Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCATrans 188 (16 May 2008)

Last Updated: 20 May 2008

[2008] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S535 of 2007

B e t w e e n -

MINISTER ADMINISTERING THE CROWN LANDS ACT

Applicant

and

NSW ABORIGINAL LAND COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 MAY 2008, AT 11.19 AM

Copyright in the High Court of Australia

MR M.J. LEEMING, SC: May it please the Court, I appear with my learned friend, MR J.A. WATERS, for the applicant. (instructed by Crown Solicitor’s Office)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR M.L. WRIGHT for the respondent. (instructed by Chalk & Fitzgerald)

GUMMOW J: We would like to hear from you first, Mr Gageler.

MR GAGELER: Once you accept as everyone does that the word “used” in section 36(1)(b) of the Act means actual use or use in fact, and once you accept, as you really have to, that when section 36(1)(b) is referring to use - it is referring to something that is different from sale or lease which is specifically referred to in section 36(1)(a) - then it really does not matter whether you regard this case on the facts as a clear-cut case, which was the approach of the President, or as a borderline case, which is what one of the other members of the Court of Appeal said.

There is not much doubt that the Court of Appeal was correct in concluding on an appeal on the question of law that the trial judge made an error of law. The error on the part of the trial judge, your Honours, is that identified by President Mason at page 49, at about line 40, where he said, in our submission, correctly characterising the approach of the trial judge:

The dispositive finding of the primary judge was that the decision to sell was itself the actual use of the land and this was accompanied with a finding that all other use was “passive in the sense the land was not physically being used apart from storage of some furniture”.

But the critical finding, the dispositive finding was that “the decision to sell was itself the actual use of the land”. As his Honour here points out, and he points it out here and it needs to be read with some of the facts that he states at the bottom of page 37, what had happened was that there had been a decision to sell, and there had been what his Honour describes quite clearly as some legal preliminaries within the Department to effect the sale in respect of which the decision had been made.

That had happened. But critically, the facts were, and these are the ones recorded at the bottom of page 37: the site had “been vacant for a number of years”; the building had “fallen into a state of disrepair”; the building had “been identified as being surplus” to requirements; and the building ended up being sold simply because there was no reason to keep it. It is those facts, the ones recorded at the bottom of page 37 that meant, critically, that the land was not being used.

What the Court of Appeal was saying was in those circumstances the mere fact that you then have a decision to sell plus some legal preliminaries is not sufficient to show that the land was being used in fact. Our learned friends in their written submissions want to say that there was use in fact that consisted of the deployment of the land. That is the way it has been put.

GUMMOW J: I am looking at the applicant’s reply on page 138, paragraph 2, that there was a “decision to sell the land at auction”.

MR GAGELER: Yes. They had made a decision, there are a few minutes flying around, there are a few instruments. Some of them are in drafts; some of them have been gazetted. There was a process that within the Department had begun that the land had been sitting there idle for years. Nothing had happened to the land. In those circumstances, your Honour, when you had nothing more than a decision to sell and a bit of paperwork being started, it is a bit of a stretch to say that there was, in those circumstances, a deployment of the land for sale.

In any event, the real basis upon which Justice Biscoe decided the case is really that identified by Justice Mason. In saying that a mere decision to sell is use of land, in our submission, Justice Biscoe was clearly wrong. Now, undoubtedly, when one gets to the decision of the Court of Appeal and having found Justice Biscoe to be wrong, their Honours took a different view of the facts. It may be that minds could differ on how much activity is enough.

HEYDON J: They certainly have. No judge agrees with any other judge.

MR GAGELER: Maybe so, and maybe there will be a fight in another case. All this case decides is that a decision to sell with a bit of preliminary paperwork does not itself make land claimable Crown land. In that respect, this case is undoubtedly correctly decided by the Court of Appeal. If the Court pleases.

GUMMOW J: Yes, Mr Leeming.

MR LEEMING: Your Honours were taken to page 49 of the application book, paragraph 53 of the President’s reasons. We agree that that encapsulates the key error that his Honour made. With great respect to his Honour, his Honour has imperfectly recorded the findings of the trial judge. The citation is correct, paragraph 67 of the primary judgment. But the case was not run and was not decided by the primary judge on the basis put by his Honour Justice Mason. The imperfect and selective quotation of paragraph 67 which is the bottom application book 22, his Honour the primary judge said:

the decision to sell the subject land and the steps taken in furtherance of that intention were an actual use of the land –

Justice Mason and my learned friend missed those things.

