New South Wales Aboriginal Land Council – Jerrys Plains v Minister Administering the Crown Land Management Act [2022] NSWLEC 65

Land and Environment Court New South Wales

Medium Neutral Citation: New South Wales Aboriginal Land Council – Jerrys Plains v Minister Administering the Crown Land Management Act [2022] NSWLEC 65 Hearing dates: 27 May 2022 Date of orders: 27 May 2022 Decision date: 27 May 2022 Jurisdiction: Class 3 Before: Duggan J Decision: See paragraph 10 Catchwords: PRACTICE AND PROCEDURE – application to vacate hearing dates – granted Category: Procedural rulings Parties: New South Wales Aboriginal Land Council – Jerrys Plains, Applicant (Respondent on the Notice of Motion) Minister Administering the Crown Land Management Act, Respondent (Applicant on the Notice of Motion) Representation: Counsel: L Mallon, solicitor, Applicant (Respondent on the Notice of Motion) O Berkmann, solicitor, Respondent (Applicant on the Notice of Motion)

Solicitors: Chalk and Behrendt Lawyers Applicant (Respondent on the Notice of Motion) Crown Solicitors' Office, Respondent (Applicant on the Notice of Motion) File Number(s): 2021/213216 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: In proceedings 2021/213216, the Minister has made an application by a Notice of Motion to vacate the hearing date on the basis that it has come to the Minister's attention that there are witnesses comprising five police officers that may be able to assist in the preparation of evidence for the hearing of this matter, or alternatively, to assist the Minister in determining whether or not to proceed in the manner in which the Minister currently proposes in relation to the proceedings. 2. By affidavit of Mr Blake Grierson, the solicitor from the Crown Solicitors' Office who acts on behalf of the Minister, he deposes that by advice given on 13 May 2022, the New South Wales Police provided him with the names of three employees who he was instructed to confer with, with a view to the preparation of additional evidence by way, he anticipated, of affidavits from those employees. 3. Since that time, he has conferred with a number of employees and he has done so in my opinion, having regard to his affidavit of 26 May 2022 quite expeditiously. It appears from his summary of his understanding of the evidence that will be given that the evidence may touch upon the questions that the Court will be required to consider in determining the real issues in dispute between the parties. 4. Whilst the Minister has always been aware that it was an issue in dispute in these proceedings as to whether or not the land was claimable Crown land on the basis of whether or not the land either in whole or in part, was being used or required for the purposes of a public purpose namely, a police station and that inquiries had been made from the police on a number of occasions, I am satisfied from the evidence of Mr Grierson that the Minister was not aware until 13 May 2022 of the identity of these persons. It is unfortunate that the police, despite requests in the past, have not brought to the attention of the Minister the identity of these persons, or their capacity to bring the evidence before the Court. 5. Notwithstanding that, the claimants have suffered significant delay since the lodgement of their claim, and they have suffered significant delay in the preparation of this matter for hearing and that the vacation of the hearing dates will do nothing more than extend that delay. I find myself, in the circumstances of this case, having no alternative but to vacate the hearing dates so as to ensure that the real issues in dispute between the parties are able to be adequately ventilated and that it is in the interests of justice and the circumstances of this case to enable that to occur. 6. It is unlikely and it would be unreasonable to require the claimants to deal with this information in the short period of time between now and the hearing date, such that it is an inevitable consequence that the hearing date must be vacated to enable this information to be provided. Accordingly, I vacate the hearing date. 7. This matter should, however, once the information has been provided, be set down for hearing with some expedition, so that the delays in this matter should not be exacerbated by further delay. I further note that it is a condition of my vacation of this hearing date that the prejudice to the claimant of the vacation of the hearing that the costs that are thrown away as a consequence of the hearing date are met by the Minister and I will so order. 8. I also observe that on a number of occasions in relation to this matter there have been applications to vary timetables in relation to the filing of evidence. It is my expectation that the lateness of this application and the requirement to vacate the hearing date, should not be an invitation that the provision of the evidence be further delayed beyond the time period for which I am advised is necessary for the filing of the evidence. I will make a direction in relation to the filing of the affidavits. 9. I put the Minister on notice that it is my intention that the evidence should be filed on that occasion and that no further extension of time for the filing of evidence should be allowed unless there is strong, compelling reasons for the filing of such evidence as the circumstances surrounding the lateness of this evidence is such that all efforts should be made to ensure that the Court direction is complied with so that this matter can proceed to a hearing expeditiously and without further prejudice to the claimants. 10. Accordingly, the Court orders and directs: 1. That the hearing date of this matter, which was set down for a three-day hearing to commence on 27 June 2022 is vacated and I vacate the pre‑trial mention on 20 June 2022; 2. I direct that the Respondent is to file and serve the additional affidavit evidence by no later than 4pm on 10 June 2022; 3. I order that the Minister administering the Crown Land Management Act is to pay the New South Wales Aboriginal Land Council's costs thrown away as a consequence of the vacation of the hearing date; 4. I list the matter for mention before the list judge for further directions with a view to obtaining a hearing date for this matter on 17 June 2022; and 5. I grant liberty to restore the matter on short notice.