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[2025] NSWCA 214
respondent. The summons seeking leave to appeal was dismissed with costs: [43].
The State had registered title to the land and obtained a possession judgment after the primary judge found that the applicant’s proposed defences did not raise a legally arguable answer to that title. The Court of Appeal did not decide the application as a full appeal. It considered whether there was a sufficient basis to grant permission to appeal and concluded there was not. It rejected the claims of jurisdictional error, procedural unfairness, identity error, bias, and improper handling of the cross-claim. It also held that the applicant’s arguments for a distinct Indigenous title surviving registered fee simple title could not overcome binding High Court authority. Leave was refused, and the applicant was ordered to pay the respondent’s costs.
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2,374 words · generated 06/10/2026
The State of New South Wales sought possession of two parcels of land, identified as Lot 7003/1065854 and Lot 7004/96435, at Seven Mile Beach in Lennox Head. The judgment says the State was the registered proprietor. The applicant, Jaabarun Nyangbul, lived on the land, where a number of structures had been built or brought since 2021. The Court of Appeal’s account does not determine the history of occupation or the broader historical claims as an independent factual inquiry. It records them as matters raised in the proceedings [1].
10 cited instruments linked from this judgment.
The State commenced its Supreme Court proceeding on 9 February 2024. The applicant did not file a defence within the 28-day period identified by the Court [9]-[10]. He later sought leave to file a defence, but filed a document titled “Defence” before leave had been granted. The State subsequently sought summary judgment. The primary judge gave the applicant an opportunity to provide a proposed amended defence, which he sent by email to the judge’s associate. The primary judge treated that as an informal application for leave to amend [11]-[13].
On 22 April 2025, the primary judge refused leave to rely on the proposed amended defence, struck out the filed defence and cross-claim, and gave judgment to the State for possession. The cross-claim was found to overlap with District Court proceedings already brought by the applicant, including as to the relief sought, events, and causes of action [2]-[3], [26]-[27].
The applicant sought leave to appeal. The Court of Appeal considered both the proposed grounds in his draft notice of appeal and further grounds in a separate document [7], [28]-[29]. On 19 September 2025, it dismissed the summons for leave to appeal with costs [41]-[43]. This was not a full appeal on the merits: the central question was whether the proposed appeal met the applicable threshold for leave.
The Court set out the general leave threshold by reference to The Age Company Ltd v Liu: leave is generally appropriate where a matter involves an issue of principle, a question of public importance, or a reasonably clear injustice caused by error, going beyond what is merely arguable [4]. It assessed the applicant’s grounds against that threshold.
A central group of grounds challenged the Court’s jurisdiction and the legal effect of the State’s registered title. The applicant argued that the State could not rely on registration without proof of cession, consent, or lawful extinguishment of Nyangbul rights. He also relied on historical sources, international materials, and assertions about sovereignty [34]. The Court held that its jurisdiction was not displaced by the constitutional character of the arguments. It said the Supreme Court could hear matters in federal jurisdiction and that removal under s 40 of the Judiciary Act 1903 (Cth) was for the High Court to order on an application to it [35].
On the substantive title arguments, the Court said it was bound by Mabo v Queensland (No 2) and rejected the contention that Australian law recognised a form of Indigenous title distinct from native title which survived a registered fee simple grant [5]. It also relied on its earlier decision in Anderson v Indigenous Land and Sea Corporation, which had rejected an asserted traditional Indigenous title distinct from native title [38]. The historical and international material relied on by the applicant did not, in the Court’s view, require a different result or call into question the binding reasoning of Mabo (No 2) [38].
The Court also rejected the claim that the primary judge had prematurely applied the futility approach associated with General Steel Industries. The primary judge had assumed in the applicant’s favour that factual allegations about historical events were true, but concluded that they could not overcome the statutory registration system [18], [40]. The Court of Appeal found nothing in the material filed for leave that called for a contrary conclusion [40]. The decision therefore rests on the legal insufficiency of the proposed arguments as a defence to the State’s claim, rather than a general finding that the historical materials were false.
The procedural grounds also failed. The Court rejected the assertion that the primary judge refused to hear oral submissions, noting that the primary judge had considered matters raised orally, including fraud [31]. It rejected the complaint that the judge dismissed all evidence without examination, referring to the detailed consideration of the applicant’s documents and affidavits [31], [33]. The Court found no material significance in the judge’s permission to send the proposed amended defence to chambers by email. The judge had quoted and addressed the document in detail [32].
The Court also considered the identity objection. It noted that the applicant had appeared in the proceeding and exercised procedural rights available to the defendant, including filing a notice of motion and appearing at a hearing while identifying himself as the defendant [23], [32]. The Court found no merit in the proposed ground.
