State of New South Wales v Hetherington (No 2)

These proceedings commenced by the filing of a statement of claim on 28 November 2022 seeking possession of land at Cudgeon known as the Wollumbin Scout Camp.

The proceedings first came before me on 31 May 2023. On that day I delivered a judgment striking out defences filed by the two defendants on 28 December 2022; State of New South Wales v Hetherington [2023] NSWSC 583. That judgment contains an outline of the matter and the evidence, which I had before me on the plaintiff's behalf, showing the plaintiff's ownership of the land and why the defendants had no right to occupy the land.

I gave leave to the defendants, because they were self-represented, to file an amended defence, if they wished to do so, on the basis that any such amended defence should disclose a defence known to the law. No such defence or defences have been filed. However, both the solicitors for the plaintiff and my associate were emailed two documents each entitled "Defence"; one such document purports to be the defence of the first defendant and the other the defence of the second defendant. Both defences are in identical terms.

The defences read as follows:

What is contained in that pleading does not disclose any defence that the law recognises when possession is being sought by the registered proprietor of the land. The defendants do not appear to assert any rights themselves; rather, they assert that a third party, the Githabul people, is the true owner. The highest the matter is put is that the defendants “protect and guard the land” for those said to be the true owners. That does not constitute a defence.

A claim that the plaintiff has abandoned the land is not a defence, except in relation to a claim for adverse possession. The plaintiff’s evidence concerning the land demonstrates that no limitation issues giving rise to adverse possession are available to an occupier of the land.

Any cross-claim, referred to in paragraph 7, ought to have been filed within the time limited for filing a defence: r 9.1 (1)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

Strictly speaking it is not necessary to strike out these further documents because they have not been filed with the Court, but if they had been they would have been struck out as disclosing no defence to the plaintiff's claim.

There was no appearance by either defendant today, nor have they appeared on any occasion when the matter has been listed, despite being notified of each listing date.

Since there is no defence to the claim, the plaintiff is entitled to judgment. In my opinion it is appropriate that the judgment to which the plaintiff is entitled should be a judgment given pursuant to pt 13 r 1 of the Uniform Civil Procedure Rules 2005 (NSW). There is evidence, which I referred to in my earlier judgment, of the facts on which the plaintiff's claim is based.

As I noted in my earlier judgment notices to occupier were served on a number of other occupants of the land and were left attached to the land. No person, apart from the two named defendants, has sought to be joined as a defendant to the proceedings.

Accordingly, I make the following orders: