Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

Court of Appeal (NSW)|2022-11-25|Before: Gleeson JA, Preston CJ, Pain J, Mr P, Mr J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Darkinjung Local Aboriginal Land Council (the Land Council) lodged in 2009 claims for Crown land at Gosford under the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act). The Minister administering the Crown Land Management Act 2016 (the Minister) refused the land claims on the basis that the land was not "claimable Crown lands" under s 36(1)(c) of the ALR Act. "Claimable Crown lands" includes "lands vested in Her Majesty that, when a claim is made for the lands under this Division - (c) are not needed, nor likely to be needed, for an essential public purpose." The Land Council appealed to the Land and Environment Court. The primary judge held that the land was not claimable Crown lands as the land was needed for the essential public purpose of supported employment for disabled persons. The primary judge found that decisions of the executive government of the day in 1969 and 1971 to lease and reserve the land for the purpose of charitable organisations, together with the subsequent use of the land for that purpose, established that the land was needed for an essential public purpose when the claims were made in 2009. The Land Council appealed against the primary judge's decision on questions of law. The Land Council contended that the primary judge's decision involved misdirection and misapplication of the statutory test under s 36(1)(c) of the ALR Act and was not reasonably open on the evidence. Held, (Preston CJ of LEC, Gleeson JA at [1] and Basten AJA at [2] agreeing): In relation to misdirection as to the statutory test: (1) The time for determining whether claimed land is needed for an essential public purpose is when the claim is made. Establishing whether land is needed at this date requires ascertaining the view held by the executive government on that date. For land to be needed, there should be an actual decision concerning the use of the land by the government: at [66], [67]. Holding a view or making a decision that land is needed for an essential purpose involves the formation of a positive opinion of that fact by the government: at [68]. (2) The primary judge misdirected herself as to the statutory test under s 36(1)(c) of the ALR Act by relying on the decisions of the executive government of the day in 1969 and 1971 as evidencing that the executive government of the day in 2009 when the land claims were made had decided and held the view that the land claimed was needed for an essential public purpose: at [69], [71]. (3) The primary judge also misdirected herself in relying on evidence of use of the land for the purpose when there was no evidence that the government of the day when the land claims were made was aware of or consented to such use: at [74], [75], [100], [12] and [14]. As to the decision not being reasonably open on the evidence: (4) The primary judge's decision that the government of the day held the view or had made a decision when the land claims were made that the land was needed for an essential public purpose was not reasonably open on the evidence: at [102]. As to the notice of contention: (5) On the evidence before the Court, the land could not be said to be likely to be needed for an essential public purpose at the date of the land claims: at [109], [111].

