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[2009] NSWLEC 161
defendant. The Court determined that Laurie was disqualified and that it had power to declare a casual vacancy, but deferred finalising the declaration pending submissions on wording and postponed its...
The Court decided it could hear the NSWALC's cross-claim, even though the ADT also had statutory power to declare a councillor's office vacant. It held that Laurie's old conviction could disqualify her after election, and that the disqualification did not cease to matter merely because the five-year period expired before the issue was resolved. The Court considered it could declare a casual vacancy and that the declaration would remove Laurie from office. To manage the possibility of an appeal, it proposed delaying the declaration's effect and asked the parties to address wording. It did not finalise the declaration or costs in this judgment.
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1,965 words · generated 01/10/2026
This is a further judgment in proceedings about Patricia Laurie’s election to the New South Wales Aboriginal Land Council (NSWALC) for the North Coast region and the consequences of a 2003 driving conviction. Pain J had already found in Laurie No 1 that Laurie was elected in May 2007, and that she was not automatically disqualified merely by taking office. The earlier judgment also rejected her challenge to the Registrar’s decision not to ignore the conviction for the purposes of s 132(1)(c) of the Aboriginal Land Rights Act 1983 (ALR Act) ([1]–[7]).
2 cited instruments linked from this judgment.
The conviction was for driving while disqualified, an offence punishable by up to two years’ imprisonment. Section 132(1)(c) applied to certain convictions recorded within the previous five years. That period expired on 11 March 2008. Laurie had applied to the Registrar on 10 March 2008 to have the conviction ignored, but the Registrar decided on 19 May 2008 not to do so ([5], [8]).
Laurie sought declarations and orders confirming that she continued to hold office, restraining the NSWALC from interfering with her councillor functions, and requiring payment of remuneration and allowances ([1]). The NSWALC cross-claimed, seeking, among other relief, a declaration that there was a casual vacancy in her office ([3]). This judgment addressed the remaining questions: whether the Court could decide the cross-claim, whether the conviction could disqualify Laurie after the five-year period expired, whether that disqualification meant a vacancy, and whether the Court’s declaration would remove her from office.
Pain J held that the Court had jurisdiction to determine the cross-claim. She concluded that Laurie became disqualified on election and that the Court could declare a casual vacancy. The Court proposed, however, to postpone the declaration’s effect for a fixed period relating to any appeal, and sought the parties’ views on the wording. Costs and the final wording remained outstanding ([91], [94]).
The Court’s jurisdiction analysis began with s 20(2) of the Land and Environment Court Act 1979 (Court Act). That provision gives the Court civil jurisdiction over proceedings to enforce or review functions under planning or environmental laws, and to make declarations in relation to those functions. The judgment treated the ALR Act, apart from an irrelevant division, as a planning and environmental law for that purpose. The cross-claim concerned the consequences of the Registrar’s decision and whether Laurie should continue to hold office and be paid as a councillor. Pain J therefore held that s 20(2) applied ([54]–[55]).
As an alternative basis, the Court considered s 16(1A) of the Court Act, which extends jurisdiction to matters ancillary to matters already within the Court’s jurisdiction. The cross-claim was an essential step in deciding Laurie’s claim to continue in office. The Court considered that sufficient to make it ancillary, if it did not independently fall within s 20(2) ([56]–[61]).
The ADT’s power under s 135 of the ALR Act did not remove the Court’s jurisdiction by implication. The Court relied on the absence of express words excluding its jurisdiction and found no necessary inconsistency between access to the ADT and the Court’s jurisdiction. It also considered that ss 136 and 137, which address appeals from ADT orders and when those orders take effect, did not limit the Court’s jurisdiction ([62]–[63]).
On disqualification, the central statutory provisions were ss 132(1)(c) and 133(e). Section 132 set out grounds for disqualification, including the specified type of conviction within five years. Section 133(e) provided that a councillor vacates office if they become disqualified. The Court held that a conviction recorded before election could still affect a councillor’s ability to continue in office, and that a fresh disqualifying event after election was unnecessary ([65]–[67]).
The five-year period’s expiry did not prevent the Court from resolving the consequences of the conviction. Pain J reasoned that a contrary construction could undermine the purpose of the disqualification provisions by allowing the relevant event to expire before proceedings concluded. She referred by analogy to Lane v Atkin and noted that the issue was not an application brought outside a statutory limitation period; it concerned the orders to be made on facts established in the proceedings ([28], [70]).
The Registrar’s decision did not create a new disqualification or reset its date. Rather, by declining to ignore the conviction, the Registrar left the statutory ground operative. The Court therefore concluded that disqualification arose when Laurie was elected, because the conditions for disqualification then applied ([71]–[72]). That conclusion was distinguished from the earlier finding that disqualification did not occur automatically merely because she took office: the earlier issue concerned the operation of the Act before the Registrar’s decision had been determined to be valid ([72]).
Finally, the Court rejected the argument that only the ADT could produce an effective vacancy. It held that its own declaratory powers were broad enough and that a declaration that the office was subject to a casual vacancy would have the effect of removing Laurie from office ([77]–[83]). The Court exercised its discretion to make the declaration, emphasising the value of resolving the parties’ dispute in the proceedings already under way ([84]).
The judgment did not purport to change the text of the ALR Act. It interpreted the interaction of the existing provisions in ss 132, 133 and 135, alongside the Court Act’s jurisdictional and remedial provisions.
Before this judgment, the proceedings had established that Laurie was elected, that her election was not automatically void on taking office, and that the Registrar’s refusal to ignore the conviction stood. The remaining question was whether the conviction could nevertheless lead to disqualification and a vacancy, despite the five-year period having expired before the issue was resolved ([6]–[7]).
After this judgment, the Court’s working construction was that the conviction could cause disqualification during the councillor’s term, even though it pre-dated the election, and even where the five-year period expired before the Court determined the issue. The Court also held that the ADT’s s 135 function did not displace its own jurisdiction, and that a declaration by the Court could have the effect of removing the councillor ([62]–[67], [83]).
The judgment did not finally settle the practical timing of the declaration. Section 137 expressly governs when an ADT order takes effect, whereas the Court identified no equivalent statutory timing rule for its own declaration. To address that difference, Pain J proposed postponing the declaration’s operation for a period linked to any appeal ([85]–[91]). The judgment therefore states the Court’s conclusions on the legal issues while leaving the final wording and operative date to be settled after further submissions.
At [55], Pain J concluded that the relief sought fell within s 20(2) because it concerned the exercise of a function conferred by the ALR Act. In plain English, the Court considered the dispute about continued office and payment to be within its statutory subject-matter jurisdiction.
At [60], the Court said the cross-claim could be characterised as “ancillary” because it was an essential step in deciding Laurie’s claim to continue holding office. This was an alternative route to jurisdiction, not a finding that s 20(2) was insufficient.
At [66], the Court confirmed that a conviction before election could still have consequences for holding office after election. The point was that the Act did not require the disqualifying event itself to occur after the person became a councillor.
At [71], the Court identified election as the point when disqualification arose. The Registrar’s later refusal to ignore the conviction did not, in the Court’s view, create or renew the disqualification. It meant that the statutory ground was not disregarded.
At [83], Pain J stated that a declaration of a casual vacancy would remove Laurie from office. This answered the argument that a declaration would merely describe the position without changing it.
At [91], the Court proposed postponing the declaration’s effect to avoid uncertainty during a possible appeal. In practical terms, the Court sought to align the declaration’s operation with a defined stage in the appellate process rather than assume that a stay would be available.
The reasoning is most directly engaged where a councillor is subject to a statutory disqualification ground based on an event that occurred before election, but the legal consequences are considered after election. The judgment expressly holds that the relevant event need not occur during the councillor’s term for ss 132 and 133 to operate ([65]–[67]).
It is also relevant where the statutory period associated with a disqualification ground expires before a court or tribunal resolves the issue. The Court considered that expiry alone did not make the question moot or prevent relief, where the disqualification arose during the relevant term and the proceedings later determined its consequences ([24]–[28], [70]).
A further trigger is a statutory scheme that gives an administrative tribunal power to make a vacancy order but does not expressly exclude court jurisdiction. The judgment treats the existence of an ADT procedure as insufficient, by itself, to imply repeal of the Court’s jurisdiction ([62]–[63]). The Court’s analysis is tied to the wording of the ALR Act and Court Act discussed in this case; it does not establish that every tribunal procedure is non-exclusive.
Finally, the judgment addresses cases in which a court declaration may affect the composition of a statutory body while an appeal is possible. It treats postponement of a declaration’s effect as a possible means of managing that issue, while noting the general difficulty of obtaining a stay of declaratory relief ([85]–[91]).
The supplied judgment gives no information about how later courts treated Laurie No 4. It would therefore be unsupported to claim that later courts followed, distinguished, or departed from its reasoning.
The judgment itself does identify earlier authorities used in its analysis. It applied the implied-repeal reasoning in Shergold v Tanner to conclude that the ADT’s statutory role did not remove the Court’s jurisdiction ([62]–[63]). It applied Lane v Atkin by analogy when considering whether expiry of a relevant disqualification period prevented later determination ([70]). It distinguished Neeta (Epping) Pty Ltd v Phillips because that case concerned a private contract rather than public-law declaratory relief ([80]).
