Supreme Court New South Wales Medium Neutral Citation: Tweed Byron Local Aboriginal Land Council v Williams [2024] NSWSC 868 Hearing dates: 16 July 2024 Date of orders: 18 July 2024 Decision date: 18 July 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: Order that: (1) The First Defendant has no present right to enter, occupy or remain upon the land comprised in folio identified XXX/XXXXXX, being the land located at XX XXXXXX XXXXX, Banora Point, New South Wales; (2) The First Defendant, by his servants and agents, be restrained from entering, occupying, or remaining upon the Property comprised in folio identifier XXX/XXXXXX, being the land located at XX XXXXXX XXXXX, Banora Point, New South Wales on a permanent basis; (3) The First Defendant and any other person in occupation of, or present on, the land comprised in folio identifier XXX/XXXXXXXX, being the land located at XX XXXXXX XXXXX, Banora Point, New South Wales, give vacant possession of the property to the Plaintiff forthwith; (4) The Plaintiff have leave to issue a writ for possession of the land comprised in folio identified XXX/XXXXXXXX, being the land located at XX XXXXXX XXXXX, Banora Point, New South Wales forthwith; (5) The Plaintiff have leave to file a Notice of Discontinuance in respect of the claim against the Second, Third and Fourth Defendants; and (6) Unless Mr Williams approaches within 14 days of this judgment to be heard about some other order, together with short written submissions, Mr Williams is to bear the Council's costs, as agreed or assessed. Catchwords: REAL PROPERTY – possession – registered proprietor's right of possession – orders finally unopposed Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), ss 50, 52, 52A, 52AA, 53, 54, 62-64, 72, 233, 234A Inclosed Lands Protection Act 1901 (NSW) Real Property Act 1900 (NSW), s 42 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155 Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133 Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 Category: Principal judgment Parties: Tweed Byron Local Aboriginal Land Council (Plaintiff) River Williams (First Defendant) Elise Engvig (Second Defendant) Missy aka Missy Togo, Annette Togo and Annette Tuku (Third Defendant) Melissa Rose Balmer (Fourth Defendant) Representation: Counsel: A Kaufmann (Plaintiff) Solicitors: Chalk & Behrendt (Plaintiff) File Number(s): 2024/00019707 Publication restriction: Nil JUDGMENT 1. The Land Council, a body corporate constituted under s 50 of the Aboriginal Land Rights Act 1983 (NSW), is the registered proprietor of land at Banora Point where it understood the defendants were living when it brought these proceedings in January 2024. It finally sought orders for possession of the property against only Mr Williams, having sought and been given leave at the hearing to discontinue the proceedings against the other defendants, who it understands no longer live at the property and who have not been served or active in the proceedings. 2. Mr Williams filed a defence, by which he accepted that the Land Council was the registered proprietor, but pleaded amongst other things, that he had occupied the land with the consent of two unnamed directors of the Land Council, with the result that there had been no trespass; that persons who had requested him to leave the property had no authority to do so; that the Land Council has not held a lawful meeting since 2011 to provide it with powers of eviction; that the persons who had sent him correspondence the Council relied on had not authority to serve it; and that the Council has ten vacant houses which it has not let under any program. 3. Mr Williams also filed an affidavit, but it did not go into evidence. 4. That was because by email sent to the Court the night before the hearing, Mr Williams advised that he would not be appearing and that he was no longer the Caretaker on behalf of the Minjungbal Tribal Discretionary Trust. He also there indicated that he was a "Protected Man under the protection of the Original Sovereign Tribal Federation Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA on the 6th Day of May 2019", as well as "protected as a Minjungbal Sovereign Tribal Man under the Minjungbal Tribal Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA ON THE 5TH Day of December 2019". 5. The result of Mr William's advice was that the hearing proceeded ex parte, the orders which the Land Council sought not being opposed, it understanding that despite his advice, Mr Williams was still residing at the property. 6. The Council relied on the affidavit evidence of Ms Williams, its chief executive officer, and that of Mr Phillips, its senior cultural heritage sites officer, as well as affidavits of service. I am satisfied that they establish service of its statement of claim and the statutorily required notice to occupier on Mr Williams, which he has not disputed. 7. In her affidavit Ms Williams referred to the Council's functions under s 52 of the Act, as well as other provisions there made in relation to its operations; the residential properties it offers eligible applicants to rent, when available; how it manages waitlists, vacancies and applications; that the property is one of the residential properties in its portfolio; how it came to be vacant in 2023; how she became aware that her nephew, Mr Williams, had occupied the property; how the Council had unsuccessfully pursued possession of the property, with the assistance of its solicitors; that Mr Williams was not a member of the Council; that he had still refused to vacate the property; and had engaged solicitors who had communicated with the Council about his claimed right to reside on the property, with the eventual result, commencement of these proceedings. 