Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241

1 The plaintiff is an Aboriginal Trust (the Trust) constituted under the Aboriginal Lands Act 1970 (Vic) (the Act). Pursuant to the Act, certain former Crown lands were transferred to the Trust for its use. The Trust has, since that original transfer, acquired further land in the area near Warrnambool and uses the land both for domestic housing and for rural agricultural purposes.

2 The Trust seeks the recovery of a property within the Trust lands at 39 Warrumyea Road, Purnim (the Property) by originating motion for the recovery of land pursuant to the summary procedure in Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules).[1] Pursuant to Rule 77.01(2)(a)(e), an Associate Judge may hear and determine any proceeding for the recovery of land under Order 53.

3 The defendants entered an appearance on 20 February 2014 and gave as their address the address of the Property. There is thus no dispute that the defendants are in occupation of the Property.

4 The questions the defendants seek to agitate are:

(a) Whether the custom of the Aboriginal Community at Framlingham, pursuant to which they claim to have entered into occupation of the Property, is sufficient permission (licence of consent) authorising them to remain in occupation notwithstanding that the committee of management of the Trust has not granted the defendants a tenancy or any licence or consent to occupy the Property?

(b) Whether the existence of proceedings by some members of the trust claiming that the affairs of the Trust are being conducted in a manner oppressive to them (the Oppression Proceedings) provides a reason against ordering that the Trust recover possession of the Property?

(c) Whether there is a question as to the authority of the Trust to commence this proceeding?

5 The Property is one of 17 domestic residential houses located in the original Trust grant in or about the intersection of Warrumyea Road, Kirrea Avenue and the Warrumyea-Wangoom Road, Purnim. The Trust also owns four residential properties outside the Trust lands which are also occupied by Aboriginal families.

6 The Property is the only untenanted property on all the Trust lands. The evidence produced by the Chief Executive Officer of the Trust, Mr Bruce Campbell,[2] proves satisfactorily for present purposes the ownership of the property and its location within the Trust lands.

7 On Monday 16 December 2013, the defendants were observed by the secretary of the Trust entering into occupation of the Property. When approached by a Sergeant of the Warrnambool police and requested to remove their belongings from the Property the defendants refused to do so.

8 On 17 December 2013, a notice of trespass and demand was delivered to the Property and a copy of the notice was sent by registered mail. That notice was addressed to the defendants and alleged that they were in illegal occupation of the Property and notified them that unless they removed themselves and their goods forthwith from the property, legal proceedings would be issued without further notice.[3]

9 On 18 December 2013, the notice of trespass and demand was served personally on the second defendant. A copy of the notice was also affixed to the front door of the house at the Property.

10 The first affidavit of Bruce Campbell sworn 20 December 2013 in support of the application establishes that he is the Chief Executive Officer of the Trust[4] and is authorised to make the affidavit on behalf of the Trust. Although there is no express reference to authority given to him by the committee of management, the statement of authority by Mr Campbell would in ordinary circumstances bring with it, by implication, that he is authorised by the committee of management, being the governing body of the Trust. However, as I relate below, there is a question arising as to whether that is in fact so.

(a) The Trust has always had a waiting list for the occupation of its domestic premises. Housing on the Trust lands is much sought after by Aboriginal families having connection to the Trust lands;

(b) As at December 2013, there were six Aboriginal families on the waiting list. The earliest placed on the list had been there since February 2012. The defendants had made application for housing and were placed on the waiting list on 3 December 2013;

(c) The allocation of housing is determined by the committee of management of the Trust taking into account, amongst other things, the length of time on the waiting list, the size of the house, the suitability of the applicant to community life, the ability to sustain community harmony, any previous tenancy issues and the like. The Trust has a formal written housing policy and procedures which set out the mode for making application for a house owned or controlled by the Trust;[5]

(d) The Property was occupied by an Aboriginal family until 16 June 2013. As a part of the continuing program of maintenance to all Trust houses, the house on the Property has been subject to the expenditure of substantial renovation sums since it was vacated;

(e) In July 2013, during the course of renovations, a structural fault was detected and the insurers of the Trust were called upon to assess and provide compensation to the Trust. That assessment was completed on 29 July 2013 and the claim was paid on 27 October 2013. As at December 2013, the Trust was in the last stages of the renovations of the house, but they had not been completed. The house on the Property was locked at all times during the renovations;

(f) The house has four bedrooms and represents one of the most desirable properties under the Trust's control. The process of allocation of properties to applicants is a matter about which many families, both on and off the Trust lands, and on the waiting list, are particularly concerned. Much unhappiness, disruption and aggravation has occurred as a result of the illegal occupation by the defendants who are unwilling to take part in the community's processes of allocation;[6] and

(g) Mr Campbell deposes as to his belief that the defendants had for the previous year lived at a property at 60 Bellmans Road, Bushfield. That property is another property belonging to the Trust and is tenanted to Ms Louise Wackett, the mother of the first defendant. The Trust has no objection to the arrangements made by Ms Wackett for the occupation of the Bellmans Road property by the defendants.

