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Supreme Court of Victoria |
Last Updated: 1 August 2014
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
BETWEEN:
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Plaintiff
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BILLY JOE MCGUINESS
- and -
JAYMEE-LEE CHATFIELD |
First Defendant
Second Defendant |
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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LAND – Summary recovery – Appeal from decision of Associate Justice – Aboriginal Trust – Defendants occupying property – Whether licence, consent or permission of committee of management – Views of Aboriginal Elders – Related oppression proceedings concerning the committee of management – Whether error in Associate Justice’s order dismissing application for summary order for recovery of land – Appeal dismissed – Aboriginal Lands Act 1970 (Vic) ss 16, 23, Supreme Court (General Civil Procedure) Rules 2005 O 53.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Stratmann & Co
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For the Defendants
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Shayne Daley & Associates
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1 The Framlingham Aboriginal Trust (“the Trust”) seeks leave to appeal from a decision of Derham AsJ refusing it an order for possession of property at 39 Warrumyea Road, Purnim. That order was sought under Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”). The originating motion was filed on 23 December 2013.
2 The Associate Justice referred in his reasons under the heading ‘Decision’ to the following matters as justifying his decision not to grant the order that the Trust sought, but rather to set the proceeding down for hearing:
The Trust is, in effect, requesting the Court to resolve seriously disputed questions in a summary application where there is a lack of clarity as to:(a) The impact of the customs and practices of the Framlingham Aboriginal community on the occupation of the Property by the defendants, and whether a decision of the Elders of the community giving permission to the defendants to occupy the property may result in there being a licence or consent of the Trust pending any decision of the committee of management;
(b) The authority of the Trust to commence the proceeding;
(c) The bona fides of any decision (if made) of the committee of management to commence the proceeding in circumstances where that decision may not be saved by s 16(2) of the Act if there is a subsequent spill of the committee as a result of the Oppression Proceeding; and
(d) The ability of the Trust to complete its renovations of the house on the Property whilst the defendants are in occupation.
In light of these matters, in my view it is inappropriate to proceed further in a summary hearing in an attempt to resolve any of these issues between the parties. It is not possible to resolve the factual and legal issues readily and fairly in a summary application.[1]
3 Both parties assumed that leave to appeal was required, but in my opinion it is not: see ss 17(3) and 17A(2) of the Supreme Court Act 1986 and r 77.06(1)(b) of the Rules. The Trust had a right of appeal from the Associate Justice’s order.[2] To succeed it must establish that His Honour’s order was the result of error.
4 Initially, the defendants submitted that the appeal had not been brought within time. Nothing more need be said about that point because the defendants did not oppose the grant of any necessary extension of time and, in any event, without opposition from the defendants, I gave the plaintiffs leave to file an Amended Notice of Appeal.
5 Order 53 states under the heading “Summary Proceeding for Recovery of Land”:
(1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff.(2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.
6 His Honour stated the following propositions that applied to the exercise of the power contained in Order 53 and which the parties did not dispute:
(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;(b) It is intended to apply only in clear cases where there is no question to try;
(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly;
(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;
(e) The jurisdiction should be exercised with great care;
(f) Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules; and
(g) Where the Court gives judgment for possession under Order 53, it may grant a stay of execution. (Citations omitted.)
7 Brooking J described how the jurisdiction conferred by Order 53 is to be exercised in Palazzo v Pullen:[3]
[T]his Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, ie where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto.
8 In Tolhurst Druce & Emmerson (a firm) v Maryvell Investments Pty Ltd (in liq)[4] Dodds-Streeton J stated:
Order 53 of the Supreme Court Rules provides for a summary procedure for the recovery of land, which is usually reserved for relatively clear-cut cases in which the defendant occupier has no arguable defence and there is no reasonable doubt as to the plaintiff’s claim to possession.
