Mason and Another v Wagonga Local Aboriginal Land Council and Another

Supreme Court of NSW|2002-04-29|Before: Gzell J, Henrietta J

CITATION : Mason and Another v Wagonga Local Aboriginal Land Council and Another [2002] NSWSC 351 revised - 09/05/2002 FILE NUMBER(S) : SC 3721/98 HEARING DATE(S) : 18/03/02,19/03/02,20/03/02,21/03/02,22/03/02,25/03/02 JUDGMENT DATE : 29 April 2002

Rodney Mason - First Plaintiff PARTIES : Jayne Woolley - Second Plaintiff Wagonga Local Aboriginal Land Council - Second Defendant Ron Mason - 2nd Defendant JUDGMENT OF : Gzell J

P Singleton for the plaintiffs COUNSEL : M Wright for the 1st defendant R Hollo for the second defendant Legal Aid Commission of NSW SOLICITORS : Henrietta J Dean Solicitor and Attorney Horowitz & Bilinsky Solicitors Kemp Strang Lawyers CATCHWORDS : Aborigines - Local Aboriginal Land Council - promise to provide house and land - proprietary estoppel - damages in lieu - breach of fiduciary duty - negligence - statutory immunity - jealous interpretation - Aboriginal Land Rights Act 1983 ss 12(1), 13(6), 54- Aboriginal Land Rights Regulation 1983 regs 17B, 32(1), sch 3 Cl 5 Aboriginal Land Rights Act 1983 LEGISLATION CITED : Aboriginal Land Rights Regulation 1996 Aboriginal Land Rights Regulation 1983 Browne v Dunn (1893) 6 R 67 Ramsden v Dyson (1866) LR 1 HL 129 at 170 Crabb v Arun District Council [1976] Ch 179 Waltons Stores (Interstate) Ltd v Maher (1987-1988)164 CLR 387 Watson v Floxman (2000) 49 NSWLR 315 at 318-319 Breen v Williams (1995-1996) 186 CLR at 82 Youyoung v Minter Ellison [2000] NSWCA 198 CASES CITED : Hospital Product Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 68 Bromley London Borough Council v Greater London Council [1983] 1AC 768 IW v City of Perth (1996-1997) 191 CLR 1 at 49 Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 at 116 Puntorieor v Water Corporation (2000) 199 CLR 575 at 578 Commonwealth v Verwayen (1990) 170 CLR 394 at 413 Commonwealth v Clark [1994] 2 VR 333 Hayden v Mitchell (1986) 60 LGRA 123 DECISION : See par 50

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3721/98 MASON and WOOLLEY v WAGONGA LOCAL ABORIGINAL LAND COUNCIL and MASON JUDGMENT 1 The plaintiffs, an Aboriginal man and his non-Aboriginal de facto wife, allege that they were led to believe by the second defendant, the chairman of the first defendant, that the first defendant would provide for them a house and land in its area at Reedy Creek. The first defendant's plan to provide a house at this location did not come to fruition and the plaintiffs seek equitable compensation, equitable damages or damages on the basis of equitable estoppel, breach of fiduciary duty and negligence. 2 The first defendant was constituted under the Aboriginal Land Rights Act 1983. Its functions included implementing the wishes of its members, as decided at a meeting of its council, with respect to the acquisition, management, use, control and disposal of land (s 12(1)(d)(i)), to upgrade and extend residential accommodation for Aborigines in its area (s 12(1)(g)) and to protect the interests of Aborigines in its area in relation to the acquisition, management, use, control and disposal of its land (s 12(1)(h)). Section 13(6) provides that until a Local Aboriginal Land Council makes its first rules, the rules prescribed by the regulations as model rules apply. I was informed that the first defendant did not make its own rules. The Aboriginal Land Rights Regulation 1983, reg 17B provided that the model rules set forth in sch 3 were prescribed for the purposes of the Act. Schedule 3, cl 5 contained the following objects: "(a) to improve, protect and foster the best interests of the Council's members and all Aboriginal people within the Council's area; (b) to acquire land in any way authorised under the Act; (c) to obtain or construct housing for Aboriginal people within the Council's area and to repair and maintain that housing; … (e) to obtain financial assistance, by written submission, from the New South Wales Aboriginal Land Council; (f) to obtain financial assistance from any other source, including the Department of Aboriginal Affairs, the Aboriginal Development Commission and the Department of Housing, New South Wales, for the provision of facilities for the Council and its projects."

The duties of office bearers were prescribed in reg 32 and, in particular, the duties of the chairperson included the following: "(1) The primary duty of the Chairperson is to ensure the successful functioning of the Council and achievement of its objectives. (2) Accordingly the Chairperson shall: (a) uphold the rules of the Council; (b) preside at Council meetings; and (c) represent an act, subject to the instructions of a Council meeting, on behalf of the Council in the interval between meetings."

The Aboriginal Land Rights Regulation 1983 was repealed by the Aboriginal Land Rights Regulation 1996, but nothing turns on that repeal. 3 In March 1987 funds were made available to the first defendant under the Community Employment Programme to employ a number of local Aborigines to work on Lot 181 in Deposited Plan 720057 at Reedy Creek ("Lot 181") to establish an Aboriginal community park. They built a tin shed with concrete floor and a roller door and gardening equipment, fruit trees, fertilizer and seedlings were acquired. Consequent upon a claim to vacant Crown Land, Lot 181 was transferred to the first defendant in about October 1987. The Eastern boundary of Lot 181 is Reedy Creek. Across the creek is Reedy Creek Road which is the main access. It appears that the first defendant caused a rudimentary causeway to be built across the creek. To the west of lot 181 is the Bodalla State Forest and Tuross River Road. A fire trail links the block to Tuross River Road and a track goes from the fire track further into the block. 4 In the early 1980's the plaintiffs lived at La Perouse. The male plaintiff had an affinity with the first defendant's area, having camped there over Christmas throughout his life and having gone there to do seasonal work. His grandfather, father and uncles taught him a great deal about the bush and the history of the area when he was a child and a young man. 5 The second defendant was the inaugural chairperson of the first defendant for a couple of years from 1984. He was chairman from 1989 to 1993. As chairperson he acted in a voluntary capacity as property manager and continued in that role as a paid employee from January 1992. The male plaintiff swore an affidavit in which he said that during the 1980's the second defendant, his uncle, and then chairman of the first defendant spoke to him about moving to Lot 181 with the female plaintiff and their children. He said he first went down to look over Lot 181 to see if it was suitable for him and his family in mid 1987. The affidavit states that he spent Christmas 1987 camping at Tuross River with his family as he had done for many years and during that time the second defendant spoke to him about moving to Reedy Creek asking: "Are you moving out there then? When are you moving down? We've got a truck, chainsaws, generator. We've got everything you need." Australia Day 1988 was a key event for Aboriginal people. The second defendant came to the mission at La Perouse for the events of that day. During the course of the day the male plaintiff alleges that the second defendant said words to the effect: "What do you want to live around here for? Why don't you come back down home? We've got land down there. You can pick out a piece of land, clear it, and we'll build a house for your family and you can live there. You can be property manager for WLALC. You can work for us. I'm in charge down there."

The male plaintiff said that he had seen many other houses built in the Dalmeny area by the first defendant and believed the second defendant would build one for his family. In cross-examination he withdrew the assertion that he had seen many houses built in that area. According to him the second defendant said words to the effect: "You'll end up owning your own house and land". The male plaintiff said he understood this to mean a house/land package that Local Aboriginal Land Councils provide to Aborigines. The male plaintiff said that the second defendant also said words to the effect: "There's a shed on Reedy Creek. It doesn't flood. It's a nice little shed". The male plaintiff swore that he replied in words to the effect: "I'll come down and have a look and clean up the site." 6 An affidavit was sworn by the female plaintiff. It was a mirror image of that of the male plaintiff. The lack of variation in the recollections of the plaintiffs as set out in their affidavits leads me to place less weight upon them than might otherwise be the case. The "joint" testimony is to be tested in light of what the witnesses said in cross-examination and their demeanour during it. 7 I gave leave to the plaintiff to seek to remedy portions of the male plaintiff's affidavit to which objection had been taken and I had struck out. In the course of that examination in chief the male plaintiff gave varying accounts of statements he alleged the second defendant made to him demonstrating a lack of precise recollection of the conversations alleged to have induced him to believe he would be provided with a house and land package. The evidence suggests that the male plaintiff's best recollection is of the second defendant's saying: "Come back home. We will get you a house". In cross-examination the male plaintiff said he did not like living at La Perouse and would take any opportunity to leave the reserve. He had a strong desire to move back to the Bodalla area with his family, including his father. Later in the cross-examination it was put to him that he had a conversation with the second defendant in Sydney in the 1980's when he said to the second defendant:

"Have you got any land down there in the bush I can camp on. I get sick of being in the city all the time?"

The male plaintiff said he could not recall the conversation but it was possible it had occurred. It was suggested to him that the second defendant had replied: "Yeah, sure. We've got plenty of land down there you can camp on. Come down at any time, you're welcome to camp there."

Again, the male plaintiff said he did not recall the conversation but it was possible it had occurred. 8 I found the male plaintiff's evidence of these key conversations to be vague and uncertain. For example, when asked: "Q: You say that he said to you "it doesn't flood", referring to Reedy Creek. He said that to you? A: I can recall him mentioning that it is a flood area, sometimes."

But the witness went on to assert that the second defendant said to him that it didn't flood. This issue is of some significance because, as will appear later, the plaintiffs suffered three floods while living at Reedy Creek, one of which was an extremely traumatic experience for both of them. 9 The second defendant swore an affidavit in which he swore to the initial request by the male plaintiff to camp in the first defendant's area which was put to the male plaintiff in cross-examination. The second defendant said that it occurred when he was in Sydney in the late 1980s. The conversations alleged by the male plaintiff to have taken place in mid 1987 and Australia Day 1988 were not put to the second defendant in cross-examination. An application to further cross-examine the second defendant on the basis of an oversight to put those conversations was withdrawn when counsel for the second defendant indicated that he would not make a submission based upon Browne v Dunn (1893) 6 R 67, upon the assumption that if the conversations had been put to the second defendant they would have been denied. This state of the evidence is highly unsatisfactory. The plaintiffs' case on equitable estoppel is that the second defendant as agent of the first defendant induced the plaintiffs to believe that they would be granted a new house and land package on Lot 181 through the first defendant and that the plaintiffs would become the "owners" of that house and land. The initial conversations between the second defendant and the male plaintiff are critical to this issue. All that was put to the second defendant in relation to these conversations was the following: "Q: Indeed, you had invited Rodney to come and stay in the shed; correct? A: No, how he came to come into the shed, he just wanted to come camping on the land. He wanted somewhere to camp out there on weekends."