12 Mr Campbell swears that the defendants and any others occupying the Property do so without any lease, licence or consent of the plaintiff.

13 By affidavit sworn on 19 February 2014, the first defendant, on his own behalf and on behalf of the second defendant, makes the following points:

(a) He denies that he entered the Property without consent or permission. He said he was given permission to reside at the Property by numerous Aboriginal Elders within the Framlingham Community. He also asserts that he has paid rent to the Trust for his continued occupation of the Property. These payments have not been refused or returned;

(b) His parents are Greg McGuiness and Louise Wackett. His grandparents are Brenda Chatfield-Clark on his mother's side and Shirley McGuiness on his father's side;

(c) His great-grandmother, Henrietta Clark, was born and raised on the Framlingham Aboriginal Reserve (the Reserve) and was one of the original shareholders of the Framlingham Aboriginal Trust. Her shares were passed down to her daughter, Brenda Chatfield-Clark;

(d) Both his grandmothers are respected Elders within the Framlingham Aboriginal Community and have lived on the Reserve for a significant period of their lives;

(e) The first defendant was born and raised on the Reserve until the age of three. His mother then temporarily left the Reserve to move to Warrnambool. At the age of 15 he returned to the Reserve to live with his grandmother, Brenda Chatfield-Clark. For the last two years, he has lived with his mother at a property at 60 Bellmans Road, Bushfield;

(f) The Reserve consists of land and properties in the Purnim and surrounding areas. These properties are held by the Trust for the benefit of Aboriginal families that have an historic connection with the Property. The Trust also provides housing and other services to the Aboriginal community in the area;

(g) The Trust and the Reserve are administered by Elders within the community together with the committee of management of the Trust. The committee of management is elected by a vote conducted at General Meetings of the Trust of Shareholders;

(h) The most recent election was scheduled to take place on 16 December 2013. However, the first defendant asserts, no proper meeting or election took place because some shareholders of the Trust were refused entry into the meeting to cast their votes. This has resulted in a deterioration of the relationship between the committee members and the various Aboriginal families resident on the Reserve. Because of this, the functioning of the committee of management has also broken down;

(i) Before moving into the property, the first defendant was living in a shed at his mother's property with his partner, the second defendant, and their four year old daughter. There was no running water, toilet facilities or bathroom. The accommodation was not suitable for his family and so, in late November 2013, he began to make enquiries as to the other potential accommodation that might be available for his family;

(j) Before the commencement of the Annual General Meeting of the Trust held on 16 December 2013, the first defendant raised his housing situation with the Elders of the Aboriginal community. There was then a discussion between Jim Berg, Maise Davis, Bonnie Pedretti, Geoff Clark, Esma Berg and Brenda Chatfield-Clark. The first defendant explained his situation to them and in response Jim Berg said that he should move in to the house on the Property because it was suitable for his family and would be close by to help his elderly grandmothers if they needed assistance. All the other Elders agreed with Jim Berg's comments; and

(k) Accordingly, the defendants moved into the house on the Property. Brenda Chatfield-Clark, his grandmother and a committee member of the Trust, told him what the rent was and he commenced to pay it.

14 The first defendant deposes, in response to the evidence given by Mr Campbell, that from his knowledge and experience of living on the Reserve, the committee of management has no formal decision making process for the allocation of housing on the Reserve. Rather, the practice of the past 20 years has been for families to move into housing with the permission and knowledge of the Elders of the Aboriginal community. He moved into the property on the understanding that he had the approval and permission of the community.

15 In response to the affidavit of the first defendant, Mr Campbell swore a further affidavit on 21 February 2014. In that affidavit, he gives the following evidence:

(a) That the assertion by the first defendant that the "Trust and the Reserve are administered by Elders within the community together with the committee of management of the Trust" is wrong. He swears that the powers and functions of the Trust can only be exercised by its committee of management in accordance with s 16(1) of the Aboriginal Land Act 1970;

(b) As to the provisions of the Act relating to the election and composition of the committee of management and as to the election that was held at the Annual General Meeting on 16 December 2013;

(c) That the first defendant had applied on the Trust's tenancy application form, dated 22 November 2013 but received by the Trust on about 3 December 2013. The first defendant was thus aware of the procedure for the application for housing, if not the procedure for decision making.[7] At the time of the commencement of this proceeding, Mr Campbell deposed that the committee of management had not considered the first defendant's tenancy application because "there had not yet been any meeting of the Trust's committee of management";[8]

