NSW SMALLBORE & _ AIR_~ RIFLE ASSOCIATION" v COMMONWEALTH OF AUSTRALIA

The claimants occupy the subject land pursuant to an arrangement which is encapsulated in a document which is annexed to the judgment of Bryson J. Clause A purports to render the agreement terminable in circumstances set forth therein, ie:

A. The permissive occupancy to be terminated only in the event of mobilisation, an emergency proclaimed by either the State or the Commonwealth, land being no longer used as a rifle range or if the NSW Rifle Association decides to vacate the area.""The two claimants contend that none of those circumstances have yet arisen and the Commonwealth is inhibited from terminating the occupation conferred upon them. Bryson J held that the words 'land being no longer used as a rifle range' were to be read as being 'land no longer used by the Defence Forces as a rifle range'. That is the principal point to be argued on the appeal.

The land has been occupied by the two claimant clubs under the terms of that arrangement since 12 February 1968, almost thirty years. Those clubs conduct significant operations there which are set out in the affidavits of John William Roberts and Clive Robert Halnan which were admitted into evidence before me. It is sufficient to note that the rifle ranges on the subject land are used by a very large number of club members. There are significant rifle competitions conducted on the subject land and, in real terms, the subject land seems to be the only area available for that activity within the metropolitan area. I do not think it is necessary to detail the extensive use to which the rifle range is put by the large number of people referred to in the two affidavits. Those affidavits also disclose the improvements which have been made by the two clubs to the facilities and

those improvements include, in essence, the headquarters buildings for the two club operations as well as facilities related to the breaking up and distribution of

ammunition for various shooting bodies throughout the State.

The question before me is whether I should grant a stay of the summons which has been taken out for leave to seek the issue of a writ of possession. That summons is to come before a Registrar on 20 March 1996. The second question arises is whether expedition should be granted.

It is apparent that if a stay is granted then from the claimants" point of view any need for expedition dissolves although the Commonwealth would nonetheless seek expedition.

It is necessary to have some regard to the history of this matter. It appears from the affidavit of Mr Tubier of 24 November 1995 that as long ago as July 1986 the then Federal Cabinet decided to declare as surplus to the Commonwealth's requirements the subject land. Thereafter it was vacated by the Army. In February 1988 the NSW Rifle Association Incorporated commenced proceedings against the Commonwealth in circumstances where the Commonwealth had sought to regain possession of the land. Those proceedings were heard before Waddell CJ in Equity in January 1990. In April 1990 Waddell CJ in Equity delivered judgment declining to grant the Commonwealth the right to obtain such possession. His Honour was of the view that a longer notice of termination was required to be given than that which had been given, and suggested that a period of three years notice should have been given. There was no appeal from that decision. Such a three year notice was given by the Commonwealth on 20 August 1990. It expired on 25 August 1993. On 5 August 1993 fresh proceedings were commenced by the claimants against the Commonwealth. Those proceedings were the subject of interlocutory orders and culminated in the judgment of Bryson J delivered on 22 July 1994, to which I have referred. His Honour then granted to the Commonwealth leave to seek an order for the issue of a writ of possession. The Commonwealth has waited some eighteen months or more before taking out a summons seeking that leave. It is the taking out of that summons which has generated the notice of motion before me today for a stay pending a determination of the appeal.

In my opinion a stay should be granted. The reason for that flows in part from the circumstance that it is now ten years since the Commonwealth initially decided that the land was surplus to its requirements and thereafter commenced steps to obtain possession. It is clear in my view that there has been no urgency at all in the taking of those steps and that the matter has in the past decade proceeded at a leisurely pace. That that is so is emphasised by the fact that although Bryson J gave judgment in July 1994 some eighteen months have passed before the next step which he then granted permission to seek, namely,an order for issue of writ of possession, was taken. That is a factor in my opinion to be taken into account in determining whether it is appropriate to grant such a stay.

If a stay is not granted and a writ of possession issued then, were it to be executed, it is clear in my opinion that the two claimants would suffer significant if not irreparable damage. There being no other facilities available within the Sydney Metropolitan area it seems likely that there would be a prospect of a dissolution of the activities of the two clubs. That is a factor to be put in the scales in weighing whether a stay should be granted.

It is also put that there is some general public interest in the facilities being continued as they are used by a number of public bodies for weapons training. It seems to me that that is a factor, at least in the short term, until the hearing of the appeal also to be weighed. It is further put that there would be no significant detriment to the Commonwealth. It is clear that in respect of portion of the land not occupied by the two claimants the Commonwealth continues to suffer outgoings but there is no evidence before me regarding the detail of any residual income the Commonwealth receives for that portion of its land.

WRB SMALLBORE & AIR RIFLE ASSOCIATION v COMMONWEALTH OF AUSTRALI& (Cole JA)

Iam prepared to assume that the Commonwealth does have to bear outgoings of a significant nature in respect of the balance of the land not occupied by the claimants.

It is generally the case that a successful party to litigation is entitled to have the benefit of the primary judge's judgment and to exercise rights which are conferred by that judgment. In this instance those rights were conferred some eighteen or nineteen months ago and no endeavour has been made to exercise them to date. No doubt that was in part due to the Commonwealth determining to await the outcome of the appeal.

It seems to me that that position should continue until the appeal can be heard and accordingly I propose to grant a stay of the proceedings pending the hearing of this appeal.

The next question which arises is whether this is a matter which should be granted expedition. The approach which the Court will take in applications for expedition has recently been enunciated by the Court in Elders Rural Finance Ltd v Smith & Ors!. The guidelines are there set out. This is a case in which it seems to me that the appellants can reasonably say they have an arguable case. If a stay is granted they are not disadvantaged and the extent to which the Commonwealth is disadvantaged is a factor to be taken into account but is not in my opinion a dominating factor. It follows that neither party is greatly prejudiced once it is recognised that the stay has been granted.

Having regard to the circumstance that the Commonwealth has taken ten years to seek to obtain possession and has moved at a modest pace in its endeavours to recover possession and having regard in particular to the circumstance that nothing has been done by the Commonwealth for the past eighteen months to seek to implement the terms of the order made by Bryson J granting to the Commonwealth leave to seek the issue of a writ of possession, in my opinion this is not a case in which expedition should be granted. Accordingly, I decline to grant expedition.

1. The judgment for possession in favour of the opponent made in the Equity Division proceedings 3503/93 and 3741/93 on 22 July 1994 be stayed pending determination of the appeals.

3. I order that the opponent pay the claimants" costs of the notices of motion.

4. I vacate the hearing before the Registrar on 20 March 1996.

1. (Unreported, Court of Appeal of New South Wales, 22 December 1995).