La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act

Land and Environment Court (NSW)|2014-08-13|Before: Craig J

EX TEMPORE Judgment 1On 18 September 2009, La Perouse Local Aboriginal Land Council (the Land Council) made claims for land at La Perouse under s 36(3) of the Aboriginal Land Rights Act 1983 (NSW) (the Land Rights Act). The lands claimed were three contiguous lots of vacant land being Lots 1, 2 and 3 in DP 39760. Each Lot was the subject of a separate land claim. 2By letter dated 20 May 2010 the Minister refused the land claims made for Lots 2 and 3. However, appeals pursuant to s 36(6) of the Land Rights Act against that refusal were not filed by the Land Council until 9 May 2014. 3The Land Rights Act does not fix the time for exercising the right of appeal provided by s 36(6). Consequently that time is fixed by r 7.1(1)(b) of the Land and Environment Court Rules 2007 (NSW) (LECR). The time so fixed is "any time within 4 months after the refusal". Clearly the present appeals were well outside that time. 4By notice of motion dated 19 May, the Land Council seeks orders that time to appeal from the Minister's refusal of the land claims made for each of Lots 2 and 3 be extended until 9 May 2014, being the date upon which the appeals were filed in this Court. The motion seeks to invoke the discretion available to the Court under LECR r 7.3 to extend the time fixed by r 7.1(1)(b). 5In support of its notice of motion, the Land Council relies upon the affidavit of Christopher Ingrey affirmed on 16 May 2014. Mr Ingrey is the chief executive officer of the Land Council. A bundle of documents was also tendered by the Land Council without objection from the Minister. The facts recorded in this judgment are derived substantially from that evidence. 6The Land Council's motion was opposed by the Minister. As will become apparent, his basis for opposing the motion is essentially limited to the fact of delay in bringing the proceedings. The evidence upon which the Minister relies is an affidavit of Wayne Robert Ferguson affirmed 18 June 2014 together with an affidavit of Daniel Byers also affirmed 18 June 2014. Mr Byers is a solicitor employed in the office of the Crown Solicitor.

The principles for exercise of discretion 7Rule 7.3 of the Court's rules provides: "7.3 Extension and abridgment of time (1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires." That rule is expressed in substantially the same terms as r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). The object of a rule affording a discretion to grant an extension of time was stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 in the following terms at [2]: "The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262." 8As subsequent cases have indicated, including cases in this Court, when determining whether a time limitation for commencing an appeal works an injustice, it is appropriate to consider the length of delay, the reasons for the delay, the extent of prejudice and whether there is an arguable case to be made by the party seeking the extension of time (Preston CJ in Jassls Pty Ltd v Valuer General [2006] NSWLEC 59 at [29], citing the decision of Lloyd J in Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128). 9Rule 1.12 of the UCPR has been the subject of a number of decisions in the Supreme Court. In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 it was said at [28]: "The rule requires the exercise of a judicial discretion, not fettered by inflexible prescriptions: ...The discretion is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions." 10After reviewing a number of authorities, Ipp JA (Tobias and McColl JJA agreeing) said in Anderson at [43]: " ... the Court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it." Those are the principles by which this application will be determined. However, before so doing, it is necessary to turn briefly to record some background facts.

Background facts 11As is apparent from my earlier description of the lands that were the subject of land claims made in September 2009, although three claims were made at the same time, refusal of claims relating to Lots 2 and 3 occurred in May 2010. The letter notifying refusal of each claim was in identical terms. It stated that the claimed land was "not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 as it comprises freehold land which is not vested in Her Majesty". That statement was not further elaborated and no other ground of refusal was identified. If that truly reflected the position then the lands were not claimable Crown lands. An essential characteristic of land that is able to be claimed under s 36 is that the land be "vested in Her Majesty": s 36(1). 12The land claim made in respect of Lot 1 was not refused until February 2011. By letter dated 15 February of that year the Minister notified his refusal of that claim on the basis that the claimed land was "not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983. In this regard Lot 1, Deposited Plan 39760 was freehold, held by the Land Commission of New South Wales which is not vested in Her Majesty." Although in substance the refusal of the claim for that Lot was to the same effect as the ground upon which the claims for Lots 2 and 3 were refused, reference to the land being held by the Land Commission of New South Wales led to a line of enquiry on the part of the Land Council that was not a line of enquiry triggered by the terms in which the land claims for Lots 2 and 3 had been refused. 13An appeal against the refusal of the land claim in respect of Lot 1 was filed by the Land Council in June 2011. That appeal was ultimately resolved by agreement on 8 June 2012 when consent orders were made requiring that Lot 1 be transferred to the Land Council. On 9 July 2012 further consent orders were made, including an order requiring the Minister to pay the Lands Council's costs of those proceedings. 14On the date of making the land claims for Lots 2 and 3 in September 2009, the Register under the Real Property Act 1900 (NSW) recorded the "State of New South Wales" as the registered proprietor of those lots. The Land Council only became aware of this circumstance during the course of the appeal proceedings relating to Lot 1. It was not until 1 February 2011, that is, almost 17 months after the date of the claim, that the Register under the Real Property Act was altered to show the Land Commission of New South Wales to be the registered proprietor of Lots 2 and 3. This appears to have occurred as a consequence of an internal dealing within Land and Property Information, the State agency responsible for maintaining the Register under the Real Property Act.