JUDGMENT

GLEESON JA: I agree with Preston CJ of LEC. I also agree with the additional reasons of Basten AJA.
BASTEN AJA: This is an appeal from a judgment of the Land and Environment Court rejecting a claim by Darkinjung Local Aboriginal Land Council under s 36 of the Aboriginal Land Rights Act 1983 (NSW) for a parcel of land in the Gosford region. [1] I agree that the appeal should be allowed and the orders proposed by Preston CJ of LEC should be made, for the reasons he gives and for the following additional reasons.
The precepts set out in Part 6 of the Civil Procedure Act 2005 (NSW) are sometimes seen as merely exhortatory and sometimes as an acknowledgment of simple and unremarkable propositions. However, they are not to be reduced to truisms. [2] Their application sometimes requires concentrated deliberation by both the parties and the court. It should be a collaborative effort. This case reveals the pitfalls of having insufficient regard to those precepts.
The critical precept for present purposes is the obligation identified in s 56 of the Civil Procedure Act to facilitate the just, quick and cheap resolution of "the real issues" in the proceedings. Failure to identify and focus on the real issues in this case led to the tender of a large volume of manifestly irrelevant material, lengthy submissions addressing it and lengthy discussion in the judgment. At each stage this failure should have been identified and the process adjusted, with beneficial consequences for the costs to the parties and the demands on the limited resources of the Land and Environment Court and this Court. A degree of confusion resulted which should be explained.
The real issue was simple and contained. The Land Council had, on 2 June 2009, made a claim under s 36(2) of the Aboriginal Land Rights Act for a small parcel of land (involving three lots) in the Gosford local government area. The land was Crown land reserved for a purpose (identified as "charitable organisations") and hence potentially claimable under s 36(1)(a) unless one of the disqualifying features in the subsequent paragraphs of that provision was engaged. On 17 June 2020, the Minister administering the Crown Lands Management Act 2016 (NSW) allowed the claim with respect to one small lot (lot 6), but otherwise rejected the claim on the basis that the land (lots 7 and 8) was "needed for the essential public purpose of supported employment for disabled persons".
The Land Council appealed the refusal to the Land and Environment Court. The defendant was the Minister. In the Land and Environment Court the Minister had the burden of establishing the disqualifying feature relied on to resist the appeal: Aboriginal Land Rights Act, s 36(7).
It was true that the land was, at the date of the claim, used for the identified purpose by a charitable organisation. That organisation was not an agency or authority of the State Government. There was no dispute that the identified purpose would qualify as an "essential public purpose". However, it was most unlikely that any particular parcel of land had characteristics which rendered it inherently suitable for such a purpose. Accordingly, the ultimate question was, had the Minister established that, at the date of the claim, the specific parcel of claimed land was needed by the State Government for that essential public purpose? That raised a number of sub-issues, which might have been formulated as, or in terms to similar effect: 1. Did the New South Wales Government provide supported employment for people with disabilities, either itself, or through independent contractors? 2. What was the department or ministry of the State Government responsible for administering a program serving such a public purpose? 3. Did the Government officers responsible for administering such a program decide that the claimed land was, or would be likely to be, needed for such a program?
With respect to (1) and (2), the Minister accepted that there was no evidence before the Court that the New South Wales Government itself provided such services in 2009. The Minister further agreed there was no evidence that the Government funded other agencies or organisations to provide such services. This Court was taken to no evidence that there was, in 2009, a State ministry or department of disability services with responsibility for providing supported employment services.
That raised a question as to what material, in some 1,800 pages of evidence tendered at the trial (supplemented by brief oral evidence), bore on these questions. One part of that material was indeed revealing: it established that, in and after 2009, the Commonwealth had expressly accepted responsibility for supported employment services for people with disabilities, and not the States. [3] At this point it might have been thought that the Minister's case was bereft of any support in the evidence. It appears that no-one asked why the Minister, subject to the model litigant principles, [4] was entitled to pursue such a case. However, as run in the Land and Environment Court, it was necessary to consider question (3).
With respect to question (3), it is necessary to start with the proposition that no Government officer was identified as having responsibility for delivering a State Government service of supported employment for people with disabilities. Rather, the Minister relied on a decision of the Minister for Lands in March 1969 to issue a special lease to an organisation known as Aid Retarded Persons NSW (ARP) to permit the construction of a workshop on Crown land.
In November 1970, the construction having been completed, the lease was withdrawn and a reserve was created over the land for the purpose of "charitable organisations". ARP was qualified to become trustee of the reserve because it was a charitable organisation. It may be inferred that ARP was granted the special lease, and then trusteeship of the reserve, because it had established, by conducting a national survey, that there was a need for supported employment services on the New South Wales Central Coast. (That was an agreed fact - the survey was not in evidence, but it was not conducted by or on behalf of the New South Wales Government.)
A provisional liquidator was appointed to ARP in February 1987 and it was wound up a few years later. The fact that from then until 2018 the Minister's officers were unable to discover a single file relating to the use of the claimed land founds an inference that no-one in the State Government in 2009 believed the land was needed for that essential public purpose, or indeed knew that it was so used. The State Government did not regulate the actual use or the organisation in occupation, it did not know who was occupying the land after the demise of ARP, it did not provide funding to the user, it did not receive annual reports from the user, it did not even notice that it did not receive such annual reports.
A perusal of some of the many cases which have been heard and determined by the Land and Environment Court and in this Court relating to claims under the Aboriginal Land Rights Act reveals the common practice of the Minister in such cases where it is said that the land is needed for an essential public purpose, or as residential lands. If the land is needed, for example, for forestry purposes, evidence is obtained from the Forestry Commission; if needed for a National Park, evidence is obtained from the National Parks and Wildlife Service; if needed for residential land, evidence is obtained from the Housing Commission or the New South Wales Land and Housing Corporation. [5] The fact that, in this case, the Minister sought to rely upon an essential public purpose without evidence from, or even identification of, the relevant agency in the State Government responsible for such services, is telling. It may even be doubted whether the Minister administering the Crown Land Management Act is the appropriate person to express an opinion as to a need not the subject of his or her portfolios. Evidence in earlier cases suggests that a routine practice in the Lands Department was, or used to be, upon receipt of a claim under the Aboriginal Land Rights Act, to send a pro forma enquiry to all agencies involved in land use and management, asking whether the particular land was needed for an essential public purpose. [6] There was no reference in this Court to any such enquiry being made, nor as to the responses received if it were made.
In the respects discussed above, this case was unusual. In one respect it was not. A period of some nine years elapsed between the lodging of the claim and its investigation by officers in the Lands Department. Initial investigations revealed that none of those who might be expected to have knowledge of the use and occupation of land reserved for charitable organisations knew anything about the claimed land. That fact alone might have given the officers pause before pursuing a claim that the land was needed for the identified purpose. On the evidence to which this Court was taken, the defence to the claim was simply untenable.
PRESTON CJ of LEC: Darkinjung Local Aboriginal Land Council (Darkinjung) lodged on 2 June 2009 two land claims under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) in respect of Lots 7 and 8 of Section 96 in Deposited Plan 758466. Lots 7 and 8 are located at 143 Henry Parry Drive, Gosford. The Minister administering the Crown Lands Management Act 2016 (the Minister) refused both land claims. Darkinjung appealed against the Minister's decisions to the Land and Environment Court. The appeal in relation to Lot 8 was known as Gosford No. 1. The appeal in relation to Lot 7 was known as Gosford No. 2. The two appeals were heard together.
The primary judge, Pain J, determined that neither Lot 7 nor Lot 8 were "claimable Crown lands" within the meaning of that term in s 36(1) of the ALR Act at the date of the claims in 2009. The primary judge dismissed the Gosford No. 2 appeal in relation to Lot 7 and made a declaration in the Gosford No. 1 appeal that the part of Lot 8 where the driveway was used to access Lot 7 was not claimable Crown land and reserved for further consideration what consequential orders should follow from that declaration.
Darkinjung has appealed against both decisions. It appealed as of right against the decision in the Gosford No. 2 appeal, as the decision was a final decision. It also appealed against the declaration in the Gosford No. 1 appeal, as that was a final order, but in case leave to appeal was required, because the primary judge reserved for further consideration what consequential orders (if any) should follow from that declaration, it also filed a summons seeking leave to appeal. The Minister did not oppose leave to appeal being granted in relation to the Gosford No. 1 decision. I do not consider leave to appeal is required because the primary judge's declaration that Lot 8 was not claimable Crown land was a final and not an interlocutory order.
The appeal to this Court is under s 57(1) of the Land and Environment Court Act 1979 (NSW) (the Court Act). The appeal is confined to questions of law. Darkinjung raised in the notice of appeal and refined in its submissions on the hearing of the appeal two primary grounds on which the primary judge erred on questions of law.
First, Darkinjung claimed the primary judge erred in law in finding that Lots 7 and 8, which can now be referred to collectively as "the land", were needed for an essential public purpose at the date of the claims. Although the question of whether land is needed for an essential purpose at the date of the claim is a question of fact, Darkinjung contended that the primary judge misdirected herself as to what was meant by the statutory test of "claimable Crown lands" in s 36(1)(c) of the ALR Act and did not actually answer the question required by s 36(1)(c) by reason of her misdirection. These are errors on questions of law.
Secondly, Darkinjung contended that the primary judge's decision that the land was not claimable Crown land was not reasonably open on the evidence before the court. A challenge asserting that the primary judge's decision was manifestly unreasonable, in the sense that the decision was not reasonably open to make, identifies an error on a question of law.
The Minister filed a notice of contention seeking to uphold the primary judge's decision that the land was not claimable Crown land, but on another ground. Land is not claimable Crown land not only if it is "needed", but also if it is "likely to be needed", for an essential public purpose (s 36(1)(c) of the ALR Act). As the primary judge found that the land was needed, she found it unnecessary to consider whether the land was likely to be needed: at [240] of judgment. The Minister contended that, on the evidence before the Court, the land was likely to be needed, so that it was not claimable Crown land on this basis as well.
The Minister's contention was contested by Darkinjung. It submitted that just as it was not reasonably open on the evidence to find that the land was needed for the essential public purpose at the date of the claims, it equally was not reasonably open on the evidence to find that the land was likely to be needed for the essential public purpose at the date of the claims.
I find the primary judge did err on questions of law in finding that the land was not claimable Crown land because it was needed for an essential public purpose at the date of the claims. The primary judge's finding was infected by misdirection and misapplication of the statutory test and was not reasonably open on the evidence. I reject the Minister's notice of contention. A finding that the land was likely to be needed for the essential public purpose at the date of the claims was not reasonably open on the evidence.
Accordingly, Darkinjung's appeal should be upheld. On the basis of the evidence before the court below, the only finding available to the primary judge was that the land was claimable Crown lands at the date of the claims. In this circumstance, this Court should make the only order that was open to the primary judge of ordering the Minister to transfer the lands claimed to Darkinjung, as required by s 36(7) of the ALR Act. The Minister should be ordered to pay Darkinjung's costs of the appeal and in the court below.

