Laurie v NSW Aboriginal Land Council and Ors

Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors [2009] NSWLEC 58 Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) FCR 279 Ketterman v Hansel Properties Ltd [1987] AC 189 CASES CITED: Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors (No 2) [2009] NSWLEC 73 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 Owners of SP 57504 v Building Insurers Guarantee Corporation [2008] NSWSC 1022 The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT Mr S Docker SOLICITOR Conroy Stewart Spagnolo LEGAL REPRESENTATIVES: RESPONDENT Mr J Kirk SOLICITORS Legal Services Unit New South Wales Aboriginal Land Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40616 of 2008 Laurie v NSW Aboriginal Land Council and Ors (No 3)

JUDGMENT ON APPLICATION FOR AMENDMENT OF CROSS-CLAIM 1 Her Honour: 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) I determined a large number of issues raised by the parties in the application and cross-claim filed. As identified in Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors (No 2) [2009] NSWLEC 73 (Laurie No 2) I did not make final orders as I considered at [6] the outstanding issue as a result of the findings in Laurie No 1 was whether the Applicant's position as councillor had become vacant since her election in May 2007. In Laurie No 2 I held at [9] that the New South Wales Aboriginal Land Council (the NSWALC) should amend its pleadings. This was so that the Applicant would not be surprised by the legal argument on this question. There is no dispute about the material facts. The NSWALC has now filed an amended cross-claim which adds prayer 6B and amended further points of claim which add minor amendments to cl 21 and 22 and seek the most substantial amendment in cl 22B. The Applicant opposes leave being given to rely on the amendments now brought forward by the NSWALC.

Civil Procedure Act 2005 2 The relevant sections of the Civil Procedure Act 2005 (the CP Act) are s 56 - 58 and s 64 which provide: 56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 3 The CP Act states in s 64 that leave can be granted for the amendment of any document at any time. The parties made conflicting submissions about whether leave should be granted in light of s 56(2) concerning the overriding purposes of the Act being the just, quick and cheap resolution of the real issues at all stages of any proceedings. Submissions also refer to s 57 concerning the objects of case management and s 58 requiring the Court to act in accordance with the dictates of justice. Evidence 4 The Applicant swore an affidavit dated 22 June 2009 which was read in part. The affidavit sets out her family circumstances which involve giving her three children, three nieces and two nephews considerable financial and other support. This support extends to their nine children.

5 The Applicant also details her involvement in land rights in New South Wales over the past 30 years. Since the early 1980s she has been involved in the land council system mostly on the far north coast of NSW. She has been a member of Birrigan Gargle Local Aboriginal Land Council since 1983 and has been its chairperson, secretary and treasurer. She served on the Far North Coast Regional Aboriginal Council for about 15 years including as its treasurer for nine years. She has been involved in developing a community land and business plan for the NSWALC as part of a community planning training course which she commenced in 1998. She states that it has been a long-term goal of hers to be a councillor of the NSWALC. She believes that her efforts and work in land rights contributed to her election as councillor in May 2007 and she felt proud and privileged to obtain the position.

6 In terms of other work opportunities, the Applicant states that were she not councillor she would seek to continue working in the land council system as she wishes to continue working for Aboriginal people and as a means of financial support. The position that she would most want is that of chief executive officer of the Birrigan Gargle Local Aboriginal Land Council which is a position currently vacant. Annexed to her affidavit is a copy of an advertisement for the position. The Applicant states that she did not apply for this position as she is unable to work anywhere else while holding the position of councillor of the NSWALC. She states she is qualified for the position, meets all the criteria and would have considered it an honour to hold this position. Final interviews have been held and the position is due to be filled.

7 The Applicant also describes her existing health issues. She is a diabetic and has felt constantly under stress since the commencement of these proceedings, the history of which she sets out in her affidavit. This stress is a result of her worry that she might lose the position of councillor, that people do not want her in the job and that she is an uncertain position. She has trouble sleeping and the stress has affected her appetite and she is constantly fatigued. She continues to be worried about her diabetes as a result of the stress.