Exercise of discretion 15Having regard to the authorities directed to the exercise of the discretion available under LECR r 7.3, the Land Council addressed six specific matters relevant to be considered in support of the order that it seeks. I will address each of these in turn.

Delay 16Applying the provisions of LECR r 7.1(1)(b), the time for appeal in each matter expired on 20 September 2010, being four months after the date of the Minister's refusal of the land claims for Lots 2 and 3 on 20 May 2010. The filing of the appeals on 9 May 2014 involves a delay of almost 3 years and 8 months after expiry of the period fixed by r 7.1(1)(b). Although the sole ground upon which the Minister relies in opposing the Land Council's motion is the fact of delay, for reasons that will become apparent, he does not contend that the measure of delay is to be determined by reference to the period that I have identified. The Minister relies upon "unexplained delay" of approximately 12 months. 17The Applicant acknowledges that, on any view, the delay is significant. However, for reasons that are explained in Mr Ingrey's affidavit, it is contended that the delay is not unreasonable. In summary, that submission is made by reference to the following matters: (i) The 2010 letter of refusal identified the sole ground for refusing the claim in the terms that I have earlier identified, asserting only that the land was not vested in Her Majesty. (ii) There being no reason to dispute the ground so stated, the Land Council accepted that refusal at face value, relying upon the assertion made by the Minister. The Land Council understood that if the assertion was correct then s 36 of the Land Rights Act was not engaged. (iii) The fact that the Land Council accepted the statement from the Minister is, as was submitted, unsurprising. The entity in whom the land was vested is something that was expected to be within the knowledge of the State. The statement that the land was not vested in Her Majesty is not one that the Land Council expected to be made incorrectly by the Minister. 18Having accepted the position stated by the Minister, the Land Council took no further step in relation to its land claims for Lots 2 and 3, at least for some time. In the course of conducting the appeal that was brought following refusal of the claim for Lot 1, it came to the attention of the Land Council that the Register recorded the State as being the registered proprietor of Lots 2 and 3 and had done so at the time at which the land claims were made. 19By the time this fact came to be known in the course of preparing the Lot 1 appeal for hearing, the time to appeal against the refusal of the claims made in respect of Lots 2 and 3 had long since expired. Having become aware of what is contended to be an error on the part of the Minister in stating that Lots 2 and 3 were not vested in Her Majesty at the date the claims were made, the Land Council took the position that it would await the outcome and resolution of the appeal proceedings in respect of Lot 1 before pursuing, if necessary, any claim in respect of Lots 2 and 3. It considered that if it was successful in its Lot 1 appeal, that success would likely result in its claims for Lots 2 and 3 being allowed. 20Upon resolution of the Lot 1 appeal in June 2012, two letters were written on behalf of the Land Council to the Minister's relevant Department of State, directed to the pursuit of claims for Lots 2 and 3. The first letter was one written on 27 August 2012 by the New South Wales Aboriginal Land Council primarily directed to matters pertaining to Lot 1, but raising specifically the claim that had been made and refused in respect of Lots 2 and 3. The letter contended that in light of the resolution of the proceedings pertaining to Lot 1, resulting in the transfer of that Lot to the Land Council, a similar result should ensue in respect of Lots 2 and 3. 21On 23 October 2012, the Land Council wrote to the Department claiming that the Minister's refusal of the claims for Lots 2 and 3 was "untenable" for the same reasons that had ultimately resulted in the successful claim for Lot 1. The letter requested that Lots 2 and 3 be transferred to the Land Council. 22Thereafter, there ensued an exchange of correspondence and emails between the Land Council, the relevant Department and Minister's office requesting a response to the letter of 23 October 2012. It suffices to indicate that between that date and 16 April 2014 when the Minister's response was received, some 16 separate requests were made for the Minister to attend to the Land Council's request for transfer of Lots 2 and 3. 23Ultimately, in a letter dated 14 April 2014 and received on 16 April 2014 by the Land Council, the Minister responded to the Land Council's letter of 23 October 2012 by stating that "as there is no provision in the Aboriginal Land Rights Act for me to reverse the former Minister's determination of these claims, I am unable to transfer the land to La Perouse Aboriginal Land Council." Within a month of receipt of that letter the present appeals were filed with the Court. 