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[2025] NSWCA 119
procedural. The notice of motion filed 14 May 2025 was dismissed. The applicant was ordered to pay the respondent's costs of and incidental to that motion.
12 cited instruments linked from this judgment.
The Court of Appeal refused to pause enforcement of the State's possession order while the applicant's appeal was pending. It found that the appeal grounds, including those based on sovereignty, land title, international law and procedural fairness, did not raise a sufficiently serious issue for a stay. The Court also said that, even if it had needed to decide the balance of convenience, it would have favoured the State. This was an interim decision about a stay, not a final decision on the appeal.
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2,403 words · generated 06/10/2026
In Nyangbul v State of New South Wales [2025] NSWCA 119, Griffiths AJA considered an interlocutory motion to stay a writ of possession while an appeal was pending. Jaabarun Nyangbul was the defendant in the possession proceedings below and the applicant for the stay. The State was the registered proprietor of two parcels near Lennox Head, identified as Lot 703/106584 and Lot 7004/96435. The judgment refers to them together as “the Land” (para 9).
The State had sought possession after structures were built or brought onto the Land and were not removed. The primary judge struck out the applicant’s Defence and Proposed Amended Defence, and granted the State’s requested possession relief. The appeal notice filed on 30 April 2025 contained nine grounds. They alleged, among other things, lack of jurisdiction based on Nyangbul sovereignty and absence of consent, denial of procedural fairness, failure to determine a cross-claim, misidentification, filing misdirection, errors about registered title and international law, and apprehended bias (paras 2, 14-16).
The stay motion was filed on 14 May 2025. The appeal had not yet been listed for hearing, and the judgment recorded that enforcement of the writ was proposed for 17 June 2025 (paras 6-8). The Court dismissed the motion and ordered Nyangbul to pay the State’s costs of and incidental to it (para 49). The decision concerned whether to pause enforcement pending appeal. It did not decide the appeal itself.
The Court summarised the primary judge’s reasoning about the defence. That reasoning included that the State’s registered title was protected by s 42 of the Real Property Act 1900 (NSW), that the historical and international-law arguments did not displace that title, and that the reliance on Commonwealth v Yunupingu was misconceived in the circumstances described by the primary judge (paras 15-16). Those are presented as the primary judge’s conclusions. Griffiths AJA separately assessed whether the appeal grounds raised serious issues for the purpose of a stay.
The stay principles required the applicant first to show that the appeal raised serious issues and that refusing a stay would create a real risk of prejudice or damage. If those thresholds were met, the Court would consider the balance of convenience and competing rights. The judgment adopts the summary of those principles given in Michael Hill Jeweller (Australian) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5], drawing on Alexander v Cambridge Credit Corp Ltd and Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (para 17). It also notes that an appeal being rendered nugatory if a stay is refused may be a substantial factor in favour of a stay (para 18). Special circumstances were not required (para 19), and the Court did not have to conduct a detailed assessment of every appeal ground, but did need to identify a serious question (para 20).
The Court grouped the appeal issues into title, procedural matters and jurisdiction, including the asserted authority of the Crown over what the applicant described as unceded Nyangbul land (para 21). It then considered the grounds in turn.
On sovereignty, Griffiths AJA relied on the reasoning previously given in Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650, and noted that the appeal in that matter had been dismissed, including in relation to sovereignty, in Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9 (paras 23-25). The judgment distinguishes spiritual sovereignty from a claim that separate legal sovereignty removes the matter from Australian law. It also notes that, in the appeal in Anderson, Kirk JA stated that Indigenous rights in land, to the extent recognised within the Australian legal system, are recognised as native title rights. No native title rights were claimed in either Anderson or this case, and no claim under the Aboriginal Land Rights Act 1983 (NSW) was suggested here (para 24).
On registered title, the Court focused on s 42(1) of the Real Property Act. As it quoted the provision, a registered proprietor holds the registered estate “absolutely free from all other estates and interests that are not so recorded”, subject to the statutory qualifications (para 26). The Court concluded that the applicant had not shown how the appeal grounds sufficiently answered the principle of indefeasibility applicable to the State’s registered title (para 26). It described indefeasibility as “the bedrock of the Torrens System” and said the treaties and international instruments cited by the applicant did not affect the statutory principle (para 27). It also considered Portugal v Australia distinguishable because it did not involve the Torrens System (para 28).
