New South Wales Court of Appeal CITATION : COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 36 FILE NUMBER(S) : CA 41069/00 HEARING DATE(S) : 12 February 2001 JUDGMENT DATE : 5 March 2001 PARTIES : ISABELL COE REPRESENTING PERSONS TERMED MEMBERS OF ABORIGINAL TENT EMBASSY "PRESENTLY UPON COCKATOO ISLAND" v THE COMMONWEALTH OF AUSTRALIA JUDGMENT OF : Mason P at 1; Beazley JA at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 13261/00 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER : COUNSEL : Claimant: R Killalea Opponent: R J Burbidge QC/P T Taylor SOLICITORS : Opponent: Australian Government Solicitor CATCHWORDS : Application for leave to appeal - trespass to land - claim of aboriginal sovereignty - Mabo's Case DECISION : Application dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41069/00 SC 13261/00 MASON P BEAZLEY JA Monday 5 March 2001 COE & Ors v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 THE COURT: The Commonwealth of Australia is the registered proprietor of Cockatoo Island. Its ownership is established by s5 of the Cockatoo and Schnapper Islands Act 1949 (Cth). As a matter of enacted State law its registered unencumbered title is paramount to any estate or interest in the land asserted by the claimants (Real Property Act 1900, s42). 2 The claimants are or are associated with a group of persons who landed upon the island on 20 November 2000 and established an "Aboriginal Tent Embassy". They have refused to leave after having been requested to do so by the Australian Government Solicitor as solicitor for the Commonwealth. On 22 December 2000 Hulme J granted mandatory interlocutory relief requiring the claimants to leave the island (see Commonwealth of Australia v Coe [2000] NSWSC 1243, esp at [24]ff). The order has been stayed on terms, pending this application. 3 The principal matter raised in opposition to interlocutory relief was and is a submission that the Commonwealth's title is flawed because it depends ultimately upon the validity of the Crown's acquisition of sovereignty over eastern Australia. The claimants contend that, as aboriginal people, they are in some way unaffected by the usual incidents of the law of real property stemming from the matters stated in pars 1-2 above. 4 The claim is not based on any assertion of native title. Rather, it is based on denial of the validity of the initial acquisition of sovereignty over eastern Australia in consequence of failure of the British Crown to deal with aboriginal peoples by treaty relationship. 5 It is impossible to see how such a claim translates into a right to commit what would otherwise be a trespass, unless the antecedent aboriginal sovereignty asserted creates some immunity in the particular claimants with respect to the statute law of the Commonwealth and of New South Wales and the common law of Australia; or (to say the same thing slightly differently) unless such asserted aboriginal sovereignty invalidated otherwise valid federal and State enactments and property rights stemming from them in their impact upon particular aboriginal people. Such propositions are untenable: see Coe v The Commonwealth (1993) 68 ALJR 110, 118 ALR 193; Walker v New South Wales (1994) 182 CLR 45. 6 The claimants recognise that Mabo v Queensland (No 2) (1992) 175 CLR 1 establishes that the validity of the act of State involved in the establishment of a new colony such as New South Wales cannot be challenged in a domestic court. However, they submit that the authority of Mabo in this respect has been undermined by Sue v Hill (1999) 199 CLR 462, which held that the United Kingdom is now to be regarded as a "foreign power" for the purposes of s44 of the Constitution. 7 Such a startling and unforeseen discordancy would undermine the juristic authority of many more governmental acts than those directly touching aboriginal interests. The submission errs in treating "the Crown" as a juristic concept frozen in time, lacking durability and continuity through changing circumstances. The submission also overlooks so much of the reasoning in Mabo as focuses upon the link between the act of State sought to be questioned and the authority of the domestic court in which that questioning is raised (see eg at 95 per Deane and Gaudron JJ). We would consider the submission untenable even if we had authority to question this aspect of Mabo, which we have not. 8 Nothing else raised against the judgment under appeal offers any arguable prospect of success meriting the grant of leave. The Commonwealth of Australia is a proper plaintiff to enforce its own property rights and s6 of the Cockatoo and Schnapper Islands Act does not detract from that. Its solicitor's retainer is not in issue. Hulme J was correct to regard the Commonwealth's prospects of success in the litigation as very high. 9 In the light of the interest asserted by the Commonwealth and the evidence in the Bain affidavit, the possible harm likely to be suffered by the claimants from the grant of interlocutory relief was insufficient to carry the discretionary calculus in their favour (cf Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853). The balance of convenience clearly favoured the injunction. 10 The application is dismissed with costs. 11 As accepted by the parties, the conditional stay expires 7 days from today. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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