24The Land Council relies upon those facts and events to support the contention that its delay was not unreasonable. It relies upon the fact that there was no deliberate delay or obfuscation on its part. It was, in a sense, innocent in taking no action immediately following the refusal of its claims because of the statement from the Minister, accepted by it because of its provenance, that the land was not vested in Her Majesty at the date of claim. 25Upon becoming aware that the land was in fact so vested the Land Council alerted the Minister, through the Department for which he was responsible, of its claims, commencing with correspondence in August of 2012. It refers also to the 16 letters of request for a response to the representations made to the Minister and, having received that response on 16 April 2014, it filed the present appeals on 9 May. 26For the Minister's part, he does not seek to count as delay the period between August or October 2012 when the Land Council's correspondence with him commenced and his response to that correspondence in April 2014. His focus in identifying delay is upon the period between August 2011 and August 2012. 27In August 2011, documents were produced to the Land Council in the course of the Lot 1 appeal. The documents then produced did provide or ought reasonably to have been seen as providing the information now relied upon by the Land Council to contend that Lots 2 and 3 were in fact and in law vested in Her Majesty at the date upon which the land claims for those Lots were made. The fact that those documents were available in August 2011 appears from the affidavit of Mr Byers. Between August 2011 and August 2012 the Land Council did not raise with the Minister its entitlement to have its land claim for Lots 2 and 3 reconsidered. 28The Land Council accepts that the documents made available to it in August 2011, although produced for the purpose of its appeal in respect of Lot 1 and upon which it was then focusing, were documents that did provide the basis upon which to assert that the ground upon which the Minister had refused its land claims for Lots 2 and 3 was amenable to challenge. However, it seeks to explain its apparent inaction for a 12 month period on two related bases. 29First, it points to the fact that by the time the relevant documents were made available to it, the time limited to appeal under LECR r 7.1(1)(b) had expired almost 12 months earlier. As a consequence, even had it sought to pursue an appeal at that time, leave would have been required to do so. 30Secondly, as Mr Ingrey deposed, the Land Council, with its limited resources, considered it appropriate to await the outcome of the Lot 1 appeal in the hope that the costs of any further application directed to its claim for Lots 2 and 3 could be avoided. As I have already recorded, the view was formed that the outcome of the Lot 1 appeal would determine the fate of the land claims made for Lots 2 and 3. 31While one can be critical of the Land Council for not asserting the entitlement for which it now contends, once alerted to the basis for that contention, it is understandable that it adopted the reasons that it did for awaiting the outcome of the Lot 1 appeal. Nothing before me for the purpose of the present motion suggests any fact or circumstance relevant to Lot 1 that differed from those applicable to the adjoining Lots 2 and 3. It is therefore reasonable for the Land Council to have anticipated that if successful in the Lot 1 appeal, the Minister would reconsider the decision to refuse the claims for Lots 2 and 3. 32While the delay in bringing the appeals in respect of Lots 2 and 3 has been considerable, as the Land Council acknowledges, I am not persuaded that, in the circumstances, it is so unreasonable that, as a single factor, it alone should result in a refusal to extend time for commencement of the present appeals. My conclusion in this regard is influenced by the absence of prejudice occasioned by the delay, a topic to which I will now turn.

Prejudice 33The Minister fairly stated before me that no prejudice was claimed to result from the Land Council's delay in commencing these appeals. That is understandable having regard to the single ground upon which those land claims were refused, directed, as it was, to a question of title. It is also understandable on the basis of the evidence that the Land Council produced in seeking to address this aspect of discretion to extend time. 34The evidence tendered by the Land Council demonstrated that for many years the Land Commission, or its statutory predecessor, had informed the Minister's Department that Lots 2 and 3 were surplus to the Commission's needs. While at an earlier point in time some interest in those Lots was expressed by other government instrumentalities, that interest was no longer held. As a consequence, Lots 2 and 3 were proposed for sale at the time at which the land claims were made. 35Both the Minister's concession and the facts adduced amply demonstrate that the delay in commencing these proceedings has not created any prejudice to the Minister or other interested instrumentality. This is significant in the exercise of discretion favourable to the extension of time that the Land Council seeks.