The procedural grounds also failed to meet the threshold. The Court found no evidence supporting the allegation that the primary judge refused to hear oral submissions or failed to permit argument on jurisdictional objections. It considered that the detailed primary judgment showed close attention to the case as presented in writing and orally (para 33). It also addressed the cross-claim: the primary judge had struck it out because it concerned another place and overlapped with proceedings in a different court. Griffiths AJA concluded that the applicant had not demonstrated a serious issue about that decision (paras 34-36).
The remaining grounds were assessed in their procedural context. The applicant had appeared using “Jaabarun [Luke Simpson] [Defendant] appears”, which the Court treated as an express acknowledgement that he was also known as Luke Simpson (paras 37-39). The filing-misdirection argument did not, in the Court’s view, identify an arguable error distinct from disagreement with the primary judge’s assessment of the late defence documents (paras 40-41). The apprehended-bias allegation was rejected by reference to the primary judge’s detailed analysis (para 42).
This judgment did not announce a new general test for stays pending appeal. It applied the established approach summarised in paragraph 17: serious issues and real risk of prejudice or damage are considered first; the balance of convenience follows if those requirements are met. It also reaffirmed that the court need not decide the appeal at the stay stage, but must be satisfied that a serious question exists (para 20).
The decision’s main contribution is its application of that framework to the grounds pleaded in this particular appeal. The Court held that the sovereignty and title grounds, together with the international-law arguments, did not raise a sufficiently serious issue in the face of the registered title and the cited authority (paras 23-32). It also held that the specific procedural complaints did not cross the threshold (paras 33-42). The judgment therefore records an application of existing principles rather than a change in the law.
The Court’s treatment of Indigenous sovereignty is framed by the authorities it discusses. It distinguishes a spiritual understanding of sovereignty, which it said it did not dispute, from a claim to separate legal sovereignty capable of displacing Australian law in these proceedings (para 23). The judgment also records the proposition from Anderson that Indigenous land rights recognised within the Australian legal system are recognised as native title rights, and notes that no such rights were claimed in this case (para 24). It does not determine a native title claim or an Aboriginal land rights claim.
The Court’s comments about the State’s registered title are likewise directed to the stay question. It applied s 42(1) of the Real Property Act and concluded that the grounds advanced did not sufficiently answer the statutory principle of indefeasibility (para 26). That conclusion explains why the title-based grounds did not justify interim relief on the material and arguments before the Court. It should not be read as a determination of issues that were not raised or adjudicated in this motion.
At paragraph 17, the judgment sets out the ordinary stay framework: the appeal must raise serious issues, and refusing a stay must create a real risk of prejudice or damage; if those matters are established, convenience and competing rights are considered. In plain English, an appeal being on foot is not, by itself, enough to pause an order. The court assesses whether the appeal raises a serious question and what practical consequences follow while it is pending.
Paragraph 20 clarifies that a stay hearing is not the appeal hearing. The Court did not need to resolve every legal argument conclusively, but it did need to be satisfied that one or more serious questions arose. This explains why the judgment discusses the grounds in enough detail to decide the interim application without purporting to determine the appeal’s final outcome.
At paragraph 26, the Court quotes s 42(1) of the Real Property Act and applies the concept of indefeasibility to the State’s registration. In plain English, the provision gives the registered proprietor a statutory position that is generally protected against interests not recorded on the register, subject to exceptions in the Act. The Court concluded that the arguments advanced for the stay did not sufficiently answer that principle. The judgment does not say that every conceivable challenge to registered title is impossible; it addresses the arguments and material before it.
Paragraph 31 deals with the asserted need for a referral under s 78B of the Judiciary Act 1903 (Cth). Griffiths AJA said that the proceeding did not raise a constitutional or public-law matter requiring referral and that merely asserting such a matter was insufficient to warrant a stay. The practical point is that invoking constitutional language alone did not establish the necessary basis for interim relief in this motion.
Paragraph 47 is significant for its acknowledgement of the applicant’s connection to the Land. The Court said it did not doubt his sincerity or the genuineness of that connection, while also stating that it was obliged to apply the law as it stood. In plain English, the Court recognised the personal and cultural importance of the Land to the applicant, but treated that recognition as distinct from whether the legal test for a stay was met.