The reservation, management and use of the land

The land claimed is and was at all relevant times Crown land. Lots 7 and 8 are part of what was a larger parcel of land in Gosford that was subdivided by the Crown in 1969. The larger parcel of land fronted a road then named Gertrude Street, but later named Henry Parry Drive. The parcel was subdivided into 19 lots, all but seven of which gained access of a new road, a cul-de-sac, named Terama Place. Lot 7 was a corner block, to the east of what is now Henry Parry Drive and to the south of Terama Place. Lot 8 is to the east of Lot 7 and is primarily accessed off Terama Place. Lot 6 is a narrow lot to the south of Lot 7 and to the west of Lot 8. Access to Lot 6 is from what is now called Henry Parry Drive, but there is no street access from Terama Place, as Lot 8 is located between Lot 6 and Terama Place. Darkinjung made a claim for Lot 6, which was granted by the Minister.
The subdivision of the larger parcel of land was to provide sites for religious and charitable organisations. One of the charitable organisations that expressed interest in a site at this location was Aid Retarded Persons NSW (ARP). ARP was formed in 1965 as a company limited by guarantee. Its objectives included furthering the interests of intellectually handicapped persons and establishing "sheltered workshops" for the training and employment of intellectually handicapped persons. The government of the day resolved to provide a site to ARP.
Initially, a Special Lease in perpetuity was granted to ARP under the Crown Lands Consolidation Act 1913 (NSW). The purpose of the Special Lease was for the "erection of buildings (training centre for handicapped persons)". The date of commencement of the lease was 1 March 1969.
The Special Lease was subject to some standard conditions specified by the regulations as well as some special conditions. One of the special conditions (condition (c)) was that "Buildings suitable for the purpose of the lease shall be erected on the land leased within twelve (12) months of the date of granting of the lease in the Gazette, or such further period as the Minister may allow." Another special condition (condition (b)), however, precluded the erection of the buildings "until such time as construction of the road northeasterly of the land leased is completed." This was the road named Terama Place. A third special condition (condition (a)) required the lessee to "pay the proportionate cost of making or providing roads to or on the land leased by no more than fifteen (15) equal yearly instalments, together with interest at the rate of four percent (4%) per annum."
In the 12 months after the grant of the Special Lease, as required by special condition (c), ARP erected a workshop and associated facilities on Lots 7 and 8 and a driveway on Lot 8 providing access off Terama Place.
After Terama Place had been constructed and buildings had been erected on Lots 7 and 8, the arrangements for ARP's occupation of the land changed. By notices published in the Gazette on 27 November 1970, Lots 7 and 8 were withdrawn from the Special Lease and instead were reserved from sale for the public purpose of charitable organisations as Reserve 88027. The reservation of the land was subject to a condition that the trustee of the reserve "pay the proportionate part of development costs, roads etc applicable to the land" by 15 equal yearly instalments with interest at the rate of 4% per annum.
Action was then taken to appoint ARP as the trustee of the reserve under the Public Trusts Act 1891 (NSW). A file note dated 21 December 1970 indicated that ARP was eligible to be appointed as the trustee of the reserve as it was either a corporate body or a recognised charity. There is no evidence at this time of any consideration of the activities of ARP generally or ARP's use of the land particularly. By notice published in the Gazette on 3 February 1971, ARP was appointed as the trustee of Reserve 88027.
Thereafter, there was correspondence concerning the requirement for ARP, as the trustee of the reserve, to pay its proportionate part of the development and roads costs applicable to the reserve. ARP was provided on 20 April 1971 with a schedule of repayment for these costs over 15 years. ARP paid on 30 March 1972 an amount similar to the amount shown in the schedule for the first year. Thereafter, however, there are no records of ARP paying, as it was required to do as the trustee of the reserve, its proportionate part of the development and road costs applicable to the reserve.
There is also no record of ARP, as the trustee of the reserve, ever submitting to the Crown Lands Department reports or records of its care, control and management of the reserve. ARP as trustee of the reserve was obliged, under s 37T of the Crown Lands Consolidation Act and then s 122 of the Crown Lands Act 1989 (NSW), to submit such reports and keep such records. ARP did continue to occupy the reserve and operate the sheltered workshop erected on the reserve, but it did not inform the Crown Lands Department of this fact.
On 27 February 1987, the Supreme Court of NSW appointed a provisional liquidator of ARP. Notice of the appointment of a provisional liquidator was published in the Gazette on 24 March 1987.
On 21 December 1987, the provisional liquidator of ARP entered into an agreement with a number of newly formed entities to transfer certain of the assets of ARP to the new entities. The new entities had been incorporated pursuant to the Associations Incorporation Act 1984 or the Companies (New South Wales) Code and registered as a charity. The new entities were previously various branches of ARP through which ARP had conducted its business. The Gosford branch, through which ARP operated the sheltered workshop on the land being Reserve 88027 at Gosford, was incorporated as Terama Industries Incorporated (Terama).
By the agreement, the provisional liquidator of ARP transferred certain of ARP's assets together with certain cash funds to Terama, being assets and cash funds that were utilised by the former Gosford branch of ARP at the date of the transfer. The transferred assets included furniture and equipment in the workshop on the land, two motor vehicles, leasehold improvements to the land, trade and other debtors, and stock on hand. The cash funds were in the sum of $124,035.
The agreement did not, however, provide that the parties should make an application to the Minister for Terama to be appointed as trustee of the reserve in place of ARP, which would have authorised Terama's occupation and use of the workshop on the land, or to be granted any lease, licence or other permission to occupy and use the land. The Minister was not a party to the agreement and there is no record of the Crown Lands Department being advised of the making or the contents of the agreement. The agreement between the provisional liquidator of ARP and Terama was unknown to the Crown Lands Department until it began investigating the land claims make by Darkinjung in 2018: [223] of judgment.