Notice 36It is also to be observed, as a matter of discretion, that there was considerable notice given to the Minister as to the intentions of the Land Council. At the very least, the Minister was on notice from August 2012 that the Land Council intended to pursue its claim for Lots 2 and 3, including by commencing proceedings in this Court under s 36(6) of the Land Rights Act. Given the discourse that was being undertaken, leading ultimately to the settlement of the Lot 1 appeal, it might reasonably be inferred that the course taken in respect of that Lot might have been one that would be pursued in respect of Lots 2 and 3. However I do not rely upon that inference in order to address the question of notice. 37Suffice it is to record that there was significant notice of the Land Council's intention to pursue its rights prior to the time at which these proceedings were commenced. It is not a case of the party affected by late commencement of proceedings first learning of the claim only when legal process is served.

Prospects of success 38A further matter for consideration in exercising discretion is the prospect of the Land Council being successful in its proceedings. The test has been variously expressed. In Gallo v Dawson McHugh J stated (at [2]) that when an extension of time is sought, "it is always necessary to consider the prospects of the Applicant succeeding in the appeal". Later authorities have identified that test by reference to the demonstration of an arguable case. 39It was submitted on behalf of the Land Council that I should consider it had a strong case. The Minister submitted that it was unnecessary to state the prospect at that level and understandably declined to do so. However, he did fairly acknowledge that there was an arguable case to be made on behalf of the Land Council, having regard to the fact that the Register showed the State of New South Wales to be the registered proprietor at the date of claim. 40For the purpose of making a decision on the Land Council's motion, it is unnecessary to resolve the debate between the parties on this issue. I am certainly satisfied on the authorities, in particular that of Breskvar v Wall [1971] HCA 70; 126 CLR 376 at 386 (per Barwick CJ), that there is a reasonably arguable case to the effect that the Register, identifying the State as registered proprietor of Lots 2 and 3 at the date of the land claims, evidences the vesting of those Lots in Her Majesty. The matter is arguable but it seems to me the case is a reasonable and rational one to be pursued. It is anything but a case that might be described as "hopeless". To be fair, the Minister did not so describe it.

Nature of proceedings 41Also relevant to be considered is the nature of the proceedings. The Land Rights Act has been described as beneficial and remedial legislation. That description is most appropriately invoked when one is undertaking the task of statutory construction. However, it seems to me that the provisions of the Act, particularly the preamble, are not to be ignored when exercising a discretion of the present kind. Clearly, if the motion was to be denied and the Land Council prevented from pursuing the present appeals, substantial prejudice would be occasioned to the Land Council. 42The preamble to the Land Rights Act is important as it acknowledges that land in this State was traditionally owned and occupied by Aborigines; that land has a spiritual, social, cultural and economic importance to Aborigines and, as the preamble records, "[i]t is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation". The evidence before me suggests that there is very limited land still available to be claimed at La Perouse, an area of historic importance for all Australians. In the context of the present application, it seems to me that the Act, its preamble and purpose is a relevant consideration when determining whether, taking into account all other factors, the Land Council should be deprived of the entitlement to pursue its present appeals.

Minister's capacity to transfer land 43Finally, as the Land Council submitted, if it is successful in its claims the land is capable of being transferred to the Land Council, conformably with the provisions of the Land Rights Act. This is the case even if the registered proprietor is presently the Land Commission. I do not understand any submission of the Minister to the contrary.

Conclusion and Orders 44Taking into account all of these considerations, I am persuaded that in the exercise of my discretion it is appropriate to accede to the Land Council's motion. Time to commence the present appeals should be extended, there being no injustice to the Minister in so doing. 45Accordingly the orders that I make are as follows:

The time to appeal the Minister's refusal of Aboriginal land claims 20633 and 20637 be extended to 9 May 2014 pursuant to r 7.3 of the Land and Environment Court Rules 2007.
Exhibits may be returned.
By consent, orders in accordance with the short minutes of order initialled by his Honour and placed with the papers.
Note the matter is stood over for directions to Friday 12 September 2014.

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: 27 August 2014

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