(d) In relation to the evidence given by the first defendant as to the circumstances in which he says he was given permission to enter into occupation of the house on the Property by Elders of the Aboriginal Community, that Jim Berg, Maise Davis, Bonnie Pedretti and Esma Berg do not live in the Framlingham community and are only occasional visitors to the community. He swears that both Jim Berg and Brenda Chatfield-Clark have been members of the committee of management of the Trust in the last two years and during that time have actively been involved in the development of the housing policies and procedures;

(e) In relation to the evidence given by the first defendant that his grandmother, Shirley McGuiness, who was also a committee member, had told the first defendant that she wanted him to move into the house on the Property, that he had a conversation with Shirley McGuiness regarding the matter, and she told him that she had never been asked about this and had never said that she wanted the first defendant to move into the property. No objection was taken to this hearsay evidence;

(f) That the payments of purported rent made by the defendants to the Trust have been paid into the Trust account of the solicitors for the plaintiff pending the outcome of the proceedings;

(g) That at no time, either before or after the proceedings were commenced, has the Trust given any express or implied consent, permission or authority for the defendants or any other person to occupy the Property; and

(h) That because of the occupation by the defendants of the house on the Property, the Trust has not been able to complete the renovations or to arrange for the necessary inspections and certifications to be undertaken to enable the funding of $30,000.00 to be paid by the Department of Housing for the work.

16 On 20 February 2014, Sarah Elizabeth Young, solicitor of the plaintiff's solicitors, made an affidavit concerning the payments made by the defendants allegedly for rent. She wrote to the defendants by letter dated 21 January 2014 notifying them that:

(a) The Trust does not accept any the payments made purportedly by way of rent;

(b) The Trust rejects any unilateral action by the defendants purporting to establish any right to occupy the Property; and

(c) The payments received by the Trust to date and any future payments of the same nature have and will be transferred to the firm's trust account to be held on account of damages for trespass pending resolution of the matter.

17 Sarah Elizabeth Young also swore an affidavit on 24 April 2014, where she deposed to, amongst other things, the works that were being undertaken at the Property before the defendant entered into occupation of it. These works were a part of the project involving works being completed on 17 houses owned by the Trust. That project was required to be completed before the end of the 2013/2014 financial year. She deposed that it is not suitable to complete all of these works whilst there are occupants on the Property, which is why the Property was vacant at the time the defendants entered into occupation of it. She says that the plaintiff has expended approximately $30,000 on the project upgrading houses by it and is entitled to apply to the Department of Human Services for reimbursement of that expense following its completion. The plaintiff is therefore not able to apply for that reimbursement until the works that require to be done at the house on the Property are completed. She deposed that the ongoing delays in the completion of the works to the house on the Property put the plaintiff at risk of being denied further funding for housing works in the 2014-2015 financial year. She also deposed that the Trust is concerned that the personnel employed to carry out the works will no longer be available to complete them, which will result in additional costs and expenses being incurred by the Trust in engaging new contractors to complete any works that remain outstanding.

18 When this matter came before me on 28 April 2014, counsel for the defendants, Mr Greenway, handed up a copy of an order of Robson J made in the Oppression Proceeding in which it was recorded in "Other Matters" that:

The Court was informed of the existence of proceeding S CI 2013 06629 [this proceeding]), which is listed for hearing before Associate Justice Derham on 28 April 2014, and that the defendant in that proceeding may seek to have that proceeding heard together with this proceeding.

19 By reason, in part, of submissions made by Mr Greenway to me on 28 April 2014, based upon the connection between the Oppression Proceeding and the conduct of the committee of management in relation to the defendants in this proceeding, I adjourned the further hearing of the application noting that:

The plaintiff handed up a copy of the writ in proceeding no. 0672 of 2014 [the Oppression Proceeding] in which the Framlingham Aboriginal Trust is a defendant. That matter is due for directions before Robson J on 2 May 2014.

Mr Greenway, counsel for the defendants, informed the Court that at the last directions hearing before Robson J in proceeding no. 0672 of 2014 his Honour was informed that the defendant in this proceeding may seek to have this proceeding heard together with proceeding no. 0672 of 2014.

Unless such an application is made, or evidence is filed disclosing that the defendants have a defence to the plaintiff's claim for possession of the land, on the next occasion it is likely that orders for possession against the defendants will be made.

20 It appears that, at the hearing before Robson J on 2 May 2014, no order was made to have this proceeding heard at the same time as that proceeding. On that occasion orders were made for the filing of affidavits and the conduct of the trial of that proceeding, which is scheduled to commence on 23 June 2014 on an estimate of two days.