As to costs, the applicant relied on constitutional importance, impecuniosity, and public interest. The Court said that public interest alone was not enough to justify general immunity from costs. It characterised the proceeding in substance as an attempt to defend the applicant’s personal occupation of land registered to the State, and applied the ordinary rule that costs follow the event [41]-[43].
This judgment did not purport to create a new general rule about Indigenous land rights or registered title. It applied and restated the position that the Court considered binding in the circumstances before it. The Court identified Mabo (No 2) as binding authority and treated it as requiring rejection of the particular contention that there was a distinct Indigenous title, separate from native title, which survived a registered fee simple grant [5], [37]-[38].
The judgment’s account of Mabo (No 2) is focused on the applicant’s argument. It acknowledges that the High Court rejected terra nullius, but says that this did not establish the applicant’s asserted form of title or an Indigenous sovereignty adverse to the Crown for the purposes of the claim before the Court [37]. The Court also referred to Anderson, which had rejected an assertion that Australian common law recognised traditional Indigenous title distinct from native title [38].
The practical consequence in this proceeding was that the asserted historical and international materials did not make the proposed defence legally arguable against the State’s registered fee simple title. The Court said those materials did not impugn the State’s indefeasible title under the Real Property Act 1900 (NSW), and upheld the primary judge’s conclusion that the proposed defence was futile [39]-[40].
The judgment should not be read as deciding every possible question about native title, compensation, international law, or the operation of registration legislation. Its stated conclusion concerns the arguments put forward in this possession proceeding and the grounds advanced for leave. The Court’s reasoning about title is tied to the applicant’s contention that a distinct title survived registered fee simple ownership [5], [38]-[40].
At [4], the Court stated that leave is generally appropriate where there is an issue of principle, a question of public importance, or a reasonably clear injustice caused by error, going beyond what is merely arguable. In plain English, it was not enough to show that the applicant disagreed with the primary judge or could put forward a debatable complaint. He had to meet the higher leave threshold described by the Court.
At [5], the Court said it was bound by Mabo (No 2), which required rejection of the applicant’s central contention about a distinct Indigenous title surviving a registered fee simple grant. In plain English, the Court considered that existing High Court authority prevented the applicant’s proposed title argument from providing an answer to the State’s registered title in this case.
At [35], the Court explained that the Supreme Court could hear matters involving federal jurisdiction, and that removal to the High Court under s 40 of the Judiciary Act was a matter for the High Court on application to it. In plain English, raising constitutional issues did not itself mean that the Supreme Court lacked authority to deal with the proceeding.
At [38], the Court said the historical materials and international instruments did not demand a contrary conclusion or call into question Mabo (No 2). In plain English, the Court considered those materials but concluded they did not change the result required by binding authority.
At [40], the Court said the primary judge had been entitled to conclude that, even assuming the applicant’s factual material to be true, it could not overcome the Real Property Act registration system. In plain English, the proposed defence failed at the legal level as the Court assessed it, rather than because the Court necessarily rejected every factual assertion.
At [42], the Court stated that espousing the public interest alone was not sufficient to warrant general immunity from costs. In plain English, describing a proceeding as public-interest litigation did not automatically prevent a costs order. The Court looked at the substance of the proceeding and treated it as defending the applicant’s personal occupation of the land.
The judgment is most directly relevant to an application for leave to appeal from an interlocutory or summary judgment decision where the proposed grounds need to show more than an arguable disagreement. The Court applied a threshold requiring an issue of principle, public importance, or reasonably clear injustice caused by error [4].
It is also relevant to possession proceedings where the plaintiff relies on registered fee simple title and the defendant seeks to resist possession by asserting a distinct Indigenous title that is said to survive registration. The Court treated Mabo (No 2) and Anderson as binding or applicable authority against that particular legal contention [5], [38]-[40]. The decision does not, on its face, resolve every claim that could be brought concerning native title, land rights, compensation, or the history of a particular parcel.
The procedural analysis may be relevant where a party argues that a judge failed to hear submissions, ignored evidence, acted with bias, or mishandled an amendment. The Court considered the actual reasons and record described in the judgment, including the judge’s detailed engagement with the documents and oral arguments, before rejecting those grounds [31]-[33]. Its conclusion depends on that record and should not be treated as a rule that procedural complaints can never arise where a defence is struck out.
The cross-claim discussion is pertinent where a litigant raises a claim in one proceeding while substantially the same relief, events, and causes of action are already before another court. The Court upheld the primary judge’s conclusion that the cross-claim was an abuse of process in the circumstances described [27], [31]. The judgment does not set out a comprehensive test for all forms of duplication; it explains why the applicant’s particular ground did not show error.
The supplied judgment is dated 19 September 2025 and does not describe any later judicial treatment of Nyangbul v State of New South Wales [2025] NSWCA 214. It would therefore be unsupported to say that later courts have followed, distinguished, or otherwise treated this decision.