8. Mr Phillip's affidavit corroborated aspects of Ms Williams' evidence about how Mr Williams' occupation of the property came to the Council's attention, after he had made enquiries about how he could get onto its waitlist. 9. The evidence established that Mr Williams had retained Leverage Solicitors, who had informed the Council's solicitors in August 2024 that while it was accepted, "for the purpose of land registration", that the property vested in the Council, it was not accepted that "the Land Council officially owns this property". That was contradictory and did not accord with Mr Williams' defence, where he admitted that the Council was the registered owner of the property. 10. Leverage Solicitors also claimed that while the land does vest in the Council, it holds the land on trust for local Aboriginal nations, tribes and clans and that it was thus a trustee, not a beneficiary; that it had a fiduciary duty to them and had to act in their best interests, not that of the Council; that the property fell within the lands of the Minjungbal people; that it had been uninhabited for more than 6 years; that Mr Williams was occupying the property and using it for Minjungbal nation purposes; that the beneficial owners of the land were the Minjungbal people; and that the Council should bring proceedings in this Court, if it wished to evict Mr Williams. No basis for those claims was there or later revealed and they were not accepted by the Council. 11. Mr Williams' right to occupy the property without the Council's approval being so disputed and he continuing to refuse to vacate, it brought these possession proceedings, the local police having declined to assist it, without an order of this Court. 12. In other communications it was claimed that Mr Williams was the trustee of the Minjungbal Tribal Trust, which had established a "Cultural Archiving Centre" at the property, which was to be used for specified purposes, including respite for tribal and clan elders who needed a short-term place to stay and would like their cultural stories archived. 13. The Council's solicitors advised in November 2023 that Mr Williams did not have its permission to enter or remain on the property and gave notice that he was to immediately vacate and not re-enter the property. Proceedings under the Inclosed Lands Protection Act 1901 (NSW) were also threatened, but have not been pursued. Nor were damages for trespass finally pressed. 14. I am satisfied that, on all of the evidence, the Council has established a basis for the possession orders that it pursued. 15. The Act provides for the constitution of a Local Aboriginal Land Council for each Local Aboriginal Land Council area: s 50(1). Each Council is a body corporate: s 50(2). The corporate name of each Local Aboriginal Land Council is "Local Aboriginal Land Council", preceded by the name of the area of the Council: s 50(3). 16. There was no issue that the Council was such a Land Council. Nor was there any issue that it was the registered proprietor of the property. That accords with s 52(2), which deals with land acquisition and gives such Councils functions with include acquisition of land as well as related matters, such as the ability to "use, manage, control, hold or dispose of, or otherwise deal with, land vested in or acquired by the Council": 52(2)(a). 17. Other provisions of the Act regulate the Council's operation of community benefit schemes, including those for "the provision or acquisition of residential accommodation for Aboriginal persons in its area": s 52A(1A). Section 52AA empowers a Land Council to "do or suffer in relation to its property any act or thing that it could lawfully do or suffer if it were a natural person having, in the case of land" the same interest in the property. 18. The members of the Local Aboriginal Land Council for a Local Aboriginal Land Council area are the adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for that area: s 53. Qualification for membership is further dealt with in s 54, by reference to residence or other association. On the unchallenged evidence of Ms Williams, Mr Williams is not a member. 19. Councils are required to have Boards consisting of between 5 and 10 members, with part 2 of schedule 3 of the Act regulating their operation. Their functions are to direct and control the Council's affairs in accordance with the Act and the regulations and consistently with the Council's community, land and business plan: s 62. Board members must be elected at every fourth annual meeting of the Council: s 63. Chairpersons are elected from amongst the Board members: s 64. The Board may delegate functions to its chief executive officer: s 72. 20. That Ms Williams was the Land Council's chief executive officer was also not in issue. Her evidence was unchallenged and must be accepted. 