21 After the hearing on 28 April 2014, and for the purpose of the hearing on 9 May 2014, two further affidavits were filed on behalf of the defendants.

22 The first defendant swore an affidavit on 6 May 2014 contesting the assertions by Ms Young as to the inability or unsuitability of completing the works whilst the defendants were in occupation. There is thus a dispute about that aspect of the matter.

23 By affidavit sworn 6 May 2014, Tim Chatfield, a member of the Framlingham Aboriginal Community and a registered holder of 500 shares of the Trust, swore an affidavit in support of the defendants. Mr Chatfield has been chairperson of Aboriginal Housing Victoria for the past seven years and is on the Boards of numerous indigenous bodies and corporations. He became a member of the committee of management of the Trust in October 2011 and resigned from that position in mid-2013.

24 Mr Chatfield gives evidence of the Oppression Proceeding (proceeding number S CI 2014 672) in which Aaron Clark, Jeremy Clark and he are plaintiffs, and the Framlingham Aboriginal Trust and Geoffrey (Possum) Clark-Ugle are defendants. In that proceeding, the plaintiffs claim that the election of the committee of management purportedly held at the Annual General Meeting on 16 December 2013 was conducted in a manner oppressive to the members of the Trust, including the plaintiffs. It is claimed that the current committee of management is not validly constituted and declarations are sought declaring the outcome of the AGM held on 16 December 2013 null and void and of no effect. Orders are sought, pursuant to s 27 of the Act, for the holding of a further Annual General Meeting and for the conduct of elections.

25 The affidavit of Mr Chatfield goes on to swear to matters that are a mixture of facts, opinions and submissions,[9] and these include the following:

(a) That a fresh and properly conducted election for the whole committee, or alternatively the election of two further members to the committee, could affect the attitude taken by the new committee to issues on which decisions have purportedly been taken by the incumbent committee, including the question of whether the defendants should be evicted from their accommodation on the Framlingham Estate; and

(b) As the Oppression Proceeding raises serious questions about the validity of the committee as presently constituted, and an election will change the composition of the current committee, the final determination of the present application for possession of the Property should be stayed or postponed until the hearing and determination of the Oppression Proceeding, or further order.

26 Then Mr Chatfield gave evidence of the kind also given by the first defendant, in his affidavit of 19 February 2014, regarding the method by which houses are allocated within the Framlingham Community. He deposed, as a matter of fact, that:

(a) The Framlingham Community comprises of three families. The Clarks, the Harradines and the Chatfields. Recently the Clark-Ugles have separated from the Clark family;

(b) Each family has its own area of housing within the Framlingham estate. When a house becomes available for occupation, the Elders of the relevant family decide who from the family should be offered the house to live in. The committee of management then effectively adopt the Elders' decision;

(c) The Property is within the Chatfield housing area. The first defendant is part of the Chatfield family and was at the head of the list of the Chatfield family members awaiting housing. A discussion was held between the first defendant and Jim Berg, Brenda Chatfield-Clark and Mr Tim Chatfield on about 16 December 2013. These are the Elders of the Chatfield family. Also involved in the discussion was Mr Geoff Clark and Maise Davis, Elders of the Clark family and Lionel Harridine, an Elder of the Harridine family. It was agreed amongst the Elders that the first defendant should move into the property on the Property;

(d) The subsequent decision by the committee of management to demand that the first defendant vacate the property is the first time that Mr Chatfield can remember that the committee has sought to overturn a decision of a family's Elders on housing matters within that family's housing area; and

(e) Tensions have arisen between the Clark-Ugle family on the one hand, and the Chatfield and Clark families on the other. These tensions arise from the management of the committee, which had become effectively controlled by the Clark-Ugle family. It appeared (to Mr Chatfield) that the committee were giving substantial favour to the Clark-Ugle family to the detriment of the other families. He believes that the committee of management is acting in bad faith in seeking to eject the defendants from the property.

Aboriginal Lands Act

27 There is no dispute that the plaintiff is properly constituted as an Aboriginal Trust under the Act. Section 2 defines a Trust as a Trust incorporated under the Act. By section 10 of the Act:

A Trust shall have perpetual succession and a common seal, and shall by the name assigned to it by this Act be capable in law in suing and being sued, of purchasing taking holding selling leasing taking on lease exchanging and disposing of real and personal property, and of doing and suffering all such other things as corporations are by law capable of doing and suffering.

28 The members of the Trust are those persons whose names appeared on a register published by the Governor in Council in the Government Gazette pursuant to s 7.

29 Section 8 provides for the establishment of the Trust and on the "appointed day" (determined under s 7):

The persons whose names appear on the register published in relation to the Framlingham reserve and who are still living shall together constitute a body corporate to be known as the Framlingham Aboriginal Trust.