The decision is most relevant as an example where a party seeks a stay of possession enforcement while appealing, and the appeal includes a mix of title, jurisdiction, procedural fairness and international-law arguments. The judgment is particularly connected to registered land where the respondent is the registered proprietor and the stay applicant does not identify a serious answer to the operation of s 42(1) of the Real Property Act (paras 26-32).
It may also be relevant where a stay applicant relies on asserted Indigenous sovereignty as a basis for saying that Australian courts lack jurisdiction, but does not advance a native title claim or a claim under the Aboriginal Land Rights Act. The Court’s reasoning depends on that context: it refers to the absence of both kinds of claim and relies on the authorities cited concerning the legal status of sovereignty and Indigenous rights in land (paras 23-25).
The procedural discussion may be relevant where alleged denial of oral submissions, failure to deal with a cross-claim, misidentification, filing problems or bias are relied on in support of interim relief. The judgment shows that those allegations were assessed against the primary judge’s reasons and the record described in the judgment, rather than accepted simply because they appeared in the notice of appeal (paras 33-42).
Its use has limits. The decision concerned an interlocutory stay application, not a final appeal on possession or a trial of a native title, statutory land-rights or other substantive claim. The judgment’s comments about safety, environmental concerns, public access and fire management formed part of its alternative balance-of-convenience discussion, which the Court said it was strictly unnecessary to decide (paras 43-46).
The judgment, dated 2 June 2025, does not report any later court’s treatment of Nyangbul. The supplied text therefore does not establish whether a later court has followed, distinguished, applied or criticised it. No post-judgment cases should be inferred from the authorities cited within this decision.
The judgment does describe earlier treatment of the sovereignty arguments in other proceedings. It refers to Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650 and the dismissal of the appeal in Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9, including on sovereignty-related claims (paras 23-25). Those are prior authorities considered by Griffiths AJA, not later treatment of Nyangbul.
For research purposes, the clearest way to state the decision’s status on the material provided is that it applies established stay principles and cited authority to the particular grounds advanced, while the judgment itself supplies no subsequent treatment history. Whether later courts have adopted its reasoning beyond those facts cannot be determined from this judgment alone.
The appeal itself remained unresolved at the time of the stay decision. The judgment notes that the appeal had not been listed for hearing and records a proposed enforcement date for the writ (para 6). It therefore does not reveal whether the appeal grounds were ultimately determined, withdrawn or otherwise resolved.
The Court did not decide the underlying appeal, nor did it conduct a final adjudication of any native title or Aboriginal land rights claim. It expressly noted that no native title rights were claimed and no claim under the Aboriginal Land Rights Act 1983 (NSW) was suggested (para 24). The judgment should not be treated as deciding issues that were not put before it in that form.
The balance of convenience was addressed only as an alternative. The Court said it was strictly unnecessary to consider it after finding no serious issue warranting a stay, but stated that the balance would favour the State if it had to be decided (paras 43-46). The judgment also observed that enforcement before the proceedings were finalised remained a matter for the State and expressed the hope that the parties would take a sensible approach in discussions (para 48). It did not order the State to delay enforcement.
Finally, the judgment does not determine how the statutory title principles would apply to materially different facts, including a case involving a properly advanced native title or Aboriginal land rights claim, a relevant exception under s 42, or a different evidentiary record. Those questions are outside the decision’s stated determination and would require analysis of the relevant sources and facts in the later matter.
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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: Nyangbul v State of New South Wales [2025] NSWCA 119
Hearing dates: 26 May, 02 June 2025
Date of orders: 02 June 2025
Decision date: 02 June 2025
Before: Griffiths AJA
Decision: (1) The notice of motion filed 14 May 2025 be dismissed.
(2) The applicant pay the respondent’s costs of and incidental to the notice of motion filed 14 May 2025.