Terama entered into occupation and began operating the workshop on the reserve sometime after the asset transfer agreement was made on 21 December 1987. There is no record of Terama ever being authorised to occupy or use the reserve, under either the Crown Lands Consolidation Act, which was in force in 1987 when Terama entered into occupation and use of the reserve, or the Crown Lands Act, which came into force two years later. Terama's occupation and use of the reserve was therefore unlawful. Section 6 of the Crown Lands Act, for example, provides that: "6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989."
The primary judge accepted that the Minister had not established that Terama's occupation and use of the reserve was lawful: at [9] and [224] of judgment.
After the Crown Lands Act came into force, it was necessary to make arrangements for the transfer of reserves and trustees under the repealed Crown Lands Consolidation Act to become reserves and trustees under the Crown Lands Act. Schedule 8 of the Crown Lands Act made such arrangements.
Clause 1 of Sch 8 provided for the continuation of existing reservations. A reservation under the repealed Act has effect as if it had been made under the Crown Lands Act: cl 1(1). The reservation is for the same purpose and on the same terms as the original reservation and dates from the date of the original reservation: cl 1(2).
Clause 4 of Sch 8 provides for the replacement of trustees by reserve trusts. On the commencement of Part 5 of the Crown Lands Act, a reserve trust is taken to have been constituted under that Part as trustee of a reserve for which a trustee held office immediately before that commencement: cl 4(1). If the former trustee was constituted as a corporation under the repealed Act, the corporate name of the reserve trust is the same as the corporate name of the corporation so constituted: cl 4(2). In any other case, the corporate name of the reserve trust is the name which the Minister assigns to it: cl 4(3).
Clause 5 dealt with membership of trust boards. Under cl 5(2), if the former trustee is a corporation, it is appointed to manage the affairs of the reserve trust. Clause 6 provided for the transfer of property and money, and liquidated and unliquidated claims payable to or recoverable by the trustee, from the former trustee to the new trustee: cl 6(1) of Sch 8 applying the transitional provisions of s 125(3) of the Crown Lands Act. For the purpose of these provisions, the trustee of the reserve appointed to manage the affairs of the reserve trust is the former trustee and the reserve trust is the new trustee: cl 6(2).
Pursuant to cl 4(3) of Sch 8 of the Crown Lands Act, by notice published on the Gazette on 23 November 1990, the Minister assigned the corporate name of "Gosford Charitable Organisation (R88027) Reserve Trust" to the reserve trust constituted for Reserve 88027 at Gosford.
The trust manager was noted in the Gazette notice to be "Aid Retarded Persons (NSW)." By that date, however, a provisional liquidator had been appointed to ARP and the provisional liquidator was still managing ARP's affairs. ARP was not, therefore, in a position as at that date to accept appointment as the manager of the reserve trust constituted under Sch 8, notwithstanding s 95(2) of the Crown Lands Act. This fact that a provisional liquidator had been and still was appointed to ARP seems not to have been recognised by the Crown Lands Department when it made the transitional arrangements for the reserve. ARP's position deteriorated thereafter.
Two years later, on 19 November 1992, the Supreme Court of NSW made an order that ARP be wound up and appointed a liquidator. On 30 March 1995, by notice published in the Gazette, notice was given that the registration of ARP would be cancelled and the company dissolved on publication of the notice.
On ARP being wound up and dissolved, it ceased to be a corporation that could exercise the functions of the manager of the reserve trust. Thereupon, the function of the manager of the reserve trust reverted to the Minister: see s 92(6)(a), (6A) and (6B)(b) of the Crown Lands Act.
The effect of these transitional arrangements was that: the reservation of the land as Reserve 88027 continued in force as a reservation for the same purpose and on the same terms; a reserve trust was constituted as the trustee of the reserve; the corporate name of the reserve trust became "Gosford Charitable Organisation (R88027) Reserve Trust; ARP as the former trustee of Reserve 88027 was appointed to manage the affairs of the reserve trust; and the property of ARP as the former trustee, and all money and liquidated and unliquidated claims payable or recoverable by ARP as the former trustee, became the property of and claims payable or recoverable by the reserve trust as the new trustee.
Although this is what occurred by operation of the transitional arrangements, none of this was implemented in practice. The reserve trust taken to have been constituted under Part 5 of the Crown Lands Act never functioned. Under s 92(5) of the Crown Lands Act, the reserve trust constituted for Reserve 88027, Gosford Charitable Organisation (R88027) Reserve Trust, was charged with the care, control and management of the reserve of which it had been appointed trustee. Under s 92(6), the affairs of the reserve trust were to have been managed by ARP who was taken to have been appointed to manage the affairs of the reserve trust. The reserve trust was obliged to furnish such reports to the Minster and keep such records as the Minister may require: s 122(1) of the Crown Lands Act. The Minister may also require reserve trust managers to report to the Minister on their performance in managing reserves and on such other matters as the Minister considers appropriate: s 96A(1) of the Crown Lands Act.
There is no evidence that the reserve trust, Gosford Charitable Organisation (R88027) Reserve Trust, ever operated or discharged its duties of care, control or management of Reserve R88027 or provided any reports or kept any records. There is no evidence that ARP, the reserve trust manager, ever discharged any of its duties to manage the affairs of the reserve trust or to report on its performance in managing the reserve.
There is also no evidence that the Minister, upon the functions of reserve trust manager reverting to the Minister on the winding up of ARP, was aware of being the reserve trust manager with responsibility for managing the affairs of the reserve trust, or ever discharging the functions of the manager of the reserve trust or reporting on the performance in managing the reserve.
This was the state of affairs as to the care, control and management of the reserve as at the date that the claims were made on 2 June 2009. Of importance to the question of the land being claimable Crown lands, the Crown Lands Department was unaware that the land was not being occupied or used by ARP, but instead was being occupied and used by Terama. The Crown Lands Department did not find out about either the existence of Terama or its occupation and use of the land until it began assessing the land claims in 2018, nine years after they had been made. The primary judge so found: at [223].