For the treatment of declaratory orders pending appeal, Pain J considered Bunnings Forest Products Pty Ltd v Bullen and other authorities. Bunnings was used to support the possibility of postponing the declaration’s effect, rather than relying on a stay after the declaration had taken effect ([86]–[91]). These are authorities considered by the Court in this judgment, not evidence of later treatment of Laurie No 4.
The judgment left practical matters unresolved. First, the final wording of the vacancy declaration had not been settled. Pain J asked the parties to provide advice on suitable wording and on whether an additional declaration should confirm that Laurie was elected ([91], [93]).
Second, the precise period by which the declaration’s effect would be postponed was not fixed in the judgment. The Court proposed a period related to the appellate process, assuming Laurie wished to pursue it, but requested further submissions before finalising the declaration ([91]).
Third, the judgment did not decide whether the de facto officer doctrine would preserve the validity of NSWALC decisions during an appeal. The Court said that it did not need to decide the issue in light of its proposed postponement ([92]).
Finally, costs remained outstanding and required further argument from the parties ([94]). The judgment thus resolves important jurisdictional and statutory-construction questions but does not contain the final form of all relief or the determination of costs.
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CITATION : Laurie v New South Wales Aboriginal Land Council (No 4) [2009] NSWLEC 161
APPLICANT/FIRST CROSS-DEFENDANT Patricia Helen Laurie FIRST RESPONDENT/CROSS-CLAIMANT New South Wales Aboriginal Land Council PARTIES : SECOND RESPONDENT Registrar, Aboriginal Land Rights Act 1983 SECOND CROSS-DEFENDANT Brian Decelis THIRD CROSS-DEFENDANT Electoral Commissioner for New South Wales
INJUNCTIONS AND DECLARATIONS :- declaration sought that applicant continues to hold office as councillor of NSW Aboriginal Land Council - declaration sought by cross-claimant that there is a casual vacancy in office of councillor - whether applicant became disqualified on taking office as councillor because of traffic conviction
JURISDICTION :- whether jurisdiction to determine cross-claim under s 20(2) of the Land and Environment Court Act 1979 - whether cross-claim ancillary to applicant's claim under s 16(1A) of of the Land and Environment Court Act 1979 - whether implied repeal of court's jurisdiction to determine cross-claim by conferral of jurisdiction on Administrative Decisions Tribunal to declare office of councillor vacant KEY ISSUES: JUDICIAL REVIEW :- whether Court has power to declare office vacant - whether effect of declaration of vacancy removes applicant from position of councillor - whether stay of declaration can be granted by this Court or other court - whether to suspend or postpone making of declaration
Aboriginal Land Rights Act 1983 s 132, 133, 134, 135, 136, 137 Aboriginal Land Rights Regulation 2002 cl 84 Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions Tribunal Act 1997 s 7, 11, 37, 45 Interpretation Act 1987 s 33 LEGISLATION CITED: Judiciary Act 1908 (Cth) s 39 Land and Environment Court Act 1979 s 16, 20, 22, 23, 58 Local Government Act 1993 s 329 Local Government Act 1919 s 30 (repealed) Roads Act 1993 Uniform Civil Procedure Rules 2005 r 51.44
Ainsworth v Criminal Justice Commission (1993) 175 CLR 564 Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255 Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429 Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 64 Commissioner of Stamp Duties (NSW) v Pearse (1951) 84 CLR 490 Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 64 Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189 Figgis v Mosman Municipal Council (1993) 81 LGERA 423 Gray v Minister for Planning (2006) 152 LGERA 258 Jeans v Bruce [2004] NSWSC 758 Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie (2009) 166 LGERA 157 CASES CITED: Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie (No 2) [2009] NSWLEC 73 Lane v Atkin (1922) 30 CLR 437 Laurie v New South Wales Aboriginal Land Council (No 3) [2009] NSWLEC 108 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 164 CLR 24 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 593 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Newcastle City Council v Caverstock Group Pty Ltd (2008) 163 LGERA 83 Nix v Pittwater Council (1999) 84 LGERA 199 Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278 Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208 Scharer v State of New South Wales (2001) 53 NSWLR 299 Shergold v Tanner (2002) 209 CLR 126 Sibuse Pty Ltd v Shaw (No 2) [1988] 13 NSWLR 125 The Roosters Club Inc v The Northern Tavern Pty Ltd (No 2) [2003] SASC 143 World Best Holdings Ltd v Sarker [2009] NSWADTAD 13
TEXTS CITED: Lexis Nexis, Ritchie's Uniform Civil Procedure (Vol 1, 2005)
APPLICANT/FIRST CROSS-DEFENDANT Mr S Docker SOLICITORS Conroy Stewart Spagnolo FIRST RESPONDENT/CROSS-CLAIMANT Mr J Kirk SOLICITORS Legal Services Unit, New South Wales Aboriginal Land Council LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr A McAvoy INSTRUCTED BY Registrar, Aboriginal Land Rights Act 1983
SECOND AND THIRD CROSS-DEFENDANTS Ms C Spruce SOLCITORS Crown Solicitor
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
40616 of 2008 Laurie v NSW Aboriginal Land Council and Ors; New South Wales Aboriginal Land Council v Laurie and Ors (No 4)
JUDGMENT 1 Her Honour: In Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie (2009) 166 LGERA 157 (Laurie No 1) I found that the Applicant was elected as a councillor for the north coast region of the New South Wales Aboriginal Land Council (the NSWALC) on 19 May 2007. I did not make a declaration to that effect. The Applicant continues to seek a declaration and orders in her Class 4 application as follows:
2 I did not make a declaration or orders in Laurie No 1 because, given my findings, whether the Applicant's position as an elected councillor is subject to a casual vacancy arises. The Applicant admits that she was disqualified from holding office at the time of her election because of a 2003 driving conviction which was a ground for disqualification pursuant to s 132(1)(c) of the Aboriginal Land Rights Act 1983 (the ALR Act). As stated at [260]-[261] of Laurie No 1 what orders, if any, ought be made requires further consideration particularly in light of s 22 of the Land and Environment Court Act 1979 (the Court Act) which states that the Court should determine all matters in issue between parties before it.
3 The NSWALC filed a cross-claim which was also considered in Laurie No 1. In Laurie v New South Wales Aboriginal Land Council; New South Wales Aboriginal Land Council v Laurie (No 2) [2009] NSWLEC 73 (Laurie No 2) I held at [9] that the NSWALC should amend its cross-claim to clarify the date(s) on which it argues the Applicant's elected position as a councillor became subject to a casual vacancy pursuant to s 133 of the ALR Act. As stated in Laurie No 2 I considered the amendments were necessary to inform the Applicant of all aspects of the NSWALC cross-claim. The NSWALC was granted leave to amend its cross-claim (Laurie v New South Wales Aboriginal Land Council (No 3) [2009] NSWLEC 108). The relief sought by the NSWALC including those amendments is: 4A. A declaration that the Cross-Claimant is entitled, in light of section 132(1)(c) of the Aboriginal Land Rights Act 1983, to cease paying the First Cross-Defendant the remuneration and allowances of a councillor of the New South Wales Aboriginal Land Council as referred to in sections 120(5) and (6) of that Act. … 6A. In the alternative to orders 4 and 5, a declaration that there is a casual vacancy in the office of councillor for the North Coast Region for the New South Wales Aboriginal Land Council.
6B. In the further alternative, a declaration that the First Cross-Defendant was and is disqualified from holding office as a councillor for the North Coast Region of the New South Wales Aboriginal Land Council.
Amended cross-claim 22B. Further and in the alternative, if the First Cross-Defendant was elected at the 2007 election: (a) the First Cross-Defendant was subject to a disqualification pursuant to section 123(1)(c) of the Act in light of the 2003 Conviction; (b) the decision by the Registrar … not to accept her application that the 2003 Conviction be ignored was valid; (c) pursuant to sections 132 and 133 of the Act she is disqualified and prevented from holding office as a councillor for the North Coast Region of NSWALC, which disqualification has operated and/or been confirmed (such that the First Cross-Defendant has vacated her office) from at least the following times: i. the time of her election; ii. the time of her application to the Registrar …; iii. the time of the Registrar's decision; iv. the time of the decision of this honourable Court to reject her challenge to the validity of the Registrar's decision; or v. the time declaratory relief is granted either by this Court, the Administrative Decisions Tribunal, or any other court or tribunal with jurisdiction; and (d) the disqualification is operative and capable of confirmation by a Court or Tribunal even though the period of disqualification may now have ended; (e) the situation should be resolved by this honourable Court granting declaratory relief as to the disqualification of the First Cross-Defendant and the casual vacancy in the office of councillor for the North Coast Region of NSWALC. 4 In light of my findings in Laurie No 1 the NSWALC agrees that a declaration could be made that the Applicant was elected as a councillor of the NSWALC. This is not the terms of the declaration sought by the Applicant in her Class 4 application which seeks a declaration that she continues to hold office as a councillor. In written submissions the Applicant's counsel suggests that the Court could make a declaration that the Applicant was elected and not include that she continues to hold office in light of any concerns that a wider declaration may impact on any future order made by the Administrative Appeals Tribunal (the ADT) under s 135 of the ALR Act (on which I will say more shortly). The NSWALC otherwise opposes the two orders sought by the Applicant being made (restraining interference in the performance of the Applicant as a councillor of the NSWALC and requiring the NSWALC to pay her remuneration and allowances) and seeks the declarations recited in its amended cross-claim.