The legislation
9 The Framlingham Aboriginal Trust is established under the provisions of the Aboriginal Lands Act 1970 (Vic) (“the Act”). Sections 10 and 11(1)(c) give the Trust power to purchase and lease land. The Trust has members who hold shares. The members are to be recorded in a register: ss 12(6) and 13. Seven persons were to be elected at the first general meeting of the Trust to form a committee of management. The members in general meeting fill vacancies in the committee of management: s 15(2). It is not necessary for a member of a committee of management of a Trust to be a member of the Trust. Section 16 is a key provision for the purposes of this proceeding. It states:
Committee to act on behalf of Trust
(1) Subject to this Act, the powers and functions of a Trust may be exercised on its behalf by its committee of management and not otherwise, but a committee of management shall comply with the terms and conditions of any resolution relating to the powers and functions of the Trust passed at a general meeting of the Trust.(2) All acts done in good faith by a committee of management shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment or continuance in office of any member be as valid as if the member had been duly appointed or had duly continued in office.
(3) Notwithstanding anything to the contrary in subsection (1), a Trust shall be bound by everything done by its committee of management which it is lawful for the Trust to do, and no person dealing with the Trust shall be concerned to inquire in relation to any such act whether the committee is authorized to act as it does.
10 Sections 22 and 23 deal with general meetings of a Trust, which may be held at any time. Section 23(4) provides that:
The quorum for a general meeting shall be one-half of the persons entitled to vote at the meeting who are residents of the reserve on the day the meeting was called in accordance with section 22(4).
11 Section 27 provides remedies for persons aggrieved in the conduct of the affairs of the Trust. It provides:
(1) A member of a Trust who complains that the affairs of the Trust are being conducted in a manner oppressive to one or more of the members (including himself) may apply to the Supreme Court for an order under this section and, if the Court is of the opinion that the affairs of the Trust are being so conducted and that it would be just and equitable to make an order under this section, the Court may make such order as the Court thinks fit whether for regulating the affairs of the Trust in future or for the purchase of the shares of any members by other members or by the Trust, or otherwise.(2) Any person (whether a member of a Trust or not) who is aggrieved by anything which the Trust has done or failed to do in contravention of this Act may apply to the Supreme Court for an order under this section and, if the Court is of the opinion that the Trust has contravened this Act and that the person aggrieved has suffered injustice on that account, the Court may make such order as appears to the Court to be necessary to give proper relief to the person aggrieved.
The facts before the Associate Justice
12 The Trust’s application was supported by the affidavits of Bruce Campbell, the Chief Executive Officer of the Trust, and affidavits of Sarah Young, a solicitor in the employ of the Trust’s solicitors.
13 The property is one of 17 domestic residential houses located in the Trust grant. The Trust also controls four other residential properties, which are occupied by Aboriginal families. The property now occupied by Mr Billy Joe McGuiness, who is the first defendant, is the only untenanted property on the Trust lands.
14 On 16 December 2013, the defendants entered into occupation of the property and have refused to leave. On 17 December 2013, Mr Campbell caused a notice of trespass to be delivered to the property, which stated that the defendants were in illegal occupation of the premises and demanded that they remove themselves and their goods from the property, but they have not complied with those demands. Legal proceedings were threatened if the demands were not met. On the next day, he personally served a copy of the notice on the second defendant and affixed a copy to the front of the house.
15 Mr Campbell states that the defendants have not been given a lease, licence or consent by the committee of management to occupy the property.
16 Mr Campbell says that the Trust has a waiting list for the occupation of its domestic premises and that housing on the Trust lands is much sought after by the Aboriginal families having connection to them. Currently six Aboriginal families are on the waiting list, the earliest having been on this list since February 2012, whereas the defendants only joined the waiting list on 3 December 2013. Mr Campbell states that the allocation of housing is determined by the committee of management taking into account, inter alia, the length of time on the waiting list, the size of the house, the suitability of the applicant to community life, the ability to sustain community harmony and any previous tenancy issues.
17 He exhibited the Housing Policies & Procedures of the Trust to his first affidavit. Under the heading 1.1.2 Making Allocation Decisions, that document states:
PolicyAll our houses are open for allocation and one family does not have priority over another for particular groups of houses.
Procedures
1. Committee and CEO interview prospective tenants.
18 The document states that this form of the clause ‘Making Allocation Decisions’ was approved by the committee of management in October 2013, although that may refer only to the most recent version or reprint of the clause.