Misdirection as to the statutory test for claimable Crown lands

The term "claimable Crown lands" is defined in s 36(1) of the ALR Act. Claimable Crown lands include Crown lands that, when a claim is made for the lands under the ALR Act: "(c) are not needed, nor likely to be needed, for an essential public purpose."
This provision makes clear that the question of whether the Crown land claimed is or is not needed or likely to be needed is to be determined "when a claim is made." In the present case, the claims were made on 2 June 2009. The task for the primary judge was thus to determine whether the land claimed (Lots 7 and 8), at the date of the claims on 2 June 2009, was or was not needed or likely to be needed for an essential public purpose.
Darkinjung contended that the primary judge failed to undertake this task. The primary judge found that the Minister of the day did form a view, in 1969-1971, that the land (Lots 7 and 8) was needed for an essential public purpose, being use for charitable organisations: at [220], [221], [226] of judgment.
Darkinjung does not challenge that finding. It was the next step in the primary judge's reasoning that was challenged. The primary judge accepted the Minister's submission that no evidence of reconfirming the view of the Minister in 1969-1971 was necessary in order for the Minister to discharge the onus of proof that the land was needed for the essential public purpose as at the date of the claims in 2009: at [219], [226], [239] of judgment.
The primary judge framed what she considered to be the key issue as being "whether the Minister is required to prove as part of discharging the onus of proof that at or around the date of a claim the appropriate level of government held that view having already formed a view in 1967-1971 in the circumstances of this case": at [226]. The primary judge answered that question in the negative. The primary judge found that it was not necessary for the Minister "to provide evidence of more recent consideration of the use of Lot 7 by an appropriate level of government to justify finding that it was needed for an essential public purpose at the claim dates": at [226]. The primary judge found that instead: "The view formed in 1969-1971 about the use of Lot 7 for an essential public purpose together with the continuous use of Lot 7 satisfies the Minister's onus of proof that Lot 7 was needed for the essential purpose relied on": at [239]. In the primary judge's view it was sufficient that "an actual decision concerning use was made and the use for an essential public purpose has continued uninterrupted for decades": at [239]. The primary judge held similarly in relation to Lot 8: at [288].
Darkinjung submitted that the primary judge thereby failed to perform the function required by s 36(1)(c) of the ALR Act of determining whether the land, when the claims for the land were made, was needed for the essential public purpose. The primary judge did determine that the land was needed for the essential public purpose in 1969-1971, but did not do so at the date of the claims on 2 June 2009. Darkinjung submitted that the primary judge misdirected herself as to the statutory test by accepting the Minister's submission that no evidence was necessary to establish that the government of the day at the date of the claims on 2 June 2009, still held the view that had been formed in 1969-1971, that the land was needed for the essential public purpose. Darkinjung submitted that mere evidence that the land might have been used for the essential public purpose was insufficient absent proof that such use was lawful and known to and accepted by the government at the date of the claims. Such evidence was absent.
The Minister submitted that Darkinjung had mischaracterised the primary judge's approach. The primary judge had understood that the question under s 36(1)(c) of the ALR Act was whether Lots 7 and 8 were not claimable Crown Lands "as at the date of the claim" because they were needed for an essential public purpose: see, for example, at [8(1)], [250], [251], [288] of the judgment. The primary judge considered that this question could be answered affirmatively where there had been a past decision at the appropriate level of the executive government that the land was needed for the essential public purpose and, since then, the land had continuously been used for the essential public purpose. In this circumstance, the Minister had discharged the onus to prove that the land was needed for an essential public purpose as at the date of the claims. This reasoning is plain from the primary judge's conclusion at [250]. The Minister submitted that the primary judge's approach was "unimpeachable".
In oral argument, in order to address Darkinjung's argument that the evidence did not establish that the government of the day, as at the date of the claims, still held the view that the land was needed for an essential purpose, the Minister referred to a miscellany of public documents on the subject of providing support and services for people with disabilities. These included a report of the NSW Legislative Council Standing Committee on Social Issues, "Making it Happen: Final Report on Disability Services", Report 28 - October 2002; the 2002 Commonwealth State Territory Disability Agreement, a form of inter-governmental agreement, on the respective responsibilities of the Commonwealth and States and Territories within the disability service system; the NSW Government's response to the Final Report on Disability Services, Making It Happen, on 19 August 2003; the 2009 National Disability Agreement, another inter-governmental agreement concerning the provision of government support to services for people with disabilities; the Commonwealth government's 2010-2020 National Disability Strategy; the Commonwealth Government's Productivity Commission's final report into Disability Care and Support, dated 31 July 2011; and a report of the Advisory Group to the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs, "Vision for Sustainable Supported Employment" of unknown date.
None of these documents evidenced any decision made or view held by the executive government of NSW that the particular land that had been claimed was needed for the essential public purpose of providing support or services for people with disabilities. A number of the documents post-dated the date of the claims (on 2 June 2009). All but one of the documents were not documents of a high level of the executive government of NSW; indeed many were documents of the Commonwealth government.
The Minister argued that the documents evidenced the need for the essential public purpose of providing support and services to people with disabilities. No doubt they did but that was not relevant in answering the question under s 36(1)(c) of the ALR Act of whether the particular land that had been claimed was needed for an essential public purpose at the date of the claims.
The Minister sought to answer this question by reference to the affidavit evidence of Mr Fealy, an officer of Terama, and a document recording the history of Terama. But again, this evidence about what Terama did or thought, at various times through its occupation and use of the land, did not establish what the government of the day did or thought throughout this period, or critically at the date of the land claims. The evidence relied on by the Minister provided no answer to Darkinjung's argument that the government of the day had not decided and did not hold the view, as at the date of the land claims, that the land was needed for an essential public purpose. The evidence only established that Terama had occupied and used the land, although such occupation and use was unlawful as Terama had never been appointed as a trustee or a reserve trust manager of the reserve or been granted any lease, licence or other permission authorising it to occupy or use the land.
I find the primary judge misdirected herself in her construction and application of the statutory test in s 36(1)(c) of the ALR Act. This misdirection affected the primary judge's ultimate finding that the land (Lots 7 and 8) was not claimable Crown land.
The statutory test under s 36(1)(c) is clear: lands will be claimable Crown lands unless the Minister establishes that the lands are needed or likely to be needed for an essential public purpose "when a claim is made for the lands." This phrase sets an essential temporal condition: the need or likely need of the land to be used for an essential public purpose is to be determined at the date when the claim for the land was made.
Establishing whether land is needed at this date requires ascertaining "the view held by the government on the day the claim was made" (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Deerubbin No. 1) that the land was needed (per Meagher JA at 252) or "required or wanted" by the government at the date of the claim (per Handley and Powell JJA at 254). The government which is to hold the view that the land is required or wanted for an essential public purpose, is the executive government of the State at the appropriate government level: Minister Administering Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 (Illawarra CA) at [35].
Establishing that the government holds the view that the land is required or wanted for an essential public purpose at the date of the claim may involve showing that the government has made a decision to that effect at or before the date of the claim. The existence or non-existence of a government decision concerning the use of the land at the date of the claim has been held to be a distinction between whether land is needed or likely to be needed: "for land to be needed, as opposed to likely to be needed, there should be an actual decision concerning use at the level of executive government": Minister Administering Crown Lands Act v NSW Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352 at [25] and see also Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 (Deerubbin (No 2)) at [50].