Summary of Laurie No 1 findings 5 The facts relevant to the legal issues in this matter were not in dispute. The Applicant was elected as a councillor of the NSWALC on 19 May 2007. At that time she was disqualified from being elected because of a driving conviction in 2003. Section 132(1)(c) provides that a person is disqualified form holding office if, inter alia, the person has a conviction in NSW for an offence punishable by imprisonment for 12 months or more which was recorded in the last five years. The Applicant was found guilty of the offence of driving whilst disqualified which attracts a maximum sentence of two years imprisonment. The five-year period for disqualification under s 132(1)(c) expired on 11 March 2008. The Applicant applied to the Registrar for a review under s 132(2) on 10 March 2008, the last day of the five year disqualification period. On 19 May 2008 the Registrar resolved not to ignore the traffic conviction. The NSWALC wrote to the Applicant in June 2008 stating that it considered she was no longer in her position as a councillor. The Applicant commenced these proceedings on 24 June 2008. 6 In Laurie No 1 I considered three issues set out at [45]. I held in favour of the Applicant on issues 1 and 3 which concerned the election of the Applicant. The findings I made included that the Applicant was elected as a councillor on 19 May 2007. Issue 2 raised in the NSWALC cross-claim was whether the Applicant became disqualified from holding office immediately on taking office as a councillor and I held that she did not. In Laurie No 1 I also held that the Applicant's challenge to the Registrar's decision under s 132(2) not to ignore the 2003 driving conviction for the purposes of s 132(1)(c) was unsuccessful. That decision of the Registrar of 19 May 2008 therefore stands.
7 The outstanding issue which was not resolved in Laurie No 1 as it was not argued was whether the Applicant has otherwise become disqualified since her election. If she has otherwise become disqualified the issue is then whether her position as a councillor is vacant. As identified in Laurie No 1 at [261] this further aspect of issue 2 did not crystallize until I made my determination on the judicial review challenge the Applicant made to the Registrar's decision under s 132(2). As that decision stands whether or not the Applicant has been disqualified since her election is still unresolved. 8 While most of the relevant provisions of the ALR Act are set out in Laurie No 1, in the interests of clarity I will set out relevant sections again. These sections appear in Div 4 of Pt 7 of the ALR Act headed "Removal from office". Section 132 is headed "Grounds for disqualification from office" and provides: (1) A person is disqualified from holding office as a councillor of the New South Wales Aboriginal Land Council if the person: (a) has a conviction in New South Wales or elsewhere for an offence relating to the management of a corporation that was recorded within the last 5 years, or (b) has a conviction for an offence under this Act that was recorded within the last 5 years, or (c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable that was recorded within the last 5 years, or (d) is a mentally incapacitated person, or (e) is or becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (f) is or was a director or person concerned in the management of a body corporate that is the subject of a winding up order or for which a controller or administrator has been appointed under the Corporations Act 2001 of the Commonwealth during the previous 3 years, or (g) is disqualified from holding office in or being concerned in the management of a corporation under any law of this or any other State or Territory or the Commonwealth, or (h) is an employee of, or a consultant to, the Council, or (i) in the case of a councillor, engages in other paid employment, or (j) was, on 2 or more occasions before an administrator was appointed to the Council, an officer of the Council, or (k) fails, without a reasonable excuse, for a period of 3 months or more to comply with a written requirement by the Council to undergo training under section 125, or (l) is disqualified from being a Board member, other than on the ground that the person is a councillor. (2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
(3) The Registrar may determine that a person is not disqualified on the ground set out in subsection (1) (j) if the Registrar is satisfied that it is appropriate in the circumstances that the person not be disqualified on that ground. Section 133 is headed "Vacancy in office" and provides: A person who is a councillor of the New South Wales Aboriginal Land Council vacates office if the person: (a) dies, or (b) is absent from 2 consecutive meetings of the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Council or unless the person is excused by the Council for having been absent from those meetings, or (c) completes a term of office and is not re-elected, or (d) resigns the office by instrument in writing addressed to the Council, or (e) becomes disqualified from holding office as a councillor under this Act, or
Section 134 is headed " Casual vacancy" and provides: A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a councillor for the remainder of the term of office.
Section 135 is headed "ADT may declare particular offices of New South Wales Aboriginal Land Council vacant" and provides: (1) Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a councillor has become vacant under this Act. (2) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.
Section 136 is headed "Appeals to Supreme Court against order" and provides: (1) A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court. (2) Such an appeal may not be made more than 28 days after the date on which the order is made.
Section 137 is headed "Effect of order declaring vacancy" and provides: An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect: (a) if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or (b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or (c) if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged. 9 The procedure for filling a casual vacancy by the responsible Minister is provided for in cl 84, headed "Casual vacancy to be filled", of the Aboriginal Land Rights Regulation 2002 (the Regulation). 10 The issue now before me is whether the relief sought in the NSWALC's cross-claim or in the Applicant's Class 4 application ought be granted. 11 Importantly for the issues before me now, I held in Laurie No 1 at [135]-[136] that events which occurred before the Applicant was elected are events to which s 132 and s 133(e) can apply after her election as a councillor. I also held at [149]-[151] that those sections were not self-executing, contrary to the NSWALC's argument in issue 2. In the absence of a councillor resigning, for example, it is necessary for a determination by the ADT that the position is vacant in terms of the specific provision in s 135 or a determination by this Court in such similar proceedings (subject to the determination of whether this Court has jurisdiction to make such a determination).
NSWALC's submissions 12 The NSWALC submitted, that in light of the finding in Laurie No 1 the Registrar's decision under s 132 not to ignore the driving offence for the purposes of s 132 is valid, the authoritative and definitive resolution of the relevant dispute has occurred. There is no remaining dispute to stand in the way of the operation of s 132 and s 133(e) given that the Applicant admits that she was disqualified from holding office from 7 February 2007 (the date that the disqualifying provision came into force) until 11 March 2008. Prayers 4A and 6A of the amended cross-claim should be made. After discussion with me the NSWALC considered it did not need to press the declaration sought in prayer 6B that the Applicant was disqualified from holding office on a certain date as a finding to that effect would enable the declaration of a casual vacancy as sought in prayer 6A. (i) Jurisdiction of the Court 13 The Court has jurisdiction to consider the matters raised by issue 2 as contained in the amended cross-claim.
(a) Land and Environment Court Act 1979 14 The NSWALC submitted that the Court has jurisdiction to declare whether or not there is a vacancy in the office of councillor under s 20(2) and/or s 16(1)(a) of the Court Act. The NSWALC did not agree with my finding at [146] in Laurie No 1 that s 16(1A) does not apply to found the Court's jurisdiction to determine the NSWALC's cross-claim. 15 The ALR Act is a planning and environmental law for the purposes of s 20(2) of the Court Act as referred to in s 20(3)(a). The declarations sought concern the enforcement of s 132 and s 133 of the ALR Act. Jurisdiction has been exercised on this basis in Connolly v Electoral Commissioner of New South Wales (1992) 76 LGRA 64, Burnum Burnum v Gandangara Local Aboriginal Land Council (1997) 93 LGERA 64 and Dodd v Gandangara Local Aboriginal Land Council (1999) 106 LGERA 189. 16 Section 16(1A) also applies because the relief sought by the NSWALC is ancillary to the resolution of matters raised by the Applicant in prayers 1, 2 and 3 of her Class 4 application. (b) No repeal of jurisdiction by s 135 ALR Act 17 Jurisdiction has not been implicitly removed by the grant of jurisdiction in s 135 of the ALR Act to the ADT to make an order declaring an office vacant. The well established principle in Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 is that it is not appropriate to limit the jurisdiction of a superior court unless expressly stated. There are no express words of limitation in the ALR Act. The difficulty of establishing implied repeal is illustrated in Shergold v Tanner (2002) 209 CLR 126 at [34]-[35]. At issue was whether the Federal Court had jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to engage in judicial review of certificates issued under the freedom of information legislation when that legislation provided for a limited review by the Administrative Appeals Tribunal (the AAT). The jurisdiction granted to the ADT by s 135 is expressed in terms that a person may apply to the ADT, not must apply. There is no provision that a person may not apply to this Court or that this Court's jurisdiction is repealed. That case demonstrates that the test for a finding of implied repeal is a high threshold to meet. There is no necessary inconsistency between being able to go to two different tribunals with two different procedures, similar to the two different entities in Shergold, namely the AAT and the Federal Court. 18 The provisions in s 136 and s 137 of the ALR Act do not alter the jurisdiction founded in this Court. Section 136 deals with appeals to the Supreme Court from the ADT. Appeals are open from this Court to the Court of Appeal under s 58 of the Court Act. Section 137 in effect provides for an automatic stay on orders made by the ADT until it is clear that no appeal is to be taken, or any appeal has been resolved. That the Parliament thought it necessary to provide for an automatic stay of the decision of an administrative tribunal does not speak to the exercise of jurisdiction by this Court as a superior court of record. There is no conflict, let alone any clear and indisputable contradiction, between the grant of jurisdiction to the ADT and the existence of this Court's jurisdiction. The fact that s 137 has been made in relation to when a decision of the ADT takes effect does not suggest that the jurisdiction of a superior court has been restricted.