19 The property was previously leased until June 2013 and substantial sums have been spent on its renovation since then. It had a structural fault and a further week of renovations is still required. It was locked during the renovations. It is a four bedroom house and represents one of the most desirable properties under the Trust’s control. Mr Campbell says that much unhappiness, disruption and aggravation has occurred as a result of “this illegal occupation by persons who are unwilling to take part in the Community’s process of allocation”.
20 Mr Campbell states that the defendants have lived for at least a year in another large four bedroom property belonging to the Trust, which is tenanted by Mr McGuiness’ mother and that the Trust has no objection to that arrangement. He in effect says that there was no reason for the defendants to have been living in a shed, as Mr McGuiness says was the case, because the other house has four bedrooms and his mother and her daughters are the other occupants.
21 Mr Campbell alleges that Mr McGuiness “has conducted himself with threats of violence and aggressive behavior. This conduct has been directed at myself in recent months”.
22 The first defendant, Mr McGuiness, made an affidavit on his own behalf and on behalf of the second defendant, Ms Jaymee-Lee Chatfield, in which he denies that he entered the property without consent or permission. He says that numerous Aboriginal Elders within the Framlingham community gave him permission to reside at the property. He also says that he has paid rent to the Trust and that the rent payments have not been returned.
23 Mr McGuiness states that, before moving into the property, he was living in a shed at his mother’s property with Ms Chatfield and their four year old daughter. There was no running water, toilet facilities or bathroom. He did not consider that the accommodation was suitable for his family and so, in late November 2013, he began to make enquiries as to the other potential accommodation that might be available for his family.
24 An Annual General Meeting of the Trust was scheduled to be held in Warrnambool on 16 December 2013. Mr McGuiness was present and, immediately before the commencement of the meeting, raised his housing situation with the Elders of the Aboriginal community, who were also in attendance. A group discussion amongst the Elders then occurred involving Jim Berg, Maise Davis, Bonnie Pedretti, Geoff Clark, Esma Berg and Brenda Chatfield-Clark. Mr McGuiness says that he explained his situation to them and that Jim Berg told him that he should move into the house on the property because it was suitable for his family and he would be close by to help his elderly grandmothers if they needed assistance. All the other Elders agreed with Jim Berg’s comments and said that he should move into the property.
25 Mr McGuiness went home and packed his belongings to move into the property. He says that the next day his father, Mr Greg McGuiness, told him that his grandmother and committee member, Shirley McGuiness, had also said that she wanted him to move into the property. He also spoke to his other grandmother, Brenda Chatfield-Clark, who is also a committee member, who told him that the rent on the property was $100 a week payable to the Trust bank account. He says that he made his first payment of rent on 3 January 2013 and has continued to pay rent on a weekly basis since and none of his payments have been declined.
26 He exhibited to his affidavit a “petition for Billy McGuiness to live at [the property],” which he says has been signed by numerous Elders and community members. He denies Mr Campbell’s allegation that he has behaved in a violent and aggressive manner and accuses another person of assaulting his father.
27 Mr McGuiness says that his family has a significant connection to the Framlingham Aboriginal Trust and to the Framlingham Aboriginal Reserve. He was born there and has lived there for various periods. He states that the properties in the reserve are held by the Trust for the benefit of Aboriginal families, who have an historic connection with the property and area. He says that the Trust and reserve are administered by Elders within the community, together with the committee of management. A general meeting of the Trust’s shareholders elects the committee of management. The most recent election of committee members was held on 16 December 2013, but he considers that it was not a proper meeting because some shareholders of the Trust were refused entry in the meeting to cast their votes.
28 He replies to Mr Campbell’s affidavit and states that from his knowledge and experience of living on the Framlingham Reserve, the committee of management has no formal decision making process for the allocation of housing. Rather, the practice of the past 20 years has been for families to move into housing with the permission and knowledge of the Elders of the Aboriginal community. He says that the current committee of management has recently purported to change this longstanding practice.
