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[2025] NSWLEC 69
General information, not legal advice.
Land and Environment Court (NSW)
2025-07-02
Pepper J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Leeton Courthouse) [2025] NSWLEC 69
Hearing dates: 1 July 2025
Date of orders: 1 July 2025
Decision date: 02 July 2025
Jurisdiction: Class 3
Before: Pepper J
Decision: Leave to amend granted. Minister to pay the applicant’s costs thrown away by the amendment, including the costs of the s 34 conciliation conference prior to leave to amend being granted.
Catchwords: PROCEDURE: application to amend statement of facts and contentions – Aboriginal land rights claim –legal principles – Minister agreed to further amend to remove ambiguity caused by proposed amendments – adequacy of explanation for delay by Minister –hearing date not jeopardised – no irredeemable prejudice to non-amending party – whether appropriate to order another s 34 conciliation conference upon the amendments being made – leave to amend granted – further s 34 conciliation conference not ordered.
COSTS: whether Minister liable for costs thrown away occasioned by the amendments – whether costs thrown away include the costs of preparing for and attending the s 34 conciliation conference prior to the amendments – Minister ordered to pay the costs thrown away, including those associated with the s 34 conciliation conference.
Legislation Cited: Aboriginal Land Rights Act 1983, s 36(1)(b)
Civil Procedure Act 2005, ss 56, 57, 58, 64
Court Security Act 2005, ss 4(1), 6, 10
Land and Environment Court Act 1979, s 34
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492
Kelly v Mina [2014] NSWCA 9
Category: Procedural rulings
Parties: New South Wales Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act (Respondent)
Representation: Counsel:
O Jones (Applicant)
O Berkmann (Respondent)
Solicitors:
Chalk & Behrendt, Lawyers & Consultants (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2023/450075
Publication restriction: Nil
This is an application by the respondent, the Minister Administering the Crown Land Management Act (“the Minister”), to a Class 3 Aboriginal land rights claim commenced by the New South Wales Aboriginal Land Council (“the Land Council”), to amend his Statement of Facts and Contentions (“SOFAC”).
The land claim was commenced by the Land Council on 12 December 2023. It concerns a public carpark adjacent to the Leeton Courthouse.
The application is attended by some urgency because the matter is set down for final hearing on 28 and 29 July 2025. Accordingly, upon hearing oral argument from the parties, I made orders allowing the amendments and making further necessary procedural directions to ensure that the proceedings are ready for hearing. I promised to publish written reasons as soon as practicable. These are those written reasons.
- As at the Date of the Claim, the Claimed Land was not “claimable Crown lands” within the meaning of s 36 of the ALRA for the following reasons:
i. The Claimed Land was not vested in His Majesty; or, in the alternative
ii. The Claimed Land was vested in His Majesty but was lawfully used or occupied, such that s 36(1)(b) of the ALRA was not satisfied.
Not Vested in His Majesty
- The Claimed Land was not vested in His Majesty.
Particulars
i. A Notification of Resumption of Land occurred pursuant to the Public Works Act 1912 (NSW), published in the NSW Government Gazette on 6 February 1925. There after the Claimed Land became appropriated for a certain authorised work, being the erection of the Leeton Courthouse.
ii. At the Date of Claim the Claimed Land was therefore vested in the Minister for Public Works and was not vested in His Majesty.
Lawful use or occupation
- The Claimed Land was lawfully used or occupied.
Particulars
i. The Claimed Land was lawfully used or occupied as a carpark.
ii. The Claimed Land was a public carpark which provided parking to the adjacent Leeton Courthouse, Leeton Police Station and the public generally.
iii. The use or occupation of the Claimed Land was consistent with the Reserve Purpose, Reserve 751742 for ‘Future Public Requirements’.
Land was vested in His Majesty
16 As at the date of claim, the registered proprietor of Lot 1 was ‘The State of New South Wales’.
17 As at the date of claim, the claimed land was Crown land and was the subject of Reserve 751742.
18 The Applicant contends that the Court would not be satisfied that, as at the date of claim, Lot 1 was ‘not vested in His Majesty’. To the contrary, the Court would conclude that, as at the dates of claim, Lot 1 was ‘lands vested in Her Majesty’. In particular, it is noted that land not vested in His Majesty cannot be the subject of a reserve under the CLA.
Land was not “lawfully used or occupied”
19 In the context of s 36(1)(b) of the ALRA, the legal and evidentiary onus is on the Minister to satisfy the Court that the whole of Lot 1 was:
a. used or occupied in fact and to more than a notional degree; and
b. that the use and occupation was lawful in the sense of being legally authorised.