The second thing that came from my learned friend’s submission was that it was said there were just bits of paper shuffling about after the decision had been made by the director-general. That deflects the error that appears in paragraph 54 of the President’s judgment, where his Honour says that “Biscoe J’s findings did not establish that any steps were taken on site by way of preparing the land for sale.” Not so. What his Honour held, completely uncontroversially, at paragraph 36 on application book page 14, was that a survey had been carried out after that decision.

In paragraph 40, on page 15, after a process of expressions of interest amongst all real estate agents in the town, LJ Hooker being selected, the keys are being handed over the LJ Hooker. Plainly LJ Hooker had been on the site and had recommended a general cleanup. It is completely true of course that because the claim was lodged some six weeks before the date that had been determined for the sale - your Honours can see that in paragraph 43 in Justice Biscoe’s reasons on page 15 - 8 July 2005, that the gazette had already been written by the time 23 May 2005 when the claim had been made. The “For Sale” sign had not gone up, because the agent had said, we will have a full week period for inspection leading up to an auction on 8 July.

Those were the additional matters going beyond the pure decision that Justice Biscoe held amounted to lawful use. Why it is essential, we say, and why, contrary to my learned friends, this does have sufficient prospects of success, is that taking the limited view that Justice Mason had in the Court of Appeal that this was just about the decision to sell, his Honour, with respect, has not appreciated the difference carefully drawn in the key section in 36(1) of the Aboriginal Land Rights Act 1983. The distinction, his Honour says, for example, in paragraph 55, use by sale cannot fall within the exclusion in 36(1)(b).

Perhaps I should slow down. Section 36(1), the key definition of “claimable Crown lands” has one inclusive limb in paragraph (a), so that the land to fall within the definition must be “able to be lawfully sold or leased”. Also, it must not fall within any of the five exclusionary readings in (b) to (e). The only one that matters is (b). The President and Justice Tobias took the view contrary to Justices Biscoe and Giles that if lawful use included sale and activities to effectuate the decision to sell, then there was a necessary contradiction between paragraphs (a) and (b). That is the essence of the reading.

There is no necessary contradiction, because quite plainly, we would say, (a) talks about an ability, a capacity, lawfully to sell the land; (b) talks about the exercise of that capacity. The distinction, on the one hand, is, is the land capable of being sold or leased? Yes, of course it was. But it is outside the scope of claimable Crown lands if, as here, that capacity was in fact lawfully being used. The findings of the trial judge make it plain that that was the case.

GUMMOW J: What was the nature of the proceeding in the Court of Appeal?

MR LEEMING: It was an appeal pursuant to section 57 of the Land and Environment Court Act. That is confined to points of law. There is a reference in paragraph 53 of Justice Mason’s reasons to there being no notice of contention. It is true that in the Court of Appeal I was pointing not merely to the decision to sell but also the other things that had happened, limited as they were: the survey, the handing over of the keys, the actual physical acts which had happened on the land. That is in accordance with the findings of Justice Biscoe that I will take the Court to.

GUMMOW J: We do not need to call on you any more, Mr Leeming. Is there anything you want to say, Mr Gageler?

MR GAGELER: Yes, I did want to say something.

HEYDON J: Do you not know the score, Mr Gageler?

MR GAGELER: I do not keep those statistics. Your Honours, Justice Mason’s characterisation, the finding of the trial judge that your Honours have been taken to at page 60 is exactly the same characterisation of the finding and error of the trial judge that one sees – I am sorry. I am getting these page numbers mixed up.

HEYDON J: It is not page 60?

MR GAGELER: Yes, page 60 at the bottom of the page. I think I might have said page 49 at the top of the page, but that is where his Honour refers to - - -

HEYDON J: No, it is not page 60. Page 60 is a court document.

MR GAGELER: I am so sorry - page 49, your Honours. His characterisation of the dispositive finding being in error is exactly the same as Justice Giles’ finding at page 55, line 30 of the dispositive finding of the trial judge being in error. What this case stands for is the proposition that it
is an error of law to treat a mere decision to sell as itself actual use of land, that is, the holding. It goes no further than that. This case does not decide, it leaves for another day, the question of whether things that are done in the course of selling land may rise to the level of themselves constituting use of land. If the Court pleases.

GUMMOW J: There will be a grant of special leave in this matter. Is a half day a reasonable estimate?

MR GAGELER: Yes, your Honour.

AT 11.34 AM THE MATTER WAS CONCLUDED