Holding a view or making a decision that land is needed for an essential public purpose involves the formation of a positive opinion of that fact. The government has to have turned its mind to the question and formed the opinion that the land is needed for an essential public purpose. And this turning of its mind to the question and forming the positive opinion that the land is needed for an essential public purpose must have been done when the claim was made for the land.
When this statutory test under s 36(1)(c) is so understood, the primary judge's misdirection and misapplication of the test becomes evident. The primary judge relied on decisions of the executive government in 1969 and 1971 as evidencing that the executive government had decided and held the view that the land claimed was needed for an essential public purpose as at the date of the claims. The decision on 11 July 1969 was to grant a Special Lease in perpetuity of the land to ARP, for the purpose of "erection of buildings (training centre for handicapped persons)." The decisions on 27 November 1971 were to withdraw the land from the Special Lease and instead to reserve the land "for charitable organisations." Those decisions in themselves only evidenced that the government of the day in 1969 and 1971 held the view that the land was needed for the essential public purpose stated in each decision. These decisions of a former government, by themselves, cannot provide evidence that the government of the day, when the claims were made for the land on 2 June 2009, held the same or any other view concerning the use of the land.
The problem is not that these decisions in 1969 and 1971 pre-dated the date of the claims by 40 and 38 years respectively. The decisions of this Court, referred to earlier, holding that for land to be needed for an essential public purpose there should be an actual decision of the executive government concerning use of the land, do not demand that the decision be made on the day when the claim for the land is made. The decisions can pre-date the claim for the land.
The problem is rather that the primary judge accepted that these earlier decisions could and did establish what was the view of the government of the day at the date of the land claims, without any other evidence of the government of the day adopting those earlier decisions. The earlier a government decision concerning the use of the land is made before the claim for the land is made, the less probative the decision will be in establishing that the government of the day, when the claim for the land was made, holds the view that the land is needed for the essential public purpose. As the time period between the making of the decision and the making of the land claim increases, there will increasingly become a need for other evidence to establish that the earlier decision is still operative and expresses the view of the government of the day at the date of the land claim.
This disconformity between an earlier decision and a decision at the date of a land claim can arise when land is reserved or dedicated for a specified purpose. The reservation or dedication of land for a specified purpose at an earlier point in time does not, of itself, mean that the land is needed for that purpose at a later point in time when a claim is made for the land. If the purpose of the reservation is an essential public purpose, but the reservation has been outstanding for some lengthy period, absent evidence concerning the use of the land for the purpose, it may be found that the lands are not, or are no longer, needed for that purpose: Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [223].
In the present case, the time period of 38 to 40 years, from the decisions of the government of the day in 1969 to grant a Special Lease in perpetuity of the land and in 1971 to withdraw the land from the Special Lease and to reserve it from sale, to the date of the land claims in 2009, is so great that the decisions by themselves are not probative of a view of the government of the day, when the land claims were made in 2009, as to whether the land was needed for an essential public purpose. Other evidence was needed in order to establish that the view held by government as manifested in the decisions in 1969 and 1971 was adopted by, and became the view of, the government of the day when the land claims were made on 2 June 2009.
Such evidence was totally lacking. The primary judge relied upon evidence of the use of the land by ARP, until 1987 when a provisional liquidator was appointed and ARP transferred certain assets to Terama, and thereafter by Terama up until the date of the land claims in 2009. But that evidence was not probative of any view of the government of the day when the land claims were made without there also being evidence that the government of the day was aware of and consented to the use by ARP and Terama of the land for the essential public purpose.
There was no evidence that the government of the day was so aware and consented to the use of the land by ARP and Terama. To the contrary, there was evidence that the government of the day was unaware of whether and how the land was being used and who was using it. The lack of knowledge of the government of the day concerning the use of the land is shown in five ways.
First, the evidence was, and the primary judge found, that the Crown Lands Department found out about Terama's occupation and use of the land only when the Department commenced assessing the land claims in 2018: [223] of judgment. On 26 June 2018, an officer of the Department of Industry - Crown Lands and Water Division, Mr Peter Allen, emailed an organisation named Disability Services Australia inquiring about the care, control and management of the land (Reserve R88027). Mr Allen noted that the reserve trustee is the Gosford Charitable Organisation (R88027) Reserve Trust. The subject of the email incorrectly identified the street address of the reserve as 141 Henry Parry Drive, Gosford. Mr Allen asserted that Disability Services Australia was "the appointed corporate trust manager notified 19 Feb 1971." The first assertion was correct but the second assertion was incorrect.
Mr Simon Blumenthal of Disability Services Australia replied later the same day, saying that: "Disability Services Australia does not have any sites that we manage in the Gosford area nor have we since my tenure for the last 18 years. I have checked our old files and there is no property listed in Gosford."
Mr Allen responded the next day attaching a copy of the Gazette notice of 19 February 1971 appointing ARP as the reserve trust manager. Mr Allen then asserted that "the name changed to Amaroo Industries in 2022 and then to Disability Services Australia." Mr Allen said that "office records have failed to show any request for the now Disability Services Australia to be removed as Trust Manager." Again, these assertions were incorrect as Disability Services Australia had never been appointed as the reserve trust manager. Mr Allen asked Mr Blumenthal to "urgently check your records to see if any administrative actions from your organisation has occurred. It should be noted that such actions needed the consent of the Minister's delegate."
Within the hour, Mr Allen sent another email to Mr Blumenthal saying, "I have reviewed my emails and have found a reference to Terama Industries and a google search shows them as being located there. However I can not find any record of them having a tenure over the site. I am hoping your records may assist."
Later on 27 June 2018, Mr Blumenthal replied to Mr Allen advising that he had called Terama who confirmed they are at 143 Henry Parry Drive, not 141 Henry Parry Drive, which was rented to a dentist. Mr Blumenthal queried "who has been maintaining the site over the years and who is the rent being paid to."
The next day, 28 June 2018, Mr Allen responded, apologising for his mistake in identifying the land as 141 rather than 143 Henry Parry Drive, and explaining "you could understand I need to have the management of the site in accordance with the current Crown Lands Act 1989." He sought Mr Blumenthal's assistance "in how the present organisation became involved." The "present organisation" may be a reference to Terama.
On 5 July 2018, Mr Blumenthal replied saying: "I have asked everyone who has been here for a longer period than I have and not one is aware of the property at 143 Henry Parry Drive nor have I managed to find any documentation relating to this property. I still have the question as to who Terama Industries is paying rent to and who has been maintaining the property for the last 47 years."
This exchange reveals that the Crown Lands Department had no knowledge in 2018, and no record of having any knowledge at any earlier point of time, including in 2009, that Terama was occupying or using the land. The Crown Lands Department's last record was the notice in the Gazette on 19 February 1971 appointing ARP as the trustee of Reserve 88027. This corroborated the evidence of Ms Caitlin Fegan, a senior solicitor in the Crown Solicitor's Office, that the files relating to Reserve 88027 contained correspondence dating from March 1969 to April 1972, but not any records of any communication, or any action on or in relation to Reserve 88027, after April 1972.
The Crown Lands Department would appear to have believed, at least in 2018, that ARP had become the reserve trust manager, as had been the practice under the transitional arrangements of the Crown Lands Act. The Crown Lands Department assumed ARP was still the reserve trust manager, although it believed it had changed its name to Amaroo Industries and then Disability Services Australia. Evidently, the Crown Lands Department was unaware that ARP had been wound up.