Conversations to which the female plaintiff swore in her affidavits were put to the second defendant. However, the second defendant swore that he did not speak directly with the female plaintiff but always spoke to the male plaintiff. The second defendant said he did not recall being at a meeting with the plaintiffs and Martin Kraus at his house. Neither did Vivienne Mason, his wife. He denied he there said: "You will be living in a mansion in the bush". He denied that on another occasion at his house the plaintiffs expressed concern at delay and he said: "Go back to Reedy Creek and wait for the bulldozer". He denied being asked by the second plaintiff at Lot 181 whether the plaintiffs could put windows and a proper door in the shed and put in a shower and hot water running off the generator. He denied saying to the female plaintiff on a number of occasions: "The house will be up soon, don't worry about that". He denied hearing the female plaintiff say to him after a flood: "Where's my house? You promised it. Where is it?" He denied saying that he had Housing Department funding and that she and the male plaintiff had priority on the next lot of houses. He denied saying that the money that had been earmarked for the project had been used on another project. After the first flood when the plaintiffs came to his house, the second defendant denied saying: "You could have been in the house watching the flood waters rise from your balcony. The house is definitely going up because we have got the money for it. You won't be going through this again." The second defendant denied he had a conversation with the female plaintiff at the end of 1991 or early in 1992 when she said: "What's happening?" and he replied: "You're priority on the list. I'm just waiting for the DOH to come down to Reedy Creek and inspect the site". He denied saying to the second plaintiff in early 1993 when Ivan Simon and Bob Pyke were at Lot 181: "I spoke to Illawarra electricity and they said it would cost too much. It would cost $13,500". The second defendant repeated his assertion that he never spoke directly with the female plaintiff about these matters. He denied saying in June 1993: "I know I told you to come down and I promised you all these things but I can't build a house for you at Reedy". The second defendant said in cross-examination that he tried to get the house built on Lot 181 but there were obstacles. He said that all the members of the first defendant were in the same boat. They got anxious. He tried to reassure them. He told the male plaintiff to be patient, the house would be built if the money became available. 10 The male plaintiff swore in his affidavit that in January 1988 he started going to Lot 181 to clear the land, living in the shed on the property. He went down for a few days every few weeks. He saw Lot 181 as a chance to be self-sufficient and self-determined. It would allow his children to grow up with a heritage outside the city and away from the temptation of drugs and it helped him to stay off alcohol. In his affidavit he swore that he and the female plaintiff split up for part of 1987 and got back together again after he had beaten his alcohol problem. In 1989 he lived more or less permanently at Reedy Creek. He said that in April-May 1989 some concrete pipes and empty sandbags were dropped at the site which he placed in position with the help, on one half day, of the second defendant's son. He said he was paid for one day's work in an amount of $70. He said that the second defendant said: "I'll send a few boys out to help you build the bridge", but they never arrived. 11 The second defendant in his affidavit said that the first defendant had no objection to its members or other Aboriginal people camping on its land and this included Lot 181 so long as they did not leave rubbish, cause damage or interfere with anyone. He did not interfere with the male plaintiff camping on the land. He was personally happy he was there enjoying the bush. The second defendant, in cross-examination, said that there was not much scrub to be cleared on Lot 181 because it had been cleared earlier for the Aboriginal community park. He said he provided the male plaintiff with a chainsaw so he could cut firewood. The second defendant placed the building of the bridge at a later period when the female plaintiff with their children had joined the male plaintiff on Lot 181. He recalled that the male plaintiff was paid wages for this work by the first defendant as were others. The documentary evidence reveals that on 29 October 1990 the first defendant resolved to purchase cement pipes and to employ three people to build the bridge and upgrade the road at Lot 181. Requisitions for payment containing a signature in the name of Rodney Mason for $70 for work on 28 October 1990, for $140 for 30 and 31 October 1990 and for $140 for 1 and 2 November 1990 were in evidence. The male plaintiff swore a further affidavit in which he said that his signature did not appear on any of the documents and he denied he received any amount beyond $70 which, he said, was handed to him in cash in an envelope. The documents in evidence were cheque requisitions. When these matters were put to the male plaintiff in cross-examination he at first said that he could not say whether his signature appeared upon the documents but later said they did not contain his signature and were nothing like his signature. I was asked to compare the male plaintiff's signature on two of his affidavits with those on the requisitions. I am prepared to draw the inference that the requisitions bear his signature. They are so similar to the signatures on his affidavits that, in the absence of evidence from a handwriting expert that they are not his signatures, the proper inference is to the contrary. 12 To return to the question of alcohol, it was put to the male plaintiff in cross-examination that it was quite a severe problem in 1987. He replied: "Not that I can recall". This tended to be a constant phrase used by the male plaintiff during the course of his cross-examination. It was put to him that his alcohol problem was one of the main reasons for he and the female plaintiff to split up in 1987. He responded that it contributed to it. He denied the use of any other drugs apart from smoking cannabis. In particular, he denied taking heroin. It was put to him that in December 1986 he was treated at Prince Henry Hospital and was then affected by alcohol and by cannabis. His answer was: "Well, I'm not aware". He used the phase: "I can't recall" to the propositions put to him that he told the doctor he consumed 20 schooners of beer a day, smoked two or three joints a day and had used heroin in the past. He used the same phrase when it was put to him that the second plaintiff had said to the doctor that his use of heroin was current. The hospital record was in evidence confirming the history of drug and alcohol use provided by the plaintiffs to the examining doctor. 13 The male plaintiff was examined by a psychiatrist, Dr Lewin, on behalf of the defence. He was cross-examined on what he told Dr Lewin about his drug and alcohol use as follows: "Q: You told him that you did not currently smoke marihuana? A: Yes. Q: And you used it infrequently, perhaps less than once a month. Do you remember saying that? A: Yes Q: Do you remember telling him you had not smoked marihuana for several months at the time you saw him? A: Yes Q: Did you also tell him that you had no history of other illegal drug use at that time? A: I can't recall. Q: Did you also tell Dr Lewin that you had never been a heavy drinker? A: I don't recall. Q: But if you did tell him that, that would have been untrue, wouldn't it? A: What do you mean "heavy drinker", I weren't a heavy drinker. Q: You told him you had never had any alcohol related problems didn't you? A: I can't recall. Q: If you had told him that it would have been untrue wouldn't it? A: I suppose maybe. Q: It would be untrue because in your sworn evidence you say in paragraph 6 of your affidavit of 2 June 2000 that you and Jayne got back together again towards the end of 1987 "after I had beaten my alcohol problem"? A: Yes Q: You did not tell Dr Lewin about your alcohol problem did you? A: Did he ask me about it? Q: I am asking you what you told him? A: I can't recall."

I do not place a great deal of weight on this aspect of the male plaintiff's evidence. Anyone who drinks somewhat to excess can be imagined to want to disguise the extent of the problem. 14 I formed an unfavourable impression of the male plaintiff from his demeanour in the witness box. He was hazy in his recollection of the conversations relied upon as an inducement by the defendants for him to believe that he would be provided with a house and land package. His prevarication when asked questions which he chose not to answer by phrases such as "I can't recall" left me with the distinct impression that he was not being truthful in answering questions. On the other hand, I found the second defendant to be straightforward in his response to questions in cross-examination. Where there is a conflict in the evidence I prefer that of the second defendant to that of the male plaintiff. 15 The female plaintiff swore an affidavit in almost identical terms to that of the male plaintiff, which he described as a mere coincidence. In her cross-examination she played down the 1987 parting. She said that they did not break-up. She wanted "time out" so she took it, saying that it was only in part due to the male plaintiff's alcohol problem. The female plaintiff went down to see the sight in mid 1989 with their son Deon who was not then in school. It was decided that she and Deon would live permanently on Lot 181 with the male plaintiff while their two daughters remained in Sydney with his mother and grandmother. 16 In 1989 a programme called Housing on Aboriginal Land Programme was run jointly by the New South Wales Department of Housing and the New South Wales Aboriginal Land Council to provide housing in the respective areas of Local Aboriginal Land Councils. Submissions for funding for housing were made by Local Aboriginal Land Councils to the New South Wales Aboriginal Land Council which advised the Department of Housing of the successful applicants. The Department of Housing then contacted the successful Local Aboriginal Land Councils to discuss its housing requirements. The funds had to be used in the year of allocation otherwise they could be lost. Houses could be built on land already owned by a Local Aboriginal Land Council or purchased on the open market as "spot" purchases. Whether a house was built on land owned by a Local Aboriginal Land Council or a house and land were the subject of a spot purchase, payments were made directly by the Department of Housing to the builder or vendor. Funds were not paid to a Local Aboriginal Land Council. 17 The second defendant swore that after the male plaintiff had been camping on Lot 181 for a year or two he had the following conversation with the male plaintiff: "He said: "I want to come down here to live with my family too." I said: "Of course, you're welcome. I like it better down here than in the city too, it's a better place to live." He said: "How can I get a house for the family to live in from the Land Council?" I said: "It's not up to me, it's up to the members. You should join the Land Council and come along to meetings and participate. You can apply to the Land Council for a house."

