New South Wales Court of Appeal CITATION: ST ALDER v WAVERLEY [2009] NSWCA 437 HEARING DATE(S): 23 December 2009 JUDGMENT OF: Basten JA at 1 EX TEMPORE JUDGMENT DATE: 23 December 2009 (1) Upon the applicants' undertaking proffered through counsel to maintain the area in question in a state of cleanliness and good order and to keep the fire exit clear of obstruction: Restrain the respondents until 5pm on 18 February 2010 by themselves and by their employees or agents, from removing the applicants and from taking steps to remove the applicants' belongings and from preventing access to the area the appellants occupy under the colonnade at the northwest rear of the Bondi Pavilion. In relation to the removal of belongings, or the prevention of access, the restraint is limited to such steps as are taken for the purposes of rendering the existing state of occupation impracticable and with the intention that the restraints will not apply in relation to the provision of the emergency services, so far as such services may require access to or impact upon the area in question. (2) Fix the appeal and, to the extent that leave to appeal is required, any application for leave to appeal for hearing concurrently on 18 February 2010. DECISION: (3) Direct that the parties prepare and file with the Court a bundle of papers in the form of a white book by 20 January 2010. (4) Direct that the applicants file and serve written submissions, as on an appeal, by 1 February 2010. (5) Direct that the respondents file and serve their written submissions in reply by 11 February 2010. (6) Costs of the motion be costs in the proceedings. (7) The Court notes the intention of the applicants to file a document pursuant to which they will proceed in this Court by way of a representative person representing himself or herself and the others, such person probably being Mr St Alder, pursuant to rule 7.4(2) of the Uniform Civil Procedure Rules. CATCHWORDS: PRACTICE & PROCEDURE – judgments and orders – continuation of stay of orders – proceedings dismissed summarily – proceedings brought by group of persons asserting right to remain in occupation of Crown Land – dismissal of proceedings liable to result in forced removal in absence of continuing stay – whether prejudice resulting from restraints upon ability of Council to remove persons over holiday period – whether continuation of stay appropriate until appeal determined CATEGORY: Procedural and other rulings Kevin St Alder - Applicant PARTIES: Waverley Council - First Respondent State of New South Wales - Second Respondent FILE NUMBER(S): CA 2009/00289390 COUNSEL: A W Street SC/D Hawkins - Applicant T M Faulkner - First Respondent N/A - Applicant SOLICITORS: Wilshire Webb Staunton Beattie Lawyers - First Respondent J Jude, Land and Property Management Authority - Second Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 3416/09 LOWER COURT JUDICIAL OFFICER: McLaughlin AsJ LOWER COURT DATE OF DECISION: 14 December 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 289390/09 SC 3416/09 BASTEN JA 23 December 2009 Kevin ST ALDER v WAVERLEY COUNCIL Judgment 1 BASTEN JA: This matter comes before the Court today by way of an application initially for a stay of orders made by Associate Justice McLaughlin in the Equity Division on 14 December 2009. On that occasion his Honour dismissed summarily proceedings commenced by the present applicant, Mr St Alder, and certain other persons and declined to permit an amendment to the statement of claim. At the same time he granted a stay of the order dismissing the proceedings, such stay to be effective until 7 January 2010. 2 The applicants now seek an extension of that stay in circumstances to which I will return. In passing I note that, as counsel for the Waverley Council has said, the notice of appeal is probably incompetent because the order made below was an interlocutory order, albeit it resulted in dismissal of the proceedings. As a result, leave is required. Be that as it may, I shall assume that if leave is required, it will be sought and that the notice of appeal sets out the grounds on which it is sought to challenge his Honour's judgment and orders. I do not have a copy of the judgment or the orders, although I presume they were entered on the day on which they were made. His Honour's judgment was delivered extempore and so far there is no transcript available, nor is there an affidavit before the Court setting out the content of the judgment. 3 The applicant, and the persons with whom he seeks to bring the proceedings, asserted that they have a right to continue to occupy an area of Bondi Pavilion constituted by the arcade or colonnade at the northwest rear of the building. They do so either on the basis that they have a leasehold interest in the area of land, or that they have an implied licence to remain on the land, or that their presence there, with the awareness of the Council, as the manager of the land, gives rise to a form of estoppel preventing their removal, or finally on the basis that they are owed a fiduciary duty either by the Council or the State or both which entitles them to remain on Crown land the subject of a public trust. 4 The area of land which contains the Bondi Pavilion was dedicated apparently for the purpose of public recreation in April 1938. It is currently the subject of control to be exercised under Part 5 of the Crown Lands Act 1989 (NSW) and the Council argues that the provisions of that Part prevent there arising any arguable basis upon which the applicants could claim the entitlement set out in the amended statement of claim. I should add that the amended statement of claim was apparently filed in Court on 2 October 2009, pursuant to leave granted by the Associate Justice, although some amendments appear to have been refused when the proceedings were dismissed. 5 Counsel for the applicants contend that there is an arguable case in respect of their continued occupation of the site. Counsel for the Waverley Council, supported by the State, suggests that that can only occur if there has been compliance with the provisions of Part 5 which either require the consent of the Minister pursuant to s 102 of the Crown Lands Act, or in accordance with an authorisation under s 102A, which it is said has not occurred. 6 I am advised that some evidence about factual matters was brought before his Honour on the summary dismissal application by way of affidavits, none of which are before me, and that otherwise - and perhaps somewhat inconsistently - the application was treated as a demurrer with the consequence that the factual assertions in the amended statement of claim were taken to be true. The respondents further submit that, pursuant to s 102A(10), if there were any lease, licence or other interest granted without the Minister's consent or without the Minister's authorisation, it has no effect. That may be so, although the consequences in law of that provision may need to be further considered. 