29 Mr Tim Chatfield, a member of the Framlingham Aboriginal Community and the registered holder of 500 shares in the Trust, made an affidavit which was filed on behalf of the defendants. He has been chairperson of Aboriginal Housing Victoria for the past seven years and is on “numerous indigenous bodies and corporations”. He was a member of the committee of management of the Trust from October 2011 until his resignation in mid-2013. He said that when he was a committee of management member he was concerned that the committee was not fulfilling its functions properly and said that it was subject to a number of conflicts of interest. He says that a key concern was that the committee appeared to be favouring the interests of their families and close supporters, rather than acting impartially for the benefit of the Framlingham Aboriginal community generally.
30 He refers to the Supreme Court proceedings that he commenced on 14 February 2014 with two other plaintiffs, against the Trust and another defendant, which claims that the election of the committee of management purportedly held on 16 December 2013 was conducted in a manner oppressive to members of the Trust, including the plaintiffs. I set out details of that proceeding below.
31 Mr Chatfield says that as part of the relief claimed in that proceeding, the plaintiffs will submit that a fresh election is required for the valid constitution of the whole committee of management. An election is required in any event, because the current committee has only five members and not the seven members required by the Act. He states that such an election could affect the attitude taken by the new committee to decisions of the incumbent committee of five members, including the question of whether the defendants should be evicted from their accommodation on the Framlingham Estate. He expresses the view that the final determination of these proceedings should be stayed or postponed until the determination of the Oppression Proceedings.
32 Mr Chatfield states that the Framlingham community comprises three families: the Clarks, the Harradines and the Chatfields. However, recently the Clark-Ugles have separated from the Clark family. Each family has its own area of housing within the Framlingham Estate. When a house became available for occupation in the family’s area, the Elders of the relevant family would decide which member of the family would be offered the house to live in. The committee of management would then effectively adopt the Elders’ decision. He says that the property had been vacant prior to the meeting of the committee of management on 16 December 2013. The property is within the Chatfield housing area. Mr McGuiness is part of the Chatfield family and was head of the list of Chatfield family members awaiting housing.
33 Mr Chatfield gave an account of the agreement of the Elders on 16 December 2013 to Mr McGuiness moving into the vacant property, which was similar to that contained in Mr McGuiness’ affidavit. He also says that two of the persons involved in the discussions were Elders of the Clark family and that Lionel Harradine, who is an Elder of the Harradine Family, was involved as well. He says that the house was the size that Mr McGuiness needed and, of great significance, its location meant that he could then help his grandmothers who lived nearby.
34 Mr Chatfield states that the decision by the committee to demand that Mr McGuiness vacate the property is the first time that he can remember the committee having sought to overturn a decision of a family’s Elders on a housing matter within that family’s housing area.
35 He alleges that bad blood has arisen between the Clark-Ugle family on the one hand, and the Chatfield and Clark families on the other, arising from the management of the committee which he says had become effectively controlled by the Clark-Ugle family and that it appeared to him that the committee was giving substantial favour to the Clark-Ugle family to the detriment of the other families. He considers that the committee’s actions to have Mr McGuiness removed from the property are in bad faith and are oppression against the other families.
36 Mr Campbell made an affidavit in reply in which he states that the committee of management is elected by the members of the Trust at a general meeting. Under s 23(4) the quorum is one-half of the persons entitled to vote at the meeting who are residents of the Framlingham Reserve on the day that the meeting was called. There were five members of the committee of management up to 16 December 2013 all of whom had lived at the Framlingham Reserve for many years. Two additional persons were elected as members of the committee of management on 16 December 2013, but they resigned the following day.
37 Mr Campbell states that Mr McGuiness had made a tenancy application, which was received by the Trust on about 3 December 2013. This suggests that he is aware of the Trust’s Housing Policies & Procedures. His application has not yet been dealt with by the committee as there has not yet been any meeting of the Trust’s committee of management. That may be due to the Supreme Court proceedings.
38 He states that a number of the Elders who are said to have given the defendants permission to move into the property do not live in the Framlingham community and are only occasional visitors. Two of them have been members of the committee of management and have been actively involved in the development of the housing policies and procedures, which the committee of management is applying in this case.