I accept that this conversation took place. On 16 October 1990 the male plaintiff was admitted to membership of the first defendant. 18 The first defendant had made inquires as to the cost of connecting electricity to Lot 181. In a letter of 29 November of 1989, Illawarra Electricity informed the first defendant that the cost would be of the order of $15,000. At the meeting in October 1990 at which the male plaintiff was admitted to membership, the first defendant resolved that Martin Kraus, a joiner and cabinetmaker, oversee the building programme for the first defendant and design a house plan suitable for Lot 181. The minutes of the Council meeting of 10 December 1990 note that the male plaintiff and his family were camping on Lot 181 and that he would like to live there if possible. Members were asked if there were any objections. It was resolved that the male plaintiff be allocated the house to be built at Reedy Creek. The housing list of the first defendant as at 30 January 1991 contained 31 names including that of the male plaintiff. 19 The female plaintiff swore that she had a number of conversations with the second defendant and Mrs Mason who, at material times, was the secretary of the first defendant. While she was the most articulate of the witnesses, I formed an unfavourable opinion of her. She was over-insistent of her point of view and lacked objectivity. As will appear below a major flood occurred in June 1991 in which the plaintiffs and Deon were trapped inside the shed on Lot 181. The female plaintiff refused to accept that the cause of their trauma was the flood. She insisted that the cause was the failure of the second defendant to allow her to have windows and a door built into the shed. The female plaintiff swore that she had a conversation with Mrs Mason at Christmas 1998 when they were camping in the area in which Mrs Mason said: "Everything will be alright, the house will be deadly. Even I can't wait to see it." Mrs Mason denied she had this conversation with the female plaintiff. She said she had never been camping with the plaintiffs and had not spoken to them over that Christmas period. Mrs Mason was clear in her recollection that the plaintiffs had only been to her house on two occasions: to view the plans prepared by Martin Kraus and immediately after the first flood. On the first occasion she said she was very happy for them and said something to the effect that it was a lovely house. On the second occasion she said very little. She was concerned about their well-being and that of Deon. They offered food and accommodation if they needed it. When it was suggested to her that the only thing offered was $40 petrol money and some clothes, Mrs Mason answered: "Well, you are wrong". When it was put to her that she had a telephone conversation with the female plaintiff who was in Sydney for the funeral of her mother-in-law in which she said: "Bricks and mortar are on their way. Come back to the bush where you belong", Mrs Mason said she did not say that. When asked if she said anything like it she said: "That is not my - I don't speak like that, I'm sorry. I don't use those terms." Mrs Mason impressed me as a witness. She was careful in her answers and had clear recollections of the major events. I accept her evidence. Where it conflicts with that of the plaintiffs, I reject their evidence. 20 None of the conversations which I find occurred could reasonably be regarded as inducing the belief in either plaintiff that the first defendant had, through the second defendant, promised to provide Lot 181 to them together with a house constructed thereon. The male plaintiff had been a member of the La Perouse Local Land Council since he was 18. He understood that the second defendant could not, personally, provide him with house and land. He understood that the construction of a house on Lot 181 was dependent upon the approval of the Housing Department. Indeed, since I have found that it was the male plaintiff and not the second defendant who initiated the suggestion of camping on Lot 181, the later conversations, as alleged by the plaintiffs, were innocuous and did not constitute a basis for the alleged inducement by the second defendant. The first defendant was concerned with the provision of housing to its Aboriginal members. The statements attributed to the second defendant are consistent with the performance by the first defendant of its statutory duties to provide housing for Aborigines in its area. They do not constitute any promise or inducement beyond that which was appropriate to any of the 31 Aborigines on the first defendant's housing list. Mrs Mason agreed in cross-examination that the plaintiffs could not approach the Housing Department directly and had to go through the first defendant and that in this sense she understood that the plaintiffs were depending on the first defendant to get their home built. That was no different from the position with respect to other members of the first defendant on the housing list who were dependent upon the first defendant working with the Housing Department to obtain its approval to and payment for the construction of houses on its land or "spot" purchases of houses and land to be vested in the first defendant. The evidence does not support a promise by the first defendant or by the second defendant that this process would be completed with respect to Lot 181. In so far as the female plaintiff is concerned, as she acknowledged in cross-examination, the first defendant could not possibly promise anything to her as a non-Aboriginal person. 21 In June 1991 there was a severe flood in which the plaintiffs and Deon were trapped inside the shed unable to escape through the roller door because of the pressure of water on it. The male plaintiff was able to cut through the roof of the shed with a pair of rose pruners. They were trapped on the roof all night. In their affidavits the plaintiffs swore that after the flood they went to the home of the second defendant and Mrs Mason and were lent $40 to return to Sydney. I find that they were also offered food and accommodation but declined the offer. 22 Evidence was given by Iris Lillian Boronia Williams, the grandmother of the male plaintiff, by Judith Marsh who, with her husband, owned a property at Reedy Creek and by Robyn Anne Fitzgerald who lived in the Bodalla area. Each swore that on occasions the male and/or the female plaintiff said words to the effect that the first defendant was building a house for them on Lot 181. That evidence does not advance plaintiffs' cause. It is clear from the evidence that first defendant had resolved to provide a house on the land as part of its programme. The evidence does not suggest that the arrangements with respect to the male plaintiff were any different from the arrangements made with the other persons on the first defendant's housing list. In particular, the evidence does not suggest that the plaintiffs were induced to believe that the first defendant would, come what may, cause a house to be constructed on Lot 181 to be leased to them on the basis that once the capital cost of the house had been "paid-off" their rent would be reduced to a nominal figure. The female plaintiff said in re-examination that she believed that if a house was allocated to the male plaintiff and he left or died, she would be entitled to remain with his Aboriginal children until she died or they moved out provided the rent was paid and they abided by whatever house rules there were. The evidence does not support an inducement to that belief. 23 The plaintiffs saw Dr Quadrio, a psychiatrist, in January 1999. She diagnosed the female plaintiff as having an adjustment disorder with depressed mood, entirely related to the trauma and hardship suffered over the years at Reedy Creek. Her prognosis was largely dependent upon whether she could attain some sort of stability and security in her life. Dr Quadrio diagnosed the male plaintiff as continuing to manifest symptoms of post-traumatic stress disorder following an apparent earlier serious depressive disorder or breakdown. She concluded that his condition was entirely related to the events that had transpired at Reedy Creek and, in particular, the grief and disappointment he felt after investing so much effort and hope into establishing himself and his family there in very difficult circumstances. His prognosis was that he was gradually recovering and psychiatric treatment was unnecessary. At the time of the trial the plaintiff had received a Diploma in Natural and Cultural Resource Management from Batchelor Institute of Aboriginal Tertiary Education in Darwin and was undertaking a bachelor's degree in Environmental Science. He was employed at Kosciusko National Park as an education officer involved in planning management courses which was the best job he had ever experienced. Dr Quadrio regarded these circumstances as positive in terms not only of the male plaintiff's recovery but also in relation to female plaintiff as her position was very much dependent on his. Dr Quadrio said in the course of cross-examination that if the plaintiffs had not returned to the mission at La Perouse but had obtained alternative accommodation providing for them what they had hoped they had been promised and if the alternative accommodation was such that it met their original hopes and expectations, there would not have been the negative outcomes. Dr Quadrio said that the post-traumatic stress symptoms of the male plaintiff were related mainly to the flood. That was the direct connection to the post-traumatic stress disorder symptoms she observed including flashbacks. The adjustment disorder with depression Dr Quadrio attributed less to the flood and more to the disappointment and grief in the sense of betrayal and loss. Dr Quadrio was of the view that he had succeeded in overcoming to a large extent the adjustment disorder. Her diagnosis at the time was that he should recover from this disorder within twelve months dependent upon his pursuing an active rehabilitation which he had done by the time of trial. Dr Quadrio thus accorded a limited condition to the disappointment of not having a house built at Lot 181 from which the plaintiffs had recovered before trial. 