Catchwords: CIVIL PROCEDURE — Court of Appeal — stay pending appeal — whether the applicant has raised sufficiently serious issues to warrant stay — motion seeking stay of execution of writ of possession dismissed
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW)
Australian Human Rights Commission Act 1986 (Cth)
Civil Procedure Act 2005 (NSW), s 67
Crown Lands Management Act 2016 (NSW), ss 9.4, 9.5, 9.6
Judiciary Act 1903 (Cth), s 78B
Real Property Act 1900 (NSW), s 42
Uniform Civil Procedure Rules 2005 (NSW), r 50.7
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9
Belcastro v ORDE Mortgage Custodian Pty Ltd [2025] NSWCA 1
Commonwealth v Yunupingu [2025] HCA 6
Dogra v Dogra (No 3) [2024] NSWCA 208
Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650
Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Michael Hill Jeweller (Australian) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
New South Wales v Simpson [2025] NSWSC 429
Portugal v Australia [1995] ICJ Rep 90
Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295
Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103
Texts Cited: Nil
Category: Procedural rulings
Parties: Jaabarun Nyangbul (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
Applicant in person
CLW Street (Respondent)
Solicitors:
Department of Planning, Housing and Infrastructure (Respondent)
File Number(s): 2025/165853
Publication restriction: Nil
By notice of motion filed 14 May 2025, the applicant seeks a stay of a writ of possession issued by Faulkner J on 22 April 2025 in New South Wales v Simpson [2025] NSWSC 429 (PJ or primary judgment). The applicant on the motion is the same person as the defendant below but prefers to use his Indigenous name.
A notice of appeal was filed 30 April 2025. It raises the following nine grounds of appeal:
1. Jurisdictional Error
The learned judge failed to determine whether the Supreme Court had lawful jurisdiction to proceed, given the absence of any valid evidence of sovereignty, cession, or consent from the Nyangbul people. This failure renders the orders void ab initio.
2. Constructive Denial of Procedural Fairness
The Court refused to consider the Appellant's oral submissions at hearing, dismissed all filed evidence as "futile" without examination, and failed to allow proper argument on jurisdictional objections, thereby denying natural justice.
3. Suppression of Cross-Claim
The Court issued final orders in the possession proceedings without determining the Appellant's live cross-claim, which raised jurisdiction, compensation, and counter-possession issues. This constitutes a serious procedural failure and miscarriage of justice.
4. Denial of Constitutional Right to Uplift
The Appellant raised constitutional and public law matters requiring referral under section 78B of the Judiciary Act 1903 (Cth). The judge failed to afford that right or refer the matter to the High Court, in breach of judicial duty and federal law.
5. Improper Joinder and Identity Misrepresentation
The Appellant was joined under a misrepresented name and date of birth, without resolution of formal objections. The Court proceeded to judgment against a party who was improperly identified and did not lawfully consent to the proceedings.
6. Breach of Filing Procedure Induced by the Court
The Appellant was directed by the judge's associate to file defence documents via email instead of through the Registry. The same documents were then dismissed as "out of time" and "futile," despite the Court's own procedural misdirection.
7. Misapplication of Registered Title Law
The Court accepted the Respondent's Crown Land title claim via private registration (Pty Ltd) without requiring evidence of native title extinguishment, treaty, or lawful acquisition, violating the rule of law and the presumption in favour of original ownership.
8. Breach of International Law and Customary Obligations
The Court failed to consider binding international obligations under the United Nations Declaration on the Rights of Indigenous Peoples, including Articles 3, 4, 8, and 26, and ignored customary international law under the Vienna Convention on the Law of Treaties, Article 38.
9. Apprehended Bias and Prejudgment
The Court's blanket dismissal of all affidavits and submissions as "futile" without analysis reveals prejudgment and bias, amounting to a failure to exercise judicial function in accordance with law.
I gather that the State also contends that leave to appeal is required and a direction has been made for the appellant to file and serve by 4 June 2025 a White Folder for that purpose. The proceedings are listed for directions on 16 June 2025.
The applicant relies on the following affidavits:
(a) a document styled “Living Testimony Supplementary Affidavit of Jaabarun Nyangbul” filed 8 May 2025; (b) a document styled “3rd Supplementary living testimony in form affidavit for Jaabarun Nyangbul” filed 15 May 2025; (c) a document styled “Living testimony of Jaabarun Nyangbul in form of Affidavit 4th Supplementary Affidavit” filed 20 May 2025; and (d) a document styled “Living testimony Fifth Supplementary Affidavit of Jaabarun Nyangbul” by way of reply to the State’s affidavits, filed 29 May 2025.