39 Mr Campbell states that he spoke to Mr McGuiness’ grandmother, who told him that she had never been asked about him being granted the lease to the house and has never said she wanted him to move into the property.
40 He states that even if the rent for the property was $100 a week, which he is unable to determine until he assesses the defendants’ financial circumstances, the defendants are in arrears in their payments.
41 Mr Campbell states that only one-third of the adults living on the Framlingham Reserve have signed the petition on which Mr McGuiness relies, and that 12 signatories are from non-Aboriginal people who do not live on the Framlingham Reserve.
42 Mr Campbell also states that because of the occupation by the defendants of the house on the property, the Trust has not been able to complete the renovations to it or to arrange for the necessary inspections and certifications to be undertaken to enable the receipt of $30,000.00 that is to be contributed by the Department of Housing for the work.
43 Mr McGuiness says that work can be carried out while he and the second defendant occupy the property.
44 Ms Sarah Young, who as stated is a solicitor in the employ of the Trust’s solicitors, exhibits to her affidavit letters sent to the defendants stating inter alia that payments received from them will be held in the solicitor’s trust account on account of damages for trespass pending resolution of the matter. The correspondence also expressed the Trust’s wish to resolve the matter amicably and without incurring unnecessary legal costs.
45 The Oppression Proceedings to which Mr Chatfield refers challenge the membership of the committee of management by five persons purporting to act as members.[5] That proceeding has been heard and judgment is reserved. The plaintiffs in that proceeding are Aaron Clark, Jeremy Clark and Tim Chatfield and the defendants are the Trust and Geoffrey (Possum) Clark-Ugle. The plaintiffs seek the following relief:
(1) a declaration that the purported Annual General Meeting of the Trust held on 16 December 2013 was contrary to the Act and was conducted in a manner oppressive to one or more of the members of the Trust (including the plaintiffs) and accordingly was null and void and of no effect;(2) a declaration that the election of all members of the committee of the Trust claimed to have been elected at the purported Annual General Meeting of the Trust held on 16 December 2013 was null and void and of no effect and should be set aside;
(3) a declaration that all incumbent members of the committee other than those claimed to have been elected at the purported Annual General Meeting of 16 December no longer validly hold office and that their asserted tenure of office be set aside;
(4) a declaration that, subject to any claim that the Trustee of the bankrupt estate of Geoffrey Wayne Clark may have in relation to the respective shareholdings of the first and second plaintiffs, each of the first and second plaintiffs is the legal and beneficial owner of 900 shares and 1,000 shares respectively in the Trust and is entitled to exercise all voting and other rights attaching to such shares;
(5) such orders, pursuant to s 27 of the Act [the Aboriginal Lands Act 1970 (Vic)] as this Honourable Court thinks fit for the holding of a further Annual General Meeting of the Trust in place of the purported Annual General Meeting held on 16 December 2013 and for the conduct of elections for all seven offices of a member of the committee of management of the Trust including directions as to the calling of nominations for such election, the manner of voting and the conduct of the poll (if any).
46 At one point in a directions hearing in the Oppression Proceedings, Robson J was advised that the defendants in this proceeding may seek to have it joined with the Oppression Proceedings. The Associate Justice was also advised of that possibility, but that step was not taken.
47 The plaintiff in submissions placed particular weight on the words of s 16(1) of the Act and especially the words “not otherwise”. It submitted that the defendants were only entitled to occupy the property if the committee of management had made a decision permitting them to do so. This proposition was the basis of ground of appeal 1(a).
48 The plaintiff submitted that the Act in ss 16 and 23 established a mechanism to preserve harmony on the housing estate by ensuring that the quorum at a general meeting was half of the persons entitled to vote who are residents on the reserve on the day the meeting was called in accordance with s 22(4). Section 23(4) of the Act makes occupation of the reserve a qualification in the election by shareholders of the committee of management. In so doing, the Act recognised that the management of the Trust lands requires the consent of the majority of resident shareholders and defines the circumstance in which occupation rights can be conferred by the Trust on applicants to the Trust for accommodation.