30 For present purposes there is nothing, so far as the submissions of the parties went, to raise any question as to the membership of the Trust.

31 The powers of the Trust are set out in s 11 of the Act and include the power to let any land for a period of no more than 21 years.

32 Section 15 of the Act provides for the establishment of the committee of management. Section 16 provides as follows:

(1) Subject to this Act, the powers and functions of a Trust may be exercised on its behalf by its committee of management and not otherwise, but a committee of management shall comply with the terms and conditions of any resolution relating to the powers and functions of the Trust at a general meeting of the Trust.

(2) All acts done in good faith by a committee of management shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment or continuance in office of any member be as valid as if the member had been duly appointed or had duly continued in office.

(3) Notwithstanding anything to the contrary in subsection (1), a Trust shall be bound by everything done by its committee of management which it is lawful for the Trust to do, and no person dealing with the Trust shall be concerned to inquire in relation to any such act whether the committee is authorised to act as it does. (emphasis added)

33 It seems to me to be tolerably clear that the words "and not otherwise" show that the Trust may only exercise its powers and functions through the committee of management. This prima facie includes both any decision to grant a tenancy over Trust property as well as commencing proceedings against a trespasser. But in this connection it is important to observe that neither the plaintiff nor defendants specifically addressed, either in submission or in evidence, the extent or bounds of the authority of the CEO, or some other employee of the Trust,[10] whether pursuant to a delegation or otherwise.

34 Order 53 is headed "Summary Proceeding for Recovery of Land". Rule 53.01 of the Rules provides:

(1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent that of any predecessor in title of the plaintiff.

(2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.

35 Rule 53.02 authorises a plaintiff to make a claim in a proceeding in accordance with the Order, provides that the proceeding shall be commenced by originating motion and be in Form 5E. Rule 53.02 provides that each person in occupation of the land whose name the plaintiff knows shall be a defendant and if the name of any person in occupation is not known the proceeding may be commenced without naming any person as defendant.

At the time the proceeding is commenced an affidavit shall be filed stating that:

(a) The interests of the plaintiff in the land;

(b) The circumstances in which the land is being occupied without licence or consent and in which the claim for recovery of the land arises; and

(c) That the plaintiff does not know the name of any person occupying the land who is not a defendant.

37 Provision is also made for service of the originating motion and affidavit in support (together with exhibits). Service on a defendant must be personal and service on any person occupying the land who is not a defendant is to be effected by affixing a copy of the originating motion and a copy of the affidavit to some conspicuous part of the land, and, if practicable, leaving in a letterbox or other receptacle for mail on the land a copy of the originating motion and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".

38 Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances. The order is based upon what was Order 113 in the English High Court Rules introduced in 1970. The background to the introduction of that order of the English Rules, and thus Order 53 of our Rules, was explained by Lord Denning MR in McPhail v Persons Unknown,[11] in the following terms:

...When some squatters entered on vacant land belonging to the Manchester Corporation, this court granted an injunction against them, but held that it could not make an order for recovery of possession except in a final judgment: ...

... And when some squatters occupied houses in Brighton, Stamp J. held that no proceedings could be taken for recovery of possession unless they were named as defendants: see In Re. Wykeham Terrace, Brighton, Sussex, Ex parte Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch. 204. The result was that if the squatters did not give their names, or if one squatter followed another in quick succession, no order for possession could be made. I must confess that I doubt the correctness of that decision. But it does not matter. The position was soon put right by new rules of court. R.S.C., Ord. 113, of the High Court and Ord. 26 in the county court are quite clear. A summons can be issued for possession against squatters even though they cannot be identified by name and even though, as one squatter goes, another comes in. Judgment can be obtained summarily. It is an order that the plaintiffs "do recover" possession. That order can be enforced by a writ of possession immediately. ...

39 The words of Rule 53.01(1) make it plain that the pre-requisites to the application of Order 53 are that the person or persons in occupation of the land are -

(a) a person or persons who entered into occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff; or

(b) a person or persons who, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.[12]

40 Thus, a tenant holding over after the termination of the tenancy is not within either category and the service of a notice on the tenant purporting to determine the holding over does not alter that position. That is because the tenant to whom such a notice is given entered into occupation by licence or consent, and so is not within paragraph (a), and paragraph (b) does not apply because the tenant is not a person who was once a licensee.[13]

41 The authorities establish the following matters in relation to the operation of Order 53:

(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;[14]

(b) It is intended to apply only in clear cases where there is no question to try;[15]

(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.[16]

(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;[17]

(e) The jurisdiction should be exercised with great care;[18]

(f) Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules;[19] and

(g) Where the Court gives judgment for possession under Order 53, it may grant a stay of execution.[20]

42 The power to give summary judgment for possession is similar in nature to the power to give summary final judgment under Rule 22.02 of the Rules.[21] That power should be exercised with great care and should never be exercised unless it is clear that there is no question to be tried.[22] The need for exceptional caution in exercising the power is the subject of numerous observations of courts in this country.