20 The Applicant contends that the Court should not be satisfied on the evidence before it that, as at the dates of claim, the whole of Lot 1 (or any part of it) was lawfully used or occupied within the meaning of s 36(1)(b) of the ALRA.
The proceedings being Class 3 proceedings, the parties subsequently attended a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 on 21 October 2024.
Following the s 34 conciliation conference, on 15 November 2024 the Minister filed an amended SOFAC, which removed the contention that the land was not vested in His Majesty as at the date of the claim (“the vesting issue”).
On 28 November 2024 the Land Council filed a cognate amended SOFAC in reply removing the vesting issue from its SOFAC.
On 17 February 2025 orders were made by consent listing this matter for hearing on 28 and 29 July 2025.
On 27 March 2025 the Land Council provided a draft Statement of Agreed Facts and a draft Statement of Issues to the Minister. The latter document did not include the vesting issue as an issue in dispute between the parties.
On 18 June 2025 the Minister provided a draft Statement of Agreed Facts and a draft Statement of Issues to the Land Council. The drafts sought to reagitate the vesting issue.
On 23 June 2025 the Land Council wrote to the Minister objecting to the resurrection of the vesting issue unless leave to further amend the Minister's SOFAC was sought and obtained.
Accordingly, on 25 June 2025 the Minister filed a notice of motion and affidavit in support by Sophia llliadis, a solicitor with the Crown Solicitor’s Office (affirmed on 25 June 2025), that sought leave to further amend the Minister's SOFAC in order to:
(a) reinsert the vesting issue in the Minister's case:
Not Vested in His Majesty
- The Claimed Land was not vested in His Majesty.
Particulars
i. A Notification of Resumption of Land occurred pursuant to the Public Works Act 1912 (NSW), published in the NSW Government Gazette on 6 February 1925. There after the Claimed Land became appropriated for a certain authorised work, being the erection of the Leeton Courthouse.
ii. At the Date of Claim the Claimed Land was therefore vested in the Minister for Public Works and was not vested in His Majesty.
(b) raise a new particular with respect to how the Minister contended that the claimed land was lawfully used and occupied, namely, that the land was subject to the Court Security Act 2005 (“the CSA”) (“the CSA issue”):
Lawful use or occupation
- The Claimed Land was lawfully used or occupied.
Particulars
i. The Claimed Land was lawfully used or occupied as a carpark.
ii. The Claimed Land was a public carpark which provided parking to the adjacent Leeton Courthouse, Leeton Police Station and the public generally.
iii. The Claimed Land was subject to the Court Security Act 2005 (NSW). …
(c) and amend a stated fact concerning whether the claimed land was the subject of Reserve 751742 for Future Public Requirements (“the reserve issue”):
- As at the Date of Claim, the Certificate of Title recorded that the Claimed Land was subject to a Reserve. That reserve being Reserve 751742 for Future Public Requirements, which was notified in the NSW Government Gazette on 29 June 2007.
…
Lawful use or occupation
- The Claimed Land was lawfully used or occupied.
Particulars
…
iv. If the Claimed Land was subject to a Reserve, the use or occupation of the Claimed Land was consistent with the Reserve Purpose, Reserve 751742 for ‘Future Public Requirements’.
Subject to the question of costs, the Land Council did not oppose the reinsertion of the vesting issue in the Minister’s SOFAC. It did, however, oppose the inclusion of the CSA issue and the reserve issue.
The Land Council opposed the CSA issue because it was not clear how this Act applied to render the land lawfully used and occupied pursuant to s 36(1)(b) of the Aboriginal Land Rights Act 1983 (“ALRA”).
The Land Council opposed the reserve issue on the basis that the effect of the amendment, if allowed, was to say nothing about the status of the land as at the date of the claim. It was unfair to the Land Council in the context of a case relying upon s 36(1)(b) of the ALRA for the Minister to be silent on whether or not the land was reserved or who was responsible for it. Further, the late change deprived the Land Council of any opportunity to consider what, if any, information should be obtained from the person responsible for the land or to issue a subpoena to the Department of Planning, Housing and Infrastructure.
In oral submissions, the Minister clarified its position with respect to the two contentious issues. First, in relation to the CSA issue, the Minister contended that the issue was a particularisation of the existing contention that the land was lawfully used. During oral argument, it was explained that ss 6 and 10 of that Act operated to provide a source of power for the lawful use and occupation of the land.
