Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors

CASES CITED: Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

APPLICANT/FIRST CROSS-DEFENDANT Mr S Docker SOLICITORS Conroy Stewart Spagnolo

FIRST RESPONDENT/FIRST CROSS-CLAIMANT Mr J Kirk SOLICITORS LEGAL REPRESENTATIVES: Chalk and Fitzgerald Lawyers

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 2)

JUDGMENT 1 Her Honour: I handed down judgment in Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 (Laurie No 1) on 4 May 2009 . I did not make final orders as I considered the parties may wish to raise additional issue in light of the findings that I made, as identified in the concluding remarks at [260]-[261] of the judgment. I referred to s 22 of the Land and Environment Court Act 1979 (the Court Act) which states that: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 2 I now have conflicting submissions on the appropriate course in the matter.

3 The Applicant argues that as all the matters in issue raised in the pleadings have now been dealt with, the orders 1-3 sought in the Class 4 application should be made and the proceedings therefore finalised. Section 22 of the Court Act was not intended to apply in circumstances such as these.

4 The New South Wales Aboriginal Land Council (NSWALC) considers that there remain issues between the parties which arise as a result of my findings in the case. These issues only crystallised when I made findings in relation to many issues in dispute. The Class 4 application and the Amended Points of Claim filed do not require amendment as they identify sufficiently in broad terms the nature of the relief sought in prayer 6A and the material facts relied upon at 16-22A in the Amended Points of Claim. Section 22 does apply to these circumstances. The pleading provisions in r 14.14 of the Uniform Civil Procedure Rules 2005 (the UCPR), which state the general rule that matters must be pleaded specifically, do not require that further amendment of the pleadings is warranted.

5 The Second and Third Cross-Defendants (the returning officer and the Electoral Commissioner) wish to be heard only on costs because the issues as between them and the NSWALC in the cross-claim are at an end. The Registrar also did not make submissions about the conduct of the matter at this stage but wishes to make submissions essentially as an amicus curiae if the matter does proceed further. It will not be seeking its costs be paid by the Applicant. Finding 6 The outstanding issue of whether the Court has jurisdiction and should exercise it to declare the Applicant's position as councillor vacant at some point since her election in May 2007 does clearly arise as a result of the Court determining the issues raised by the respective parties in the proceedings. I refer to this in Laurie No 1 at [260] and [261]. While I held that the Applicant was properly elected as a councillor of the NSWALC I have also determined that the disqualification provisions of the Aboriginal Land Rights Act 1983 (the ALR Act) can also apply to her situation (contrary to the Applicant's argument that they did not at [99], see my conclusion at [135]). The Applicant's challenge to the Registrar's determination that her 2003 driving conviction not be ignored for the purpose of whether she is disqualified under s 132(2) of the ALR Act was unsuccessful. 7 It is only because of the interaction of the various findings made in Laurie No 1 that the issue of disqualification since her election now arises in a slightly different context from the way the issue was argued in the proceedings. The issues and the way they interact in the matter have been complicated and while the precise circumstances that now arise and the legal consequences were not explicitly raised in argument that issue does arise directly from the issues raised by the parties at the hearing. If the matter was finalised now and the declarations sought by the Applicant made, the issue of whether the Applicant was disqualified from holding office since her election remains outstanding as a result of my findings. Further litigation to determine that issue would be necessary, the ADT being the likely forum under s 135 of the ALR Act. Section 22 of the Court Act suggests that after the considerable effort by the parties and the Court to date to resolve the complex issues and their inter-relationships, that the remaining issue of whether the Applicant has become disqualified since her election and her position should therefore be declared a casual vacancy needs to be considered. That means that all the matters in issue between the parties will then have been dealt with, assuming that the Court has jurisdiction to determine the matter which will be an issue I will need to resolve. Section 22 of the Court Act does not confer jurisdiction on the Court (per Gleeson J in National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 579).

8 The next matter to consider is whether the NSWALC should be required to amend its pleadings to make clear the nature of the relief and the material facts on which it relies. Prayer 6A of the Class 4 application does not require amendment as it reflects the declaration of a casual vacancy sought by the NSWALC. In terms of the material facts which are the basis for the making of that declaration, these are generally known and identified at par 16-22A but for one matter. The key matter not referred to in the material facts as currently pleaded is on what date the Applicant is argued to have become disqualified since immediately after her election and therefore on what date a casual vacancy arises. Rule 14.14 provides: 14.14 General rule as to matters to be pleaded specifically (cf SCR Part 15, rule 13; DCR Part 9, rule 9) (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality. 9 Because of the complexity of the issues in this matter the date on which a casual vacancy may arise, if at all, is not immediately obvious. Depending on the date contended for by the NSWALC the issues will vary. In the interests of the Applicant not being surprised by a matter which results in an extinction of a right to be declared elected as a councillor, the APOC should be amended to state the date on which the casual vacancy is argued to arise so that par 22 and 22A require amendment. A further timetable for written submissions and oral argument if necessary is also required. In the interests of finalising all the issues between the parties, any submissions should also address costs where the parties wish to do so. 10 I should also note that [8] of Laurie No 1 is amended to delete the words "including her mistaken belief that she was not required to disclose the 2003 driving conviction in her statutory declaration lodged as part of the nomination" as that was a reference to evidence not read in the proceedings.

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