24 The male plaintiff was examined by Dr Lewin on 14 August 2001. Dr Lewin concluded that the male plaintiff had developed an adjustment disorder with mixed emotional features of anxiety and depression in the aftermath of the flood in 1991 which were probably magnified and drawn out by his later emotional loss following the death of his mother in 1992. Dr Lewin concluded that his emotional response had gradually settled with the passage of time and he was, when examined, apparently functioning competently. Dr Lewin expressed the opinion that it was most unlikely that he would develop any further emotional complications regarding events in the early 1990s. In cross-examination Dr Lewin said that the events which appeared to have the greatest impact on the male plaintiff were the serious floods, particularly the first, and the events which involved the threat of death to members of his family and the actual destruction of family property. Dr Lewin expressed the view that the emotional impact of the betrayal was more related to understandable human emotion such as anger, outrage which would not necessarily be regarded as symptoms of illness. He regarded those symptoms as neither necessary nor sufficient to give rise to the psychiatric condition although it was possible that they might have aggravated the results of the flood stressor. 25 Whatever the condition of either plaintiff, the precipitating cause seems to have been the flood rather than any inducement to believe that house and land would be provided to the male plaintiff. Furthermore, the condition in which the plaintiffs found themselves after the traumatic incident of the flood had been resolved by the time Dr Lewin saw the male plaintiff. 26 The plaintiffs swore that after the first flood they almost never spoke to the second defendant about the house. A site had been bulldozed for construction of the house prior to the first flood. There were two further floods, neither of which was nearly as significant as the first. The male plaintiff's mother died in September 1992 and the plaintiffs returned to Sydney briefly for the funeral. The plaintiffs returned to Lot 181 and this time brought their two older daughters with them. 27 On 5 June 1991 a development application for construction of a house on Lot 181 was lodged with the Eurobodalla Shire Council. The minutes of the first defendant of 9 September 1991 record that funding for five houses had been allocated to the first defendant, one of which was the house to be built at Lot 181. On 26 February 1992 the first defendant wrote to the New South Wales Aboriginal Land Council seeking $28,000 for infrastructure costs on Lot 181 including $14,000 for electricity connection. 28 Ivan Simon gave evidence that he was the director of Aboriginal Housing Office within the New South Wales government. Between May 1991 and September 1993 he was employed in the Aboriginal Housing unit of the New South Wales Department of Housing as senior programme officer. He gave evidence that under the Homes on Aboriginal Land Programme, the Department of Housing did not provided funds for infrastructure. Mr Simon recalled visiting Lot 181 on two or three occasions in 1992 and early 1993. The Forestry Commission of New South Wales indicated on 14 May 1992 that it had no objection to power line access to Lot 181. Ivan Simon and Bob Pyke, a surveyor, visited Lot 181 about this time when Bob Pyke surveyed the house site that had been bulldozed. Illawarra Electricity came out and pegged out land for the erection of electricity poles on the house site that had been bulldozed. On 2 June 1992 a siting inspection report was made for the Department of Housing noting that the block only had a dirt road through a stream as access and the site was subject to flooding, the bulldozed cut on the site being under water from flooding in the last few years. The works supervisor reported that in his opinion the site was not suitable for development. This was a preliminary site investigation which is likely to have been followed by a final site clearance because on 11 November 1992 the Department of Housing wrote to the first defendant indicating that four sites, including Lot 181 were considered suitable. On 25 November 1992 the male plaintiff was requested by the first defendant to fill out a New South Wales Aboriginal Land Council housing application form which he did on the following day. 29 In February 1993 Ivan Simon and Mr Pyke and the second defendant met with the plaintiffs on Lot 181. By this time the plaintiffs had cleared an alternative site higher up on Lot 181 and had built a log cabin on the nucleus of the tin shed which the male plaintiff had moved to the new site following the floods. He used timber felled in the area. The male plaintiff said that Ivan Simon informed them that the Shire Council had knocked back the house site due to a seventy metre watermark. Mr Simon did not recall the conversation but he dids recall that the main problem with the first site was the potential for flooding. It is probable, he said, that he would have said that the second site was much better. The plaintiffs had some bulldozing work done on the second site at a cost of $850. The male plaintiff said that he had a conversation with the second defendant at this time in which he said that if the first defendant could not build a house on the land, would it consider leasing the land to him. The plaintiffs allege that the second defendant said to the female plaintiff that she should rent a house in Dalmeny while the house on Lot 181 was being built. They did so on that day. The second defendant denies the conversation. At this time the plaintiffs say that Ivan Simon said: "If we can't build for you at Reedy, we can spot buy a house in my area". The male plaintiff understood this to mean that the first defendant would buy a house in the Bodalla/Cadgee Mountain area if the second site was not approved. 30 Ivan Simon said that he informed the second defendant as representative of the first defendant that building a house at Reedy Creek would be more costly than a spot purchase in the area, or building somewhere else and that the first defendant would need to get electricity and telephone services extended to the house. Mr Simon said that funding allocated to the house at Lot 181 was rolled over from one financial year to the next on one or two occasions and that in early 1993 time was running out to expend the funds allocated to the house. Mr Simon recalls saying to the second defendant words to the following effect: "There are far too many difficulties with both the sites at Reedy Creek and the cost of the additional infrastructure needed is above the amount provided for in the programme. The Land Council will have to get the money for this somehow. If the Land Council cannot get the money for infrastructure quickly there is a real possibility that the programme funds will be lost to the community and another Local Aboriginal Land Council could get a house instead. The only other option would be for us to 'spot' purchase a property in town for the Land Council using those funds. The Land Council can put the same tenant in it if it wants. Time is running out. The funds run out at the end of June and they have to be committed by then. The Land Council will have to decide what it wants to do and let us know quickly." 31 While the connection of electricity was the highest cost item of the necessary infrastructure for the second site, the second defendant said that access was also a problem. A small truck could get on to the site but not a truck with roof trusses on it. There was also a need for sewerage and water. The following appears in the minutes of the first defendant of 23 March 1993: "Discussion on houses being built under HOAL and spot purchases. Reedy Creek was discussed. Infrastructure for Reedy Creek was going to cost the Land Council in the vicinity of $20,000. R Mason told members that the Land Council did not have that amount of funds to spend on infrastructure, as the land has already been excavated, which cost $3,000 roughly. R Mason has discussed the options of spot purchase, but Rod Mason does not want to live in town. Rod Mason requested to lease Reedy Creek property. Legal advice is to be obtained from Steve Wright at NSWLAC. Motion 4