49 His Honour erred in finding that a grant of a lease or licence to occupy the land could be made by Aboriginal Elders. Even if such a right to occupy the land had been given by the Elders, it had been revoked on 17 and 18 December 2013, when the committee of management demanded that Mr McGuiness vacate the property. This was the basis of grounds of appeal 1(b), (c), (d) and (e).
50 The plaintiff also argued that His Honour erred in applying principles relevant to a summary judgment application under Order 22 to the procedure for the summary recovery of land under Order 53. This was the basis of ground of appeal 1(f).
51 The plaintiff further argued that the defendants have not established that they are in occupation of the land pursuant to a lease, licence or other permission. The defendants do not deny that they received a notice terminating any rights that they had and requiring them to vacate the property. The unilateral payment of rent does not constitute a lease or an agreement to lease and the payments made were not referable to the amount required for the rental of the four bedroom home. The Elders who are said to have given permission are not established as having actual or ostensible authority to do so.
52 As a discretionary consideration, it is not desirable or appropriate that outsiders unilaterally make decisions about the composition of residents on the reserve. The allegations and counter allegations of violence establish that the first defendant’s presence on the reserve is not conducive to harmony on it. The funds from the Department will not be released until the renovations have been completed.
53 Mr McGuiness has no assets and the resources of the Trust will be dissipated by protracted proceedings.
54 His Honour erred in finding that there is a seriously disputed question that had real prospects of success in respect of the matters set out in paragraphs 63(bi) and (bii) and 63(c) of His Honour’s reasons. This was the additional ground of appeal 1(g) added at the hearing. I have set out those paragraphs of His Honour’s reasons earlier in these reasons.
55 The defendants submitted that leave to appeal should not be granted. Order 53 should only apply in clear cases.
56 As the Act governs an Aboriginal reserve, Aboriginal custom and practice are relevant in resolving whether the defendants had permission/licence to occupy the property and to the governance of the Trust and its actions. His Honour was correct in that respect.
57 His Honour also found that there was a triable issue concerning whether the committee of management had authority to commence the ejectment proceedings or was acting in good faith. That was a matter which may only be addressed during cross-examination at trial.
58 The conclusions of fact stated below are expressed only for the purposes of this interlocutory application and obviously are not intended as final findings of fact.
59 In my opinion, the plaintiff has not established an error in the Associate Justice’s decision that affects the orders that were made.
60 I do not consider that this proceeding is appropriate for a summary order for possession of land under Order 53. The reasons for that conclusion overlap.
61 The plaintiff’s first ground of appeal is based on the effect of s 16(1) of the Act and the revocation on 17 and 18 December 2013 of any right of Mr McGuiness that had been given to him by the Elders to occupy the property.
62 I accept the Trust’s submission that under s 16 of the Act the powers and functions of the Trust may only be exercised by its committee of management. Those powers and functions cannot be exercised by Aboriginal Elders, but only by the committee of management.
63 There is a dispute about how the Trust usually allocates housing. There is the written policy to which I have referred and about which Mr Campbell gives evidence. However, there is also evidence from Mr McGuiness and from Mr Chatfield that the committee of management has always acted in accordance with the wishes of the Aboriginal Elders in respect of allocation of housing in their area of the Reserve. Mr McGuiness was the next person from his family group entitled to obtain the house that is the subject of this proceeding and that he now occupies. Mr McGuiness applied for housing on 3 December 2013. An election for members of the committee of management occurred on 16 December 2013. The committee of management has not yet considered his application. It has not yet met. The reason for this was not explained, but it may be because its activities and composition are under challenge in the Oppression Proceedings. The affidavit evidence suggests that the operation of the Trust is being adversely affected by family factional issues.
64 There is no evidence as to the scope of Mr Campbell’s authority to serve the notice of trespass. No documentation was put before the Court as to the authorisation by the committee of management of the bringing of this proceeding.
65 It is important to keep in mind the nature of the community that the Trust serves. The evidence suggests that there are three or four family groups for whom the Trust provides housing. I do not suggest that the requirements of s 16(1) can be overridden by a decision of the Elders, but the connection between the decisions of the Elders and the subsequent decisions of the committee of management is a factual matter which should be properly investigated.