7 Part 7 of the Crown Lands Act provides a mechanism for removal of trespassers from public land, pursuant to s 159. That process involves in part the issue by an "authorised person" of an "application notice" alleging that a person is in unlawful occupation of, or unlawfully using, public land and requiring the person to appear before the Local Court. The Local Court shall inquire into the matter and, if satisfied as to the truth of the allegation, shall issue a warrant addressed to the authorised person requiring the unauthorised person to be removed. The execution of the warrant may be delayed for a specified time. 8 Counsel for the State points out that an "authorised person" for that purpose is defined in s 153. It does not include the Council or a Council officer, but does include a member of the police force or some other person holding a prescribed office, position or rank, or a person authorised by the Minister. It appears to be common ground that so far no person has taken the steps provided for under s 159, a provision which has a long history in such legislation, in order to seek to remove the applicants. I am advised that the Minister has taken steps to appoint an authorised person, but there is no intention that he or she take steps under s 159 while a stay of some kind is in force as a result of a court order. 9 In my view the position which applies, at least on its face, is that the applicants, whether or not they have a leasehold interest, a licence or other basis of the kind alleged entitling them to remain, by implication can only be removed by authority of a warrant granted pursuant to s 159. In those circumstances it seems to me appropriate that some form of order be given by this Court preventing their removal otherwise than in compliance with s 159. I say that in part on the basis that they have been in occupation apparently in some cases for years. They have also been in occupation, or some of them may have been in occupation for periods which would therefore include the holiday periods which are about to come upon us. 10 Although I understand the arguments of the Council that, as manager of the land, it has obligations to use the land for its proper purpose only, to maintain such areas as are currently in the occupation or partly in the occupation of the applicants, appropriately for the purposes of the public trust and to take necessary steps to permit the celebrations at Christmas and on New Year's Eve which may result in many thousands of people attending the Bondi Pavilion in Bondi Park, it nevertheless appears to have been a circumstance which has arisen in the past and which has given rise to no difficulties of which the Court has been made aware. 11 It also appears that there was an attempt at an earlier stage, either yesterday or today, to cordon off part of the area with a cyclone fence. That step appears to have been retracted and the placement of the fencing which was to have closed off the colonnade on the northwest corner of the Pavilion, has now been altered so that it no longer has that effect. I do not anticipate that there is any lack of good faith in the steps which have been taken. I accept the assurance in the affidavit of the Council officer which has been read before me and counsel's assurance that there was no intention to act contrary to the orders made by Associate Justice McLaughlin, or contrary to the purpose of the stay which his Honour granted. 12 Nevertheless, it does seem to me to be desirable that the legal situation be clarified so far as possible, by this Court making an order so that all concerned, including those who are not in court today, may be aware of the limits and extent of their current entitlements. 13 Accordingly, I propose to make an order which would restrain the respondents from taking certain steps. The formula which has been discussed in the course of the hearing may not be perfect, but I think that it conveys the relevant intention. I also propose to make some practical orders and directions which will ensure the speedy resolution of the substantive issues which underlie the proposed appeal. 14 Finally, I would note that the most obvious concern in relation to the present occupation of the area within the colonnade arises in respect of the period between today and the New Year. It seems to have been an intention of McLaughlin AsJ in making the stay order which he did, that the status quo would be maintained throughout that period. The result of the order I propose will be to extend it, but only until the hearing in mid-February. That extension in the order of things is of a relatively short period of a little over a month and will cover a period which will not extend to major events beyond the Christmas and New Year period, except to cover the holiday period of the Australia Day weekend. There is, however, no suggestion before me that that holiday period will give rise to any greater or different problems than those which might be expected in the earlier holiday periods. 15 Accordingly, I propose the following orders: (1) Upon the applicants' undertaking proffered through counsel to maintain the area in question in a state of cleanliness and good order and to keep the fire exit clear of obstruction: Restrain the respondents until 5pm on 18 February 2010 by themselves and by their employees or agents, from removing the applicants and from taking steps to remove the applicants' belongings and from preventing access to the area the appellants occupy under the colonnade at the northwest rear of the Bondi Pavilion. In relation to the removal of belongings, or the prevention of access, the restraint is limited to such steps as are taken for the purposes of rendering the existing state of occupation impracticable and with the intention that the restraints will not apply in relation to the provision of the emergency services, so far as such services may require access to or impact upon the area in question. (2) Fix the appeal and, to the extent that leave to appeal is required, any application for leave to appeal for hearing concurrently on 18 February 2010. (3) Direct that the parties prepare and file with the Court a bundle of papers in the form of a white book by 20 January 2010. (4) Direct that the applicants file and serve written submissions, as on an appeal, by 1 February 2010. (5) Direct that the respondents file and serve their written submissions in reply by 11 February 2010. (6) Costs of the motion be costs in the proceedings. (7) The Court notes the intention of the applicants to file a document pursuant to which they will proceed in this Court by way of a representative person representing himself or herself and the others, such person probably being Mr St Alder, pursuant to rule 7.4(2) of the Uniform Civil Procedure Rules. ********** 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.