded to questions posed in the application form as follows: "Please set out the basis upon which you assert your Aboriginal descent: (required) (Attach additional information if necessary) "I am a descent [sic] of the original peoples of Cummeragunja and a resident - Yorta Yorta" Are you a registered Aboriginal owner (as listed on the Register of Aboriginal Owners) in relation to land within the area of the LALC? [Ms Nicholson circled "no" in response to this question] Do you reside within the LALC Boundaries? (Circle one) [Ms Nicholson circled "yes" in response to this question]."
9. In the second cross-claimant's affidavit sworn on 8 June 2017 she has deposed to her connections with Cummeragunja in some detail. It was not suggested that she had provided any of this information to the CLALC at the time that she made her application. She deposes that she is a descendant of Kitty Cooper, formerly known as Kitty Atkinson, who is an important ancestor; that most of her ancestors on her mother's side are buried at Cummeragunja, including her mother; and that as a child she travelled across Yorta Yorta country and was often taken on camping trips in the area in which her mother showed her where she grew up and where her ancestors lived. She was taught by her mother about Yorta Yorta culture. The second cross-defendant moved to Cummeragunja in 1985. Her mother had moved to Cummeragunja with the first and third cross-defendants and their other siblings in 1984.
10. The second cross-defendant goes on to depose that during the period from 1985 to 1993 she participated in Community Development Engagement Projects at Cummeragunja. She helped to make mud bricks and construct a number of mud brick homes. She was the foreman of a mud brick laying team that built five houses, a community centre and a community hall. She also helped with making wire fencing. Her whole family was involved in building up Cummeragunja. She was employed at a hostel for elders. She worked as a carer for the elders, as a cleaner at the hostel, and as a teacher's aide.
11. From 1993 to February 2013 she lived away from Cummeragunja but returned to visit at various times throughout that period. In particular, she travelled there frequently in the period from 2010 to 2013. She returned to reside in Cummeragunja in 2013.
12. After the second cross-defendant made her application for membership on 4 September 2016, the first and third cross-claimants made application to the CLALC for membership and accommodation on 20 December 2016.
13. On 28 January 2017, there was a meeting of the CLALC. It decided 24 membership applications. Of the three sisters' applications, only the second cross-defendant's was considered at that meeting.
14. Although the minutes of that day have been heavily redacted, the following is recorded as an item of business: "6. The Conduct of any other business placed on the agenda before the commencement of the meeting is the following: a) Membership Application There are a total of 24 membership forms received from the following and will be accept [sic] or decline [sic] or asked to supply more information:"
15. The minutes record that the second cross-claimant's application was denied: "…due to her current state of squatting at Cummeragunja in a house and there is a legal case against them."
16. A letter dated 9 May 2017 from the CEO of CLALC, Rebecca Atkinson, to the second cross-defendant gives the same reason for the refusal of the application.
17. On 9 March 2017, each of the cross-claimants made a further application for residential accommodation under the CLALC Community Benefits Scheme.
18. The two membership applications made by the first and third cross-claimants on 20 December 2016 have yet to be decided. Those applications were on the agenda to be considered at a meeting on 19 May 2017, but it was decided at that meeting that consideration of them would be deferred until the next meeting. No reason was provided for this and no meeting has been held since the meeting on 19 May 2017. There was no evidence before the Court as to when the next meeting might take place.
19. Although the membership applications were not considered at the 19 May 2017 meeting, a decision was made at that meeting of some significance to the three cross-claimants' pending housing applications. The background to it is set out in the affidavit of Rebecca Atkinson of 4 July 2017. Ms Atkinson states that she engaged with the NSW Aboriginal Land Council to obtain advice in relation to amending the CLALC's then rental policy. She deposes that she was informed that she could take any amendments to a meeting of the Board of the CLALC for its approval.
20. The Board agreed to the "Cummeragunja Local Aboriginal Land Council Rental Policy 2017" ("the Rental Policy") at its meeting on 19 May 2017. A copy of that document is annexed to the affidavit of Ms Atkinson. Significantly, "reasons for ineligibility" in the Rental Policy provide expressly for circumstances in which individuals are considered ineligible for housing. Those circumstances include: 1. where the applicant has been "illegally squatting on Cummeragunja Property or Housing"; 2. where the tenants of CLALC have due cause to present a petition to the members of the Council of CLALC regarding squatting and/or antisocial behaviour; 3. where the applicant has been subject to an order for judgment for possession by this Court; 4. and where the applicant has been charged with vandalising or damaging property of CLALC.
21. In the principal proceedings in this Court, the CLALC sought and was granted an order for possession of the property in which the two cross-claimants were then squatting. There was evidence before me on this application that the cross-claimants were also the subject of a petition and have been convicted of damaging property. By reason of these amendments, made to the Rental Policy since the cross-claimants commenced these proceedings against the CLALC by way of cross-claim, the cross-claimants are no longer eligible to apply for accommodation with the CLALC

The relief sought in the cross-claim

1. The amended cross-claim filed on 4 May 2017 seeks the following relief: "1. A declaration that, for the purpose of an application for membership under s 54(2A)(a) of the Aboriginal Land Rights Act 1983 (NSW) (the Act) an adult Aboriginal person resides within the area of Local Aboriginal Land Council if their place of residence is within that area, regardless of whether they have a lawful right to possession of the premises in which they reside. 2. A declaration that, in considering an application for membership under s 54(2A)(b) of the Act , the members of the Local Aboriginal Land Council are required to have regard to the applicant's ancestral connections with the area of the Local Aboriginal Land Council. 3. An order in the nature of mandamus requiring the Cross-Defendant to consider and determine according to law the application for membership and accommodation made by the Second Cross-Claimant on around for September 2016. 4. Alternatively, in order in the nature of certiorari setting aside the Cross-Defendant's decision to reject the application for membership made by the Second Cross-claimant on around 4 September 2016 5. An order in the nature of mandamus requiring the Cross-Defendant to consider and determine according to law the applications for membership and accommodation made by the First and Third Cross-Claimants on or around 20 December 2016. 6. An order in the nature of mandamus requiring the Cross-Defendant to consider and determine according to law the applications for accommodation made by the Cross-Claimants on 9 March 2017."
2. In its amended defence filed on 21 July 2017, the CLALC states that the second cross-claimant's membership application was not made on the basis that she had a sufficient association with the area of the CLALC for the purposes of s 54(2A)(b) of the Act. It is further stated that she provided no information in her application for membership as to the basis for her sufficient association with the area of the CLALC. On those bases, the CLALC and its members were not required to vote on or make a decision on her application for membership under s 54(2A)(b) of the Act.
3. On 11 August 2017, the cross-claimants filed a "Reply". That document asserts a further basis for relief for the first time. At [8] of that document, it is asserted that in adopting the Rental Policy on 19 May 2017 the CLALC acted ultra vires its powers under the Act, was actuated by bias against the cross-claimants, and failed to afford the cross-claimants procedural fairness. Correspondence before me on this application suggests that the CLALC takes no formal objection to the addition of this further basis for relief in this way.
4. I make the observation that the court documents filed in this matter do not strictly follow the requirements of Part 59 of the UCPR. Proceedings for judicial review are to be commenced by way of summons rather than statement of claim: r 59.3(1) of the UCPR. In addition, r 59.6 of the UCPR provides that the defendant must file a "response", rather than a defence, "stating whether the defendant opposes the relief sought and, if so, on what grounds". There is no provision in Part 59 for the filing of any further court documents. Rule 14.4(1) of the UCPR provides that in "proceedings in the Supreme Court" a plaintiff may file a reply to a "defence" but there is no requirement to file a "defence" under Part 59. Nothing turns on these procedural irregularities for the purposes of my consideration of this motion.