Section 6(1) of the CSA provides a right to persons to enter and remain in open areas of court premises:
6 Right to enter and remain in open areas of court premises
(1) A person has a right to enter and remain in an area of court premises that is open to the public if—
(a) the person has complied with all relevant orders made by a judicial officer (whether under this Act or another law) in respect of the person, and
(b) the person has complied with all directions or requirements made by a security officer under this Act in respect of the person.
court premises, in relation to a court, means the premises or place where a court is held or that is used in relation to the operations of a court, and (without limitation) includes—
(a) a forecourt, courtyard, yard, parking area, toilet facility, hall, corridor or other area used in conjunction with the premises or place, and
(b) a part of premises or a place used as an entrance to or exit from the premises or place where the court is held or that is used in relation to the operations of the court, and
…
(d) any part of premises or a place used in relation to the operations of a court, or referred to in the preceding paragraphs, that is also used for other purposes.
Section 10 confers a power on a security officer to search persons and vehicles, including vehicles that are about to be, or that have been, driven into the “court premises”.
Therefore, the Minister argued, the Leeton courthouse carpark is being lawfully used and occupied pursuant to the power conferred by the CSA.
Second, the Minister submitted that in respect of the reservation issue, this was the logical corollary of the vesting issue. That is, if the land was not vested in the Crown, but was vested, as the Minister asserts, in the Minister for Public Works, then it could not have been the subject of a reservation as at the date of the claim. The reserve issue does no more than clarify and correct the facts. This was necessary because a court cannot be compelled to decide a case on a basis contrary to fact, and moreover, is not bound to act on admissions made by parties or statements of fact agreed between the parties (Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 at [151]-[157]). As the Court of Appeal opined in Damberg (at [160]):
160 In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed. A similar caution appears to apply in relation to an assumption or agreement that foreign law is the same as the lex fori.
It became apparent during oral argument that ultimately what the Land Council took issue with was the ambiguous manner in which the proposed CSA and reserve issues had been articulated by the Minister. Upon having been given a more fulsome explanation, and on the proviso that the two issues were further particularised in the Minister’s SOFAC, the Land Council’s opposition to the proposed amendments waned.
In the result, the Court adjourned the hearing of the application to allow the Minister to replead its SOFAC to properly particularise the issues it sought to include.
There was no dispute between the parties as to the applicable legal principles concerning applications to amend.
Section 64 of the Civil Procedure Act 2005 (“the CPA”) confers upon the Court a broad discretion to permit, with leave, a party to amend any document, which would include the Minister’s SOFAC. It provides:
64 Amendment of documents generally
(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. …
The discretion must, however, be exercised having regard to the overriding purpose set out in s 56 of the CPA, together with the objects of case management and the requirement for the Court to have consideration to the dictates of justice in ss 57 and 58 of the CPA (Kelly v Mina [2014] NSWCA 9 at [47]-[48]).
Those who pine for the past when a party was all but entitled to raise by way of amendment an arguable claim, subject to the payment of costs as compensation, conduct a futile exercise in nostalgia. As the High Court stated in A**on Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [111] and [112], footnotes omitted):
111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
(a) the nature and importance of the amendment to the party applying for it (Aon at [102]); (b) the extent of the delay and the costs associated with the amendment (Aon at [102]); (c) the explanation for the delay (Aon at [108]); (d) the prejudice to the parties (Aon at [5], [93]-[95], [100]-[102] and [114]); (e) the parties’ choices to date in the litigation and the consequences of those choices (Aon at [112]); (f) the strength of the proposed amendment in the sense of whether or not it is futile; and (g) the potential loss of public confidence in the legal system which can arise where a court is seen to have acceded to applications made absent sufficient justification or explanation (Aon at [5], [24] and [30]).
The onus is on the party seeking leave to amend to persuade the court that such leave should be granted.
Finally, the weight to be given to the factors identified in Aon, and the outcome of that balancing exercise, will vary with the circumstances of each case.
Upon resumption of the application, and having been provided with a revised and more detailed set of proposed amendments to the Minister’s SOFAC, the Land Council consented to the changes. In doing so, it candidly admitted that it would not be irredeemably prejudiced if the amendments were allowed, especially given that the matter now turned on legal, rather than factual, disputes and the evidence was largely, if not entirely, documentary. Critically, if permitted the hearing dates would not be jeopardised by the amendments.
Thus the consequences of the Minister’s decision to reinstate the vesting issue and to introduce the reserve and CSA issues are not likely to be significant from the perspective of the Land Council.
This deals with the factor articulated at [29(d)] above. Turning to the remaining considerations, the amendments are plainly not futile and are of importance to the Minister. As both parties agreed, the CSA issue, if correct, is sufficient in and of itself to dispose of the Land Council’s claim.
As for costs, this is discussed below. Suffice it to say at this juncture, that the Minister must pay the Land Council’s costs thrown away by the amendment, and moreover, that the amendments will not cause a material increase to the legal costs of the Land Council.