The judgment itself explains the earlier authorities it considered relevant. It treats Mabo (No 2) as binding on the Court of Appeal and applies its understanding of that case to the asserted distinct-title argument [5], [37]-[38]. It refers to Anderson v Indigenous Land and Sea Corporation as having rejected a similar assertion of a traditional Indigenous title distinct from native title [38]. It also refers to Nyangbul v State of New South Wales [2025] NSWCA 119, where a judge had dismissed an application for a stay pending leave to appeal and described the relevant contentions as contrary to binding authority [36].
The Court also relies on General Steel in addressing whether it was premature to treat the proposed defence as futile. Its conclusion was that the primary judge could assess the legal sufficiency of the arguments on the assumption that the applicant’s factual allegations were true [40]. The judgment’s use of these authorities shows how the Court located its decision within existing doctrine, but not how any later court has applied this particular judgment.
The judgment does not decide the factual or legal merits of all possible claims concerning the history of the land. Its focus is whether the arguments advanced disclosed an arguable defence to the State’s possession claim and whether there was a sufficient basis to grant leave to appeal [4]-[6], [34]-[40]. A lawyer examining a different matter would need to check whether its pleadings, land title, statutory framework, evidence, and relief sought materially differ.
The Court rejected the particular contention that a form of Indigenous title distinct from native title survived a registered fee simple grant. It does not purport to provide a comprehensive account of the circumstances in which native title may be recognised, extinguished, or compensated. Although the judgment recounts the applicant’s reliance on Commonwealth v Yunupingu at the primary-judge stage, it does not independently analyse that decision in the Court of Appeal’s reasoning beyond describing the primary judge’s treatment of it [20]. The decision should therefore not be used as a complete account of the law on compensation for extinguishment.
The judgment also records arguments based on UNDRIP, customary international law, discrimination, and the absence of consent. The primary judge’s reasons, as summarised, rejected them as insufficient to defeat the State’s claim under the applicable municipal law, and the Court of Appeal found no basis for leave [19]-[21], [34], [38]-[40]. The judgment does not undertake a broad examination of the domestic legal status of every international instrument or obligation mentioned.
Finally, the costs discussion applies the public-interest argument to this applicant’s proceeding and its substance [41]-[43]. It does not set out an exhaustive account of every circumstance in which a court might depart from the ordinary costs rule. These limits matter when distinguishing the decision’s stated holdings from questions it did not need to resolve.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
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 214
Hearing dates: 12 September 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Before: Mitchelmore JA; Adamson JA
Decision: (1) The summons seeking leave to appeal is dismissed with costs.
Catchwords: Appeal — leave to Appeal — where summary judgment granted in favour of plaintiff for possession of land — failure to establish arguable error in reasoning — failure to establish issue of principle, question of public importance or reasonably clear injustice — failure to establish error in the Courts exercise of jurisdiction — leave refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 92
Constitution Act 1902 (NSW), s 5
Judiciary Act 1903 (Cth), s 40
Real Property Act 1900 (NSW), s 52
Supreme Court Act 1970 (NSW), ss 101(2)(e), 101(2)(l)
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Anderson v Indigenous Land and Sea Corporation (2024) 384 FLR 394; [2024] NSWCA 9
Commonwealth v Yunupingu [2025] HCA 6; 421 ALR 604
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Indigenous Land and Sea Corporation v Anderson [2022] NSWSC 1650; 406 ALR 484
Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23
Nyangbul v State of New South Wales [2025] NSWCA 119
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Racing New South Wales v Fletcher (No 2) [2020] NSWCA 67
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700
Category: Principal judgment
Parties: Jaabarun Nyangbul (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
Applicant in person
A Douglas-Baker (Respondent)
Solicitors:
Department of Planning, Housing and Infrastructure (Respondent)
File Number(s): 2025/165853
Publication restriction: Nil
THE COURT: This application for leave to appeal concerns two parcels of land (Lot 7003/1065854 and Lot 7004/96435 (the Land)) of which the respondent, the State of New South Wales, is the registered proprietor. The Land is situated at “Seven Mile Beach” in Lennox Head. The applicant resides on the Land, possibly with a number of other persons. Since 2021, several structures have been built or brought on to the Land, including steel and timber buildings, steel and glass buildings, a shipping container, various wooden structures, tents and vehicles.
On 9 February 2024, the respondent applied to the Supreme Court seeking a writ of possession of the Land. Subsequently, it applied for summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 22 April 2025, the primary judge, Faulkner J, refused the applicant’s application to file an amended defence, and struck out the defence that he had filed without leave on 2 December 2024, pursuant to r 14.28 of the UCPR. His Honour also struck out a cross-claim that the applicant filed against the respondent without leave, pursuant to r 14.28(1)(c) of the UCPR.
