Supreme Court New South Wales Medium Neutral Citation: Armidale Local Aboriginal Lands Council v Moran [2018] NSWSC 1133 Hearing dates: 17 July 2018 and 19 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Declare that the Defendant has no present right to enter, occupy, or remain upon the land comprised in folio identifier X/XXXXXX, being the land located at XX - XX XXXX XXXXX Road in Armidale, New South Wales. (2) Order that the Defendant, and by her servants and agents, be restrained from entering, occupying, or remaining upon the Property comprised in folio identifier X/XXXXXX being the land at XX - XX XXXX XXXXXX Road, Armidale on a permanent basis. (3) Order that the Defendant and any other person in occupation of, or present on, the Occupied Land give vacant possession to the Plaintiff within five (5) days. (4) Unless the parties approach within 7 days to be heard, Ms Moran is ordered to pay the Armidale Local Aboriginal Lands Council costs, as agreed or assessed. Catchwords: POSSESSION OF LAND – trespass – trespass to land – declaration sought that plaintiff has no right to enter, occupy, or remain on land – orders made – costs Legislation Cited: Inclosed Lands Protections Act (1901) (NSW) Real Property Act 1900 (NSW) Cases Cited: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155 Armidale Local Aboriginal Lands Council v Moran (Supreme Court (NSW), Fagan J, 11 July 2018, unrep) Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 Windridge Farm Pty Limited v Grassi & Ors [2011] NSWSC 196 Category: Principal judgment Parties: Armidale Local Aboriginal Lands Council (Plaintiff) Kerry Archibald Moran (Defendant) Representation: Counsel: Mr D C Eardley (Plaintiff) Solicitors: Legal Minds (Plaintiff) Ms Moran, unrepresented (Defendant) File Number(s): 2018/213158 Publication restriction: Nil Judgment 1. On 11 July 2018, Fagan J made orders listing this matter for urgent hearing on 17 July, observing that the Armidale Local Aboriginal Lands Council was seeking a declaration that Ms Moran had no right to enter, occupy, or remain on land of which it is the registered proprietor at Armidale, where she seemed to be squatting. It appeared that the building had been seriously damaged by fire, making its occupation hazardous, with the result that approval for its demolition had been obtained from the Regional Council and contractors engaged by the Lands Council, so that the demolition work could be undertaken. Nevertheless, Ms Moran refused to vacate the premises: Armidale Local Aboriginal Lands Council v Moran (Supreme Court (NSW), Fagan J, 11 July 2018, unrep). 2. Fagan J observed that on the material relied on by the Lands Council, there did not seem to be any basis upon which Ms Moran could claim a right to possession of the property, but the steps it had pursued to have police deal with her apparent breach of s 4 of the Inclosed Lands Protections Act (1901) (NSW) had not been successful, for reasons which were not apparent. Accordingly, the Lands Council brought these proceedings, to seek declaratory relief. The matter was listed for urgent hearing on 17 July. 3. The hearing that day was adjourned to 19 July, there having been no appearance for the Lands Council in circumstances where, as the result of an administrative error, it had been given written notification that the hearing had been vacated and the matter listed later in the month before the Equity Registrar. 4. Prior to the 17 July hearing, Ms Moran had approached the Local Court at Armidale for assistance. The result was that a bundle of documents were emailed to my Associate, which she relied on at the final hearing. They included a handwritten document in which reference was made to a Building Inspector, Mr Rees, of Armidale Regional Council; the application for demolition of the building; copies of documents relating to apprehended violence orders sought by Ms Moran in relation to Mr Briggs, the Land Council's chief executive officer; correspondence sent in June by the Armidale Regional council to Ms Moran, about the complying development application lodged by the Land Council, which proposed the demolition of the building, which had been approved; and a copy of a complaint made to the Land Council, by Ms Moran about alleged fraud and corruption, as well as a complaint to the Judicial Commission of NSW. 5. Ms Moran also mailed another bundle of documents to the Court, which contained some of the same documents, as well as other documents, including photographs of the building and documents referring to 000 calls which she had made. 6. At the hearing affidavits sworn by Mr Briggs and Mr Doyle, employed by the Land Council's solicitors, by which it sought to establish the Land Council's title to the property and the service of the documents relied on, were received over Ms Moran's objections. The basis of these objections were that she disagreed with what was there deposed, advancing serious allegations as to lies, corruption and forgery. Ms Moran was given the opportunity to cross-examine Mr Briggs and Mr Doyle about these allegations, which she declined. 7. Ms Moran then gave oral evidence in which she spoke of how she had come to live at the property, which she described as then being unsafe, unfenced and in a very dangerous condition. She claimed that she had been given authority to move into the property by "the family", but there is no evidence as to anyone other than the Lands Council, who is its registered proprietor, having the right to give Ms Moran such authority. 