On 10 April 2017, two motions seeking interlocutory relief in these proceedings in the Possession List were listed for hearing before me. The first motion, filed on 9 March 2017 by the defendants, sought to strike out or dismiss the proceedings on the ground that their commencement was not duly authorised by the plaintiff corporation. This was effectively a challenge to the retainer of the plaintiff's solicitors.
By written submissions filed in advance of the hearing, it was accepted by the defendants that whether or not when commenced the proceedings were authorised, the actions of the chief executive officer of the plaintiff in instructing solicitors to sue had been clearly ratified by the plaintiff, curing any perceived defect. Mr Lawrance of learned counsel, who appeared with Mr Jordan, for the defendants referred to Danish Mercantile Co. Ltd v Beaumont [1951] Ch 680 at 687-9. In view of this concession properly made, by consent, I pronounced an order dismissing the first motion with no order as to costs.
The second motion filed by then plaintiff on 19 March 2017 seeks summary judgment for possession of the property under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Again, Mr Lawrance very helpfully accepts, given the dissolution of the challenge to retainer, that the application for summary judgment is properly brought. Rather, the defendants seek a stay of the execution pending the determination of their cross-claim under UCPR 13.2, or under s 67 Civil Procedure Act 2005 (NSW), or in the Court's inherent jurisdiction. The subject matter of the cross-claim is the challenge, by way of judicial review, of a number of decisions of the plaintiff rejecting the defendants' applications for membership, and requests to be placed on a waiting list for housing provided by the plaintiff to Aboriginal persons within its area, when available.
[2]
Issues
The real issue for my determination therefore is whether judgment for possession, or perhaps the execution of a writ of possession, should be stayed. I will in due course enter summary judgment, but it is necessary to say something of the facts underpinning the claim and cross-claim to decide whether a stay should be granted. These facts are largely, though not completely, uncontentious. So far as they are disputed, it is unnecessary and inappropriate for me to resolve those disputes in advance of the hearing of the cross-claim.
[3]
Summary of relevant facts
The plaintiff is a Local Aboriginal Land Council constituted by s 50 Aboriginal Land Rights Act 1983 (NSW). Its area of Cummeragunja covers part of the traditional country of the Yorta Yorta people, so far as that country is within the State of New South Wales. The objects of the Act as stated in s 3 include the provision of community benefit schemes to be funded wholly or in part by the Aboriginal Land Council.
Under s 52A, subject to the approval of the New South Wales Aboriginal Land Council, a Local Aboriginal Land Council may as part of a community benefits scheme provide residential accommodation for Aboriginal people in its area. Under s 54 of the Act, a Local Aboriginal Land Council may admit adult Aboriginal persons as members of the Aboriginal Land Council. A roll of members must be kept and maintained by the chief executive officer.
The plaintiff evidently conducts a community benefits scheme which includes the provision of residential accommodation. It goes without saying that its resources are certainly not unlimited and there is a waiting list.
The defendants are three adult Aboriginal women of middle age. They are sisters and women of the Yorta Yorta people, born in the State of Victoria. They claim descent from Kitty Cooper (nee Atkinson) who, in the traditions of their people, is acknowledged as a very important ancestor. Each of the defendants has had a somewhat itinerant life, but from time to time over the years has resided in the plaintiff's area. From time to time they have been homeless. Prior to moving back to the Cummeragunja area in about 2013, and for over 12 months, the defendants were camped in tents on the Murray River at Robinvale.
I accept that the defendants have relatives at Cummeragunja with whom they have stayed at different times. Initially after moving back to Cummeragunja in January 2013 they again camped on the river bank, this time for a period of weeks. It is the defendants' case that on about 19 February 2013, the second defendant attended the offices of the plaintiff and spoke to the chief executive officer applying for housing at Cummeragunja on behalf of each of them. The defendants assert that their applications were summarily rejected and no offer was made to place their names on the waiting list.
A cousin provided space for them to camp on (or perhaps adjacent to) the property he leased from the plaintiff. After an altercation with a family member, the defendants moved to Eucha, Victoria, returning to lodge with a niece in Cummeragunja in February 2014.