In circumstances where the applicant had put forward two documents by way of a defence, both of which his Honour considered to be futile, the primary judge concluded that effect would best be given to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) by granting the respondent’s application for summary judgment. Accordingly, his Honour gave judgment for the respondent for possession of the Land and granted leave for a writ of possession to issue forthwith.
As the decision of the primary judge on the applicant’s notice of motion was interlocutory, and his Honour proceeded to give judgment on the respondent’s notice of motion for summary judgment under the rules, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e) and s 101(2)(l). Generally speaking, it is only appropriate to grant leave to appeal in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. The applicant submitted that this proceeding was not an ordinary possession matter because it raised important constitutional questions, including but not limited to the implications of the High Court’s decision in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (“Mabo (No 2)”). Although he brought the application for leave to appeal in this Court, he submitted that the issues raised were beyond this Court’s jurisdiction and that only the High Court could decide them.
The applicant’s submission as to the limits of this Court’s jurisdiction was incorrect. However, it is the case this Court is bound by decisions of the High Court, including , which requires rejection of the applicant’s central contention that there is a form of Indigenous title to land that is distinct from native title and that survives a grant of fee simple registered under the (NSW). The primary judge’s conclusion that the applicant’s defence (and proposed amended defence) was futile in so far as it sought to raise such arguments was not attended by error.
Although the applicant originally filed a notice of appeal on 30 April 2025, he accepted that leave to appeal was required and a summons seeking leave to appeal was filed on 22 May 2025. For the purposes of the application for leave, the Court has treated the notice of appeal as a draft notice of appeal. In addition to the grounds stated in that document, the White Folder contained a separate document titled “Grounds of this Appeal”. Although the grounds in that document overlapped in significant respects with the grounds in the notice of appeal, the Court has considered the proposed grounds in both documents.
In support of his application for leave, the applicant filed a series of affidavits affirmed respectively on 7 May 2025, 14 May 2025, 15 May 2025, 20 May 2025, 27 May 2025 and 4 June 2025. On 16 June 2025, the Court made an order by consent that the applicant was permitted to raise as submissions the matters identified in those affidavits. The applicant also filed reply submissions dated 27 July 2025 (filed 28 July 2025), directed to the respondent’s response to the application for leave to appeal that was filed on 19 June 2025.
As noted above, on 9 February 2024 the respondent filed a statement of claim in which the applicant was named as the defendant under the name “Luke Daniel William Simpson”, seeking possession of the Land: at [6]. On 14 March 2024, the applicant filed a notice of appearance pursuant to r 6.9(1) of the UCPR which stated: “Jaabarun [Luke Simpson] [Defendant] appears”: at [6].
The applicant did not file a defence within the prescribed period of 28 days after service of the statement of claim: see UCPR, r 14.3. On 28 November 2024, the matter was listed before the primary judge for directions. In the orders made on that date, his Honour noted the respondent’s intention to seek default judgment.
On 29 November 2024, both parties filed notices of motion: the respondent seeking default judgment as foreshadowed, and the applicant seeking leave to file a defence and to set aside the respondent’s motion: at [9]-[10]. On 2 December 2024, although his notice of motion seeking leave to file a defence had not yet been heard and leave had not been granted, the applicant filed a document titled “Defence”: at [11]. The primary judge stated that the document did not perform the function of a pleading, “which is essentially to permit specification of the real issues in the proceedings with sufficient clarity and precision to permit the proceedings fairly to be prepared for trial … and efficiently adjudicated by the Court”: at [11]. Nonetheless, his Honour said it was convenient to describe the document as a defence: at [12].
On 22 January 2025, in response to the defence, the respondent filed a further notice of motion which included an order for summary judgment: at [13]. The hearing of that motion, and the applicant’s motion of 29 November 2024, was first listed for hearing on 6 March 2025: at [14]. However, his Honour was not satisfied that the applicant was expecting to proceed with the hearing of the motions on that date, and also considered that the applicant should have an opportunity to make amendments to his defence: at [15]. Accordingly, his Honour ordered the applicant to provide an amended defence and any further affidavits to his Honour’s chambers and the respondent by 15 April 2025 and listed the hearing for 22 April 2025.
On 4 April 2025, the applicant filed an affidavit. On 15 April 2025, he emailed a proposed amended defence to the associate to the primary judge, which his Honour treated as an informal application for leave to amend: at [16], [46]. On 17 April 2025, the applicant filed the cross-claim, without leave. The hearing proceeded on 22 April 2025 and his Honour made orders and gave an ex tempore judgment the same day. His Honour described the approach he had adopted at [18] as follows:
“The best way to address the issues arising in these applications is first to consider the Plaintiff’s substantive claim for relief, the basis for that claim, and the evidence relied upon by the Plaintiff. After that, I will consider the arguments identified by the Defendant first in the Proposed Amended Defence, then in the Defence, then in the other documents relied upon by the Defendant, whether in the nature of submissions, affidavits or evidence. To the extent they add to the documentary material provided by the Defendant, I will also address the submissions made orally by the Defendant today.”
The primary judge considered that the evidence before the Court made out the respondent’s claims that it was the registered proprietor of the Land, that the applicant was an occupier of the Land, and that the respondent had made a number of demands for vacant possession of the Land with which the applicant had failed to comply: at [20]. The respondent tendered certificates of title and searches in respect of the Land demonstrating that it was the registered proprietor of an estate in fee simple over the Land: at [20]-[25]. As the registered proprietor, and in the absence of any consent or other authority in favour of the applicant which would entitle him to the use, enjoyment or occupation of the land, the respondent was entitled to possession: at [38]-[45].
The applicant raised fraud in his oral submissions at the hearing. Although this was not something he had pleaded, the primary judge considered it as a matter of substance, noting the fraud exception in s 42 of the Real Property Act: at [31]. The applicant contended that the Nyangbul people, the traditional custodians of the Land, had been defrauded of ownership by virtue of the conduct of European settlers in dispossessing them from the Land, referring to a want of self-determination for himself, the Nyangbul people and others, the want of a treaty or other agreement, and the rejection of terra nullius in Mabo (No 2): at [32]. In rejecting that contention, the primary judge stated that consistently with authority, for conduct to constitute fraud within the meaning of s 42 it must be directed at the specific act of registration, and nothing the applicant had advanced was capable of attracting the exception: at [34]-[35].
The primary judge then turned to the applicant’s proposed amended defence, giving detailed reasons for refusing leave to rely on that document on the basis that amendment would be futile in the manner explained in General Steel Industries Inc v Commissioner for Railways *(*NSW) (1964) 112 CLR 125; [1964] HCA 69 and having regard to the overriding purpose in s 56 of the Civil Procedure Act.
His Honour summarised the proposed amended defence as advancing five principal arguments (in addition to specific denials), which his Honour addressed in turn. The first argument was that the Court did not have jurisdiction and the Crown in right of the respondent did not have authority over lands belonging to the Nyangbul people, including the Lands. His Honour concluded that the Court had jurisdiction having regard to ss 22 and 23 of the Supreme Court Act and s 92 of the Civil Procedure Act: [56]-[66]. His Honour also concluded that once it was accepted that the Land is in New South Wales, the provisions of the Real Property Act, enacted by the New South Wales Parliament, applied and the respondent’s registered title with respect to the Land was decisive: at [68]-[72].
“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.”
“3. Misapplication of Summary Judgment Principles
The decision to grant summary judgment failed to apply the correct legal tests under UCPR r13.4. The Court erroneously found the defence had no reasonable prospect of success without addressing whether the defence was arguable on its face, thereby misapplying the threshold for summary dismissal.”
The grounds in the (draft) notice of appeal fall broadly into two categories. The first category (grounds 2, 3, 5, 6, 9) took issue with aspects of the procedure that his Honour adopted in hearing and determining the notices of motion, and his Honour’s approach to matters such as the applicant’s identity. The summary of his Honour’s reasons above indicate that none of these grounds is arguable.
Contrary to ground 2, the primary judge did not refuse to consider the applicant’s oral submissions, as is clear from his Honour’s consideration of matters that the applicant only raised orally, such as the allegation of fraud. Nor is it fair to say that his Honour dismissed the applicant’s evidence as futile, when his Honour considered in some detail the material the applicant submitted and the affidavits he filed. That his Honour ultimately rejected the material on which the applicant relied as not disclosing an arguable defence does not ground a denial of procedural fairness. As to ground 3, the primary judge made final orders having determined that the cross-claim that the applicant filed without leave was an abuse of process, the applicant having already commenced proceedings in the District Court seeking the same relief as in the cross-claim, on the basis of the same events and alleging the same causes of action. The applicant has not demonstrated any error in that conclusion, which his Honour reached noting that the proceedings in the District Court were still on foot.
Ground 5, relating to the applicant’s identity and how he was named in the proceedings, is without merit. As the primary judge noted, the applicant had filed a notice of appearance in the proceedings and exercised rights that were only available to the defendant in proceedings. Ground 6, in which the applicant complains that the primary judge’s permission for him to provide a proposed amended defence document to his chambers by email, instead of filing it in the Registry, was a procedural misdirection is also without merit. The approach his Honour permitted was to the applicant’s advantage. That it was not filed in the registry in the first instance has no material significance, noting that his Honour quoted the whole document in the reasons and proceeded to address it in detail.