(a) affidavit dated 23 May 2025 by Ms Jade Matthews; and (b) affidavit dated 23 May 2025 by Mr Craig Samuel Wood.
The appeal has not yet been listed for hearing. As matters stand at present, it is proposed to enforce the writ of possession the following day, 17 June 2025.
The motion initially came before me as Referrals Judge on 26 May 2025. The hearing was adjourned until today to give the applicant more time to consider and reply to the State’s two affidavits.
The applicant has filed three outlines of written submissions filed 22, 26 and 29 May 2025, respectively. The State filed an outline of submissions on 23 May 2025.
The proceedings relate to parcels of land located near Lennox Head of which the State is the registered proprietor (Lot 703/106584 and Lot 7004/96435) (the Land). The Land is adjacent to part of a long stretch of Seven Mile Beach. The primary judge found at PJ[3] that, at least since as early as 2021 several structures have been built or brought to the Land, including steel and timber buildings, steel and glass buildings, a shipping container, various wooden structures, tents and vehicles. It is evident that the applicant resides on the Land, along with other unidentified people. After the applicant failed to remove the structures, the State filed a statement of claim on 9 February 2024 seeking a writ of possession.
On 28 November 2024, at which time no defence had been filed, the primary judge made orders which noted the State’s intention to seek default judgment. Leave was granted to the State to apply for a writ of possession, together with orders requiring the applicant to be notified of the directions and to respond as specified.
The following day, the State filed a motion seeking judgment for possession of the Land. On the same day, the applicant on the present motion filed a separate motion in which he sought leave to file a defence.
On 2 December 2024, although no leave had been granted for the filing of a defence, the applicant filed a document styled as “Defence”.
There were several subsequent procedural developments, which are described by the primary judge at PJ[13]-[16]. They include the fact that, on 15 April 2024, the applicant provided a further document which the primary judge described as the “Proposed Amended Defence”.
The primary judge gave comprehensive reasons for striking out all 24 paragraphs of the Proposed Amended Defence (as well as the earlier Defence) on the basis that they were untenable.
In brief:
(a) The contention that the Court lacked jurisdiction was futile having regard to the location of the Land in the State of New South Wales and the effect of s 42 of the Real Property Act 1900 (NSW) was that the State, as registered proprietor of the Land, held title in fee simple. (b) The applicant’s claims of historical aggression and foundational crimes were incapable of depriving the State of its right, title and interest conferred by s 42 of the Real Property Act*.* (c) The applicant’s claims that legislation such as the Crown Lands Management Act 2016 (NSW) and Real Property Act were invalid against him and the Nyangbul people were without merit. (d) The applicant’s reliance on Commonwealth v Yunupingu [2025] HCA 6 in support of his contention that his rights had not been extinguished was misconceived because the State was the registered proprietor of the Land and the facts and circumstances here are distinguishable from those in that case. (e) The applicant’s reliance on international law and a right to self-determination, including that the State had no legal or moral authority to take action against him under colonial legislation, was untenable.
The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694–5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.
The above summary of the general principles does not preclude the potential relevance of other matters in considering whether or not to grant a stay pending an appeal. Two of those matters are identified in Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 at 695. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and the stay is not granted, the discretion is normally exercised in favour of granting a stay. Accordingly, where it appears that an appeal will be rendered nugatory unless a stay is granted, this will be “a substantial factor” in favour of granting a stay.
There is no requirement for the applicant to demonstrate that there are special circumstances which justify a stay.
The Court is not required to conduct a detailed assessment of the grounds of appeal for the purposes of granting a stay, but it needs to be satisfied that one or more serious questions are raised by the appeal (see Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103 at [12] per Gleeson JA and Belcastro v ORDE Mortgage Custodian Pty Ltd [2025] NSWCA 1 at [15]-[17] per Griffiths AJA).
Broadly, the notice of appeal raises the following questions for determination:
(a) the lawfulness of the State’s title to the Land; (b) procedural irregularities, including whether there was a denial of procedural fairness because the primary judge failed to consider the applicant’s Proposed Amended Defence; and (c) jurisdictional questions, including Crown authority over what is described as unceded Nyangbul land and associated sovereignty.
For the following reasons, I do not consider that any of the nine grounds of appeal raise sufficiently serious issues as to warrant a stay.