That Lot 181 at Reedy Creek be leased or contracted to Rod Mason, in principle, pending legal advise from NSWALC.

MOVED H Hansen SEC S Heycox CARRIED." Mrs Mason said in cross-examination that she understood that the first defendant could not sell or grant a perpetual lease over its land. On 8 April 1993 the second defendant received notice from the Illawarra Electricity that the capital cost of extending electricity to Lot 181 was $9,310. The second defendant and Mrs Mason said in cross-examination that it was the decision of the Department of Housing and not that of the first defendant that the house would not be built on Lot 181. This testimony is consistent with the lack of a final site clearance by the Department of Housing for the second site as distinct from the first site and the evidence of Mr Simon in cross-examination that the Department of Housing said they could not build the house under the programme.

32 The plaintiffs gave evidence that they had arranged to meet the second defendant with a real estate agent at a property listed for sale at Cadgee Mountain but the second defendant did not keep the appointment. The second defendant said that the Land Council had a meeting to decide on a spot purchase rather than lose the funding before he gave authority for that to be done. The Department of Housing spot purchased a house at 5 Emma Close, Dalmeny for the male plaintiff. The second defendant gave evidence that he informed the male plaintiff that the spot purchase was available for him and his family. The male plaintiff denied that he was offered the house at Emma Close although he did say that they had driven past it and the children did not like it. In cross-examination the following occurred: "Q: In fact, the Land Council, through Ron Mason Senior, offered you a house at 5 Emma Close Dalmeny? A: I can't recall. Q: You don't remember? A: No. Q: It is possible that they offered you a house? A: I can't say. I can't recall. Q: I ask you to assume that the house was offered to you - if Ron Mason had offered you a house in Dalmeny you would have refused to take it anyway? A: Yes Q: Because you did not want to live in any town. Correct? A: Yes Q: You didn't even want to live in the township of Bodalla? A: That's wrong. I did. Q: Let me be clear about this. You would not have accepted a house even in the township of Bodalla because it is a town? A: Because it's another Land Council area. Q: That's right. A different area. Going back to the first question, you would not have accepted any house in the township of Bodalla because you didn't want to live in town, isn't that right? A: That's true."

33 On 4 June 1993 a firm of solicitors retained by the plaintiffs wrote to the first defendant. The letter claimed that the male plaintiff had, in January 1987, been advised that the first defendant had made arrangements to provide a house at Lot 181. In reliance upon that advice the male plaintiff had moved with his family to the property and carried out improvements in readiness for the promised house. The letter alleged that money had been allocated through the Department of Housing to the first defendant for the construction of the house which had not been built. The letter stated that the plaintiffs had suffered considerable hardship as a consequence of the first defendant's failure. In particular, they had lost most of their personal possessions as a consequence of a number of floods. The letter requested the first defendant to make immediate arrangements to build the house. If this was not possible, the first defendant was asked to advise the reasons. The letter concluded with a request to provide a full accounting for the funds received from the Department of Housing.

34 A meeting of the first defendant was held on the 14 June 1993. The male plaintiff said he did not receive notice of this meeting. The minutes contain the following: "GENERAL BUSINESS

R Mason gave each member a present copy of letters from Kennedy & Cook solicitors RE: R Mason

He gave a brief history on the situation at Reedy Creek. The Department of Housing will not build at Reedy Creek as there is no suitable access. A house is being spot purchased at Dalmeny for Rodney but he doesn't want to live in town.

Ron mason told members that the Land Council shed is gone as well as the water tank, water pump and generator. The first water tank was lost in the flood as well as the Hino Truck.

Rodney acted irresponsible with our equipment, and we have paid thousands of dollars to excavate a suitable site for building. Members discussed the refusal of a house being allocated to Rodney and he is well aware of what we are trying to do. MOTION 2 That Rodney Mason be advised that he is to be suspended from our Land Council and that he is to be taken off our housing list, and the house at Emma Close Dalmeny be allocated to another family.

That we authorise Ron Mason to respond to the letter from Kennedy & Cooke

That equipment be reported as stolen and that Ron Mason start proceedings

MOVED T Ella SEC B Manton CARRIED." Following the meeting the male plaintiff was served with a notice of eviction. Eventually, in March 1994, the plaintiffs returned to La Perouse. 35 The male plaintiff swore that his understanding in relation to the provision of a house at Lot 181 was that he would pay rent each week and slowly pay off the house ending up by "owning" it. This was his understanding of a house/land package. In effect, the land would be owned by the first defendant but, so long as he abided by the rules of the first defendant, he would be able to live there. He would not be able to sell the land or deal with it in any way, but he would effectively "own" it through an indefinite lease.