The Crown Lands Department was also evidently unaware of Terama's occupation and use of the land. Mr Allen noted that he could find no record in the departmental files of Terama having a tenure over the site. Mr Allen only found out that Terama might be occupying the site by undertaking a google search in 2018, which showed Terama being located at the land. He asked for Mr Blumenthal's assistance in ascertaining how Terama became involved in the site. Mr Allen had no answer to Mr Blumenthal's questions of who Terama was paying rent to and who had been maintaining the property for the last 47 years (from 1971 to 2018).
Secondly, the transfers of reserves, including Reserve 88027, from the repealed Crown Lands Consolidation Act to the new Crown Lands Act was an administrative task and revealed no particular knowledge of the government of the reserves transferred, including Reserve 88027. Reserve 88027, like the other reserves, was taken to be a reserve for the same purpose and on the same terms as the original reservation. A reserve trust was constituted as the trustee to replace the former trustee of Reserve 88027. The reserve trust was given the corporate name "Gosford Charitable Organisation (R88027) Reserve Trust." The former trustee, ARP, was appointed the reserve trust manager.
All of these steps for the transfer of the reserve from the repealed Act to the new Act were in accordance with transitional provisions under the Crown Lands Act. The steps did not require any consideration of the particular use of the reserve, either in the past or in the future. The use of the reserve was not a relevant consideration in effecting the transfer of the reserve from the repealed Act to the new Act.
That the transfer of the reserve was simply an administrative action is evidenced by the fact that ARP was appointed as the reserve trust manager. Under s 5(2) of Sch 8 of the Crown Lands Act, as ARP was the former trustee and a corporation, ARP was automatically appointed to manage the affairs of the reserve trust that was taken to have been constituted under the new Act. Yet, ARP should not have been appointed as the reserve trust manager as, by that time, a provisional liquidator had been appointed to ARP and the provisional liquidator had not been asked and had not consented to be the reserve trust manager. This evidences that no consideration was given to the particular facts of this reserve. The transfer was purely administrative, effected as part of a mass transfer of all reserves from the repealed Act to the new Act.
Equally, this administrative transfer of the reserve from the repealed Act to the new Act does not provide evidence of a decision being made by the appropriate high level of the executive government concerning the use of the reserve. The only Ministerial decision made was the assignment of corporate names to all of the reserve trusts listed in the Gazette notice of 23 November 1990, one of which was for Reserve 88027. That decision of assignment of corporate names to reserve trusts is not a decision that one of the reserves so listed, Reserve 88027, was needed for an essential public purpose at that date.
Thirdly, the corporation appointed, on 23 November 1990, as the reserve trust manager, ARP, was later wound up on 19 November 1992 and dissolved on 30 March 1995. On that occurring, the Minister became the reserve trust manager. Under s 92(6B)(b) of the Crown Lands Act, the Minister is the reserve trust manager for any aspect of the affairs of a reserve trust not allocated to another reserve trust manager. Under s 92(6) of the Crown Lands Act, the affairs of a reserve trust are to be managed by the Minister unless another person or body has been appointed, such as a corporation under s 95. While ARP, as a corporation, was appointed to manage the affairs of the reserve trust, ARP's appointment came to an end when it was wound up and dissolved. The government was unaware of this fact and that the Minister had become the reserve trust manager. This is evident from the inquiries the Crown Lands Department made in 2018 when assessing the land claims. The Minister never performed the function reserve trust manager in relation to Reserve 88027.
Fourthly, there is no evidence that ARP performed its responsibilities first as a trustee of Reserve 88027 or later as the reserve trust manager. After ARP was appointed the trustee of Reserve 88027, there is evidence of ARP paying, on 3 March 1972, the first of 15 yearly instalments for repayment of development and road costs applicable to the reserve. The reservation of Reserve 88027 was subject to a condition that the trustee pay the proportionate part of the development and road costs applicable to the land by 15 equal yearly instalments with interest at the rate of 4% per annum. After paying the first instalment on 30 March 1972, there is no record of ARP paying any other of the 15 yearly instalments.
There is also no record of ARP ever submitting a report on its care, control and management of Reserve 88027 or keeping any records, as it was required to do under the Crown Lands Consolidation Act. The Crown Lands Department's file on Reserve 88027 did not contain any records of any communication or any action on or in relation to the reserve after April 1972.
As a consequence, the Crown Lands Department, and hence the executive government, was not made aware of any aspect of the care, control or management, or the occupation and use, of Reserve 88027 from April 1972 onwards. The government had no knowledge of these matters when the administrative action was taken in 1990 to transfer Reserve 88027 from the repealed Act to the new Act and to appoint ARP as the reserve trust manager.
Afterwards, ARP still did not perform any function as reserve trust manager to manage the affairs of the reserve trust. ARP did not provide reports or keep records as required by the Crown Lands Act. As a consequence, the Crown Lands Department and the executive government were unaware whether or how the affairs of the reserve trust were being managed. Again, that is evident from the inquiries the Crown Lands Department made in 2018 when assessing the land claims.
Terama entered into occupation and commenced using the workshop and other facilities on the reserve sometime after the asset transfer agreement was made on 21 December 1987. Terama was not appointed as the reserve trust manager in the place of ARP. This was not just a technical glitch that was capable of being cured, as the primary judge thought. It meant that the government was unaware that Terama was in occupation of the land and was using the workshop and other facilities on the reserve.
It also meant that the government had not considered who was or should be the reserve trust manager. As I have noted, upon the winding up and dissolution of ARP, the Minister became the reserve trust manager, but the Minister was unaware of this fact. The Minister therefore did not perform the function of managing the affairs of the reserve trust for the reserve. The Minister also was unaware of the need to appoint any person to be the reserve trust manger if the Minister did not wish to be the reserve trust manager.
The upshot was that no one performed the functions of reserve trust manager to manage the affairs of the reserve trust. No one provided the reports or kept the records required by the Crown Lands Act. The Crown Lands Department and the executive government were therefore not informed about any aspect of the care, control or management of the reserve or Terama's occupation and use of the reserve. Again, this is evident from the inquiries of the Crown Lands Department in 2018 when assessing the land claim.
Fifthly, the use of Reserve 88027 by Terama was unlawful. ARP, when it was trustee, was authorised to occupy and use the reserve for the purpose for which it was reserved ("for charitable organisations"). After the Crown Lands Act came into force, the reserve trust who had the responsibility for the care, control and management of the reserve could have authorised the reserve trust manager to occupy and use the reserve. The reserve trust manager was ARP until it was wound up and dissolved. There is no evidence that the reserve trust ever did authorise ARP, as the reserve trust manager, to occupy or use the reserve.
In any event, however, Terama never had any authority to occupy or use the reserve. Terama was never appointed as the trustee of the reserve or the reserve trust manager. Terama was never granted any lease, licence or other permission authorising its occupation or use of the reserve. The Minister did not otherwise consent to or acquiesce in Terama occupying or using the reserve, because the Crown Lands Department and the Minister had no knowledge that Terama was occupying or using the reserve. Terama's occupation and use of the reserve was in breach of s 6 of the Crown Lands Act. The fact that Terama's occupation and use of the reserve was unlawful speaks against the government having the view that the land was needed for the essential public purpose for which Terama was occupying and using the land.
In this circumstance, the unlawful occupation and use of the reserve by Terama cannot provide evidence of the government holding the view that the land was needed for the essential public purpose at the date of the land claims.
On this evidence before the court below, the Minister had not established that, even if the government of the day in 1969 and 1971 held the view, and had decided, that the land was needed for an essential public purpose, the government of the day at the date when the claims were made for the land on 2 June 2009 held the view, and had decided, that the land was still needed for an essential public purpose. The decisions of the government of the day in 1969 and 1971 were insufficient. There needed to be, but there was not, evidence that the government of the day in 2009 also held the view that the land was needed for the essential public purpose. That is the statutory test under s 36(1)(c) of the ALR Act. The primary judge misunderstood and misapplied the statutory test and in doing so erred on questions of law.