8 The Applicant attests to a conversation she had with Geoff Scott, chief executive officer of the NSWALC, on 13 May 2009. Mr Scott, who addressed the meeting of the council from which the Applicant was excluded on that day, told the Applicant that they were not trying to get her out of the position and wanted the Court to decide whether it had jurisdiction to decide whether the councillor's office was vacant. These comments gave her comfort and she was very surprised and distressed when she later found about that the council wanted to run a full-scale argument in court on the basis that her position is vacant. She states she is worried about the ongoing effects of the continued litigation on her health and family relations but feels she should not give up her position. 9 In cross-examination she agreed that she did not meet all the essential criteria for the Birrigan Gargle Local Aboriginal Land Council CEO position because one criteria was the requirement to hold a current drivers licence. In re-examination she stated that as she was otherwise well qualified under all the other essential criteria for the position she considered it was very likely that the interviewing panel would overlook that failure. In cross-examination she agreed that decisions about steps in major litigation were taken by the council of the NSWALC rather than by Mr Scott. He otherwise had day to day carriage of litigation matters. Both she and Mr Scott were excluded from the council's discussion of this litigation on 13 May 2009. She did not discuss the matter with any councillor. 10 An affidavit of the Applicant dated 22 June 2008 was also read. That annexed correspondence between the parties before the proceedings commenced. NSWALC's submissions 11 The NSWALC argued that the issue yet to be determined as a result of the findings in Laurie No 1 arise on the basis of the Applicant's Class 4 application regardless of whether the amendments are allowed or not. A declaration that the Applicant was elected on 22 May 2007 and continues to hold office is sought. Orders restraining the NSWALC from interfering with the performance of the functions of councillor and that the NSWALC pay the Applicant's remuneration are also sought. The outstanding issue of whether there is a casual vacancy in Ms Laurie's position since her election remains to be determined. These issues also arise on the basis of prayers 4A and 6A and 6B if the amendment is allowed. Prayer 6B is not strictly necessary in order for all the issues to be determined and is not pressed.

12 The material facts are known and are not in dispute. What is in issue are the legal consequences of those facts. The purpose of cl 22B of the amended further points of claim is to identify those legal issues. The issue clearly arises as a result of the interaction of the factual issues in the complicated legislative provisions which have had to be considered in Laurie No 1.