There is also no substance in ground 9, which alleges that the primary judge’s blanket dismissal of his affidavits and submissions as futile without analysis revealed prejudgment and bias. As with his Honour’s consideration of the applicant’s oral arguments, the reasons of the primary judge indicate a detailed engagement with the various arguments that the applicant advanced. Contrary to the ground, his Honour’s refusal of leave to rely on the proposed amended defence and strike out of the defence was the outcome of a careful exercise of his Honour’s judicial function.
The second category of complaint (grounds 1, 4, 7, 8) reagitated contentions regarding the Court’s jurisdiction (grounds 1 and 4), and those that were raised in the proposed amended defence and the filed defence (grounds 7 and 8), in particular that sovereignty over his traditional homelands (including the Land) had never been ceded, sold or lawfully acquired, that consent was not given for them to be taken by the Crown, and State legislation such as the could not override rights that were never lawfully extinguished. Additionally, and relatedly, the applicant contended that in addressing these matters the primary judge misapplied the threshold for summary judgment (ground 3 of the additional document). The applicant provided extensive primary and secondary material by which he sought to establish those propositions. The bulk of this material was annexed to the first affidavit of 7 May 2025, although further material was annexed to some of the subsequent affidavits. Without being exhaustive, the material the applicant relied on included:
“[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.”
At [34], Griffiths AJ observed that this reasoning was not intended to dispute the sovereignty of Aboriginal and Torres Strait Islander peoples in a spiritual sense. The difficulty with the applicant’s arguments in the present case, as this Court stated in Anderson v Indigenous Land and Sea Corp**oration (2024) 384 FLR 394; [2024] NSWCA 9 (“Anderson”) at [111] of the similar rights asserted in that case, is that the existence of such rights, to the extent that they are recognised within the Australian legal system, are recognised as native title rights. Thus the Court of Appeal in Anderson rejected the assertion of the appellant in that case that the common law of Australia recognised a type of traditional Indigenous title that was distinct from native title: at [106]. The various historical materials and international instruments to which the applicant called attention do not demand a contrary conclusion in the present case or call into question the correctness of the reasoning of the High Court in Mabo (No 2), which in any event binds this Court.
Nor does the material on which the applicant relied in this case relevantly impugn the respondent’s indefeasible title to the Land, by reason of it being the registered proprietor of the estate in fee simple under the Real Property Act. The primary judge properly rejected the applicant’s reliance on fraud in this context.
The applicant submitted that in circumstances where he had raised novel, constitutional and public law questions, the primary judge had applied the principle in General Steel Industries Inc v Commissioner for Railways (NSW) prematurely. We disagree. The primary judge concluded that even accepting the truth of the material that the applicant relied upon, it could not overcome the operation of the system of registration for which the Real Property Act makes provision. Nothing in the material on which the applicant relied in support of his application for leave to appeal called for a contrary conclusion.
The applicant’s application for leave to appeal should be dismissed. The respondent sought its costs of the application. In his written submissions, the applicant submitted that no adverse costs order should be made against him on the basis of “constitutional importance, impecuniosity and public interest in the Appellant’s cause”. He relied on the decisions in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (“Oshlack”), which concerned costs in a case brought in the public interest and North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41, the immediate relevance of which was not clear.
Espousing the public interest alone is not sufficient to warrant a grant of general immunity from costs: Oshlack at 123 (Kirby J). The characterisation of proceedings as in the “public interest” is a question of substance not form: Racing New South Wales v Fletcher (No 2) [2020] NSWCA 67 at [12] (Bell P, Meagher and Payne JJA). The applicant brought the application for leave to appeal seeking to defend his personal right of occupation of land of which the respondent is the registered proprietor. He did so on the basis of arguments that, whilst reflecting his genuinely held views, were not available as a matter of law. Having advanced those arguments at first instance and been unsuccessful, we do not consider that the arguments were of a nature that warrant departure from the ordinary rule that costs follow the event.
The Court makes the following order:
The summons seeking leave to appeal is dismissed with costs.
**********
Nyangbul
State of New South Wales [2025] NSWCA 214
(2024) 384 FLR 394
(1964) 112 CLR 125
(1992) 175 CLR 1
(1998) 193 CLR 72
(2013) 82 NSWLR 268
(2013) 215 FCR 254
(2020) 270 CLR 152
(1979) 53 ALJR 403
(1993) 68 ALJR 110
(1994) 182 CLR 45
(2010) 26 VR 242
(2004) 209 ALR 106
(2015) 256 CLR 569
The summons seeking leave to appeal was dismissed with costs: [43].
Other proposed grounds of appeal took issue with procedural aspects of the hearing before the primary judge, and with his Honour’s decision to refuse leave to amend his defence and then to strike out the filed defence and cross-claim. Those proposed grounds do not support the existence of a reasonably clear injustice in the requisite sense. It follows that the application for leave to appeal should be refused.