Making a decision not reasonably open on the evidence

The second main ground of appeal was that the primary judge's decision that the land was not claimable Crown land was not reasonably open on the evidence. That follows from what I found on the first ground. The evidence is clear that the government of the day did not hold the view, and had not made a decision, that the land was needed for the essential public purpose at the date the land claims were made. The primary judge's decision to the contrary was not reasonably open on the evidence. To make a decision not reasonably open on the evidence involves an error on a question of law.

Notice of contention: "likely to be needed"

The Minister contended that, if this Court accepts Darkinjung's contentions that the primary judge erred in law in finding that the land was "needed" for an essential public purpose, the primary judge's decision should be upheld on the basis that the land was "likely to be needed" for the essential public purpose. The primary judge held that it was unnecessary to consider whether the land was "likely to be needed" because she had found the land was "needed": at [240].
The Minister submitted that the land was likely to be needed as at the date of the claims as: "the appropriate level of government had in 1969-1971 determined that the land was needed for an essential public purpose; the land had continuously been used for that purpose for almost 40 years; that use had been by the reserve manager and then an entity which had taken over its obligations and the activities on the land had not changed; in 1991, the NSW government approved Wickham's application to take over the Lambton reserve; Terama was not aware of the need to obtain consent to occupy the land, nor was there any procedure for periodic review of reserve managers, so it may be inferred the failure of Terama to be appointed as reserve manager was not deliberate; further, it was technical and able to be cured under the CL Act; and, as at the date of claims, the NSW government considered supported employment of disabled persons to be "critically important" and there was a "significant unmet need" for it." (at [82] of Respondent's submissions)
The Minister submitted that in these circumstances, "the only available inference is that there was a real and not remote chance that had the appropriate level of the executive government turned their mind to whether Lots 7 and 8 were for an essential public purpose, that question would have been answered affirmatively" (at [83] of Respondent's submissions). The Minister submitted that the land was therefore "likely to be needed" for the essential public purpose as at the date of the claims.
Darkinjung's response was simple. Just as the evidence established that the government of the day, as at the date of the claims, neither had made a decision nor held a view that the land was needed for an essential public purpose, the evidence also established that the government of the day, as at the date of the claims, had not formed the view that the land was likely in the future to be needed for an essential public purpose. In Illawarra CA, Hodgson JA held that "where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement; and if this is addressed by considering whether there is a trajectory at the relevant time, this need not then be a trajectory existing at the appropriate Government level, but only a trajectory towards a requirement at the appropriate Government level" (at [35]).
But any trajectory must have a starting point. In the present case, Darkinjung submitted, the evidence establishes there is no starting point. Darkinjung submitted that: there was no evidence that any consideration had been given at any level of government to the use of Lots 7 and 8 at any time after 1971; there was no evidence that the government was aware of Terama or its activities as at the date of the claims; and there was no evidence that the government had made plans or taken steps to make lawful Terama's occupation of Lots 7 and 8 or otherwise authorise Terama's activities on the land.
In these circumstances, Darkinjung submitted it cannot be said that it was likely that the land would be needed for an essential public purpose in the future.
I agree with Darkinjung's submission that, on the evidence, the land could not be said to be likely to be needed for an essential public purpose at the date of the claims. The evidence establishes that, as at the date of the claims, the government, at the appropriate high level, was unaware who was the reserve trust manager, whether and how the affairs of the reserve trust were being managed, whether and how the reserve trust as the trustee and the reserve trust manager were performing their responsibilities, and whether and how the reserve was being occupied and used and by whom. In particular, the government had no knowledge of who Terama was or that Terama was occupying and using the land until the land claims were assessed in 2018.
In these circumstances, there is simply no evidentiary foundation from which there could be a trajectory towards a requirement at the appropriate Government level for the land to be used for an essential public purpose. A trajectory has to start somewhere. In the present case, that somewhere has not been identified.
The Minister's notice of contention should be rejected. The primary judge's decision cannot be supported on the ground that the land was likely to be needed for an essential public purpose as at the date the claims for the land were made.

Conclusion and orders

Darkinjung has succeeded in establishing that the primary judge erred on questions of law in deciding that Lots 7 and 8 were not claimable Crown lands as they were needed for an essential public purpose as at the date of the claims. The Minister has not succeeded in establishing that the primary judge's decision should be supported by Lots 7 and 8 being likely to be needed for an essential public purpose as at the date of the claims. Darkinjung's appeal should be upheld.
There is no utility in remitting the matter to the court below for reconsideration in light of this Court's decision. On the evidence before the court below, Lots 7 and 8 are claimable Crown lands under s 36(1)(c) of the ALR Act. In this circumstance, the Minister is to be taken as having failed to satisfy the court below that the land is not claimable Crown lands, and the court is required to order that the land be transferred to the claimant Darkinjung: s 36(7) of the ALR Act. Under s 57(2)(b) of the Court Act, this Court can make the order that the court below is required to make.
Costs should follow the event. The Minister should be ordered to pay Darkinjung's costs of the appeal to this Court and in the court below.
I propose the Court make the following orders: 1. The appeal is upheld. 2. Order 1 in proceeding No 2020/296485 (Gosford No 1) made by Pain J on 16 August 2022 and entered on 15 November 2022 and Orders 1 and 2 in proceedings No 2021/190274 (Gosford No 2) made by Pain J on 16 August 2022 and entered on 10 November 2022 are set aside. 3. The Minister administering the Crown Land Management Act 2016 is ordered to transfer to Darkinjung Local Aboriginal Land Council Lots 7 and 8 of Section 96 in DP 758466, known as 143 Henry Parry Drive, Gosford, within 90 days of the date of this Order. 4. The respondent is to pay the costs of the appellant of the proceedings in this Court and in the Land and Environment Court.

Endnotes

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act - Gosford 1 & 2 [2022] NSWLEC 68 (Pain J).
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46.
Council of Australian Governments, National Disability Agreement (2009), pp 4-5.
See Model Litigant Policy for Civil Litigation, par 3.2(b), (d): https://arp.nsw.gov.au/m2016-03-model-litigant-policy-civil-litigation-and-guiding-principles-civil-claims-child-abuse.
See eg, Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 at [13]-[34]; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 at [27]-[31]; Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577; 156 LGERA 577 at [23]-[37]; Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [10], [19]-[33].
See eg, Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; 168 LGERA 71 at [101]. 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: 19 December 2022

Crown Lands Act 1989(NSW)

Crown Lands Consolidation Act 1913(NSW)

Crown Lands Management Act 2016(NSW)

Public Trusts Act 1891(NSW)

(2009) 166 LGERA 379

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