66 On the evidence of Mr McGuiness and Mr Chatfield, there is an issue of fact as to the content of the committee of management’s Housing Policy. On their evidence if the committee had met since 16 December 2013 and applied previous practice it would have granted Mr McGuiness the tenancy of the house into which he has moved. On their evidence, the decision of the relevant Elders is given effect to by the committee. The Elders’ decision might be described as giving rise to an expectation of obtaining a right to possession, although it is not an enforceable legal right until there is a decision of the committee of management.
67 I keep in mind of course that Mr Campbell disputes Mr McGuiness’ account, and therefore Mr Chatfield’s account, of how the Trust Housing Policy operates. However, I am not able to make final findings of fact based on a conflict of affidavits. Rather, I am seeking to determine whether there are issues about whether the defendants have obtained a licence or consent to their occupation of the property that should go to trial.
68 I do not consider that there is any error in the Associate Justice’s conclusions that:
But whether by a decision of the Elders there can be a valid and enforceable licence or consent, at least pending a decision of the committee, is another matter that requires further evidence and cross-examination of the deponents on their affidavits.[6]
69 Mr McGuiness’ expectation that, in accordance with traditional practice, he is entitled to have the committee of management consent to his tenancy of the property has to be seen in the context of the Oppression Proceedings. The composition of the committee of management is under challenge in those proceedings. Those proceedings illustrate the dispute that exists between particular family groups associated with the Reserve. If the plaintiffs succeed in the Oppression Proceedings, then Mr Chatfield says that they will seek an election for a new committee of management, presumably on the basis of the plaintiffs’ argument that the current committee has not been validly appointed or validly constituted. In that event, the actions taken by the committee of management, including any authorisation of the commencement of this proceeding, may be invalid, unless they are saved by the operation of s 16(2) of the Act as actions taken in good faith. Mr McGuiness argues that they were not taken in good faith, but resulted from disputation between his family group and different family groups represented on the committee of management. All I will say is that, on the basis of Mr Chatfield’s affidavit, that proposition is arguable, as, in effect, the Associate Justice found.[7]
70 This case presents unusual circumstances. There is the combination of the dispute about what the Trust Housing Policy is, the alleged views of various Aboriginal Elders that Mr McGuiness should have tenancy of the property, the fact that no meeting of the committee of management has occurred since 16 December 2013, the fact that no formal decision on Mr McGuiness’ tenancy application has been made more than eight months after it was submitted and the pending judgment in the Oppression Proceedings. In my opinion, the combination of those factors makes this an inappropriate case for the use of the procedure provided for in Order 53. No error has been established in the Associate Justice’s conclusion and reasons that this was an inappropriate case for the exercise of the power given under Order 53.
71 If the defendants’ account of the Trust’s traditional Housing Policy and of the permission given Mr McGuiness by the Elders are ultimately accepted, then he may well have an arguable case that the committee of management must determine his application by applying that Policy, or at the very least make a decision on his application before it seeks to eject him.
72 The plaintiff alleged that the Associate Justice erred in applying to the jurisdiction given by Order 53 principles developed in respect of the grant of summary judgments under Order 22. I do not consider that the Associate Justice erred in that respect. His Honour referred to the principles developed in respect of Order 53, as well as those that apply to Order 22. There is some overlap between those principles because the exercise of the power to give a summary judgment is engaged in both instances.
Conclusion
73 In the particular circumstances of this case, I do not consider that any error has been established in His Honour’s reasons that affects the order refusing to award the plaintiff summary judgment for possession of the land.
74 I therefore dismiss the appeal.
[1] Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 [63]-[64].
[2] See eg Le Roi Homestyle Cookies Pty Ltd (in liq) v Gemmell [2013] VSC 452 [2] footnote 4.
[3] BC9200663 (Unreported, Supreme Court of Victoria, 24 July 1992).
[5] In the Matter of the Framlingham Aboriginal Trust; Aaron Clark v Framlingham Aboriginal Trust (S CI 2014 00672).
[6] Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 [52].
[7] Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 [56].
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