21. Provision is also made for the Minister to take steps to deal with Councils which cease to function: s 233. The New South Wales Aboriginal Land Council may also make a performance improvement order in respect of any Local Aboriginal Land Council, if it reasonably considers that action must be taken to improve the Local Council's performance: s 234A. 22. Mr Williams' email suggested that the Council had mismanaged the property, which was being investigated by the Registrar, Premier and other investigative bodies, but there is no evidence of such investigations being pursued. It also suggested that the Minjungbal Tribal Discretionary Trust had replaced the "Parish Trust" or any other purported trust over Minjungbal Tribal Lands, as well as assets within the Minjungbal Tribal Estate with effect from the 5th day of December 2019. 23. But neither Mr William's defence, his email communication, nor that of his solicitors establish that the property is part of Minjungbal Tribal Lands; that the Minjungbal Tribal Discretionary Trust exists; that the property is held by that trust, or that he is one of its beneficiaries. That all required more than statements of belief. 24. It was not suggested that this claimed trust was one established by the Council. As registered owner of the property, it could have conceivably put the property into a trust, so long as that accorded with the provisions of the Act which regulated its operations, but there is no evidence that it had done so. 25. Nor is there any evidence that any other person or body had any interest in the property, which would have empowered them to establish any trust which could have had any effect on the Council's legal ownership of the property, or created any equitable interest in it. 26. Even if the claimed trust existed and it was established that Mr Williams was a beneficiary, that would not entitle him to possession of the property, as RS Hulme J explained in Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155. A "trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it": Barker v The Queen (1983) 153 CLR 338 at 370; [1983] HCA 18. Further, a beneficiary of a trust has no right to possession: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 519. 27. It follows that even if it were accepted that the Minjungbal nation exists, as Mr Williams clearly believes, that it has a legal existence separate from the persons who may constitute it, let alone any legal interest in the property of which the Council is the registered proprietor, which it could have exercised to create any trust which could affect that property, so as to entitle Mr Williams to occupy it, that had to be established by evidence. 28. That was not attempted by Mr Williams. Even if the possibility of such an interest could be accepted, of which I am not persuaded, Mr Williams not having appeared to defend the Council's case, its existence cannot be established by the mere assertion of Mr William's understanding and beliefs. 29. It follows that it must be accepted that the Council is entitled to the orders which it seeks, s 42 of the Real Property Act 1900 (NSW) providing as it does that "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". 30. As was the case in Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133 at [10], there are statutory exceptions, but they are also not here relevant. 31. Even if Mr Williams had a good basis for concerns he has expressed about the Council's operations and the use it makes of properties in its portfolio, he did not appear to advance his defence. Such concerns could not, in any event, provide a basis for refusing the possession order to which the Council is entitled under the statutory scheme, which has been established on the evidence, as I have explained. 32. In the result there is no legal basis for refusing the orders which the Council pressed, which, accordingly, justice requires be made. Costs 1. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case that is an order that Mr Williams bear the Council's costs, he having put the Council to proof of its case as he did, even though he finally did not appear to resist the orders that it sought. 2. The Council seeks that the usual order be made. Mr Williams should have an opportunity to be heard about that. But unless he approaches within 14 days of this judgment to be heard, together with short written submissions, the costs order which the Council sought will be made. Orders 1. For these reasons I orders that: 1. The First Defendant has no present right to enter, occupy, or remain upon the land comprised in folio identified 815/800049, being the land located at 36 Amaroo Drive, Banora Point, New South Wales; 2. The First Defendant, by his servants and agents, be restrained from entering, occupying, or remaining upon the Property comprised in folio identifier 815/800049, being the land located at 36 Amaroo Drive, Banora Point, New South Wales on a permanent basis; 3. The First Defendant and any other person in occupation of, or present on, the land comprised in folio identifier 815/DP800049, being the land located at 36 Amaroo Drive, Banora Point, New South Wales, give vacant possession of the property to the Plaintiff forthwith; 4. The Plaintiff have leave to issue a writ for possession of the land comprised in folio identified 815/DP800049, being the land located at 36 Amaroo Drive, Banora Point, New South Wales forthwith; 5. The Plaintiff have leave to file a Notice of Discontinuance in respect of the claim against the Second, Third and Fourth Defendants; and 6. Unless Mr Williams approaches within 14 days of this judgment to be heard about some other order, together with short written submissions, Mr Williams is to bear the Council's costs, as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2024