43 Dixon J (as he then was) summed up a number of authorities in Dey v Victorian Railways Commissioners[23] saying, in relation to a claim to obtain judgment against a plaintiff:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

44 In General Steel Industries Inc v Commissioner of Railways (NSW),[24] Barwick CJ quoted this passage from Dey and went on:

...in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

45 An example of a case where argument of an extensive kind did demonstrate that a plaintiff was entitled to summary possession of land is Melbourne Anglican Trust Corporation v Greentree.[25]

46 The plaintiff submitted that the elements required by Order 53 had been proven and that there is no issue to be tried. In summary, the plaintiff submitted that:

(a) The first defendant has not disclosed that he is in occupation of the Property pursuant to a lease, licence or other permission. The evidence given both by the first defendant and by Mr Chatfield does not establish that the defendant entered into occupation with the licence or consent of the Trust. In particular, the evidence of the consent of the Elders of the three families that dominate the Framlingham Reserve was put on the basis that the usual practise or custom within the community was that the decision of the Elders would be accepted by the committee of management of the Trust;

(b) The evidence of Mr Campbell, on behalf of the Trust, is that there has been no decision by the committee of management granting any tenancy to the defendants or giving any consent or licence to them to occupy the Property;

(c) The unilateral payment of rent does not, in the circumstances exposed in the evidence filed on behalf of the Trust, constitute or evidence any lease or agreement for lease;

(d) Even if there were some evidence of consent to the defendants entering into occupation of the Property, it is not possible to infer the existence of any contract or agreement for a tenancy. There is no certainty as to the parties, the subject matter or the price to enable any such agreement to be enforceable;[26]

(e) There is no evidence that the Elders who purport to have given the defendants permission to enter into occupation of the Property were authorised by the committee of management to act on its behalf, or on behalf of the Trust; and

(f) There is prejudice presently being faced by the Trust in it being prevented from completing the renovations that had been underway prior to the defendants entering into occupation of the house on the Property. Although there is some dispute about the ability of the Trust to complete these renovations whilst the defendants are in occupation, there is no dispute that the funds to be paid by the Department of Housing will not be released until they are complete.

47 The defendants' submissions focussed on the evidence given by the defendants and by Mr Chatfield as to the usual practice for the granting of tenancies of Trust properties in the past. In summary, the defendants submitted that:

(a) This was a case where Aboriginal customs intersected with and affected the operations of the Trust. The evidence of the practice over the past 20 years, given by the first defendant in his affidavit, of the permission to enter into occupation of Trust properties being given by Elders of the Aboriginal community, revealed the reality of the practice of the Trust;

(b) Having regard to the disputes between the principal families resident on the Reserve as to the election of the members of the committee of management, and the Oppression Proceeding, a fresh and properly conducted election of the committee of management could affect the attitude of that committee as to whether the defendants should be evicted from the Property;

(c) Because the Oppression Proceeding raises serious questions about whether the committee of management is presently validly constituted, and an election will, if held, likely change the composition of the committee, the final determination of this application should be stayed or postponed until after the hearing and determination of the Oppression Proceeding, or further order; and

(d) The present constitution of the committee, and the evidence of Mr Campbell, indicates that the decision to commence this proceeding should itself be the subject of investigation. In particular, to the extent that the committee of management has made a decision to commence this proceeding (which is unclear), it has not been made in good faith and, in consequence, the saving provision in s 16(2) of the Act will not validate the decision if the election of the committee is declared null and void.

48 The evidence of the involvement of the Aboriginal Elders of the Framlingham community in the decisions to allocate housing in the Reserve reveals a basis for the contention that the decisions of those Elders were consistently or uniformly implemented by the committee of management. That is to say, the evidence of the first defendant and Mr Chatfield establishes a basis for the proposition that any decision of the relevant Elders was, necessarily, adopted by the committee of management.

49 Notwithstanding that the adoption by the committee of management of any decision of the Elders is a necessary step in the legal authorisation for a tenancy agreement to be brought into existence under the provisions of the Act, it is arguable that a licence or consent arises out of the authorisation given by the Elders pending any decision of the committee of management.

50 The Trust is constituted by the Act and its powers and authorities are governed by the provisions of the Act without any express regard to the relevant Aboriginal customs. But it is in the final analysis an Aboriginal Reserve that is the subject of governance by the Trust. All its original members were Aborigines resident on the Reserve. The evidence of the customs and practices as to the allocation of housing owned and managed by the Trust may hereinafter be found to have substantial and binding effect on the committee of management,[27] or at least to give rise to rights pending consideration by the committee of management.