The cross-claimants' submissions

1. The cross-claimants submitted that they require reasons as to why the CLALC refused the second cross-claimant's membership application on 28 January 2017. This is because it is not apparent from the minutes of that meeting why the Board did not consider the application under s 54(2A)(b) of the Act. It was accepted that there is no common law or statutory requirement to provide reasons. The cross-claimants submitted that that is the purpose of r 59.9 of the UCPR. By way of analogy with s 13 of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), it was submitted that r 59.9 is intended to fill in the gap where there is no statutory requirement to give reasons.
2. In addition to seeking reasons for the 28 January 2017 decision, the cross-claimants also seek discovery of categories of documents specified in Annexure A to their notice of motion. In their written submissions, the documents sought were expressed as falling into four broad classes: "(a) documents relating to the applications for membership and accommodation made by the Nicholson sisters; (b) documents recording the exercise of the CLALC's functions with respect to applications for membership (52A of the Act) and accommodation) (s 54 of the Act) in the period 1 February 2013 to the present ("Relevant Period") (c) membership rolls of the CLALC in the Relevant Period; and (d) documents recording or discussing housing policies and the availability of residential accommodation in the area of the CLALC."
3. During the hearing of the application, it became apparent that the basis for seeking the documents in category (d) was because they are relevant to the decision on 19 May 2017 to change the housing policy.
4. During oral submissions, counsel for the cross-claimants submitted that he sought, in effect, the "files" held by the CLALC in relation to both decisions, including not only copies of the documents that were before the Council and Board when the decisions on 28 January 2017 and 19 May 2017 respectively were made, but also documents relevant to those decisions held by the CLALC going back to 1 February 2013.
5. It was submitted that the basis for seeking documents beyond those which were before the decision-maker was that they are relevant to the claim of actual bias.

The CLALC's submissions

1. The primary submission on behalf of the CLALC was that there is no obligation at common law to provide reasons and neither is there a requirement under the Act to do so. Further, the quality of reasons provided for an administrative decision necessarily depends upon the circumstances of the case. It was submitted that it would be impractical for the members of the CLALC to be required to give reasons beyond those provided in the minutes of its meeting, which have already been provided to the cross-claimants.
2. The CLALC submitted that the error alleged by the cross-claimants was that the CLALC failed to consider s 54(2A)(b) of the Act in respect of the second cross-claimant's application when it had an obligation to do so. It was contended on behalf of the CLALC that the provision of reasons would not advance that claim further and that the minutes adequately disclose the reasons for the rejection of the second cross-claimant's application in any event.
3. Turning to the application for discovery, it was submitted that, if the alleged error is said to be apparent from the face of the record, it is the record only that is relevant to the proceedings for judicial review. It is only if the cross-claimants rely upon jurisdictional error that the additional material sought to be produced by way of discovery could be admissible in the proceedings.
4. In written submissions, the CLALC submitted that the second cross-claimant has not identified how the documents sought to be discovered are relevant to the decision to reject the cross-claimants' application for housing because no relief is sought in relation that decision. During the hearing, when it became apparent that the documents are said to be relevant to the decision on 19 May 2017 to alter the Housing Policy (rather than the decision to refuse the cross-claimants housing), counsel for the CLALC submitted that the Court ought not consider that part of the cross-claimants' application as they had not provided notice of it in those terms.
5. In submissions in reply, counsel for the cross-claimants suggested that if the CLALC were prejudiced by the application for discovery being amended to clarify that the documents were sought in relation to both the decision of 28 January 2017 and that of 19 May 2017, it could be afforded the opportunity to file supplementary submissions. This suggestion was not taken up by counsel for the CLALC.

Consideration

1. The first matter for my determination is whether to make an order under r 59.9 of the UCPR that the CLALC provide reasons for its decision of 28 January 2017. Part 59 of the UCPR came into effect on 15 March 2013. Rule 59.9 does not appear to have received a great deal of judicial consideration since that time. It concerns proceedings for judicial review in which relief is sought in relation to a decision of a public authority: r 59.9(1). There was no issue taken before me on this application that the CLALC is a public authority in that it is a Local Aboriginal Land Council constituted under s 50 of the Act.