The explanation for the delay in amending the SOFAC is, at best, thin. In respect of the vesting issue, the Minister told the Court that it was not until he received advice from senior counsel briefed in the matter that he concluded that it ought to be included in the claim after all.
No real reason for the delay in making the reserve or the CSA issue amendments was proffered other than to state that these issues did no more than clarify or particularise the vesting issue and the contention that the claimed land was being lawfully used and occupied as at the date of the claim.
The inadequacy of the explanation for the delay in making the amendments, while important, is not fatal to the application to amend in this instance given that no real prejudice to the Land Council arises from the delay. Put another way, I do not envisage any potential loss of public confidence in the legal system by acceding to an application made absent appropriate justification.
Weighing up these factors, and having regard to the principles contained in ss 56 to 58 of the CPA, I am of the opinion that leave to amend ought to be granted.
The Court was minded to order another s 34 conciliation conference prior to the hearing commencing. While neither party opposed such a course, the arguments that the Land Council put persuaded the Court to abandon the idea. As the Land Council submitted, the case was almost wholly occupied by questions of law, about which the parties held differing views. It was therefore unlikely that further conciliation would achieve compromise. The amendments to the SOFAC did not cause the Land Council to resile from this opinion, rather it “entrenched” it.
The Minister did not cavil with this view.
The parties are both competent, sophisticated and very experienced litigators in respect to claims under the ALRA. If they are sceptical of the utility of further alternative dispute resolution, this is a matter that weighs heavily against the exercise of the Court’s power to refer the matter for a further s 34 conciliation conference. While my curial experience indicates that a court can usually never have enough alternative dispute resolution, in this instance I acquiesce to the submissions of the parties. In terms of the cost/benefit calculus of preparing for, and attending, another conciliation conference at this “entrenched” stage of the proceedings, another round of conciliation cannot be justified.
The Land Council sought an order that the Minister pay its costs thrown away occasioned by the amendment, including its costs of preparing for, and attending, the s 34 conciliation conference, on the basis that the conciliation conference had been a largely wasted exercise in light of the amendments.
Initially, the Minister, while not opposed to paying the Land Council’s reasonable costs thrown away by the amendment, nevertheless sought an order that the costs of the s 34 conciliation conference be reserved.
After the adjournment, the Minister changed his position and agreed to pay the reasonable costs of the s 34 conciliation conference. It was wise to do so. In the circumstances of this case, these costs have been in the main wasted and logically form part of the costs thrown away by the amendment, for which the Minister has agreed he is liable.
Having determined that the amendments to the Minister’s SOFAC ought to be permitted, some consequential timetabling orders to ensure that the matter is ready for hearing on 28 and 29 July 2025 ought to be made.
The formal orders of the Court are therefore as follows:
(1) leave is granted to the Minister to further amend his Statement of Facts and Contentions, a copy of which is attached at annexure ‘A’ to this judgment;
(2) the Minister is to pay the Land Council’s reasonable costs thrown away resulting from amendments made to the Minister’s Statement of Facts and Contentions;
(3) the Minister is to pay the Land Council’s reasonable costs incurred in relation to the s 34 conciliation conference held on 21 October 2024;
(4) the Land Council is granted leave to file a further amended Statement of Facts and Contentions in reply, if necessary, by 2 July 2025;
(5) orders 2-5 made on 14 March 2025 are vacated;
(6) the parties are to confer and endeavour to reach agreement on an agreed list of the real issues for determination in the proceedings by 3 July 2025;
(7) the parties are to confer and endeavour to reach agreement on a statement of agreed facts by 3 July 2025;
(8) the parties are to prepare, and the Land Council is to file and serve, a paginated Court Book, along with an electronic copy of its contents, in a white folder, with dividers between each section and a table of contents indicating which party is tendering each document, containing copies of the following, by 3 July 2025:
(a) the originating application;
(b) the parties’ amended Statement of Facts and Contentions pursuant to the orders made above;
(c) the agreed list of issues to be determined in the proceedings;
(d) the agreed statement of facts; and
(e) each party’s list of objections (if any) to evidence; and
(9) the parties are to prepare, and the Land Council is to file and serve, a paginated Evidence Book in a grey folder (or folders) containing the written evidence proposed to be tendered by the parties with dividers between each section and a table of contents indicating which party is tendering each document, containing copies of the following by 3 July 2025;
(a) the agreed statement of facts;
(b) the Minister’s non-expert affidavits, if any; and
(c) all other documents proposed to be tendered in chronological order; and
(10) liberty to restore on two working days’ notice.
Annexure A (233 KB, pdf)
**********
New South Wales Aboriginal Land Council
Minister Administering the Crown Land Management Act
(2009) 239 CLR 175
(2001) 52 NSWLR 492