It is not disputed that the defendants have been in adverse possession of the property the subject of the claim since about June or July 2014. The plaintiff has complained to the police about the defendants' occupation of the premises. The plaintiff has never consented to the defendants' occupation of the premises, and rent has never been tendered or accepted.
The property had been previously tenanted in 2014, but the tenant left the property when he was taken into custody. At some later time, the plaintiff had the property inspected by a builder who detected termite infestation and advised the cost of repairs "would be very high". It was not re-let. On 28 September 2014 the plaintiff resolved to demolish the house on the property, and two other houses owned by it, due to their poor state of repair. None of the houses have in fact been demolished and no development application has been made to the local council for that purpose. In evidence before me, the chief executive officer said that funds were available for demolition and had been held in the plaintiff's solicitors trust account for some time for that purpose. It is not explained why the other two vacant properties have not been so far demolished.
At the time the defendants commenced squatting on the premises there was running water which was subsequently disconnected. The structure provides shelter but there is neither power nor water services to the premises. Two of the sisters are of indifferent health. The first defendant is to undergo surgery for a hernia repair on 27 May 2017. The third defendant has undergone bypass surgery in 2008 and more recently has had a pacemaker implanted. They apparently have a large number of pet dogs. It is argued that if evicted, the defendants will have nowhere to go, and no evidence has been put forward as to the availability of any emergency accommodation in the area. The only evidence of attempts made to obtain housing is the evidence of the applications made to the plaintiff.
The cross-claim seeks judicial review of a number of decisions of the plaintiff between 2007 and 2016. These decisions relate to the refusal of the plaintiff to place the names of the defendants on the waiting list for housing in the area and to the refusal of applications for membership. It is accepted that even if the judicial review proceedings are successful, the plaintiffs would not thereby acquire a right to occupy the premises, the subject of the claim for possession.
[4]
The first argument
Mr Lawrance principally relies upon UCPR 13.2 which is in the following terms:
If the court gives [summary] judgment against a party … and that party has made a cross-claim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the cross-claim.
Mr Lawrance points to the broad nature of the discretion, apparently conferred by the express terms of the rule to argue that the stay should be granted.
Mr Gregory of learned counsel, who appears for the plaintiff, relied upon Beijing Be Green Import and Export Co Ltd v Elders International Australia Pty Ltd [2014] FCA 1375 and State of Bank of Victoria v Parry [1989] WAR 240 to argue that there was an insufficient practical connection between the cross-claim and the claim for possession to justify a stay under the Rules. Moreover, he argued that the cross-claim was bound to fail because a merits review of the decisions of the plaintiff was available under the Act, by the Registrar in the first instance and ultimately by the Land and Environment Court. He cited R v Inland Revenue Comrs, Ex parte Preston [1985] AC 835 at 852 (per Lord Scarman) and 862 (per Lord Templeman) to support the proposition "that a remedy by way of judicial review is not to be made available where an alternative remedy exists".
Mr Lawrance responded that the powers of review under ss 235 and 236 of the Act do not extend to decisions about the provision of housing because these do not constitute non-compliance "with a specified provision … of this Act" within the meaning of s 235.
[5]
Decision
As Foster J pointed out in Beijing Be Green v Elders International (at [59] - [61]), the broad discretion conferred by the Rules must be exercised judicially having regard to principles developed by the courts in authoritative decisions.
In State Bank of Victoria v Parry, Malcolm CJ (at 246, citations omitted) explained the following:
Where the counterclaim arises out of quite a separate and distinct transaction, or there is no connection between the claim and the counterclaim, the proper order is for judgment for the plaintiff with costs without a stay pending the trial of the counterclaim … The degree of connection between the claim and counterclaim, the strength of the counterclaim and the ability of the plaintiff to satisfy any judgment on the counterclaim are some of the considerations which the court may take account of in the exercise of its discretion whether or not to order a stay. In general, therefore, a counterclaim which is in effect an unconnected cross-action will not provide a basis for a stay under [the Rules]. Consistently with this position a stay of execution of a judgment will not ordinarily be granted simply because the defendants bring a cross-claim in another action against the plaintiff, in the absence of special circumstances rendering it inexpedient to enforce the judgment …
Foster J (at [69]) observed that "in general, a counterclaim which is, in effect, an unconnected cross-action will not provide a basis for a stay".
