Woods v Gandangara Local Aboriginal Land Council; Thatcher v Gandangara Local Aboriginal Land Council [2011] NSWLEC 42

Land and Environment Court New South Wales

Medium Neutral Citation: Woods v Gandangara Local Aboriginal Land Council; Thatcher v Gandangara Local Aboriginal Land Council [2011] NSWLEC 42 Hearing dates: 27 April 2010 Decision date: 23 March 2011 Before: Pepper J Decision: In proceedings 40152 of 2010 the Court: 1. declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was: (a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and (b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; 2. declares that the decision was without power, unlawful and invalid; 3. restrains the Land Council, by itself, its servants and agents from: (a) taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 28 September 2009 given to the applicant; and (b) taking any step in the further execution of its decision in September 2009 to give a notice of termination to the applicant; 4. orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and 5. orders the exhibits to be returned. In proceedings 40153 of 2010 the Court: 1. declares that the decision of the Land Council to issue a notice of termination of the applicant's residential tenancy agreement pursuant to s 58 of the Residential Tenancies Act 1987 ("the decision") was: (a) a function exercisable pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; and (b) a function that was not properly exercised pursuant to s 52G(e) of the Aboriginal Land Rights Act 1983; 2. declares that the decision was without power, unlawful and invalid; 3. restrains the Land Council, by itself, its servants and agents from: (a) taking any step in legal proceedings in the CTTT in reliance upon the notice of termination dated 31 August 2009 given to the applicant; and (b) taking any step in the further execution of its decision in August 2009 to give a notice of termination to the applicant; 4. orders the Land Council to pay the applicant's costs, unless within seven days the Land Council files a notice of motion seeking an alternate costs order; and 5. orders the exhibits to be returned. Catchwords: Aboriginal Land Rights:- whether decisions to terminate residential tenancy agreements were "dealings with land" for the purpose of the Aboriginal Land Rights Act 1983 - if so, whether the decisions could be made by a delegate of a Local Aboriginal Land Council or whether they were required to be made by resolution by the voting members of the Land Council - meaning of "dealing, with land" and "dealings with land" under that Act - whether the applicants were denied procedural fairness in the making of the decisions - whether the Court has jurisdiction to determine the proceedings - factors relevant to the exercise of discretion - application upheld Legislation Cited: Aboriginal Land Rights Act 1983, ss 3(a) and (d), 40(1) and (2), 40B(2)(a) and (2A), 42A, 51, 52E(1)(a), 52G(e), 52H, 235(2), 236, Sch 3 Pt 1 Aboriginal Land Rights Regulations 2002, cl 88 Consumer, Trader and Tenancy Tribunal Act 2001, s 22 Interpretation Act 1987, s 33 Land and Environment Court Act 1979, ss 20(1)(dd), (2) and (3) Real Property Act 1900, Pt 7 Div 2 Residential Tenancies Act 1987, ss 3, 13, 14, 18, 53, 58, 64, 71 Supreme Court Act 1970, s 66(1) Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Anderson v Jali Local Aboriginal Land Council [2009] NSWLEC 162 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Laurie v NSW Aboriginal Land Council [2010] NSWCA 199; (2010) 175 LGERA 247 Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minster Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 Category: Principal judgment Parties: Mr Jeffery Woods (Applicant)