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Editors --- "Darkingjung Pty Ltd v Darkingjung Aboriginal Land Council & Ors [2006] NSWSC 42" [2006] AUIndigLawRpr 30; (2006) 10(2) Australian Indigenous Law Reporter 61

Darkingjung Pty Limited v Darkingjung Aboriginal Land Council & Ors

Supreme Court of New South Wales Equity Division (Bergin J)

10 February 2006

[2006] NSWSC 42

Application to transfer proceedings to the Land and Environment Court — Whether proceedings fall within the description of those referred to in s 20(2) of the Land and Environment Court Act 1979 (NSW).

Facts:

Darkingjung Pty Ltd commenced proceedings seeking declaratory relief in relation to a payment made to it, money held by it and loans made by it to several of the defendants (‘the proceedings’). It claimed that those transactions were carried out pursuant to trust of which it was trustee. The central issue in dispute was whether the transfer of funds by the first defendant to the plaintiff was authorised by the Act.

The NSW Aboriginal Land Council, a defendant to the action, applied to have the proceedings removed to the Land and Environment Court under s71 of the Land and Environment Court Act 1979 (NSW) (‘the Act’). The effect of that provision was to allow proceedings to be removed if they fell under the category of proceedings referred to in s 20(2) of the Act.

Held, refusing the order sought in the motion:

1. The proceedings are not proceedings referred to in s 20(2)(a) of the Act: [15].

2. The proceedings are not proceedings seeking judicial review of administrative action, that is a review of the exercise of the relevant function, nor are they proceedings to command the exercise of a relevant function. They are not proceedings of the kind referred to in s 20(2)(b) of the Act: [16]–[17], National Parks and Wildlife Service v Stables Perisher Pty Limited (1990) 20 NSWLR 573 referred to.

3. In each case consideration has to be given to the nature of the relief sought in the proceedings to decide whether the proceedings are of the nature described in s 20(2) of the Act. Jurisdiction remains with the Supreme Court when what is being considered is the question of whether or not a power to do what has been done actually exists: [20], [28]. Murray v Wingecarribee Shire Council [2004] NSWSC 19 followed.

5. The declarations sought ‘relate to’ the existence or otherwise of a trust and whether the moneys held may be categorised as trust money in proceedings that will include consideration of whether there was a power to do what was actually done. They are not proceedings for a declaration in relation to the exercise of a function imposed or conferred by the Act and do not come under s 20(2)(c): [29]. Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 referred to.

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