13 The proceedings had to come to this Court as the declarations sought by Ms Laurie could not be made in the Administrative Decisions Tribunal (the ADT), as did the review of the Registrar's determination under s 132 also sought by Ms Laurie. The issue of whether the disqualification provisions of the Aboriginal Land Rights Act 1983 (the ALR Act) are self-executing also had to be determined by this Court. The issue outstanding is a variant on Issue 2 considered in Laurie No 1 and is one of many permutations that could have arisen depending on the Court's determination of the matters first in issue. This Court is the proper place for the resolution of these many complex issues and s 22 of the Land and Environment Court Act 1979 (the Court Act) applies. 14 In light of s 58 of the CP Act and s 22 of the Court Act, going to the ADT would not facilitate the just, quick and cheap resolution of proceedings. Section 22 of the Court Act is in similar terms to s 64 of the CP Act. 15 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 is not authority for the proposition that the making of declarations without consequential orders should not occur in public law litigation such as this matter. Prayer 6A of the cross-claim crystallises and resolves the undetermined issues. 16 The Applicant's claims of prejudice have no relevance in the context that the outstanding issue that has to be resolved one way or the other in order to finalise the litigation. The Applicant commenced this litigation against both the NSWALC and the Registrar of the ALR Act. Complicated issues have in consequence arisen. That there is additional stress caused to the Applicant because not all issues were resolved in Laurie No 1 is unfortunate but essentially unavoidable. The conversation with Mr Scott referred to in her affidavit at par 34 and the impact that this had on her should be given no weight at all in light of her oral evidence that the council makes decisions on the conduct of major litigation such as this matter. That she had hoped to have a final decision on 4 May 2009 when Laurie No 1 was handed down is understandable but it is no parties' fault that the issues in this matter are complicated and the Court was not able to resolve all the issues at once. In any event the decision of this Court is subject to appeal. As the issue if left undetermined would have to go to the ADT the approach of resolving all the issues in this Court if possible is preferable. The claim that the person who would fill the casual vacancy if her position is declared vacant would have a claim in relation to the undertaking as to damages she provided is spurious. It is unlikely a judge would exercise his or her discretion to allow such a claim. Applicant's submissions 17 Section 64(2) of the CP Act is subject to s 58 (what the Court must consider the dictates of justice). 18 The issue the subject of the proposed amendments should have been raised in the first hearing by the NSWALC. As a result of that failure it was not determined as part of the findings in Laurie No 1. The delay in raising these issues is causing prejudice to Ms Laurie such that the amendments should be refused. Ms Laurie's affidavit dated 22 June 2009 identifies a number of matters giving rise to prejudice. These include the impact of stress the litigation is causing Ms Laurie as identified in her affidavit and includes the exacerbation of health problems she is already experiencing. She has also lost the opportunity to apply for a position at the Birrigan Gargle Local Aboriginal Land Council. 19 Many judicial statements state that certain types of prejudice cannot be overcome with costs; see The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146 citing Ketterman v Hansel Properties Ltd [1987] AC 189 and Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) FCR 279. The prejudice caused to the Applicant falls into this category. 20 There is no explanation by the NSWALC as to why these issues were not raised at the first hearing last year and this should weigh against the granting of leave to amend. The failure to do so was a breach of the duty under s 56(3) of the CP Act of a party to participate in the proceedings so as to assist the Court in furthering the overriding purpose of the Act. All matters in dispute in the proceedings should have been brought forward for consideration as required by s 58(2). The matter could have been more simply resolved by an application to the ADT seeking an order declaring her position vacant. This was suggested in correspondence before these proceedings were commenced by the Applicant's solicitor. The correspondence between the parties before the hearing in which the NSWALC stated that the Applicant was automatically disqualified from holding office meant that the Applicant had no choice by to commence these proceedings.

Finding 21 Section 64 of the CP Act provides for leave to be given for the amendment of documents. In exercising its discretion to grant leave s 58 must be considered. Under s 58(2) the Court must have regard to the provisions of s 56 and s 57 when making orders or directions for the management of proceedings. The Court may have regard to matters in s 58(2)(b) which refers to issues such as the complexity of issues in the proceedings, the degree to which the parties have fulfilled their duties under s 56(3) and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. 22 A significant issue in these complicated proceedings remains unresolved as I identified in Laurie No 1 in par [260]-[261]. That that issue remains unresolved results from the determination of the large number of issues raised in relation to the complicated interaction of the statutory provisions of the ALR Act in light of the facts in this matter. It did not become apparent to me until close to finalisation of the judgment in Laurie No 1 that there would be an unresolved issue in the context of Issue 2 in relation to whether the disqualification provisions in the Act apply to Ms Laurie since her election, and therefore whether her position is vacant. It was not at all obvious that the unresolved issue that remains in relation to Issue 2 would arise. The outstanding issue only crystallised when I determined in Laurie No 1 that the Registrar's determination under s 132(2) of the ALR Act was made lawfully and I held that events which occurred before the Applicant's election as a councillor relevant to disqualification continue to be relevant after the election. To reach conclusions on both matters involved considerable thought about the issues raised. I do not consider any criticism attaches to the NSWALC in their not raising this issue earlier as it was not immediately apparent that such an issue would arise. This circumstance simply reflects the difficult issues raised by the facts in this matter which have to be considered for the first time in the context of complicated statutory provisions. It follows that I do not consider there is disentitling unexplained delay by the NSWALC which suggests that I should exercise my discretion to refuse leave to rely on the amendments sought. 23 The history of the matter leading up to the commencement of these proceedings by the Applicant, as referred to in detail in the Applicant's written and oral submissions, does not assist in the resolution of the issue of whether to allow the amendments sought. The Applicant submitted that the appropriate course would have been for the NSWALC to commence proceedings in the ADT and that this would have been simpler and less complicated than these proceedings. Given the issues that had to be considered in Laurie No 1 whether that is the case is not self-evident. That the NSWALC did not take action in the ADT is not material to whether leave ought be given now for these amendments. In any event the Applicant chose to commence these proceedings and the litigation has ensued including the NSWALC's cross-claim. As pointed out by the NSWALC most of the issues the Court has considered in this litigation and the relief sought by the Applicant could only have been considered in this Court, including the judicial review of the Registrar's determination under s 132(2) of the ALR Act sought by the Applicant. It was entirely proper for the Applicant to commence these proceedings and for the NSWALC to raise the issues it did in its cross-claim.