The applicant’s second argument was that as addressed in the journal of Captain Cook, from the point of his initial arrival in 1770 when a Gwegal Chief was shot there has never been any consent given or lawful agreement to extinguish sovereignty or cede title. His Honour dealt with this contention by assuming, in the applicant’s favour, that all of the allegations of fact made in the proposed amended defence on this issue were true: at [74]. Even on that assumption, those matters were not capable of depriving the respondent of the rights it asserted in the proceedings according to law, and did not establish in the applicant or any other person a right, title or interest outside the operation of s 42 of the Real Property Act: at [75]-[76].
The third argument was that State land-based legislative schemes were invalid against the applicant and Nyangbul peoples, in circumstances where the applicant never agreed to come under the Commonwealth’s constitutional system and any enforcement under these instruments constituted an abuse of process and a trespass against sovereignty. His Honour noted that the proposed amended defence did not disclose the basis for the alleged invalidity, and that the argument was inconsistent with s 5 of the Constitution Act 1902 (NSW), which confers a broad power on the New South Wales legislature to make laws for the peace, welfare, and good government of New South Wales: at [77]-[80].
The applicant’s fourth argument referred to the High Court’s decision in Commonwealth v Yunupingu [2025] HCA 6; 421 ALR 604 (“Yunupingu”) and contended that because the Court held in that case that compensation on just terms was required for the extinguishment of native title, and no compensation was paid to him or the Nyangbul people, no extinguishment had occurred. In rejecting that argument, the primary judge observed that nothing in the decision or reasoning in Yunupingu was relevant to the respondent’s claim for possession of land of which it was the registered proprietor: at [84]. Further, the applicant’s reliance on Yunupingu was premised on an incorrect understanding of the decision: at [85].
The primary judge broke up the applicant’s fifth argument into three subpoints:
The applicant asserted a right to self-determination under international customary law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In dismissing this argument, his Honour observed that the applicant had not explained how UNDRIP had legal effect on the private rights that the respondent claimed under the municipal laws of New South Wales, including to deprive the respondent of those rights: at [87].
The respondent’s reliance on colonial legislation without a treaty violated international obligations and constituted systemic discrimination. In dismissing this argument, the primary judge considered that in so far as international obligations referred back to UNDRIP and international customary law, it took the matter no further than the previous subpoint: at [90]. The allegation of systemic discrimination did not have sufficient content or particularity to disclose a reasonable defence: at [91].
The respondent had no legal or moral authority to prosecute or penalise the applicant under any “colonial statute”. His Honour had already addressed the respondent’s legal authority, while the respondent’s moral authority was not a matter that arose for adjudication by the Court: at [93]-[94].
In so far as the applicant specifically denied everything in the respondent’s amended statement of claim, his Honour concluded that the evidence established the correctness of each of the respondent’s allegations: at [97]. His Honour then addressed the material that the applicant had exhibited to the proposed amended defence, which included two documents styled as affidavits but which contained a range of statements and arguments: at [103], [136].
The matters raised in the first affidavit, which the applicant separately filed on 4 April 2025, included the applicant’s concern that his name had been misspelled in Court documents: at [105]-[108]. His Honour did not doubt the sincerity with which the applicant was concerned about the precise spelling, punctuation or even identity of his name: at [112]. However, his Honour did not understand the applicant’s complaint that his name had been misrepresented as saying that he was not the person described in the statement of claim and against whom the respondent asked the Court to make orders: at [129]. His Honour relied on a number of facts in this regard, including that the applicant had filed a notice of appearance and had exercised a number of rights in the court process which only the defendant was entitled to exercise, including filing a notice of motion, filing a defence, and appearing at the hearing on 6 March 2025 in which he stated his name as Jaabarun Nyangbul and affirmed that he was the defendant: at [130]-[132]. His Honour concluded that this document did not raise any issue requiring adjudication by the Court.
The second affidavit contained further arguments which his Honour also addressed. The first argument was that the Civil Procedure Act and the UCPR were not valid instruments because there was no applicable head of legislative power in the Commonwealth Constitution. As his Honour said in rejecting the argument as misconceived, no head of Commonwealth legislative power was necessary to justify enactments of the New South Wales legislature: at [137]. The second argument was that the Nyangbul people retained their sovereign rights with respect to the Land, which his Honour rejected as contrary to s 42 of the Real Property Act: at [138]. His Honour also rejected the next argument, which relied on Love v The Commonwealth (2020) 270 CLR 152; [2020] HCA 3 for the proposition that belonging was acknowledged, on the basis that nothing in that decision was relevant to the respondent’s claims in the proceedings: at [139]-[140].