51 Although this Court is bound by the processes prescribed by the Act, it is only by a trial of the issue as to the impact of the customs and practices on the overlaid legal structure imposed by the Act that the true position can be arrived at. It may well be, as the defendants contend, that lying behind the management of the Trust by the committee of management is a process involving decision making by the Elders of the respective families, or of the community as a whole.

52 The question of the defendants establishing a legal right and entitlement to a tenancy depends, under the legislation establishing the Trust, on a decision of the committee of management, so far as the evidence presently establishes. But whether by a decision of the Elders there can be a valid and enforceable licence or consent, at least pending a decision of the committee, is another matter that requires further evidence and cross-examination of the deponents on their affidavits.

53 The argument that some form of licence or consent is to be derived from a decision of the Elders permitting the defendants to occupy the Property is given greater force when the evidence as to the absence of any decision of the committee of management is considered.

54 The evidence of Mr Campbell is that the first defendant had applied for a tenancy of a Trust property on the Trust's tenancy application form, dated 22 November 2013 (but received on about 3 December 2013). In his second affidavit, Mr Campbell deposed that at the time that these proceedings were commenced the committee of management had not considered the application because "there had not yet been any meeting of the Trust's committee of management".[28] To the extent that any occupation of the Property by the defendants depends on a decision of the committee of management, then the evidence clearly establishes that there had been no decision to give any permission to the defendants to occupy the Property.

55 By the same token, the absence of a meeting of the committee also means that the committee has not considered and indorsed or confirmed, or denied, the decision of the Elders to give permission to the defendants to occupy the Property. That results in the position where - arguably - the permission of the Elders pending the decision of the committee is sufficient licence or consent to prevent the summary recovery of possession by the Trust.

56 Ordinarily, the evidence of the Chief Executive Officer, Mr Campbell, as to his authority to make the affidavit on behalf of the Trust would bring with it, by implication, the proposition that the Trust by its governing body (the committee of management) had authorised the commencement of this proceeding. If the current committee of management were hereafter found not to be validly constituted (as the plaintiffs contend in the Oppression Proceeding), then by s 16(2) of the Act any decision made by the committee to commence this proceeding would not be held invalid providing it was made in good faith.

57 The validity of the acts of the committee in the event that the Oppression Proceeding succeeds will therefore turn on whether the decision, if one was made by the committee, to seek to eject the defendants by this proceeding was made in good faith. The evidence of Mr Chatfield raises a question as to the good faith of the committee in deciding to do so.

58 As a part of his submissions in answer to the Trust's claim, Mr Greenway of counsel submitted that this was a case where the authority to commence this proceeding needed to be investigated. The only material advanced on behalf of the defendants to call into question the validity of any decision to commence this proceeding was the evidence of Mr Chatfield above at paragraph 26(e). Although Mr Greenway did not specifically advert to the evidence of Mr Campbell that at the commencement of this proceeding the committee of management had not met, that evidence calls into question his authority and the action of the Trust in purportedly commencing this proceeding. To be entirely clear about this, it raises that question because the Originating Motion was filed on 23 December 2013, and at that point there had been no meeting of the committee of management since the election held on 16 December 2013. It follows that, in the absence of some other evidence of the authority of Mr Campbell and the solicitors for the Trust, there was no authority of the committee of management to commence this proceeding. There is no evidence that there has been a committee of management meeting subsequently that has authorised or ratified the commencement of this proceeding.

59 The evidence of Mr Campbell concerning the absence of any meeting of the committee of management was not specifically referred to in argument. Counsel for the Trust, Mr Isles, therefore made no submission as to that evidence, nor any application to submit further evidence as to the authority to commence this proceeding. Nor was there any submission made in relation to the allegation and evidence of Mr Chatfield that the committee of management, controlled by the Clark-Ugle family, was acting in bad faith in seeking to eject the defendants. It was only after argument and a close consideration of the evidence and provisions of the Act that these points emerged.

60 The account of the evidence given above shows that the Trust and the defendants have exchanged affidavits for some time. The proceeding came on for hearing first on 24 February 2014. It was then adjourned to 28 April 2014, with directions as to the filing and service of further affidavits. On that adjourned date the Court was told of the Oppression Proceeding and the defendant sought time to put on further affidavit material.