2. Sub-rules 59.9(2) - (4) of the UCPR provide as follows: "(2) The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff: (a) a copy of the decision, and (b) a statement of reasons for the decision. (3) A statement of reasons for the decision must: (a) set out findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based, and (c) explain why the decision was made. (4) If: (a) the public authority does not comply with a notice under this rule within 14 days of service, or (b) the plaintiff has not served a notice within the time prescribed by subrule (2), the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision."
3. The judicial review proceedings by way of cross-claim were commenced on 3 February 2017 and the request for reasons was not made until 9 March 2017. It was accepted that the request was thus made 13 days out of time. Although r 59.9(2) of the UCPR provides that the court may direct a time other than 21 days after commencing proceedings in which such notice is to be given, no other direction was ever made by the court in this regard. In this way, the pre-condition to r 59.9(4) has been met because under r 59.9(4)(b) the cross-claimants did not serve the relevant notice within 21 days. They may thus apply to the court for an order that a copy of the decision and a statement of reasons for the decision be provided to them.
4. Rule 59.9(4) of the UCPR does not explicitly provide for any discretion in relation to the making of an order that the public authority provide the plaintiff with a copy of the relevant decision and statement of reasons. Rather, it simply provides that the plaintiff may apply to the court for such an order. The court necessarily has an overriding discretion, but no express provision is made as to how that discretion is to be exercised.
5. In Minister for Resources and Energy v Gold and Copper Resources Pty Ltd [2015] NSWCA 113, Sackville AJA (with whom Ward JA and Bergin CJ in Eq agreed) considered the construction of r 59.9. His Honour referred at [58] to s 13 of the ADJR Act as an example of a legislative attempt to "overcome the lacuna in administrative accountability" produced by the decision in Public Service Board v Osmond (1986) 159 CLR 656; [1986] HCA 7. The Court proceeded on the basis that r 59.9(4) conferred a discretion. His Honour went on to express some doubt (at [72]) as to whether r 59.9(4) confers power on the court to order a decision-maker to provide reason if at the time the order is sought and made the party seeking the order has not stated grounds for the relief sought in the summons (the sole ground for relief stated in the summons in that matter had been struck out). Despite this, the Court proceeded on the basis that the discretion in r 59.9(4) applies even when there are no grounds of relief stated at the relevant time. The Court ultimately held that the order under r 59.(4) should have been refused because the only ground of relief constituted an abuse of the court's process.
6. In Cunneen & Ors v Independent Commission Against Corruption [2014] NSWSC 1571, Hoeben CJ at CL noted at [37] that, "As the parties agreed, the power in r 59.9 UCPR involves an exercise of discretion by the Court." In that case, his Honour considered at [32] that it was necessary to have regard to the interrelationship between the legislation under which the decision was made and r 59.9, which is subordinate legislation. His Honour declined to make an order under r 59.9(4) on the basis, inter alia, that the defendant would not be required to comply with such an order by reason of s 111 of the Independent Commission Against Corruption Act 1986 (NSW). Section 111(3) of that Act provided that: "A person to whom this section applies shall not be required…to produce in any court any document or…to divulge or communicate to any court any matter."
7. His Honour's reasoning in Cunneen & Ors v Independent Commission Against Corruption was applied by Fagan J in SA v New South Wales Crime Commission [2015] NSWSC 1979. In that decision his Honour considered that it was would be "an entirely wrong and unjustified exercise of discretion" to require the New South Wales Crime Commission to provide reasons as to why an examination summons had been issued under s 24 of the Crime Commission Act 2012 (NSW). His Honour considered that the existence of a secrecy provision in that Act, the fact that the Commission's investigations concerned criminal activities and that the material upon which examination summonses are issued need to be kept confidential until at least the completion of the investigation, provided a sound basis for not providing reasons.
8. I have had regard to these decisions. None of the factors militating against the exercise of the discretion to require a public authority to provide reasons pursuant to r 59.9(4) present in those matters exist in the present proceedings. I have had regard to the nature of the proceedings and the overriding principles in the Civil Procedure Act, I am satisfied that it is appropriate that I make an order that the CLALC provide reasons for its decision on 28 January 2017 to refuse the second cross-claimant's application for membership for the following reasons.
9. First, the limited reasons already provided in the form of the minutes of the 28 January 2017 meeting do not properly explain why it is that the second cross-claimant's application was not accepted under s 54(2A)(a) of the Act.
10. Second, the minutes reflect that each application would be dealt with at the meeting in one of three ways: by being accepted, by being declined or by the applicant being required to provide further information. The second cross-claimant claimed in her application that she was a descendant of the "original peoples of Cummeragunja" and that she was "Yorta Yorta". Although I am not required to decide the matter for the purposes of this application, there is an available argument that the second cross-claimant purported to make an application relying upon both paragraphs (a) and (b) of sub-s 54(2A). It is not apparent why an inadequacy of information provided with the application led to a conclusion that no application was made at all under s 54(2A)(b), rather than leading to a request for further information to be provided.
11. Third, in its further amended defence to the cross-claim, the CLALC states that the second cross-claimant's application for membership was not made under s 54(2A)(b) and that the second cross-claimant provided no information in her application for membership as to the basis for her sufficient association with the area of the CLALC (using the terms of s 54(2A)(b) of the Act). It is not clear whether the view that the second cross-claimant had not made an application under s 54(2A)(b) at all was one taken by the CEO before the meeting commenced or one that was discussed at the meeting. Nor is it apparent how that conclusion was reached given the terms of the application extracted above at [17].
12. For these reasons I am satisfied that it is appropriate to make order 1 in the notice of motion; namely, an order pursuant to r 59.9(4) of the UCPR that the cross-defendant provide the second cross-claimant with a copy of the decision of 28 January 2017 and a statement of reasons for the decision in accordance with r 59.9(3) of the UCPR.
13. Turning to the application for discovery, r 59.7(4) of the UCPR is in these terms: "(4) A party may not, without the leave of the court, seek discovery from, or interrogate, another party to the proceedings. An application for leave is to include a draft list of categories of documents to be discovered or draft interrogatories."
14. The cross-claimants thus require the leave of the court before discovery can be sought from the CLALC. Discovery is usually not sought until the pleadings are finalised and all affidavit evidence is filed and served. I was informed by counsel at the hearing that this is the case and that the matter is otherwise ready for a hearing date.
15. Rule 21.2(4) of the UCPR provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. I would not grant leave unless I was satisfied that the categories of document sought are relevant to a fact in issue. Rule 21.1(2) of the UCPR defines a document as being "relevant to a fact in issue" if: "…it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence."
16. Any request for discovery of documents should be limited by subject matter and time period.
17. It seems to me that the factors relevant to whether such leave should be granted turn on the relevance of the material sought, the nature of the proceedings, the scope of the documents sought and the overriding purpose in s 56 of the Civil Procedure Act. I would only grant leave in this matter if I were satisfied that discovery is reasonably required for the fair disposition of the proceedings.
18. I accept the submission made on behalf of the CLALC that if I formed the view that the cross-claimants rely upon error on the face of the record, rather than jurisdictional error, no order for discovery would be made as the cross-claimant would not be permitted to rely upon material going beyond the "record", which by virtue of s 69(4) of the Supreme Court Act includes the reasons.
19. The cross-claimants assert that there was a failure by the CLALC properly to exercise its functions under s 54(2A) of the Act, a denial of procedural fairness, and actual bias. I am therefore satisfied that the proceedings rely upon assertions of jurisdictional error on the part of the CLALC, consideration of which is not confined to the record.
20. The documents that were before the CLALC at the time that it made the impugned decisions are clearly relevant in these proceedings. During the hearing of this application, I enquired of counsel for the CLALC whether the CLALC would be prepared to provide the documents that were before it when it made the relevant decisions without the need for a formal order for discovery. Counsel indicated that he would obtain instructions in that regard and communicate the CLALC's position to the Court through my Associate. On 18 September 2017, my Associate received an email from the CLALC's solicitor indicating that the CLALC was willing to provide to the cross-claimants all documents relevant to the proposed changes to the Rental Policy that were before the Board when it made its decision on 19 May 2017 to amend the Rental Policy.
21. I am satisfied that, to the extent that it is necessary, it is appropriate that leave be granted to the cross-claimants to seek discovery of the documents which were before the decision-maker when the decisions on 28 January 2017 and 19 May 2017 were made.
22. The application for discovery of the remaining documents is in a different category. The classes of documents sought date back to 2013, when the cross-claimants first made applications to the CLALC for housing. They are said to be relevant to a fact in issue, being whether the CLALC acted in bad faith or with actual bias at the time of those decisions.
23. In determining whether discovery of these additional documents is required for the fair disposition of these proceedings, I have had regard to the claim that the decisions were actuated by bias. It is clearly neither necessary nor appropriate that I make any findings in this regard, but given that it is somewhat unusual for there to be discovery in judicial review proceedings and that an allegation of actual bias is a serious one to make, I would not be minded to grant leave in relation to this aspect of the application if there was no proper basis on the material before me for alleging actual bias in this matter.
24. The material before me shows that the CLALC refused the second cross-claimant's application in circumstances that are not entirely clear; that the first and third cross-claimants' applications are still to be considered despite being lodged on 20 December 2016; and that at a time after these proceedings for judicial review were commenced the cross-defendant instituted a Housing Policy that, on its face, gives rise to an inference that it was directed at excluding the three cross-claimants from eligibility for accommodation.
25. In affidavits sworn on 10 March 2017, Ms Atkinson, the CEO of the CLALC, states that the cross-claimants' applications for housing had not been considered by the CLALC at that date on the basis that there was no available housing. In her subsequent affidavit sworn on 4 July 2017, she states that: "The usual process for applying for accommodation is to file a housing form with the Cross-Defendant. The application is then taken to a board meeting for consideration. The board will either accept or decline the application. If the application is accepted and there is no available accommodation, the applicant is placed on a waiting list."
26. The apparent lack of consistency on the part of Ms Atkinson on this issue is a further matter I have taken into account.
27. In addition to the above matters, there is affidavit evidence before me from the second cross-claimant that Ms Atkinson was involved in an argument with her in which Ms Atkinson said, "I was going to give you a house, but you're not getting one now." That evidence is disputed by Ms Atkinson.
28. A further factual dispute is whether there is in fact a waiting list for accommodation. Thelma Nicholson states in her affidavit that she is aware of three properties owned by the CLALC which were vacant until recently. She provides the addresses of these premises. Despite this, Ms Atkinson claims that there are no available properties and that there is a waiting list.
29. It seems to me, without making any finding on this issue, that the cross-claimants have established a sufficient basis to be granted leave to seek discovery of the remaining documents sought in the annexure to their notice of motion. I am satisfied that discovery of the classes of documents sought is necessary for the fair disposition of these proceedings.
30. In relation to category 5 (all documents recording the exercise of the cross-defendant's functions and powers under s 52A and s 54 of the Act in the period 1 February 2013 to present), I am satisfied that it is necessary for the relevant period of time to commence at 1 February 2013 given that the second cross-claimant deposes that it was at that time that she first requested housing and was told that none was available.
31. The cross-claimants have been successful on this motion. They seek their costs of the motion. Costs usually follow the event. No reason was submitted to me as to why such a costs order should not be made. Accordingly, I order that the cross-defendant pay the cross-claimants' costs of this application.

orders

1. I make the following orders: 1. Pursuant to r 59.9(4) of the UCPR the cross-defendant is to provide a statement of reasons for its decision on 28 January 2017 to reject the second cross-claimant's application for membership. 2. Leave is granted under r 59.7(4) of the UCPR to the cross-claimants to seek discovery from the cross-defendant of the documents in Annexure A to the cross-claimants' notice of motion filed 11 July 2017. 3. The cross-defendant is to pay the cross-claimants' costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2017