Applying these principles to the present case, the relief sought by way of judicial review would not confer an entitlement for the defendants to remain in the premises. At the best on the evidence before me, given the plaintiff's limited resources it may result in their names being placed on the waiting list for the provision of housing. Even if the earlier decisions impugned by the cross-claim are set aside, it does not follow that the plaintiff was bound to take steps to provide housing to the defendants, and certainly not housing in the subject premises. Although it may be said that the gravamen of the dispute can be characterised as the housing of the defendants, there is insufficient practical connection between the cross-claim and the claim to justify ordering a stay under the Rules.
I would merely add that I would not regard the principle discussed in In re Preston as an inflexible rule of law, rather that the availability of a merits review or statutory appeal is a discretionary reason for refusing orders in the nature of prerogative writs. As Mr Lawrance argues, it is not clear that s 235 of the Act covers decisions about housing.
[6]
The second argument
In the alternative, Mr Lawrance relies upon s 67 Civil Procedure Act 2005 (NSW) and the Court's inherent jurisdiction. He also points out that under UCPR 39.1(d) leave is required for the issue of a writ of execution for the possession of land. The principal ground relied upon on this alternative basis is that there will be hardship to the defendants who are in poor health, are indigent, and will be rendered homeless if a writ is executed. On the other hand, there is no particular hardship to the plaintiff. It cannot otherwise let the premises as a dwelling in the circumstances where it has by resolution of its members condemned them. Nor is there any hardship in preventing the plaintiff from putting the premises to some other use. It has yet to apply for a development consent for the demolition (for which it has funds), and, according to the chief executive officer's evidence it has no other funds to re-develop the site. There is no evidence of any other proposal for use of the land which the defendants' continued occupation denies the plaintiff.
Mr Gregory argues that the stay of a writ of possession should only be permitted in the limited circumstances discussed by Johnson J in GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 which are not engaged in the circumstances. Alternatively, any such stay should be for a relatively short time not exceeding two months.
[7]
Decision
The decision of Johnson J in GE Finance v Smith summarises the general practice of the Court in relation to stays of writs of possession. Generally, the work of the Possession List relates to recovery of a security by a mortgagee, often in circumstances where the value of the security will not satisfy the total indebtedness. Those general rules of practice are not applicable in the particular circumstances of the present case.
I acknowledge the plaintiff's entitlement to the fruits of its judgment and, more fundamentally, to possession and control of its land. On the other hand, the plaintiff is not in the same position as a private land owner. It is a statutory corporation whose purpose is to protect and promote the welfare of Aboriginal people living within its area. Even so, the defendants should not be permitted to "hijack" the plaintiff's proper processes for their own purposes. The Court should discourage persons taking the law into their own hands by squatting on the property of another.
Bearing these considerations in mind, I am satisfied that there would be significant hardship to the defendants unless they are allowed longer than usual to vacate the premises before eviction. I have taken into account their health issues, their indigence and the difficulty they will face in those circumstances in finding alternative accommodation actually fit for habitation. The large number of dogs will also present a very significant obstacle. They will probably need to be re-housed if the defendants are to have any chance of finding other accommodation. Re-housing so many dogs will be no easy task. However, that should not be made the plaintiff's problem.
In all the circumstances, I think the appropriate time to stay the execution of the writ of possession is three months. I note by way of analogy that under the provisions of s 85(2) Residential Tenancies Act 2010 (NSW) a periodic lease may be terminated on 90 days' written notice to a tenant who is not in default of any of his or her obligations under the lease and without power to extend time.
My orders are:
1. Grant judgment for the plaintiff for possession of the land and premises known as XXXXXXXXXX, XXXXXXXX, being part of the land described in Certificate of Title Auto Consol XXXXX-XXX and Lot XX in DP XXXXXXXX;
2. Grant leave under UCPR 39.1 for the issue of a writ of possession;
3. Stay execution of the writ for possession of land referred to in Order (2) until 11 July 2017;
4. Adjourn the cross-claim for directions by the Registrar at 9 00 am on 21 April 2017;
5. Order the defendants to pay the plaintiff's costs of the proceedings for possession with each party to bear its or her own costs of the applications before me heard on 10 April 2017.
[8]
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Decision last updated: 13 April 2017