First, the claims that the Court lacked jurisdiction because of the separate sovereignty of the Nyangbul people is contrary to binding authority and must be rejected. A similar claim was raised in separate proceedings in Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650. At [32]-[34], I explained why the argument must be rejected:
To the extent that Mr Anderson advanced an argument that the Court lacked jurisdiction because the Euahlayi People had a separate sovereignty, the argument must be rejected. I respectfully agree with the reasoning of Mansfield J in Walker at [43] to [47] which is squarely in point:
43 The contention that the Indigenous peoples of Australia constitute a sovereign nation or nations, has been expressly rejected. In Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 408, Gibbs J, with whom Aicken J agreed, held:
The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
44 That is consistent with Mabo (No 2). The rights recognised with respect to native title in Mabo (No 2) are, at common law, subject to statutory modification: see at 110–111 per Deane and Gaudron JJ:
Like other legal rights, including rights of property, the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State or Territory in which the land in question is situated. To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power.
45 Mabo (No 2) reveals that, upon the settlement in New South Wales, and by extension later in South Australia, the English settlers brought with them the law of England, so that, at 38 per Brennan J:
[t]he common law thus became the common law of all subjects within the Colony who were equally entitled to the law’s protection as subjects of the Crown. … Thus the Meriam people in 1879, like Australian Aborigines in earlier times, became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided.
46 Mason CJ in Coe v Commonwealth [1993] HCA 42; (1993) 68 ALJR 110 at 116 confirmed that Mabo (No 2) is inconsistent with the notion of sovereignty in the Aboriginal people of Australia:
Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.
47 That also follows from a series of decisions that say that the application of the laws of the various Australian Parliaments to Indigenous Australians does not depend on the acquiescence or consent of those people: see Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45 at 48–9 per Mason CJ; McDonald v DPP (2010) 26 VR 242 at [6] and [16] per Ashley JA and [191] per Neave JA, Redlich JA agreeing; Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106 at [14]–[15] per McPherson JA, Williams and Jerrard JJA agreeing; R v Buzzacott [2004] ACTSC 89; (2004) 154 ACTR 37 at [3]–[17] per Connolly J.
It may be noted that similar reasoning was relied upon by Philippides J in Ngurampaa Ltd v Balonne Shire Council [2014] QSC 146 at [12]–[18] in rejecting a similar claim advanced by Mr Anderson on behalf of the plaintiff in that case. I respectfully agree with and adopt her Honour’s reasoning as well as the similar reasoning of McKerracher J in Prior at [64] to [71].
Nothing said above is intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. That particular concept of sovereignty is well-reflected in the following extracts from the Uluru Statement from the Heart, of which the Court takes judicial notice (emphasis in original):
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent lands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
An appeal against that decision was dismissed, including in relation to the claims regarding sovereignty (see Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9 at [111]). In response to the claim there that particular Indigenous People had title or rights in land under a different legal system, Kirk JA (Stern JA and Simpson AJA agreeing) stated at [106] that any such rights, to the extent that they are recognised within the Australian legal system, are recognised as native title rights. No native title rights were claimed there, nor in the present case. For completeness, nor was it suggested that the Land was affected by any claim under the Aboriginal Land Rights Act 1983 (NSW).
Justice Kirk added at [110] that the assertion that the common law of Australia recognises “some type of traditional Indigenous title distinct from native title is not one that it is open to this Court to accept”.
Secondly, the applicant has failed to demonstrate that his grounds of appeal raise sufficiently strong claims so as to overcome the indefeasible title held by the State as registered proprietor of the Land. In particular, he has not persuaded me that his appeal grounds are an adequate answer to the principle of indefeasibility which is inherent in s 42(1) of the Real Property Act:
Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except—[then follow five exceptions, none of which apply to the applicant]
The principle of indefeasibility is the bedrock of the Torrens System. The validity of that statutory principle, as embedded in s 42 of the Real Property Act, is not affected by any of the treaties or international instruments cited by the applicant in his submissions filed 29 May 2025, including the United Declaration on the Rights of Indigenous Peoples, the Rome Statute of the International Criminal Court, the International Covenant on Civil and Political Rights and the four Geneva Conventions (1949). Nor is it affected by the Australian Human Rights Commission Act 1986 (Cth).