The applicant also relied on Mabo (No 2) and the rejection of terra nullius. His Honour stated that Mabo (No 2) in fact demonstrated why the applicant’s arguments were futile. A key step in the Court’s reasoning was that native title is extinguished by a grant in fee, which includes a grant in fee simple: at [141]-[142]. His Honour stated that “the Plaintiff is entitled to possession [as] against all the world” in light of the registered title, and the applicant had not demonstrated otherwise: at [145].
After rejecting the application to file the proposed amended defence, his Honour turned to the filed defence, describing it as containing a subset of the allegations sought to be made in the proposed amended defence save for two additional matters which his Honour rejected. The primary judge noted that the applicant also raised ss 73 and 75 of the Commonwealth Constitution during the hearing, neither of which had application (at [160]-[164]), as well as the fraud exception which his Honour had already rejected. His Honour concluded that the defence should be struck out, and that in circumstances where the applicant had had over a year to put forward a defence and had put forward two documents which were futile, consistently with the overriding purpose in s 56 of the Civil Procedure Act it was appropriate to grant the relief sought in the respondent’s notice of motion: at [172].
His Honour also struck out the cross-claim that the applicant had filed without leave. The cross-claim sought damages for a range of causes of action in relation to different land, including 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. In circumstances where the applicant had already commenced proceedings in the District Court that sought the same relief on the basis of the same causes of action, and arising from the same incident, his Honour concluded that the cross-claim was an abuse of process: at [177].
legislation dating back to the reign of Charles I, including the Petition of Right 1627, which provided that no subject could be detained, taxed or punished without Parliament’s consent and which the applicant contended the Crown had breached when it dispossessed First Nations people of their traditional homelands (for example Annexures K, S, T, U, AC, AE and AG to the affidavit of 7 May 2025);
records of Captain James Cook, which he submitted indicated that his claim of possession was made a significant distance from the applicant’s traditional homelands and in circumstances where no landfall was made in that area, and, in the absence of direct consultation or consent, the claim of possession had no basis (for example Annexures C, E and Z to the affidavit of 7 May 2025);
the failure of the referendum in 2023, which he submitted confirmed that Aboriginal and Torres Strait Islander peoples remain excluded from the Commonwealth Constitution (Annexure Y to the affidavit of 7 May 2025);
international materials, including the International Covenant on Civil and Political Rights and UNDRIP, as well as extracts from the UN Law Handbook and a decision of the International Court of Justice in East Timor (Portugal v Australia) [1995] ICJ Rep 90, which he submitted confirmed his sovereignty as a traditional owner of, relevantly, the Land (Annexures H, I, M to the affidavit of 7 May 2025; Annexures AO to AR and AV to the affidavit of 27 May 2025); and
material from Ballina Shire Council that recognised that the Ballina Coast and Hinterland, where the Land is situated, is “the traditional Nyangbul Country of the Bundjalung Nation…[whose] custodianship of the Ballina Shire area dates back many thousands of generations” (Annexure AN to the affidavit of 27 May 2025).
Grounds 1 and 4, which took issue with the Court’s jurisdiction to hear the issues the applicant raised in his proposed amended defence and defence, were without merit. The Supreme Court can hear matters in federal jurisdiction, including matters raised involving the Commonwealth Constitution, with the High Court of Australia remaining the ultimate appellate court. None of the issues that the applicant raised were beyond the jurisdiction of the court below, or this Court hearing the application for leave to appeal. The submission that the applicant advanced in this respect, that the matter needed to be removed to the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth), was misconceived, it being a matter for the High Court to order removal on application to it, as opposed to this Court ordering such removal.
By grounds 7 and 8, the applicant sought to reagitate the arguments that the Real Property Act could not override sovereignty of the Nyangbul people over their traditional homelands (including the Land) when that sovereignty had never been ceded, sold or lawfully acquired; and where consent was not given their rights to the Land were never lawfully extinguished. As Griffiths AJA stated in his Honour’s reasons for dismissing the applicant’s application for a stay pending leave to appeal, those contentions were contrary to binding authority and were properly rejected by the primary judge: Nyangbul v State of New South Wales [2025] NSWCA 119 at [23].
The primary judge’s rejection of the applicant’s contentions was consistent with the decision of the High Court in Mabo (No 2). True it is, as the applicant submitted, that the High Court rejected the doctrine of terra nullius in that case. However, the Court also rejected a concept of Indigenous sovereignty adverse to the Crown. At first instance in Indigenous Land and Sea Corp**oration v Anderson [2022] NSWSC 1650; 406 ALR 484 at [32]-[34], Griffiths AJ referred with approval to the reasoning of Mansfield J in Walker v South Australia (No 2) (2013) 215 FCR 254; [2013] FCA 700 at [43]-[47], where his Honour stated: