Nyangbul v State of New South Wales

1. [1]

   By notice of motion filed 14 May 2025, the applicant seeks a stay of a writ of possession issued by Faulkner J on 22 April 2025 in New South Wales v Simpson [2025] NSWSC 429 (PJ or primary judgment). The applicant on the motion is the same person as the defendant below but prefers to use his Indigenous name.

2. [2]

   A notice of appeal was filed 30 April 2025. It raises the following nine grounds of appeal:

3. [3]

   I gather that the State also contends that leave to appeal is required and a direction has been made for the appellant to file and serve by 4 June 2025 a White Folder for that purpose. The proceedings are listed for directions on 16 June 2025.

4. [4]

   The applicant relies on the following affidavits:

5. [5]

   The State opposes the stay application and relies on the following affidavits:

6. [6]

   The appeal has not yet been listed for hearing. As matters stand at present, it is proposed to enforce the writ of possession the following day, 17 June 2025.

7. [7]

   The motion initially came before me as Referrals Judge on 26 May 2025. The hearing was adjourned until today to give the applicant more time to consider and reply to the State’s two affidavits.

8. [8]

   The applicant has filed three outlines of written submissions filed 22, 26 and 29 May 2025, respectively. The State filed an outline of submissions on 23 May 2025.

Background facts summarised

1. [9]

   The proceedings relate to parcels of land located near Lennox Head of which the State is the registered proprietor (Lot 703/106584 and Lot 7004/96435) (the Land). The Land is adjacent to part of a long stretch of Seven Mile Beach. The primary judge found at PJ[3] that, at least since as early as 2021 several structures have been built or brought to the Land, including steel and timber buildings, steel and glass buildings, a shipping container, various wooden structures, tents and vehicles. It is evident that the applicant resides on the Land, along with other unidentified people. After the applicant failed to remove the structures, the State filed a statement of claim on 9 February 2024 seeking a writ of possession.

2. [10]

   On 28 November 2024, at which time no defence had been filed, the primary judge made orders which noted the State’s intention to seek default judgment. Leave was granted to the State to apply for a writ of possession, together with orders requiring the applicant to be notified of the directions and to respond as specified.

3. [11]

   The following day, the State filed a motion seeking judgment for possession of the Land. On the same day, the applicant on the present motion filed a separate motion in which he sought leave to file a defence.

4. [12]

   On 2 December 2024, although no leave had been granted for the filing of a defence, the applicant filed a document styled as “Defence”.

5. [13]

   There were several subsequent procedural developments, which are described by the primary judge at PJ[13]-[16]. They include the fact that, on 15 April 2024, the applicant provided a further document which the primary judge described as the “Proposed Amended Defence”.

6. [14]

   The primary judge gave comprehensive reasons for striking out all 24 paragraphs of the Proposed Amended Defence (as well as the earlier Defence) on the basis that they were untenable.

7. [15]

   In brief:

8. [16]

   The primary judge also gave detailed reasons for dismissing other arguments raised by the applicant. His Honour ordered at PJ[170] that the document styled “Proposed Amended Defence” be struck out. Noting that the applicant had had more than 12 months to put forward a proper defence and had failed to do so in the two documents relied upon by him, the primary judge granted the final relief sought by the State in its motion filed on 22 January 2025.

Relevant legal principles summarised

1. [17]

   The relevant legal principles guiding the Court’s discretion to grant a stay pending an appeal under s 67 of the Civil Procedure Act 2005 (NSW) and/or r 50.7 of the Uniform Civil Procedure Rules 2005 (NSW) are well settled. They are described in leading cases such as Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 and Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20]. They were conveniently summarised by Payne JA in Michael Hill Jeweller (Australian) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5]:

2. [18]

   As noted in Dogra v Dogra (No 3) [2024] NSWCA 208 at [19]:

3. [19]

   There is no requirement for the applicant to demonstrate that there are special circumstances which justify a stay.

4. [20]

   The Court is not required to conduct a detailed assessment of the grounds of appeal for the purposes of granting a stay, but it needs to be satisfied that one or more serious questions are raised by the appeal (see Roberts v Goodwin Street Developments Pty Ltd [2022] NSWCA 103 at [12] per Gleeson JA and Belcastro v ORDE Mortgage Custodian Pty Ltd [2025] NSWCA 1 at [15]-[17] per Griffiths AJA).

5. [21]

   Broadly, the notice of appeal raises the following questions for determination:

Consideration and determination

1. [22]

   For the following reasons, I do not consider that any of the nine grounds of appeal raise sufficiently serious issues as to warrant a stay.

2. [23]

   First, the claims that the Court lacked jurisdiction because of the separate sovereignty of the Nyangbul people is contrary to binding authority and must be rejected. A similar claim was raised in separate proceedings in Indigenous Land and Sea Corp v Anderson [2022] NSWSC 1650. At [32]-[34], I explained why the argument must be rejected:

3. [24]

   An appeal against that decision was dismissed, including in relation to the claims regarding sovereignty (see Anderson v Indigenous Land and Sea Corp [2024] NSWCA 9 at [111]). In response to the claim there that particular Indigenous People had title or rights in land under a different legal system, Kirk JA (Stern JA and Simpson AJA agreeing) stated at [106] that any such rights, to the extent that they are recognised within the Australian legal system, are recognised as native title rights. No native title rights were claimed there, nor in the present case. For completeness, nor was it suggested that the Land was affected by any claim under the Aboriginal Land Rights Act 1983 (NSW).

4. [25]

   Justice Kirk added at [110] that the assertion that the common law of Australia recognises “some type of traditional Indigenous title distinct from native title is not one that it is open to this Court to accept”.

5. [26]

   Secondly, the applicant has failed to demonstrate that his grounds of appeal raise sufficiently strong claims so as to overcome the indefeasible title held by the State as registered proprietor of the Land. In particular, he has not persuaded me that his appeal grounds are an adequate answer to the principle of indefeasibility which is inherent in s 42(1) of the Real Property Act:

6. [27]

   The principle of indefeasibility is the bedrock of the Torrens System. The validity of that statutory principle, as embedded in s 42 of the Real Property Act, is not affected by any of the treaties or international instruments cited by the applicant in his submissions filed 29 May 2025, including the United Declaration on the Rights of Indigenous Peoples, the Rome Statute of the International Criminal Court, the International Covenant on Civil and Political Rights and the four Geneva Conventions (1949). Nor is it affected by the Australian Human Rights Commission Act 1986 (Cth).

7. [28]

   Similarly, the decision of the International Court of Justice in Portugal v Australia [1995] ICJ Rep 90 which was also cited by the applicant, is plainly distinguishable and did not involve the Torrens System.

8. [29]

   The applicant also cited several judicial authorities in support of his claim that courts have granted relief to protect Indigenous cultural and legal interests. There can be no doubt that courts have those powers in an appropriate case. Significantly, however, none of the authorities involve a party seeking to enforce its rights and interests to an indefeasible title, as is the case here.

9. [30]

   Thirdly, the principle of indefeasibility is not circumvented because Ballina Shire Council has acknowledged that the Ballina Coast and Hinterland is “the traditional Nyangabul country of the Bundjalung Nation…whose custodianship of the Ballina Shire area dates back many thousands of generations”. Recognition of such custodianship is entirely fitting, but it does not displace the statutory principle of indefeasibility.

10. [31]

    Fourthly, contrary to the applicant’s claim, the proceeding does not raise any constitutional or public law matter requiring referral under s 78B of the Judiciary Act 1903 (Cth). Mere assertion that there is such a matter is insufficient to warrant a stay (see Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295).

11. [32]

    For these reasons, I consider that appeal grounds 1, 4, 7 and 8 do not raise any serious issue for determination on appeal.

12. [33]

    Turning now to the grounds of appeal which relate to matters of procedure and procedural fairness (grounds 2, 3, 5, 6 and 9), the applicant has failed to demonstrate that any of them raises a serious issue for determination on appeal. Ground 2, which is styled “Constructive Denial of Procedural Fairness”, is essentially a challenge to the merits of the primary judge’s decision and his conclusion that the applicant’s Proposed Amended Defence was futile. The applicant pointed to no evidence to support the claim that the primary judge refused to consider his oral submissions or failed to allow proper argument on jurisdictional objections. And the detailed reasons for judgment indicate that the primary judge gave close attention to the applicant’s case as presented in both writing and orally.

13. [34]

    Ground 3 complains that the primary judge made final orders without determining the applicant’s “live cross-claim, which raised jurisdiction, compensation, and counter-possession issues”. By way of background, on 17 April 2025, the applicant filed a cross-claim. The primary judge addressed it at PJ[174]-[177]. In brief his Honour noted that the applicant wished to sue the State for unlawful detention, excessive use of force, violation of procedural rights and cultural protection, interference with lawful occupation and use of aboriginal land, false imprisonment, assault, trespass to person and property, and misfeasance in public office. The cross-claim related to events which occurred not on the Land but on a place called Cabbage Tree Island. The primary judge noted the cross-claim raised the same claims as the applicant had earlier raised in proceedings the applicant commenced in the District Court on 14 March 2025 (DC 2025/116791).

14. [35]

    The cross-claim was dismissed on two grounds:

15. [36]

    Accordingly, the cross-claim filed on 17 April 2025 was struck out under UCPR r 14.28. The applicant has failed to demonstrate any serious issue to be tried in relation to the dismissal of his cross-claim. The two reasons given by the primary judge are plainly correct.

16. [37]

    Ground 5 alleges error by the primary judge in entering judgment for the State against the party “who was improperly identified and did not lawfully consent to the proceedings”. While it should be acknowledged and accepted that the applicant prefers to be called by his Indigenous name, there is no substance in ground 5 in circumstances where the name “Luke Daniel William Simpson” was used in the State’s statement of claim and subsequently, on 14 March 2024, the applicant filed an appearance in proceedings below in which he stated:

17. [38]

    “Jaabarun [Luke Simpson] [Defendant] appears”.

18. [39]

    Thus, the applicant submitted to the Court’s jurisdiction and expressly acknowledged that he was also known as Luke Simpson. No arguable error is demonstrated in the primary judge additional reasons at PJ[131]-[135].

19. [40]

    Appeal ground 6 claims that the Court issued a misdirection when the applicant was told by the primary judge’s associate to file his defence documents via email rather than in the Registry. He said that these documents were then dismissed as being “out of time” and “futile”. Again, this ground reflects the applicant’s fundamental dissatisfaction with the merits of the primary judgment as opposed to identifying any arguable error of fact or law.

20. [41]

    It is plain that the Defence was filed well out of time and the applicant does not contend otherwise. Furthermore, the primary judge’s description of both the Defence and the Proposed Amended Defence as “futile” was correct having regard to the comprehensive reasons given by the primary judge and the applicant’s failure to demonstrate any serious issue to be determined on appeal in relation to those reasons.

21. [42]

    Finally, appeal ground 9 raises a claim of apprehended bias and prejudgment, with reference to the primary judge’s “blanket dismissal of all affidavits and submissions as "futile" without analysis”. This ground is doomed to fail in circumstances where it is self-evident from the primary judge’s detailed reasons for judgment that he conducted a thorough analysis of the applicant’s affidavits and submissions.

22. [43]

    In the circumstances, it is strictly unnecessary to consider the balance of convenience. For completeness, however, I can indicate that, were it necessary to do so, I would conclude that the balance of convenience favours the State and not the applicant.

23. [44]

    First, the primary judge found at PJ[3] that there were a number of physical structures on the Land since at least early 2021. That finding did not purport to relate to the applicant personally and directly, but in his affidavit Mr Wood deposed at [13] that the applicant and others had unlawfully occupied the Land since February 2022. Even if the earlier of those two dates is accepted in the applicant’s favour, his occupation of the Land has been relatively short (and far less than the time required for a claim based on adverse possession). Moreover, the evidence plainly demonstrates that the occupation of the Land had been without the State’s consent or authorisation and that several notices to quit and/or directions to remove structures have been given under ss 9.4, 9.5 and 9.6 of the Crown Lands Management Act as referred to in the primary judgment at [2] and [4].

24. [45]

    Secondly, in the event that the appeal succeeded, consideration could be given to permitting the applicant to reoccupy the Land in accordance with any relevant statutory requirements. It appears that the structures presently on the Land are moveable.

25. [46]

    Thirdly, there are several other compelling reasons why the balance of convenience weighs in favour of the State:

26. [47]

    The Court does not doubt the applicant’s sincerity and the genuineness of his connection with the Land, which is part of what he aptly describes as his Country. But as the Court pointed out several times during the course of the argument, the Court is obliged to apply the law as it stands. That law does not support the application for a stay of the writ of possession on the grounds sought by the applicant.

27. [48]

    It goes without saying, however, that whether or not the State wishes to enforce the writ of possession prior to the proceedings being finalised is ultimately a matter for it. The Court hopes that the parties will adopt a sensible approach in conducting any discussions on this issue.

Conclusion

1. [49]

   For all these reasons, the applicant’s motion filed 14 May 2025 will be dismissed, with costs (as sought by the State).