Similarly, the decision of the International Court of Justice in Portugal v Australia [1995] ICJ Rep 90 which was also cited by the applicant, is plainly distinguishable and did not involve the Torrens System.
The applicant also cited several judicial authorities in support of his claim that courts have granted relief to protect Indigenous cultural and legal interests. There can be no doubt that courts have those powers in an appropriate case. Significantly, however, none of the authorities involve a party seeking to enforce its rights and interests to an indefeasible title, as is the case here.
Thirdly, the principle of indefeasibility is not circumvented because Ballina Shire Council has acknowledged that the Ballina Coast and Hinterland is “the traditional Nyangabul country of the Bundjalung Nation…whose custodianship of the Ballina Shire area dates back many thousands of generations”. Recognition of such custodianship is entirely fitting, but it does not displace the statutory principle of indefeasibility.
Fourthly, contrary to the applicant’s claim, the proceeding does not raise any constitutional or public law matter requiring referral under s 78B of the Judiciary Act 1903 (Cth). Mere assertion that there is such a matter is insufficient to warrant a stay (see Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295).
For these reasons, I consider that appeal grounds 1, 4, 7 and 8 do not raise any serious issue for determination on appeal.
Turning now to the grounds of appeal which relate to matters of procedure and procedural fairness (grounds 2, 3, 5, 6 and 9), the applicant has failed to demonstrate that any of them raises a serious issue for determination on appeal. Ground 2, which is styled “Constructive Denial of Procedural Fairness”, is essentially a challenge to the merits of the primary judge’s decision and his conclusion that the applicant’s Proposed Amended Defence was futile. The applicant pointed to no evidence to support the claim that the primary judge refused to consider his oral submissions or failed to allow proper argument on jurisdictional objections. And the detailed reasons for judgment indicate that the primary judge gave close attention to the applicant’s case as presented in both writing and orally.
(a) the cross-claim related exclusively to land other than the Land in the present proceedings; and (b) it was an abuse of process for the purposes of UCPR 14.28(1)(c) for the applicant to have on foot proceedings in separate courts arising from the same incident and claiming the same relief.
Accordingly, the cross-claim filed on 17 April 2025 was struck out under UCPR r 14.28. The applicant has failed to demonstrate any serious issue to be tried in relation to the dismissal of his cross-claim. The two reasons given by the primary judge are plainly correct.
Ground 5 alleges error by the primary judge in entering judgment for the State against the party “who was improperly identified and did not lawfully consent to the proceedings”. While it should be acknowledged and accepted that the applicant prefers to be called by his Indigenous name, there is no substance in ground 5 in circumstances where the name “Luke Daniel William Simpson” was used in the State’s statement of claim and subsequently, on 14 March 2024, the applicant filed an appearance in proceedings below in which he stated:
“Jaabarun [Luke Simpson] [Defendant] appears”.
Thus, the applicant submitted to the Court’s jurisdiction and expressly acknowledged that he was also known as Luke Simpson. No arguable error is demonstrated in the primary judge additional reasons at PJ[131]-[135].
Appeal ground 6 claims that the Court issued a misdirection when the applicant was told by the primary judge’s associate to file his defence documents via email rather than in the Registry. He said that these documents were then dismissed as being “out of time” and “futile”. Again, this ground reflects the applicant’s fundamental dissatisfaction with the merits of the primary judgment as opposed to identifying any arguable error of fact or law.
It is plain that the Defence was filed well out of time and the applicant does not contend otherwise. Furthermore, the primary judge’s description of both the Defence and the Proposed Amended Defence as “futile” was correct having regard to the comprehensive reasons given by the primary judge and the applicant’s failure to demonstrate any serious issue to be determined on appeal in relation to those reasons.
Finally, appeal ground 9 raises a claim of apprehended bias and prejudgment, with reference to the primary judge’s “blanket dismissal of all affidavits and submissions as "futile" without analysis”. This ground is doomed to fail in circumstances where it is self-evident from the primary judge’s detailed reasons for judgment that he conducted a thorough analysis of the applicant’s affidavits and submissions.
In the circumstances, it is strictly unnecessary to consider the balance of convenience. For completeness, however, I can indicate that, were it necessary to do so, I would conclude that the balance of convenience favours the State and not the applicant.