(c) power of ADT under s 135 not exclusive (Court's power to make orders) 19 The Applicant submits that the power of the ADT under s 135 is not for the declaration of an existing right. Rather it is an order declaring an office vacant which is a special kind of order this Court is not authorized to make. The NSWALC denies that this distinction can be made. The power given to the ADT in s 135(1) is a power to make an order declaring that a particular office of a councillor has become vacant. The order of the ADT is merely to confirm the operation of the Act once relevant disputes of fact and law have been resolved. That is the task before this Court and is part of the usual operation of the judicial process, see Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (Kirby J dissenting). The facts have been determined in Laurie No 1 so that what remains is the application of the relevant law to those facts. The Court has ample power under s 23 of the Court Act to make orders, as confirmed by the Court of Appeal in Arnold v Minister Administering the Water Management Act 2000 (2008) 163 LGERA 429.
20 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, which the Applicant relies on in arguing there is no power to made a bare declaration, addresses a quite different context being a declaration that a private contract had not been rescinded. In contrast, this is a public law case and there are numerous examples where this Court and other courts simply make declarations, see for example Ainsworth v Criminal Justice Commission (1993) 175 CLR 564 and Gray v Minister for Planning (2006) 152 LGERA 258. A declaration crystallizes the Court's finding or the effect of the Court's finding having resolved disputes of fact and law. A finding of disqualification of the Applicant to hold office gives rise to the consequence that her position can be declared vacant, as per prayer 6A.
21 There is no relevant difference between making a declaration and an order declaring (the exact words in s 135). If an application was made to the ADT an order declaring that a particular office of a councillor has become vacant would be sought. The words "and removed from office" which the Applicant seems to suggest are required for the Applicant to be removed from her position as councillor are not in s 135. There is nothing special about s 135 which is simply an order declaring that an office is vacant. 22 The Applicant relied on s 329 of the Local Government Act 1993 (the LG Act) as analogous in demonstrating the exclusive jurisdiction of the ADT. The NSWALC rejects this analogy. Section 329 gives the ADT power to order the dismissal of a person from civic office if the person is disqualified from holding civic office. The ADT may refuse to order the dismissal of the person from office despite the person being disqualified from holding office (s 329(2)). Any person is able to apply to the ADT seeking such an order of dismissal (s 329(1)). The NSWALC submits that the power of the ADT under s 329 of the LG Act is in different terms to s 135 of the ALR Act for a number of reasons. Firstly, under the LG Act the ADT is given a discretionary power to remove the person from office. The ADT's power under the ALR Act is limited to declaring that an office has become vacant consequential upon disputes of fact and law being resolved. Section 135 is not a "firing" power. Secondly, a time limitation for proceedings is contained in s 329(3) which implies a parallel with the court of disputed returns provisions in the ALR Act, which jurisdiction is conferred on this Court. Thirdly, in s 329(4) the ADT is given a power similar to that of the Registrar under the ALR Act to ignore an offence for the purposes of holding office. Applicant was/is disqualified: Timing of disqualification 23 There are two sub-issues in relation to the timing of the Applicant's disqualification. The first sub-issue is whether the Court can still find the Applicant was disqualified despite the five year period of disqualification ending on 11 March 2008. The second sub-issue is assuming that the Court can so find on the first sub-issue, when does the declaration date from? 24 In relation to the first issue, if a declaration could not be made because the time period for the disqualification had lapsed, as it did on 11 March 2008 in the case of the Applicant, then s 132 would be rendered nugatory. Several sub-sections refer to past activity as giving rise to disqualification, for example, subsection (i) refers to engaging in paid employment. If the period of paid employment was over by the time the matter was subject to review there was no relevant disqualifying event/activity that would undermine the purpose of these provisions in the Act, as per Higgins J in Lane v Atkin (1922) 30 CLR 437. The Applicant now does not dispute that an order under s 135 can be made (by the ADT only) after the disqualification period of five years in s 132(1)(c) has ended. 25 The Court has determined in Laurie No 1 at [135] that events that occur before election to office as a councillor can affect the councillor's ability to continue in office. The relevant provisions of the ALR Act may operate if there has been a period of disqualification in the relevant term of office, and the Registrar has not determined to ignore the disqualifying grounds under s 132(2), even if the issue does not arise for resolution until after the period of disqualification had ended but is within the same term of office. 26 If the Applicant had disclosed the disqualification prior to her election then she would not have been elected to her current term of office. If she had disclosed it shortly after election, then the issues raised could have been considered and determined whilst the period of disqualification was still in place. There is no reason to think that the Registrar would have reached any different decision in that context. Thus the Applicant would have been disqualified from holding office for her current term. The Applicant should not escape the consequences because the disqualification did not come to light until the period of disqualification had almost expired (nor does the Applicant submit this). 27 The Court noted at [139] in Laurie No 1 that the type of matters at issue are peculiarly within the knowledge of someone seeking election, and they only came to light as a result of a fortuitous newspaper report. Councillors who become aware of a possible ground for disqualification should not have an incentive to avoid disclosing that ground until any relevant time period had expired. That would allow the statutory scheme to be circumvented. 28 As this case has illustrated, the issues that can arise in these types of proceedings may be complex. It would be peculiar were the Act to apply in such a way that if the proceedings were not determined by the ADT or this Court prior to the end of the disqualification period then the disqualified person could remain in office without consequence. There is nothing in the Act requiring proceedings to be commenced prior to the end of the disqualification period. The issue here is not the application of a limitation period, for which commencement within a certain time would be required. Rather, the issue is the making of court orders, which orders are to be made on the facts as found at the time of making the orders. The reasoning in Lane v Atkin applies by analogy. 29 On the second sub-issue concerning timing of a declaration, it is not necessary for the Court to determine when the disqualification operated from as there are a number of logical possibilities, such as from when the Court makes its decision that the Applicant is disqualified, from the commencement of the term of election or from the time the Registrar's decision was made. It is unnecessary to determine when the disqualification operates from as the declaration sought is that there be a casual vacancy in the position of councillor for the north coast region. Pursuant to s 134 of the Act a person is appointed in accordance with the Regulation to fill the casual vacancy. The replacement councillor is appointed for the remainder of the term of office and there is no issue as to whether the new appointment is backdated. The decisions of the NSWALC taken while she has acted as councillor would be valid and the de facto officer doctrine would apply in any event. The NSWALC does not seek repayment of the salary paid to the Applicant. 30 Section 33 of the Interpretation Act 1987 requires that any construction must promote the purposes or objects underlying the ALR Act. A purposive construction of s 132 and 133 can be considered in light of the Second Reading Speech of the Aboriginal Land Rights Amendment Bill 2006 which made substantial amendments to the ALR Act including by inserting more comprehensive disqualification provisions in s 132. As referred to in Laurie No. 1 at [29] and [138], the Second Reading Speech made by the Minister for Aboriginal Affairs (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2006 at 3280 (Milton Orkopoulos, Minister for Aboriginal Affairs)) emphasizes a desire on the part of the NSW government to have better decision-making within the NSWALC system by ensuring councilors do not hold office if convicted of certain offences. The changes to s 132 and s 133 in 2006 reflected the Government's intention, made at a time when the existing NSWALC had been dismissed and replaced by an administrator, was to ensure that trusted people were elected to the office of NSWALC councillor, given the responsibility that the position entails. Discretion 31 It is in the interests of all the parties that the issues be resolved in these proceedings rather than having to be relitigated in the ADT. Section 22 of the Court Act imposes a duty on the Court to grant such remedies to which the parties appear entitled so that all matters in contention between the parties may be completely and finally determined. There are strong discretionary factors supporting the making of the declarations in the cross-claim. Applicant's submissions (i) Court does not have jurisdiction (a) Section 20(2) of the Court Act 32 Section 22 of the Court Act does not expand the Court's jurisdiction. In relation to s 20(2) of the Court Act, in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 593 Gleeson CJ held at 581 that the Court's jurisdiction is conferred by reference to the relief it can grant. Clause 22B of the draft further amended cross-claim is focused on disqualification operating on several alternative dates. The relief sought in prayer 6A is a declaration of casual vacancy in the office of councillor for the north coast region. Prayer 6B seeks a declaration that the Applicant was and is disqualified at law based on past events. They assume her position became vacant at an earlier time. They do not purport to remove her from office. As prayers 6A or 6B do not enforce any right, obligation or duty conferred or imposed by the ALR Act which the NSWALC can seek to review or enforce, nor seek to review or command the exercise of a function conferred or imposed by the ALR Act, s 20(2) is not a source of jurisdiction for the Court. The identification of the Court's jurisdiction by the relief claimed is confirmed in Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278 at [44] where Allsop P (Beazley and McColl JJA concurring) recognised at [44] that "it is proceedings to do certain things that are made exclusive to the Land and Environment Court." (b) Section 16(1A) of the Court Act 33 Section 16(1A) refers to a matter which does not fall within the Court's jurisdiction being ancillary to a matter falling within the Court's jurisdiction. My finding in [146] in Laurie No 1 that there is no ancillary jurisdiction arising from the Applicant's claim was correct. 34 The amended cross-claim, while not clearly identifying the issues raised, suggests that it is whether the Court should remove the Applicant from office. The matters raised by the Class 4 application involved events which occurred up to and including the Applicant's election. Matters which post-date the election are not ancillary to the Applicant's application. The Court so held at [146] when it decided that s 16(1A) of the Court Act did not confer jurisdiction to dispose of issue 2.
35 The reference in Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 to the meaning of ancillary as attracting a quality of subservience was referred to with approval in Nix v Pittwater Council (1999) 84 LGERA 199 per Gleeson J at 205. It was also referred to in Arnold v Minister Administering the Water Act per Spigelman CJ at [74] as denoting a subservient or subordinate matter to that in issue. The NSWALC's cross-claim is not subservient or incidental to the Applicant's claim, rather it trumps it. No ancillary jurisdiction arises as a result of the judicial review of the Registrar's decision because the only issues which arose regarding that decision were whether that decision was made with error or not. The focus of this part of the case is on how s 133(e) takes effect, which states that a person who is a councillor vacates office if the person becomes disqualified from holding office as a councillor under the ALR Act. The challenge to the Registrar's decision has no role to play in determining when the Applicant became disqualified and was removed from her position as a councillor. (ii) power of ADT under s 135 is exclusive 36 Alternatively, the matter raised by the draft further amendment does not come within s 16(1A) because the power to remove a councillor from office is conferred exclusively on the ADT. The ADT alone has the ability to make a special type of order which has the effect of removing the councillor from office. As held in Figgis v Mosman Municipal Council (1993) 81 LGERA 423, s 16(1A) does not give the Court power to do what has been specifically given to another body to do. Bannon J held that the Court could not grant a permit for a footpath crossing under the Roads Act 1993 because that section did not allow the court to exercise a primary administrative discretion committed to a statutory body, referring to Commissioner of Stamp Duties (NSW) v Pearse (1951) 84 CLR 490 at 517 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 164 CLR 24. 37 This regime is similar to s 329 to s 331 of the LG Act which contain provisions which perform a similar role in respect of local government councilors. It can be inferred from this similarity that it was intended the ADT develop a specialist expertise in removing councilors to the exclusion of other bodies including this Court. 38 The argument about the absence of the Court's power to make an order is not an argument based on implied repeal and differs from Shergold v Tanner because the Federal Court had express power to make an order but for the FOI legislation. This Court never had power to remove a councillor from office. (iii) Court does not have power to make an order 39 The Court has no power under Div 4 of Pt 7 of the ALR Act entitled "Removal from office" to make an order for the removal of a councillor from office. The NSWALC's submission does not deal with the lack of power that this Court has to make such an order. The division was enacted long after Lane v Atkin, where the analogy of physically occupying an office was employed. That is, the Applicant occupies the office until removed from it. The ADT alone has been given specific power to make a particular kind of order which has the effect of removing a councillor at some certain future time. Section 135 of the ALR Act does not provide for a declaration of existing right, it provides for an order declaring an office vacant. By reason of s 137 of the ALR Act such an order does not take effect until an identifiable time. This is not a stay provision, it is part and parcel of the special kind of relief created by Div 4 of Pt 7 of the ALR Act. Until the order is made and takes effect the office is not vacant. 40 This power of the ADT to declare an office vacant can be contrasted with a declaration of right which does nothing more than declare an existing state of affairs. This Court has not been given jurisdictional power to make the special kind of order identified in s 135 of the ALR Act. An ordinary declaration will be insufficient to remove the Applicant from office as it can only declare what is already the case. The absence of a date on which the casual vacancy arose as a consequence of disqualification is a major problem for the NSWALC in this regard. 41 The NSWALC has focused on disqualification in cl 22B of the amended points of cross-claim but the relief sought is for a declaration of vacancy of her position as a councilor. Neeta v Phillips is an example of the High Court not making a declaration if it lacks practical utility in resolving the dispute. The absence of jurisdiction to make necessary consequential orders means the declarations sought by the NSWALC lack practical utility. (iv) Position has not become vacant 42 In terms of the purposive construction of Div 4, it operates when a person has been elected as a councillor, expressing the will of the electors. The Court must construe the division in light of the democratic objects of the Act, see Kirby J in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285 at [20]. Section 134 describes the situation where a new councillor has to be appointed in accordance with the Regulation. Where a casual vacancy arises, cl 84 of the Regulation provides for the Minister to appoint the person who, at the time of the count at which the councillor was declared elected, was the candidate for election with the second highest number of votes. If that person is unavailable for appointment then the Minister is, after consulting with the NSWALC, to appoint a person who is qualified to be a candidate for election to the position (whether or not the person was a candidate for election). 43 The Applicant's office of councillor has not become vacant. When a conviction occurs to which s 132(1)(c) applies a person is disqualified from holding office. The consequence of a conviction is that, if they are a councillor at that time, their position becomes vacant. It does not matter when the period of disqualification becomes known, including if the relevant five year period has ended, as s 135 provides for an order that the office of councillor has become vacant under the Act. This enables the Registrar's decision to be made under s 132(2). The Applicant did not become disqualified from holding office while in the position and so her position has never become vacant. 44 There needs to be an order removing someone from the position of councillor before his or her position can be declared vacant. If the Applicant is sitting in the seat there has to be an order for her removal from the seat. A declaration of disqualification and casual vacancy by this Court will not cause her to be removed from the seat. The order the ADT can make under s 135 has the effect of removing the person so that their removal from office does not need to be specified, hence the special nature of that order. The ADT would make an order declaring the office of councillor representing the north coast region has become vacant under this Act. By reason of s 137 the seat would not be vacant until the time identified in the section arises. The consequence is that there can be no argument about whether the NSWALC is properly constituted until the order takes effect. Nor is there any issue about repayment of remuneration paid. Section 137 uses the words "takes effect" and refers to when the person is actually removed from the position. There is also no uncertainty in relation to lodging an appeal as s 137 provides for that.
45 Further if this Court makes a declaration the effect of that cannot be stayed, see Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 at 347 per Carr J. If a declaration is made the Minister is obliged to fill the position. Otherwise issues of the integrity of the NSWALC pending the appeal and whether the Applicant should continue in her position arise. Section 137 provides certainty on precisely when the position of a councillor does become vacant. 46 The de facto officer's doctrine would not apply to maintain the integrity of the decisions of the NSWALC pending finalization of an appeal against a declaration if it is made by this Court; Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 at 639 and World Best Holdings Ltd v Sarker [2009] NSWADTAD 13. 47 The Second Reading Speech referred to at par 30 does not assist the NSWALC as the structure of the disqualification provisions is largely the same as before the 2006 amendment. Simply the range of potential offences which could give rise to disqualification was expanded by the amendment. (v) Relief/discretion 48 The relief sought by the Applicant ought be made if the construction of Div 4 contended for is accepted, stating possibly that this would be subject to any decision the ADT might make under s 135 to s 137. 49 If the NSWALC's cross-claim is accepted then it is necessary to identify when she left office and how, which has not been done. In any event the statutory declaration being incorrect is not a reason not to grant the relief sought by the NSWALC as it is imprecisely worded. 50 The Applicant commenced these proceedings because of the unilateral action taken by the NSWALC in writing in June 2008 advising that their view was that the Applicant's office was automatically vacated because she was disqualified from holding office at the time she was elected. This unilateral and unjustified conduct brought about the proceedings and the Court has found that the Applicant's position as councillor was not automatically vacated. The construction contended for by the NSWALC would allow it to take advantage of its own wrong to circumvent the procedure for removal of a councillor from office in s 135 to s 137 of the ALR Act. The NSWALC should have gone to the ADT as the appropriate forum. The declaration does not have the effect of removing her from office and therefore lacks utility. It would be an error under the Act to make a declaration of a casual vacancy without any date specified because the Act describes when it happens. Finding 51 As noted in Laurie No 1 at [260], s 22 of the Court Act states that the Court should endeavour to deal with all matters in issue between the parties. That section does not confer jurisdiction on the parties and the Court's jurisdiction to deal with the issues in the NSWALC cross-claim is disputed by the Applicant. There is no dispute that the Court can grant the relief sought in the Applicant's Class 4 application. Jurisdiction 52 I considered at [145]-[146] in Laurie No 1 whether the Court had jurisdiction in relation to issue 2 of the NSWALC cross-claim as articulated at that point, namely that once elected the Applicant was automatically disqualified from holding office. I held at [145] that the Court did have jurisdiction under s 20(2) of the Court Act as the ALR Act is an environmental and planning law and the issues in the NSWALC's cross-claim could be considered under s 20(a) or (b). I held at [146] I did not have jurisdiction as part of the ancillary jurisdiction identified in s 16(1A). In Laurie No 1 I then determined issue 2 as argued and held at [153] that the Applicant was not automatically disqualified on her election. I then determined the Applicant's judicial review challenge to the Registrar's decision as that was still a live issue in the proceedings. That left the outstanding issue of whether the Applicant was otherwise disqualified since her election, hence the argument I have heard in this matter. 53 Whether the Court has jurisdiction to consider Issue 2 as now articulated is to address that issue in somewhat altered circumstances to Laurie No 1. I have also heard additional argument on the issue and been referred to cases not considered in Laurie No 1. Therefore, rather than simply adopt what I held in Laurie No 1 I will consider once again whether the Court has jurisdiction to determine issue 2 as now articulated. 54 Section 20(2) of the Court Act states: (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, …
55 The ALR Act (other than Div 5 of Pt 7, not a division relevant to these proceedings) is a planning and environmental law identified in s 20(3) for the purposes of s 20(2). I held in Laurie No 1 at [145] that s 20(2)(a) and (b) applied and there was no implied repeal of jurisdiction by the provisions of the ALR Act, which granted a power to the ADT, applying Shergold. The Applicant seeks a declaration that she continues to hold office, I having held in Laurie No 1 that she was elected. The NSWALC's cross-claim raises the issue of whether the NSWALC should continue to pay the Applicant's remuneration because the NSWALC claims she is disqualified and her office vacant. That issue continues as a live issue in the proceedings under the NSWALC cross-claim because I have held that the Registrar's decision pursuant to s 132(2) on 19 May 2008 was not invalid. Precision Products was relied on by the Applicant because the Court of Appeal held that the existence of jurisdiction of the court was determined on the basis of the relief sought. The exclusive jurisdiction of the court in that case was by virtue of the court being able to grant certain relief. The relief sought by both the Applicant and the NSWALC does come within s 20(2)(b) as it asks the Court to review the exercise of a function conferred by the ALR Act relating to the holding of office by the Applicant and whether she should continue to remain in office and be paid as a councillor of the NSWALC. I essentially agree with the NSWALC's arguments at par 15 as to why s 20(2) of the Court Act applies. 56 Alternatively, in case I am wrong in the above conclusion, if s 20(2)(c) is considered in relation to the declaration of a right, obligation or duty the relief sought by the Applicant fits within that subsection but arguably not the NSWALC's cross-claim as it is not seeking to enforce a right, obligation, or duty under the ALR Act. Section 16(1A) of the Court Act can found the Court's jurisdiction where matters in the cross-claim are ancillary to the Applicant's claim. Section 16 (1A) provides: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 57 In Arnold Spigelman CJ (Allsop P and Handley AJA concurring) considered whether s 16(1A) might apply as the basis for the Court's jurisdiction to exercise federal jurisdiction under s 39(2) of the Judiciary Act 1908 (Cth). At [75] his Honour stated that if the determination of a legal issue is an essential step in the course of determining an issue that is within the jurisdiction of the court, then the issue is ancillary to the determination of the substantive issue. His Honour doubted whether it was necessary to rely on s 16(1A) in the case of an essential step in the case against the State.
58 The Applicant has relied on Bannon J in Figgis where his Honour held that s 16(1A) did not enable the Court to exercise "a primary administrative discretion" committed to a statutory body as a designated person, in that case a decision under the Roads Act 1993 in a building appeal under s 176 of the LG Act. Bannon J referred to Commissioner of Stamp Duties (NSW) v Pearse (1951) and Minister for Aboriginal Affairs v Peko-Wallsend Ltd. In Pearse the High Court of Dixon, McTiernan, Williams, Webb and Fullegar JJ was required to determine whether the Stamp Duties Act 1920 intended a discretion to be exercised by a particular official and not the Supreme Court of NSW. The circumstances in this case are different to both Figgis and Pearse, which address different issues in my view. Figgis concerned the scope of the Court's powers on a merit appeal and Pearse concerned whether the Court could itself make a discretionary decision under the relevant statute. That is not the issue here but whether the Court has ancillary jurisdiction under Div 4 of Pt 7 of the ALR Act. 59 Other cases relied on by the Applicant of Koala Motor Inn and Nix suggested that "ancillary" must be given a limited meaning of "subservient to" the principal claim. As noted in Laurie No 1 at [85] more recent authorities have identified the potentially broad scope of s 16(1A). Cases referred to include Scharer v State of New South Wales (2001) 53 NSWLR 299 at [51] per Stein JA (Hodgson JA concurring), Newcastle City Council v Caverstock Group Pty Ltd (2008) 163 LGERA 83 in obiter statements of Spigelman CJ at [50]. I have already referred to Arnold v Minister Administering the Water Management Act (2008) per Spigelman CJ (Allsop P and Handley AJA agreeing) at par 57.
60 The Applicant submitted that her claim for relief in relation to the Registrar could not be a basis for the application of s 16(1A) of the Court Act but I am not clear why it cannot be. The Registrar's determination concerned whether a basis for disqualification from office applied to the Applicant. Ancillary to that issue now is that, given that the Registrar's determination stands, the Applicant's disqualification arises and has consequences. The Applicant seeks a declaration that she was elected and continues to hold office in an exercise of her rights under the ALR Act. The cross-claim arises as an essential step in determining that issue and can be characterised as ancillary if it does not otherwise fall within s 20(2) of the Court Act. I consider s 16(1A) can also apply to found the Court's jurisdiction. 61 On either of the bases discussed above the Court has jurisdiction to consider issue 2 as now articulated.
62 The NSWALC also argued that there is no implied repeal of the Court's jurisdiction as held in Shergold. In Shergold, which was referred in Laurie No. 1 at [87], access was sought to documents under FOI legislation. In response, a certificate was issued by the relevant government authority denying access to the documents on public interest grounds. There was a right to challenge FOI decisions in the Administrative Appeals Tribunal (AAT) but in respect of certificates the AAT has relatively limited powers. Instead judicial review of the decision to issue the certificate was sought in the Federal Court. The question arose of whether the jurisdiction of the Federal Court to determine the challenge was impliedly repealed by the grant of jurisdiction conferred on the AAT under the relevant legislation. The unanimous judgment of the High Court found there was no evidence of a parliamentary intention to limit the Federal Court's jurisdiction and no implied repeal was established. The Applicant submits at par 38 above that Shergold is not relevant because the Federal Court otherwise had jurisdiction. The principles in Shergold nevertheless apply in this matter. In Laurie No 1 I held there was no implied repeal of the Court's jurisdiction as a consequence of the powers given to the ADT and I see no reason to change my view. 63 The Applicant's argument is not couched in terms of implied repeal, rather it argues that the ADT has exclusive jurisdiction to make an order that the Applicant's position as a councillor is vacant in light of s 135 and s 137 of the ALR Act. The issue however is whether there is implied repeal of the Court's jurisdiction and there is not, as held in Laurie No 1 at [88]. The issue of whether the Court has power to make a declaration or order in light of s 135 and s 137 is separate and that is discussed below. 64 To hold that the Court has jurisdiction does not allow the NSWALC to "take advantage of its own wrong" as the Applicant submitted at par 50. Given the complexity of issues raised by the circumstances and relevant statutory provisions in this case, it was not self evident that proceedings should have been taken by the NSWALC (or anyone else) to seek an order in the ADT. While the NSWALC was unsuccessful on Issues 1 and 3 concerning the election of the Applicant, Issue 2 concerning whether her position is vacant continues to be in issue in these proceedings. Issue 2 only remains on foot because of my determination in Laurie No 1 that the Registrar's decision not to ignore the 2003 driving conviction is valid. No suggestion that the NSWALC has acted incorrectly in some way can arise in these circumstances. Timing of disqualification/casual vacancy (i) disqualifying event since election to office necessary? 65 The Applicant argues that the NSWALC has to identify when the disqualification of the Applicant took place since the Applicant's election. As it has not done so, no event has occurred to which s 133(e) can apply. The key issue in dispute is the effect of s 133(e). In making that submission the Applicant's counsel seeks to reargue, inter alia, my finding in Laurie No 1 at [135] - [136] that the provisions in s 132 and s 133 of the ALR Act continue to apply to the Applicant after her election as a councillor in May 2007 because of events which occurred before her election, namely the 2003 traffic conviction. That conviction comes within s 132(1)(c). The Applicant admits that the conviction means she was otherwise disqualified from being elected as a councillor. 66 For the reasons already stated in Laurie No 1 at [135]-[136] and confirmed by the arguments of the NSWALC in these proceedings at par 26-28, convictions recorded before the election of a councillor can disqualify him/her from being a councillor under s 133(e) after his/her election. I see no reason to depart from my previous reasoning on this issue. As submitted by the NSWALC at [29] it is unnecessary that the NSWALC identify a further disqualifying event that has occurred since the Applicant's election which gives rise to her disqualification under s 133(e). 67 I also consider that this construction of s 133(e) accords with the objects and purposes of the ALR Act as amended in the Aboriginal Land Rights Amendment Act 2006 in relation to the election of appropriately qualified persons to the position of councillor. That amendment Act introduced far more extensive disqualification provisions for potential councillors in s 132 than had previously existed. As referred to in the NSWALC's submissions in par 30, the Second Reading Speech made when the 2006 amendment bill was introduced emphasised the intention to have councillors without certain convictions elected. (ii) timing of disqualification 68 An event that has occurred since the Applicant's election is that the Registrar has exercised his discretion under s 132(2) not to ignore the 2003 traffic conviction for the purposes of s 132(1)(c). The Applicant's judicial review proceedings to have that decision declared invalid were unsuccessful in Laurie No 1. 69 Amendments were made in cl 22B of the amended points of cross-claim as to the possible dates since her election on which the Applicant's disqualification as a result of the 2003 traffic conviction could arise. The amended points of cross-claim identified possible dates as the date of her election (22 May 2007), the date of her application to the Registrar (10 March 2008), the date of the Registrar's decision (19 May 2008), the date of this Court's decision to reject her challenge to the validity of the Registrar's decision (4 May 2009) or the future date when declaratory relief is granted either by this Court, the ADT or any other court or tribunal. The NSWALC does not press any of these dates as the relevant date of disqualification as it argues it is not necessary that a specific date of disqualification be identified. I required amendments of this nature in Laurie No 2 in large part because I then understood, perhaps incorrectly, that the Applicant was arguing that the relevant date of disqualification was material in light of the fact that the period of disqualification under s 132(1)(c) expired on 10 March 2008. The Applicant has not pressed that argument in this part of these proceedings. 70 The Applicant's counsel has accepted, sensibly in my view, that disqualification under s 133(e) can still arise after the time period specified in s 132(1)(c) has expired. For the lengthy reasons given by the NSWALC at par 24-28 (possibly in anticipation of a submission that has not ultimately been put by the Applicant), the purpose of the Act would be undermined if the relevant activity or event specified in s 132(1) which gave rise to disqualification had expired by the time the matter came before the ADT, for example, so that the argument could be made that the relevant activity was no longer continuing. This was similar in broad terms to the circumstances in Lane v Atkin concerning disqualification of a local shire councillor due to the existence of pecuniary interests on his part. Such pecuniary interests rendered the councillor disqualified from the office of councillor pursuant to s 30 of the now repealed Local Government Act 1919. Section 35 provided that the election of a person disqualified from office created an extraordinary vacancy which, pursuant to s 34, resulted in the office becoming vacant. These provisions were the predecessor to s 329 of the Local Government Act 1993, considered at par 78. 71 In this case, the disqualification was confirmed by the decision of the Registrar on 19 May 2008. The Applicant's counsel argued that the Registrar's decision does not affect the fact of disqualification which is unaffected and not confirmed or renewed by the Registrar's decision. Since the decision of the Registrar under s 132(1)(c) is that an offence ought not be ignored I agree with the Applicant that the effect of the decision is not to confirm or renew the disqualification and the decision does not therefore change the timing of the disqualification. If the Registrar's decision does not affect the timing of disqualification that date will be when the Applicant became elected because at that point the conditions for disqualification under s 132(2) crystallised and she became disqualified from holding office as a councillor under s 133(e). 72 That conclusion is not at odds with my finding in Laurie No 1 that the Applicant did not become immediately disqualified on taking office after her election. That finding was directed to the NSWALC argument in issue 2 at that stage to the effect that s 133(e) operated automatically and the Applicant became disqualified immediately on being elected. I rejected that argument for the reasons given in Laurie No 1 at [149] - [151]. Consideration of issues moved on and I then determined that the Registrar's decision is valid so that the Applicant's disqualification under s 132(1)(c) stands. There is no inconsistency with Laurie No 1 in holding now that the disqualification occurred from when the Applicant took office as a councillor on 18 May 2007. Section 133(e) applies so that the Applicant became disqualified from holding office as a councillor on her election. (iii) timing of casual vacancy 73 The Applicant's counsel argued that the Applicant's position as a councillor has not become vacant. Firstly, because that is a matter for the ADT to determine not this Court, an issue I effectively dealt with when I held this Court has jurisdiction to grant the relief sought by the amended cross-claim. Secondly, the vacancy cannot arise when the Court declares her position is vacant because such a declaration does not have the effect of removing her from office (which issue is addressed below). Thirdly, it cannot be when she was elected, as this is contrary to what was held in Laurie No 1 at [151]. I have dealt with the issue in the previous paragraph in relation to when the Applicant became disqualified and the role of the Registrar's decision in this respect. Fourthly, it cannot be when the Registrar's decision was made or was upheld by the Court as that misconstrues the Registrar's role which is the power to deem the disqualification did not happen for the purposes of s 132(1)(c). I have also considered that issue in the previous paragraph in the context of when the disqualification occurs. Fifthly and alternatively, the Applicant's position is not vacated until her appeal rights against the Registrar are exhausted. As I have now determined that the Registrar's decision should stand, arguably that has occurred. The Applicant has raised separately the issue of what happens if this Court makes a declaration and the Applicant wishes to appeal and I consider that below. 74 The submissions of the Applicant concerning when her position becomes vacant appear to be based on the assumption that once she becomes disqualified under s 133(e) her position is vacant. I have considered above when the Applicant became disqualified, namely after her election as a councillor. When the position of a councillor becomes vacant will depend on the circumstances which arise under s 133(e). Whether the timing of a casual vacancy in the position of a councillor under s 133(e) occurs at the same time as the disqualification will depend on whether an application has to be made to the ADT for an order declaring the position vacant. As I noted in Laurie No 1 at [150] if a person resigns having accepted that they are disqualified that action comes under s 133(d) and the casual vacancy occurs at that time without further action being necessary. Section 135 provides for the making of an order declaring a vacancy by the ADT suggesting that the casual vacancy can arise separately from the timing of the disqualification. Subject to consideration of whether the Court has power to issue a declaration which has the effect of removing the Applicant from her position as a councillor, for the purposes of these proceedings the date the casual vacancy arises is the date the Court declares the position is vacant, similarly to what would have occurred had the matter gone to the ADT. Whether power to make declaratory order or declaration (i) declaratory order versus declaration 75 As s 133(e) applies to the Applicant, the next issue to determine is whether the Court has power to make a declaration that the Applicant's position as a councillor is subject to a casual vacancy as contained in prayer 6A. Alternatively the issue could be expressed as to whether the Court's declaration of a casual vacancy has the same effect as an order declaring a position vacant under s 135 of the ALR Act. 76 The Applicant argues there is a difference between a declaration of a casual vacancy and an order declaring a casual vacancy and this Court cannot make the latter kind of order, only the ADT can. The NSWALC argues there is no difference and the Court can make a declaration, the legal effect of which is that the Applicant is removed from her position as councillor.
77 The Applicant's argument that the sole power for the making of the declaration of casual vacancy, or an order declaring a vacancy to use the exact words in s 135, resides in the ADT ignores the status this Court has to make declarations of right or responsibilities as a superior court. This Court has a general power to issue declarations by virtue of s 23 of the Court Act and s 20(2) of the Court Act. The ADT is a tribunal and the legislature has identified its jurisdiction under the ALR Act. Section 11 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that the ADT has such functions as are conferred or imposed on it by or under the ADT Act or any other Act or law. Pursuant to s 37 of the ADT Act, the ADT has jurisdiction to act as the primary decision-maker if a statute provides that applications may be made to it. Section 135 of the ALR Act is an example of such a provision. Section 45 of the ADT Act provides that the powers of the ADT are those conferred on it by the statute. In other words the ADT's powers as the original decision-maker are defined by the enabling statute, with some particularity in the case of the ALR Act. It does not have the broad powers to grant relief of this Court under the Court Act. 78 A similar but not identical regime for the removal of elected councillors under the LG Act was referred to in argument. Section 329 of that Act is referred to as a note to s 135 of the ALR Act (by way of contrast) as it gives the ADT different responsibilities in relation to ordering the dismissal of councillors. It provides: 329 Can the holder of a civic office be dismissed? (1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office. (2) On any such application, the Tribunal may order the dismissal of a person from civic office: (a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or (b) if the person is disqualified from holding civic office.… (4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied: (a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and (b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts. …
79 Apart from noting the different regime in relation to the dismissal of local councillors by the ADT under the LG Act I derive little assistance in resolving the issues I have before me in considering that regime. The differences in that regime from those in the ALR Act are identified in the NSWALC's submissions at par 22. That regime is another example of specific jurisdiction conferred on the ADT and of the kind of specific order it is empowered to make under the LG Act. No case has been found which discusses whether there is any relevant difference between an order declaring something and a bare declaration of the same thing. There does not appear to be any authority directly on the point raised by the Applicant's counsel concerning the limits of the effect of declarations this Court can make. 80 The Applicant relied on Neeta but for the reasons given by the NSWALC that decision is distinguishable on its facts. It concerned private law issues of contract law. This Court regularly makes declarations in judicial review proceedings without consequential orders being sought as it is often engaged in determining parties' legal positions under public law statutes. It is not always necessary to make consequential orders as a result of a declaration. That a declaration alone is the appropriate relief to resolve the issues between the parties does not undermine the utility of the making of the declaration. (ii) does declaration result in removal from position as a councillor 81 The import of the Applicant's argument at par 44 that a declaration will not remove her from her position as a councillor seems to be that the wording of the declaration as sought by the NSWALC does not contain the words "the Applicant is removed from her position as a councillor". Since the decision whether or not to make a declaration is a discretionary one and I can vary the declaration sought it may be that I could make a declaration including those words. The order declaring the position of councillor vacant specified in s 135 of the ALR Act does not include these words but the Applicant accepts that such an order does have the effect of removing her from office. Given that the order in s 135 does not require those words to be explicitly stated it does not appear that they are necessary in a declaration that the Applicant's position as councillor is vacant in order to have the effect of removing the Applicant from office. If the Applicant's position is declared vacant it is axiomatic that this results in her removal from office. Apart from in the heading of Div 4, "Removal from Office", these words do not appear in any of the sections under scrutiny in this matter or in any other sections in the division. 82 Another option for which I have no precedent is that s 23 provides the Court with broad powers to make any orders it considers necessary. I could make an order declaring the Applicant's position is subject to a casual vacancy. 83 On balance I consider that I do have the power to issue a declaration in the form sought in prayer 6A as a result of my finding that the Applicant was disqualified from holding office since her election. I consider the effect of that declaration is that she is removed from her position as a councillor for the north coast region of the NSWALC.
Discretion 84 The parties' submissions raise whether the Court should exercise its discretion to make a declaration, the making of a declaration always being subject to the exercise of judicial discretion. I have dealt at par 64 with the submission of the Applicant that the ADT was the proper venue for these proceedings and rejected the submission that these proceedings amount to the NSWALC taking advantage of its own wrong in not proceeding in the ADT. The Applicant submitted inter alia that the nature of the statutory declaration required as part of the nomination process for the position of councillor under cl 47(1)(c1) of the Regulation made incorrectly by the Applicant (and considered extensively in Laurie No 1) did not justify the making of a declaration. Given the lengthy and complicated nature of these proceedings, and in light of the entirely proper admission by the Applicant that she was not qualified to stand for election in light of her 2003 traffic conviction, I consider it is in the interests of both parties that all the matters in issue between the parties be resolved in these proceedings as far as possible. I have found that the Applicant has become disqualified from holding office as a councillor. The duty I have under s 22 of the Court Act also suggests that I should make the declaration in prayer 6A that there is a casual vacancy in the office of councillor for the north coast region of the NSWALC. When should declaration take effect? 85 The Applicant argued that another reason why this Court could not or should not make a declaration is that there is no equivalent of s 137 of the ALR Act if I do so. That section specifies precisely when an order under s 135 of the ADT becomes effective and provides certainty for the NSWALC in conducting its affairs as a properly constituted body. If a declaration is made by this Court there will be uncertainty if the Applicant appeals as to the composition of the NSWALC while an appeal is pending. The NSWALC argued that a stay could be sought by the Applicant if she appealed. The issue of whether an application for a stay of the declaration was likely to succeed if made then arises. 86 In the event of an appeal from a court, Pt 51 r 51.44 of the Uniform Civil Procedure Rules 2005 provides for the Court of Appeal to order that the decision of the court below be stayed. It has been difficult to find examples of where an application to stay a declaration made by this Court has been made pending an appeal of that declaration from this Court. There are numerous decisions considering whether orders requiring work to be done ought be stayed. According to Ritchie's Uniform Civil Procedure (Vol 1, 2005, Lexis Nexis) at [51.44.35] there will rarely be circumstances where it is appropriate to stay a declaratory order, citing Bunnings Forest Products Pty Ltd v Bullen.
87 The Applicant's counsel also relied on Bunnings to argue that a stay of a declaration would not be granted. In Bunnings a declaration was made by the Full Federal Court that a deed of arrangement was void. The trustee named in the deed of arrangement applied to a single judge of the Federal Court to have the declaration stayed pending appeal to the High Court. At 347 Carr J stated: …it might be said that an order which had already taken effect could be suspended temporarily. However, once a declaration has been made, as here, that a deed is void it seems to me that the order itself has done its work. The legal rights or obligations of the parties which depended upon whether the deed had any effect or not are, subject to appeal, settled. In the absence of clerical or similar errors arising from a slip or accidental omission the order stands unless set aside on appeal. It seems likely that the declaration took effect upon its pronouncement but could have been recalled by the Full Court before it was passed and entered - see the discussion by Von Doussa J. of this matter in another context, in Cavanagh v Bank of New Zealand (1990) 22 FCR 124. Furthermore, if an appeal were foreshadowed and the circumstances warranted taking such a course, a Full Court might before pronouncing judgment or, perhaps, before entry of judgment stay a declaratory order by suspending or postponing its coming into effect for a period fixed by reference to some appropriate stage of the further appellate process. Alternatively, the Court or a judge might, in an appropriate case, stay the exercise of rights which might be declared to exist, pending an appeal which might have the result of the declaration being set aside. 88 Carr J referred to Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208 in which a stay of two orders was sought from a single judge in the High Court pending an appeal to the High Court from a decision of the Australian Conciliation and Arbitration Commission. The dispute was between two unions who both claimed to represent employees of a company which had a contract to erect a navigational aid structure. An order was made by the Commission giving one of the unions the exclusive right to represent the employees. The applicant for the stay of the order submitted that the relevant order did more than merely declare rights but also created rights and that the court had jurisdiction to grant a stay of an order in the latter form. Mason J stated at 211 that "the court will be more reluctant to stay any order which, though it creates rights, is otherwise declaratory in the sense that, unlike an injunction, it does not require a party to do or abstain from doing something". Mason J considered the detriment that the applicant would suffer before refusing to grant the stay. 89 In The Roosters Club Inc v The Northern Tavern Pty Ltd (No 2) [2003] SASC 143 the Full Court of the SA Supreme Court had to consider whether a stay of a declaration that a gambling machine licence was void should be granted. Doyle J held (Nyland J agreeing) that a purely declaratory order should not be stayed. Bleby J also agreed and in a separate judgment analysed circumstances where a stay of a declaratory order could be contemplated. He distinguished between declarations which state existing rights (which should not be stayed) and those which create new rights. He referred to an example of a declaration with the effect of creating a right at [42] in Sibuse Pty Ltd v Shaw (No 2) [1988] 13 NSWLR 125. 90 In Jeans v Bruce [2004] NSWSC 758 Einstein J also considered these authorities as did the full Federal Court in Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255 at [5] - [7] to the effect that generally a stay of a declaratory order or a declaration will not be granted. 91 It is unclear whether the Applicant would succeed in obtaining a stay of the declaration in this Court or the Court of Appeal. To remove any uncertainty in this matter, Carr J suggested in Bunnings one possible approach I consider I should adopt. That is to postpone the declaration of a casual vacancy in prayer 6A coming into force for a fixed period relating to the appellate process, assuming the Applicant does wish to avail herself of that. If not I will make the declaration that the position of councillor of the north coast region of NSW is subject to a casual vacancy. Advice from the parties as to suitable wording for the declaration is sought before I finalise it. 92 The NSWALC submitted that the de facto officer doctrine would apply while an appeal was pending. Contrary views were put by the Applicant. I do not need to consider whether that doctrine would be likely to apply or not given the declaration I am intending to make. 93 Advice of whether an additional declaration that the Applicant was elected as a councillor of the north coast region as found in Laurie No 1 ought be made is also sought. 94 The overall issue of costs as between all the parties in the proceedings remains outstanding. I understand that will require hearing argument from all the parties, including the Second Respondent and the Second and Third Cross-Defendants.
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Laurie
New South Wales Aboriginal Land Council
[2003] SASC 143
(1993) 175 CLR 564
(2007) 157 FCR 255
(2008) 163 LGERA 429
(1991) 25 NSWLR 615
(1999) 198 CLR 334
(1994) 54 FCR 342
(1997) 93 LGERA 64
(1951) 84 CLR 490
(1999) 106 LGERA 189
(1993) 81 LGERA 423
(2006) 152 LGERA 258
(1977) 18 ALR 12
(2009) 166 LGERA 157
(1922) 30 CLR 437
(2008) 237 CLR 285
(1986) 164 CLR 24
(1990) 20 NSWLR 593
(1974) 131 CLR 286
(2008) 163 LGERA 83
(1999) 84 LGERA 199
(1994) 181 CLR 404
(1981) 34 ALR 208
(2001) 53 NSWLR 299
(2002) 209 CLR 126
(1990) 22 FCR 124
The Court determined that Laurie was disqualified and that it had power to declare a casual vacancy, but deferred finalising the declaration pending submissions on wording and postponed its operation for a period tied to any appeal; costs remained outstanding.