Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Association Inc [2003] NSWSC 152 (10 March 2003)

Last Updated: 17 March 2003

NEW SOUTH WALES SUPREME COURT

CITATION: Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Association Inc [2003] NSWSC 152



CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1877/02

HEARING DATE{S): 10 March 2003

JUDGMENT DATE: 10/03/2003

PARTIES:
Metropolitan Local Aboriginal Land Council (P)
Metropolitan Aboriginal Association Incorporated (D)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
J C Kelly SC and R A Dick (P)
I E Davidson and A V Gruzman (D)

SOLICITORS:
Clayton Utz (P)
Stephen Varvaressos and Assocs (D)


CATCHWORDS:
PROCEDURE [89] - Supreme Court procedure - Procedure under Supreme Court Rules - Parties - Joinder and addition of parties - Joinder of all persons interested in subject matter.

ACTS CITED:


DECISION:
Second defendant joined.


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


HAMILTON J

MONDAY, 10 MARCH 2003


1877/02 METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL v METROPOLITAN ABORIGINAL ASSOCIATION INCORPORATED

JUDGMENT

1 HIS HONOUR: Before me is an application of the Indigenous Land Corporation (“the ILC”) to be joined as the second defendant in these proceedings. The application is made very late in the day, as the ILC obviously has had some wind of these proceedings for a long time. However, in light of what follows, nothing more need be said about that.

2 The relevance of ILC to the proceedings is clear enough. It made a deed of grant of the property which is central to these proceedings to the present defendant. By virtue of the provisions of the deed of grant, there are a number of circumstances in which the defendant may be obliged to transfer the property back to the ILC. Those include non compliance with the terms of the deed of grant, failure to comply with the terms of the Eora Trust deed which applies to the property, the winding up of the defendant and the winding up of the Eora Trust. In these proceedings, the plaintiff makes allegations of failures to comply with the deed of grant and with the terms of the Eora Trust deed and it claims as one head of relief which it may press the winding up of the defendant.

3 Two important facts are clear in relation this application. The first is that, in these circumstances set out above, the interest of the ILC in the subject matter of the proceedings is plain and the importance of having it present to make submissions as to various things that may flow, after the evidence in the case is complete, is again equally obvious. It is no doubt by reason of this fact that the second important fact arises, and that is that both the plaintiff and the defendant, after some hesitation when the application was initially brought forward this morning, now consent to the application being granted.

4 In those circumstances I propose to order that the ILC be joined as second defendant in the proceedings. Mr Lo Surdo, of counsel for the ILC, did ask for leave to file a cross claim. However, by reason of his and its recent arrival in the matter, he cannot at the moment formulate the cross claim or, indeed, be certain of the necessity for one. In those circumstances, I think it is better to do nothing but note that he has raised the subject, to the end that the ILC will make application later in the proceedings to file a cross claim, if it be so advised.

5 The plaintiff and the defendant did both ask that a stipulation be placed on the joinder of the ILC as the second defendant, that that joinder be at its own risk as to costs. I do not think it appropriate in the present circumstances to make an order which would preclude it seeking an order for its costs in all possible future circumstances. I think it much better that the question of its entitlement to costs be sorted out at a later time in light of how the proceedings fall out, but always bearing in mind, insofar as it appears material, the lateness of its application to be joined. I therefore propose to reserve all questions of costs.

6 On the ILC's motion, the orders of the Court will be:
(1) I order that the ILC be joined as the second defendant to the proceedings.
(2) I order that all questions of costs arising from the notice of motion from the joinder of the ILC as second defendant and as to its costs of the proceedings generally be reserved.


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LAST UPDATED: 13/03/2003