First, the primary judge found at PJ[3] that there were a number of physical structures on the Land since at least early 2021. That finding did not purport to relate to the applicant personally and directly, but in his affidavit Mr Wood deposed at [13] that the applicant and others had unlawfully occupied the Land since February 2022. Even if the earlier of those two dates is accepted in the applicant’s favour, his occupation of the Land has been relatively short (and far less than the time required for a claim based on adverse possession). Moreover, the evidence plainly demonstrates that the occupation of the Land had been without the State’s consent or authorisation and that several notices to quit and/or directions to remove structures have been given under ss 9.4, 9.5 and 9.6 of the as referred to in the primary judgment at [2] and [4].
(a) The structures presently on the Land have been erected without development consent and without any permission from the State for there to be any development to be undertaken on the Land which is Crown land. (b) I accept Mr Wood’s evidence that the unauthorised structures and materials on the Land represent a risk to the occupants and the general public, because they are not the subject of development approval processes. The writ of possession should be immediately enforced to ensure that “these unauthorised structures and materials can be removed to minimise the public safety risk and local environmental risk associated with leaving them in place”. (c) Various members of the public have complained to the Department since 2022 about the restrictions which the applicant and other occupants of the Land have imposed to prevent the community from being able to access the public land, including installing signs which are plainly intended to deter the community from accessing public land. (d) I also accept Mr Wood’s evidence that occupation of the Land has grown since February 2022 and continues to grow. It is in the public interest that vacant possession be returned to the State, which should prevent the continuation of offences against s 9.2(1)(a) of the Crown Lands Management Act. (e) The fire trail which provides access to the Land has become degraded because fire mitigation work had been inhibited by safety concerns relating to the applicant and others occupying the Land and resisting access. I acknowledge that the applicant says he is prepared to work with fire authorities and to provide “evidence of cultural land management predating colonisation”. It is a matter for the authorities to consider that offer but the making of the offer does not justify the applicant’s unlawful occupation of the Land.
The Court does not doubt the applicant’s sincerity and the genuineness of his connection with the Land, which is part of what he aptly describes as his Country. But as the Court pointed out several times during the course of the argument, the Court is obliged to apply the law as it stands. That law does not support the application for a stay of the writ of possession on the grounds sought by the applicant.
It goes without saying, however, that whether or not the State wishes to enforce the writ of possession prior to the proceedings being finalised is ultimately a matter for it. The Court hopes that the parties will adopt a sensible approach in conducting any discussions on this issue.
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[3] - last line amended to insert "The" before "proceedings". [6] - sentence reading "There is a directions hearing scheduled for 16 June 2025" deleted. [11] - last line amended to replace "in the present motion" with "on the present motion".
Nyangbul
State of New South Wales [2025] NSWCA 119
(1985) 2 NSWLR 685
(2002) 55 NSWLR 737
(1979) 53 ALJR 403
(1993) 68 ALJR 110
(1994) 182 CLR 45
(2010) 26 VR 242
(2004) 209 ALR 106
The notice of motion filed 14 May 2025 was dismissed. The applicant was ordered to pay the respondent's costs of and incidental to that motion.
Ground 3 complains that the primary judge made final orders without determining the applicant’s “live cross-claim, which raised jurisdiction, compensation, and counter-possession issues”. By way of background, on 17 April 2025, the applicant filed a cross-claim. The primary judge addressed it at PJ[174]-[177]. In brief his Honour noted that the applicant wished to sue the State for unlawful detention, excessive use of force, violation of procedural rights and cultural protection, interference with lawful occupation and use of aboriginal land, false imprisonment, assault, trespass to person and property, and misfeasance in public office. The cross-claim related to events which occurred not on the Land but on a place called Cabbage Tree Island. The primary judge noted the cross-claim raised the same claims as the applicant had earlier raised in proceedings the applicant commenced in the District Court on 14 March 2025 (DC 2025/116791).
The cross-claim was dismissed on two grounds:
Secondly, in the event that the appeal succeeded, consideration could be given to permitting the applicant to reoccupy the Land in accordance with any relevant statutory requirements. It appears that the structures presently on the Land are moveable.
Thirdly, there are several other compelling reasons why the balance of convenience weighs in favour of the State: