Walhallow Aboriginal Corp Inc v Walhallow Local Aboriginal Land Council [2003] NSWSC 545

New South Wales Supreme Court

CITATION : Walhallow Aboriginal Corp Inc v Walhallow Local Aboriginal Land Council [2003] NSWSC 545 HEARING DATE(S) : 16 June 2003 JUDGMENT DATE : 16 June 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Access to funds granted

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - Mareva order originally made by consent - application to vary to enable restricted assets to be used for purposes of proposed mediation LEGISLATION CITED : Supreme Court Act 1970 PARTIES : Walhallow Aboriginal Corporation Inc - Plaintiff Walhallow Local Aboriginal Land Council - Defendant FILE NUMBER(S) : SC 2527/03 COUNSEL : C D Wood - Plaintiff T Bartush-Peek - Defendant SOLICITORS : S E Michel & Co - Plaintiff NSW Aboriginal Land Council - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

MONDAY 16 JUNE 2003

2527/03 WALHALLOW ABORIGINAL CORPORATION INC v WALHALLOW LOCAL ABORIGINAL LAND COUNCIL JUDGMENT – Ex Tempore 1 HIS HONOUR: There is listed before me today an application by the plaintiff in this matter, to vary some consent orders which were made on 5 May 2003. The plaintiff is a corporation established under legislation which facilitates the providing of practical benefits to Aborigines. 2 The defendant is another corporation established under legislation aimed at providing practical benefits to Aborigines. The defendant is the owner of certain land within the village of Caroona, which it has leased to the plaintiff on a long-term lease. The plaintiff has obtained grants, principally or perhaps entirely from ATSIC, for the purpose of constructing housing in the village. That housing has been constructed upon land which the plaintiff has leased from the defendant. 3 Some disputes have arisen between the plaintiff and the defendant. The defendant claims that it has terminated the lease of the land to the plaintiff. The plaintiff disputes that allegation. It claims a variety of relief, set out in the summons which it filed on 30 April 2003. 4 On 5 May some orders were made by consent which had the effect of restraining the defendant from taking back the land which it had leased, and (Order 3) requiring the plaintiff to deposit any funds which it received from the real estate agent which it retains to manage the housing into a controlled moneys account. There was provision in Order 3 for the payment of the usual outgoings connected with land to be paid from that controlled moneys account. It was also contemplated, in the orders themselves, that the plaintiff would seek additional relief, namely a variation of the order I have just mentioned. It was that application for additional relief which came before me today. In substance, it was an application by the plaintiff to be able to have access to the rents which were received from the housing to be able to pay the legal costs in connection with the running of those proceedings. 5 In the course of that argument, it became clear that the plaintiff and the defendant were each organisations which aimed to achieve, in broad terms, substantially the same objectives, namely benefiting the Aboriginal people in this particular geographical area. The prospect emerged that a more useful way of resolving the differences which there are between the plaintiff and the defendant at present might be to seek to mediate them. It is clear that there are some differences of a political or personal nature which underlie the present application, though not what those differences are. If the Court were to proceed to decide the case in accordance with the law, those political or personal factors would simply not enter into the resolution of the dispute. 6 Both parties agree that a Court-ordered mediation may be an appropriate way of dealing with the matter. It is always undesirable that people who need to live one with the other have disputes, and a way must be found to resolve those disputes. Here, it seems to me that mediation offers the prospect of a more thorough ongoing resolution of all of the disputes which there are than could be achieved through litigation. As well, and this is something which is of considerable importance in the present context, there is a realistic prospect that the dispute could be resolved quicker and cheaper through mediation than it could through litigation. It is, therefore, appropriate to make an order under section 110K of the Supreme Court Act referring the matter to mediation. 7 The plaintiff is in a situation where, while it receives a variety of grants, those grants are tied so that they can be used only for particular purposes. The rental money is not so tied. The plaintiff seeks to have access to the rental money for the purpose of such legal advice as might be appropriate in conducting the mediation. 8 There was a variety of bases on which the defendant opposed the relief which was originally sought before me today. One of those bases included that, as a matter of discretion, the prospects of the ultimate success of the plaintiff in the proceedings was not such as to warrant the making of an order. It is not appropriate in the circumstances that I say anything about that line of opposition to the making of an order. The reason for this is that what is now under consideration is whether the plaintiff should have access to the rent for the purpose of a mediation – whether the plaintiff's litigation is bound to fail might be relevant to whether that litigation itself should be funded from the rent, but it does not have the same relevance to whether the mediation should be funded from the rent. 9 It seems to me that there is an appropriate case for reviewing the order made 5 May 2003 to a limited extent at the present time. The rental money is the property of the plaintiff, and, bearing fully in mind the litigation the plaintiff is now engaged in and the allegations the defendant makes against the plaintiff, there is no abuse of process involved in the plaintiff having access to that money for the purpose of funding the mediation. I vary Order 3 made 5 May 2003 by adding a paragraph (b) reading: "Payment of reasonable legal expenses incurred in connection with the submission of this matter to mediation and obtaining any evidence to be filed in the proceedings prior to that mediation." 10 The plaintiff wishes to file a report from a real estate agent on the present condition of the rented housing. This is, it seems to me, something which could assist in the preparation for the mediation. I direct that any such report be filed and served by 4.00pm Wednesday, 16 July 2003. 11 On 5 May 2003 Barrett J gave directions for the plaintiff to file and serve a statement of claim by 6 June 2003, and for the defendant to file and serve its defence and any cross-claim by 18 July 2003. 12 In the circumstances where the matter is to be submitted to mediation, it is appropriate that each of those directions be revoked. I do so. 13 The matter is listed for further hearing on 18 July 2003. I vacate that listing. 14 The parties both wish the mediation to take place before the Registrar. 15 I direct that the proceedings be listed before the Registrar on Wednesday, 27 August 2003, at 9.30am for the purpose of that mediation. At the conclusion of that mediation the Registrar will make any orders which might be appropriate for the further conduct of the proceedings. 16 There has been extensive argument and evidence before me today on the original application which was made this morning. In the circumstances, it is not appropriate for me at this stage to express any views about that matter, save to the extent that I have already done so. I shall reserve judgment on that matter. For the sake of making it quite clear, when I reserve consideration of the motion which was brought before me today, that reservation includes reservation of any question of costs which arises from the filing and arguing of that motion. **********