Editors --- "Mason v Wagonga Local Aboriginal Land Council - Case Summary" [2002] AUIndigLawRpr 41; (2002) 7(3) Australian Indigenous Law Reporter 13

• Mason V Wagonga Local Aboriginal Land Council
• Facts:
• Held, Dismissing The Application:

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Court and Tribunal Decisions – Australia

Mason v Wagonga Local Aboriginal Land Council

New South Wales Supreme Court (Gzell J)

29 April 2002

[2002] NSWSC 351; BC200202011

Aboriginal and Torres Strait Islanders — Local Aboriginal Land Council — promise to provide house and land — proprietary estoppel — damages in lieu — breach of fiduciary duty — negligence — statutory immunity — Aboriginal Land Rights Act 1983 (NSW) ss 12(1), 13(6), 54 — Aboriginal Land Rights Regulation 1983 regs 17B 32(1) sch 3 Cl 5

Facts:

The plaintiffs alleged that in a series of conversations in 1987 and 1988 the second defendant, who was the chairman of the first defendant, promised that the first defendant would provide them with a house and land in its area at Reedy Creek, specifically Lot 181 on Deposited Plan 720057 (Lot 181). The plaintiffs were allowed to camp in a shed on Lot 181, where in June 1991 severe flooding occurred, resulting in the plaintiffs being diagnosed with, among other things, post-traumatic stress disorder and an adjustment disorder with depressed mood. By 1993, the plaintiffs had cleared an alternative site on Lot 181 and built a log cabin there, using timber felled in the area. However, because of the lack of a final site clearance by the Department of Housing, the first defendant decided instead to spot purchase a property at Dalmeny for the male plaintiff, which the male plaintiff denied ever having been offered. Following a meeting of the first defendant in June 1993, the male plaintiff was served with a notice of eviction. The plaintiffs sought equitable compensation, equitable damages or damages on the basis of equitable estoppel, breach of fiduciary duty and negligence.

Held, dismissing the application:

1. Gzell J: As a non-Aboriginal person, the female plaintiff could not expect any interest in Lot 181 to be granted to her. Her cause of action against both defendants thus fails. The conversations alleged to have occurred in 1987 and 1988 did not take place, and this finding is fatal to the male plaintiff’s claim in estoppel. Moreover, the male plaintiff did not act to his detriment upon the faith of the alleged promise of the first defendant. He was not asked nor encouraged to do any land clearing: [38]. Ramsden v Dyson (1866) LR 1 HL 129 applied; Crabb v Arun District Council [1976] Ch 179 considered; Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1987-1988) 164 CLR 387 applied.

2. The plaintiffs’ claim to proprietary estoppel is also faced with the problem that the first defendant could not grant any interest in a house on Lot 181 until Department of Housing approval had been given for its construction. As a result, any expectation they had as to being able to remain on the land flowed not from the actions of the defendants, but from their own assessment of the likelihood of approval being given: [39]. Hayden v Mitchell (1986) 60 LGRA 123 considered.

3. There must be a proportionality between the remedy and the detriment. Detriment may include psychological harm, and stress and strain may be sufficient to hold a party to the assumptions engendered in another. In this case, however, the psychiatric evidence attributed the bulk of the disorders of the plaintiffs to the flood and not any assumed state of affairs induced by the defendants: [40]. The Commonwealth v Verwayen (1990) 170 CLR 394 cited; The Commonwealth v Clark [1994] VicRp 66; [1994] 2 VR 333 cited.

4. The fact that the male plaintiff was offered the house the subject of the spot purchase at Dalmeny is another bar to relief. While not a house in the bush, it was sufficiently proximate to the land with which the male plaintiff had affinity to constitute a reasonable alternative: [41].

5. Fiduciary duties other than those arising from the relationship of principal and agent arise where there is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other, but the authorities provide no comprehensive statement of criteria by reference to which the existence of a fiduciary relationship may be established. If there was a general fiduciary relationship owed by the first defendant to its members, there was no breach of it with respect to the plaintiff. The spot purchase by the first defendant did not constitute a capricious or unreasonable act. Nor was there any evidence that the second defendant frustrated the implementation of the resolutions of the first defendant or that he, without authority of the first defendant, withdrew its consent to the provision of any package to the plaintiffs: [43], [44]. Breen v Williams (1995-1996) 186 CLR 71 cited; Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 cited; Bromley London Borough Council v Greater London Council [1983] 1 AC 768 considered; IW v City of Perth [1997] HCA 30; (1996-1997) 191 CLR 1 considered.

6. A local authority does have a duty of care once a subdivision has been approved to give effect to the approval and to do so with due diligence and within a reasonable time. However, in this case the relevant housing programme was administered, not by the first defendant, but by the Department of Housing. Furthermore, there is no basis for a finding that the first defendant procrastinated in its endeavours to achieve the construction of the house on Lot 181: [46]. Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 distinguished.

7. Provisions such as s 54 of the Aboriginal Land Rights Act 1983 (NSW), which grants, subject to certain provisos, a statutory immunity against an action, liability, claim or demand to any member of an Aboriginal Land Council for anything done by an Aboriginal Land Council, must be construed so that they are not carried further than a jealous interpretation would allow. However, even if the above findings regarding estoppel, fiduciary duty and negligence were wrong, the plaintiffs’ claims would have been dismissed in reliance upon s 54: [49]. Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105 cited; Puntotiero v Water Corporation [1999] HCA 45; (2000) 199 CLR 575 cited.??