36 The plaintiffs put their case primarily on the basis of proprietary estoppel. It was submitted that had the assumed state of affairs come to pass, the plaintiffs would have been entitled to something equivalent to, although slightly less than, a life estate in Lot 181 with a house on it, the relevant life being that of the first plaintiff or the majority of the youngest child of the plaintiffs who was born in 1998. 37 There is no doubt that in an appropriate case equity will grant an interest over land. In Ramsden v Dyson (1866) LR 1 HL 129 at 170 Lord Kingsdown, albeit in a dissenting judgment, stated the principle thus: "The rule of law applicable to the case appears to me to be this: if a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of landlord, and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation."

Crabb v Arun District Council [1976] Ch 179 was such a case. It was one of many authorities cited to me in this regard. The plaintiff owned a piece of land which had access on to a road owned by the defendants and a right of way along the road. To enable him to sell his land in two parts, the plaintiff sought from the defendants a second point of access and a further right of way along the road. At a site meeting with representatives of the defendants, an additional access point was agreed. Subsequently, the defendants fenced the boundary between their road and the plaintiff's land, erecting gates at both access points. After the plaintiff had sold part of the land together with the original right of access and easement over the road, the defendants removed the gate at the second access point and fenced the gap. It was held that the plaintiff was entitled to a right of access and a right of way along the road.

In the seminal case of Waltons Stores (Interstate) Ltd v Maher (1987-1988) 164 CLR 387 at 404 Mason CJ and Wilson J approved the above authorities:

"The decision in Crabb is consistent with the principle of proprietary estoppel applied in Ramsden v Dyson . Under that principle a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person's land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances. And it should be noted that in Crabb , as in Ramsden v Dyson , although equity acted by way of recognising a proprietary interest in the plaintiff, that proprietary interest came into existence as the only appropriate means by which the defendants could be effectively estopped from exercising their existing legal rights. One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has "played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it": per Dixon J in Grundt (1937) 59 CLR at 675; see also Thompson (1933) 49 CLR at 547. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption."

To the same effect are the six criteria enunciated by Brennan J at 428-429: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew and intended him to do; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." 38 The plaintiffs fail to satisfy these principles. As the female plaintiff acknowledged, as a non-Aboriginal person, she could not expect any interest in Lot 181 to be granted to her. Her cause of action against both defendants fails. Fatal to the male plaintiff's claim in estoppel are my findings that the conversations alleged by the plaintiffs did not take place. Far from the plaintiffs being induced to take up residence at Lot 181, it was the male plaintiff in his desire to rid his family of the bad influences of mission life at La Perouse who sought permission, which was readily granted, to camp on Lot 181. Thereafter the plaintiffs were treated in exactly the same way as the other Aboriginal persons on the housing list of the first defendant. There was nothing in the conduct of the first defendant or the second defendant or Mrs Mason to lead the plaintiffs to the view that they were being treated differently from the other persons to whom housing projects had been allocated. The male plaintiff knew that it was not up to the first defendant alone to build the house and that Department of Housing permission was also required. If and when approval was granted by Eurobodalla Shire Council, the State Government Department of Housing and the first defendant, a house would be constructed for them on Lot 181. His assumption that he would obtain an interest in house and land was based upon his assessment of the likelihood that the consent of all parties involved would be forthcoming and not upon any promise by the second defendant. The second defendant could not make any relevant promise in his personal capacity, as the male plaintiff acknowledged. His cause of action against the second defendant fails. Nor, in my view, did the male plaintiff act to his detriment upon the faith of the alleged promise of the first defendant. He was not asked nor encouraged to do any land clearing and there was not much scrub to be cleared as it had been cleared beforehand. Nor was he asked or impliedly invited to pay for the bulldozing.

39 The plaintiffs' claim to proprietary estoppel is also faced with the problem that the first defendant could not grant any interest in a house on Lot 181 until Department of Housing approval had been given for its construction. The position is analogous to that which arose in Hayden v Mitchell (1986) 60 LGRA 123. The plaintiff was the registered proprietor of land and had applied to the local authority for permission to subdivide it. She allowed the defendants to camp on the land and orally agreed to sell that portion of the land to them upon the granting of the subdivision. The defendants built a cottage on the land. The local authority refused the subdivision and the plaintiff sought ejectment. The defendants cross-claimed that under the doctrine of proprietary estoppel the land was charged with respect to the money expended on the improvements. That claim failed. Since the plaintiff had no power to grant the interest in the land, no equities were set up. Campbell J said at 136: "In the present matter the defendants knew that there could be no transfer of the land unless the council approved of the subdivision, and thus any expectation they had as to being able to remain on the land flowed not from the actions of the plaintiff, but from their own assessment of the likelihood of approval being withheld."

40 A further impediment to the claim of equitable estoppel is that there must be a proportionality between the remedy and the detriment (The Commonwealth v Verwayen (1990) 170 CLR 394 at 413). Detriment may include psychological harm, and stress and strain may be sufficient to hold a party to the assumptions engendered in another (The Commonwealth v Clark [1994] 2 VR 333). In this case, however, the psychiatric evidence attributed the bulk of the disorders of the plaintiffs to the first flood and not to any assumed state of affairs induced by the defendants. Such mental condition as was attributable to the sense of betrayal, the time and effort involved in minimal clearing of the site and $850 expended on bulldozing would hardly render it unconscionable for the first defendant to depart from the alleged promise to provide a life tenancy in house and land at Lot 181. If it were appropriate to grant equitable relief against the land, the most that would be appropriate as a remedy would be a charge for a minimal amount and, being a minimal amount, I would exercise my discretion against granting any remedy.

41 Finally, my finding that the male plaintiff was offered the house the subject of the spot purchase at Dalmeny is another bar to relief. While not a house in the bush, it was sufficiently proximate to the land with which the male plaintiff had affinity to constitute a reasonable alternative. The male plaintiff's rejection of the Dalmeny property was not justified in the circumstances and any unconscionability that might have existed if the first defendant were not kept to the alleged assumption was relieved by the offer of alternative accommodation. 42 The plaintiffs also claimed that the first defendant owed a fiduciary duty to the plaintiffs not to act capriciously or unreasonably towards, or to discriminate against, the male plaintiff. It was alleged that in breach of that duty the first defendant withdrew its consent to the construction of the house on Lot 181 capriciously and unreasonably and discriminated against the male plaintiff. It was pleaded that the second defendant owed a fiduciary duty to the male plaintiff to ensure that resolutions of the first defendant were implemented in good faith and that the members of the first defendant were accurately informed of the relevant facts. It was alleged that the second defendant frustrated the implementation of the resolutions of the first defendant to provide a house and land package and without authority of the first defendant withdrew its consent to the provision of the package to the plaintiffs and failed to inform the members of the first defendant that the Department of Housing had approved the second site, funding for construction of the house and that the Forestry Commission had approved access to the second site through a State forest without cost to the first defendant. 43 Fiduciary duties other than those arising from the relationship of principal and agent arise where there is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other (Breen v Williams (1995-1996) 186 CLR 71 at 82). As Gibbs CJ observed in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 68 the authorities contain guidance as to the duties of one who is in a fiduciary relationship with another, but provide no comprehensive statement of the criteria by reference to which the existence of a fiduciary relationship may be established. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 it was held that the Greater London Council owed a fiduciary duty to its ratepayers to have regard to their interests. However, in IW v City of Perth (1996-1997) 191 CLR 1 at 49 Gummow J observed that proposition had not been accepted in Australia. By analogy, it may be doubtful whether a Local Aboriginal Land Council owes fiduciary duties to its members. As Mason J said in Hospital Products at 102 the categories of fiduciary relationships are infinitely varied and the duties of the fiduciary vary with the circumstances which generate the relationship.