8. Ms Moran also claimed that the property had been owned by her grandparents, Frank and Sarah Archibald and that under a "family will", "the house and the land be passed down to family generations of descendants". Ms Moran did not tender a copy of such a document. Neither its existence, nor its terms, were established by her evidence. Further, while there was in evidence a copy of an application which Ms Moran had made to the Regional Council for permission to renovate the building, which is undated, but was perhaps lodged in 2017-18, with an accompanying power of attorney, there was no evidence that her application had ever been granted. 9. Ms Moran also described her objection to photographs of the house and her standing near it being taken, with the result that she made a 000 call, having felt threatened and intimidated and the photography having breached her privacy. She also claimed that what had occurred was in breach of an AVO, but the documents she tendered did not establish the existence of any AVO. The photographs were, however, then tendered without her objection and it was confirmed that she was not depicted in them 10. In the result, it must be concluded that on the evidence, the Lands Council has established both its title to the property and its right to the relief which it pressed at the hearing. Section 42 of the Real Property Act 1900 (NSW) provides the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register, except in case of fraud and subject to such other estates and interests and such entries, if any, as are recorded in that folio, holds title otherwise "absolutely free from all other estates and interests that are not so recorded". There are statutory exceptions provided in s 42, but Ms Moran did not seek to establish any of those. 11. Ms Moran did make allegations as to fraud, but neither the documents she relied on, the evidence which she gave, nor the case which she advanced, establish any fraud. Nor has Ms Moran established that she has any relevant interest in the property the subject of these proceedings, of which the Lands Council is the registered proprietor. In the result, she has also not established any basis upon which the Court could refuse to exercise its discretion to grant the relief finally pressed. 12. On the evidence the building is in a dangerous condition, having been damaged by fire. The Lands Council having obtained advice as to its condition from the TAFE Building Unit, an application was made to the Regional Council for permission to demolish the building. That application was granted. That the Lands Council has a legitimate basis for concern as to the danger which this building poses, must be accepted. 13. Ms Moran described the connection which she felt to the property and her desire not to lose her home, which can be accepted, but that is not a basis on which the Court can justly refuse the Land Council's application in relation to the property of which it is the legal owner and she is not. In the result the Lands Council is entitled to relief, Ms Moran being a trespasser at law: Plenty v Dillon (1991) 171 CLR 635 at 655; [1991] HCA 5; Windridge Farm Pty Limited v Grassi & Ors [2011] NSWSC 196 at [146]. That can be so in a case such as this, where Ms Moran is acting under a mistake as to her right to enter and remain on the property: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155 at [2]. 14. Further, while her submissions were undoubtedly deeply felt, by her evidence Ms Moran has not established any basis for the serious allegations she advanced about matters such as lies, forgery, corrupt written documents, corrupt verbal conversations or corrupt meetings or gatherings of groups and people. Nor was there a basis established for the criticism she directed at police or the office of the Attorney General, or for her allegations of racial prejudice, coercion and withholding of evidence at trial. 15. In the circumstances, the Land Council having established its title in the property, that Ms Moran has no right to remain there and that it has given her notice that she must vacate the property, which she has refused to comply with, I am satisfied that the declarations sought must be made. Costs 1. The usual order under the Rules as to costs is that they follow the event with the result in this case, that Ms Moran must be ordered to pay the Land Council's costs, as agreed or assessed. Unless the parties approach within 7 days to be heard, that will be the Court's order. Orders 1. For these reasons I make the orders pressed: 1. Declare that the Defendant has no present right to enter, occupy, or remain upon the land comprised in folio identifier X/XXXXXX, being the land located at XX - XX XXXX XXXXX Road in Armidale, New South Wales. 2. Order that the Defendant, and by her servants and agents, be restrained from entering, occupying, or remaining upon the Property comprised in folio identifier X/XXXXXX being the land at XX - XX XXXX XXXXX Road, Armidale on a permanent basis. 3. Order that the Defendant and any other person in occupation of, or present on, the Occupied Land give vacant possession to the Plaintiff within five (5) days. 4. Unless the parties approach within 7 days to be heard, Ms Moran is ordered to pay the Armidale Local Aboriginal Lands Council 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: 20 July 2018