NSW SMALLBORE & AIR RIFLE ASSOCIATION v COMMONWEALTH OF AUSTRALIA [1996] NSWCA 405

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

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 11 March 1996

[1996] NSWCA 405

Cole JA. This is an application brought by notice of motion by two claimants, the NSW Smallbore & Air Rifle Association Incorporated and the NSW Rifle Association Incorporated, against the Commonwealth of Australia.

In a judgment delivered on 22 July 1994 Bryson J granted to the Commonwealth liberty to apply for leave to issue a writ of possession in respect of the land the subject of this dispute. The land in question is land at Malabar which is and has for many years been used as a rifle range initially by the Defence Forces and conjointly by the two claimants which both conduct rifle club and related activities.

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

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

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