44 In the instant circumstances I am of the view that no special relationship existed between the plaintiffs and the first defendant. As I have said their position was the same as other persons on the first defendant's housing list. Without deciding the issue, if there was a general fiduciary relationship owed by the first defendant to its members, there was no breach of it with respect to the plaintiffs. The first defendant did not proceed with the construction of the house on Lot 181 because of the difficulties associated with the second site and the lack of approval by the Department of Housing. If it had not embarked upon the course of having the funds utilised for the spot purchase of 5 Emma Close, Dalmeny there was a serious risk that the funds of the Housing Department earmarked for the project would have been re-allocated to some other Local Aboriginal Land Council. The spot purchase did not constitute a capricious or unreasonable act, nor one directed towards discriminating against the male plaintiff. As for the second defendant, there was no evidence that he frustrated the implementation of the resolutions of first defendant or that he, without authority of the first defendant, withdrew its consent to the provision of any package to the plaintiffs. The evidence was that the first defendant approved the spot purchase before the second defendant caused it to be implemented. Nor was there any evidence that the second defendant failed to inform the members of the first defendant that the Department of Housing had approved the second site, funding for construction of the house and that the Forestry Commission had approved access to the second site through a State forest without cost to first defendant. The Forestry Commission wrote to the second defendant informing him of its consent. There was no evidence that information was not communicated to the first defendant. The evidence of Mr Simon was that there were far too many difficulties with the second site at Lot 181 and the cost of additional infrastructure which needed to be provided and the Department of Housing could not build the house under the Housing on Aboriginal Land Programme. The plaintiffs' claim for breach of fiduciary duty fails. 45 The plaintiffs also claimed that the first defendant owed a duty of care to the plaintiffs or, alternatively, to the male plaintiff to take steps to give effect to the decision of the first defendant and the approval of the Department of Housing with due diligence and/or not to revoke or act inconsistently with its resolutions without first notifying the plaintiffs and giving them the opportunity to make submissions, investigating alternative sources of funding for infrastructure, investigating whether alternatives to the provision of mains electricity such as solar power was available, inquiring of State Forests to ascertain whether legal access to the site was available, giving the plaintiffs an opportunity to do works at their own cost to install utilities and provide adequate access to the site and, if necessary, applying to Eurobodalla Shire Council to modify the development consent for construction of the house.

46 In Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 it was held that a local authority had a duty of care once a subdivision had been approved to give effect to that approval and to do so with due diligence and within a reasonable time. By analogy the plaintiffs allege that the first defendant owed a duty to implement its decision to build a house on Lot 181. There is a material distinction in the two situations. In Avenhouse the function to be performed under statutory obligation was that of the Council itself. In the instant circumstances the relevant housing programme was administered, not by the first defendant, but by the Department of Housing and, further, it required for its completion the consents of other instrumentalities such as the local authority and the Department of Forests. Furthermore, there is no basis for a finding that the first defendant procrastinated in its endeavours to achieve the construction of the house on Lot 181. The plaintiffs' claim in negligence also fails. 47 The plaintiffs also claim solatium for the loss to the male plaintiff of the opportunity to live on his traditional lands. Nothing was said of this loss in the course of the proceedings and I ignore it.

48 The plaintiffs invited me to award damages in lieu of the interest in the land. It was submitted that I could pluck the figure of $20,000 or $30,000 out of the air as the value of something less than a life interest in Lot 181 and approximately $113,000 for the building of the house together with damages for the traumatic experience of the flood and damages for hardship in living on Lot 181. In light of my findings, the plaintiffs are not entitled to damages. If I had taken the view that the plaintiffs were entitled to damages in lieu of equitable relief, I would have referred the matter to a Master or referee. Compensation for breaches of trust and other breaches of equitable duty are directed to restoring persons who have suffered loss to the position in which they would have been if there had been no breach of the equitable obligation (Youyang v Minter Ellison [2001] NSWCA 198 per Handley JA at par 16). I would have instructed the Master or referee to ascertain the amount of a fund necessary to enable the plaintiff to lease a house suitable for his family in the Bodalla area for a period equal to his expectation of life. 49 In their defences, the first and second defendants raise the Aboriginal Land Rights Act 1983, s 54 which is in the following terms: "No matter or thing done by an Aboriginal Land Council and no matter or thing done by any member of any such Council or by any person acting under the direction of any such Council shall, if the matter or thing was done bona fide for the purposes of executing this or any other Act, subject a member of any such Council or a person so acting personally to any action, liability, claim or demand whatever."

In view of my findings the defendants do not require this statutory immunity. If I be wrong in my view, however, I consider the defence. Provisions such as this must be construed so that they are not carried further than a jealous interpretation would allow ( Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116; Puntoriero v Water Corporation (2000) 199 CLR 575 at 578). In the latter case the statutory immunity provision was construed to apply where the rights of plaintiffs would be infringed by positive acts of the corporation pursuant to its statutory functions. That context does not arise in the instant circumstances where the functions of the first defendant are to provide land and housing to Aborigines in its area and those functions were being exercised with respect to the plaintiffs. Provided, therefore, that the actions of the defendants were bona fide, I am of the view that a defence under s 54 would have been available to the defendants had it been necessary for them to avail themselves of it. The bona fides of the first and second defendants were not put in issue by the pleadings (the plaintiffs did not file a reply) nor was it suggested in the course of the evidence. Had it been necessary for me to do so, I would have dismissed the plaintiffs' claims in reliance upon s 54. 50 I dismiss the plaintiffs' claims. I will hear the parties on costs.

Last Modified: 05/09/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (40 paragraphs)

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Cases Cited (8)