24 I sympathise with the matters raised in Ms Laurie's affidavit concerning the impact of the litigation upon her and her family and the other issues raised which were said to give rise to prejudice to Ms Laurie such that the amendment should not be allowed. I consider the issues the NSWALC raises in cl 22B require determination and arise in any event on both the cross-claim as amended during the original hearing and the Applicant's Class 4 Application in relation to the consequential orders sought by the Applicant for the payment of remuneration and other expenses, inter alia. In other words, regardless of whether the amendment is allowed it is not immediately obvious that all the relief sought by the Applicant should be granted so that further argument on whether such relief can or should be granted is necessary. The parties agree that one further day of argument is needed for this purpose and 3 July 2009 has been allocated. The matter is being dealt with as efficiently as the complexity of the issues that arise allow. 25 The Applicant's counsel relied on cases such as Queensland v JL Holdings and Bomanite and the Owners of SP 57504 v Building Insurers Guarantee Corporation [2008] NSWSC 1022 to support an argument that the prejudice caused to the Applicant is not satisfactorily compensated by costs so that the amendment ought be refused. Because of my reasoning that the outstanding issue has to be determined with or without the amendment sought by the NSWALC and how that outstanding issue came to arise in the proceedings, the circumstances those cases address of prejudice caused to one party by the actions of another party in the conduct of litigation are not relevant here.

26 I found that an amendment of the cross-claim ought be made in Laurie No 2 so that the Applicant would not be surprised by the legal argument the NSWALC seeks to run on the outstanding issue. I consider the amendments as presented now by the NSWALC ought be made and the matter proceed for one further day of final hearing on 3 July 2009. That will attempt to resolve all the issues in dispute between the parties, subject to whether the Court has jurisdiction to do so. That issue will have to be considered as part of the substantive determination of the outstanding issue. That course is in conformity with the overriding purpose of the Act as referred to in s 56(2) of the CP Act and s 57 of that Act. It also accords with the dictates of justice in s 58(2) as it will potentially lead to finality of all the issues as between the parties. In that regard it is in the interests of the Applicant that the amendments in the Further Amended Statement of Cross-Claim be allowed. It is also in accordance with s 22 of the Court Act of determining as far as possible the issues in dispute between the parties. It follows that the Defence to the Further Amended Statement of Cross-Claim of the Applicant can be relied on. 27 The Applicant argues that its costs of this argument on whether to allow the amendment and of all the proceedings since 4 May 2009 ought be paid by the NSWALC on an indemnity basis if the NSWALC is able to rely on these amendments. I consider each party should pay its own costs of the argument on the amendment. As I do not consider there is delay in the conduct of the NSWALC in causing the amendments to be brought forward I do not consider it is appropriate that any further costs order be made.

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