61 The question arises whether I should allow the Trust to put further material before the Court and to address in argument the issues I have identified above, particularly as to the authority of the Trust to commence this proceeding. Having regard to the summary nature of the application under Order 53, and to the questions that have emerged, particularly as to the disputed operation of the customs and practices within the Framlingham Aboriginal community, and the argument that these customs give rise to licence or consent, it is inappropriate to allow a further round of battling affidavits and further argument. Should the Trust desire to press on with its claim, the appropriate course is to treat the application as having been commenced by writ pursuant to Rule 4.07 and give directions to take the matter to trial.

62 There is also some force in the defendants' contention that if an order were made for possession it should be stayed, or postponed, for some time to enable the hearing and determination of the Oppression Proceeding. Against this postponement or stay, there is the disputed question of the ability of the Trust to complete the renovations whilst the defendants are in occupation of the house on the Property and the presently undisputed evidence that the access to funding from the Department of Housing for the current financial year depends on completion of the renovations before 30 June 2014.

63 The Trust is, in effect, requesting the Court to resolve seriously disputed questions in a summary application where there is a lack of clarity as to:

(a) The impact of the customs and practices of the Framlingham Aboriginal community on the occupation of the Property by the defendants, and whether a decision of the Elders of the community giving permission to the defendants to occupy the property may result in there being a licence or consent of the Trust pending any decision of the committee of management;

(b) The authority of the Trust to commence the proceeding;

(b) The bone fides of any decision (if made) of the committee of management to commence the proceeding in circumstances where that decision may not be saved by s 16(2) of the Act if there is a subsequent spill of the committee as a result of the Oppression Proceeding; and

(c) The ability of the Trust to complete its renovations of the house on the Property whilst the defendants are in occupation.

64 In light of these matters, in my view it is inappropriate to proceed further in a summary hearing in an attempt to resolve any of these issues between the parties. It is not possible to resolve the factual and legal issues readily and fairly in a summary application.

65 The Trust's application will accordingly be refused. I will hear the parties on whether they seek any orders for the future conduct of the proceeding (including an early mediation) and on the question of costs.

[1] The originating motion was filed on 23 December 2013.

[2] Affidavit of Bruce Campbell sworn 20 December 2013.

[3] Exhibit BC-3 to the Affidavit of Bruce Campbell sworn 20 December 2013.

[4] The Act provides for a secretary of the Trust but no CEO.

[5] Exhibit BC-4 to the Affidavit of Bruce Campbell sworn 20 December 2013.

[6] Affidavit of Bruce Campbell sworn 20 December 2013, [16].

[7] Exhibit BC-6 to the affidavit of Bruce Campbell sworn 21 February 2014.

[8] Affidavit of Bruce Campbell sworn 21 February 2014, [9].

[9] There was no objection raised as to the admissibility of these matters. Nevertheless, having regard to the summary nature of the proceeding, insofar as they involve opinion evidence I have regard to them only as an indication of what might be properly admissible at full trial if the proceeding were to continue as if begun by Writ.

[10] Section 11(1)(g) of the Act empowers the Trust to appoint and employ officers and employees.

[11] [1973] 1 CH 447, 458.

[12] See Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13].

[13] Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13]; Williams, Civil Procedure Victoria, [53.01.0].

[14] Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13].

[15] Palazzo v Pullen (unreported, Supreme Court of Victoria, Brooking J, 24 July 1992, BC9200663).

[16] Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13]; Melbourne Anglican Trust Corporation v Greentree (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997); Tolhurst Druce & Emerson v Maryvell Investments Pty Ltd [2007] VSC 271, [193]-[195]; Byrne v Ritchie [2009] VSC 114 at [17] (unreported, Supreme Court of Victoria, Kyrou J, 3 April 2009).

[17] Byrne v Ritchie [2009] VSC 114, [17] (unreported, Supreme Court of Victoria, Kyrou J, 3 April 2009).

[18] Melbourne Anglican Trust Corporation v Greentree (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997); Max Moar & Quuenbridge Pty Ltd v Shazia Duman [2007] VSC 266, [2], (unreported, Supreme Court of Victoria, Pagone J, 23 July 2007).

[19] Palazzo v Pullen (unreported, Supreme Court of Victoria, Brooking J, 24 July 1992, BC9200663).

[20] See Parker v Mielicki [2003] VSC 263 and Rule 66.16 of the Rules.

[21] Melbourne Anglican Trust Corporation v Greentree (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997).

[22] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.

[23] [1949] HCA 1; (1949) 78 CLR 62, 91.

[24] [1964] HCA 69; (1964) 112 CLR 125, 129-130.

[25] (Unreported, Supreme Court of Victoria, Vincent J, 29 May 1997).

[26] See Hall v Busst [1960] HCA 84; (1960) 104 CLR 206, 222.

[27] The evidence may be admissible under s 72 of the Evidence Act 2008 (Vic). In any event, it was tendered without objection.

[28] Affidavit of Bruce Campbell sworn 21 February 2014, [9].