COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 49

New South Wales Court of Appeal

CITATION : COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 49 revised - 27/03/2001 FILE NUMBER(S) : CA 40169/00 HEARING DATE(S) : 12 March 2001 JUDGMENT DATE : 12 March 2001

PARTIES : Isabell Coe representing persons termed members of Aboriginal Tent Embassy 'Presently upon Cockatoo Island' - Claimant Commonwealth of Australia - Opponent JUDGMENT OF : Sheller JA

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 13261/00 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER :

COUNSEL : R Killalea - Claimant R J Burbidge QC/P T Taylor - Opponents SOLICITORS : Low and Associates - Claimant Australian Government Solicitor - Opponents

Cockatoo and Snapper Islands Act 1949 LEGISLATION CITED : Real Property Act 1900 Judiciary Act 1903 Financial Management and Accountability Act 1997 CASES CITED: Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 DECISION : Application dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41069/00 SHELLER JA

Monday, 12 March 2001

COE v COMMONWEALTH OF AUSTRALIA

JUDGMENT (Application)

1 SHELLER JA: On 8 December 2000 a summons was filed in the Common Law Division of the Court on behalf of the Commonwealth of Australia against Ms Isabell Coe, as representative of persons collectively terming themselves "Members of the Aboriginal Tent Embassy Presently Upon Cockatoo Island". Various orders were sought, amongst them orders that the defendant and other persons so collectively termed be restrained from remaining upon Cockatoo Island. 2 On 22 December 2000 Hulme J granted mandatory interlocutory relief requiring, as I understand it, those persons to leave the Island. An application was then made to this Court for leave to appeal from that mandatory interlocutory relief. 3 The application for leave to appeal came before the President and Justice Beazley. On 5 March 2001 the Court, so constituted, dismissed the application with costs. 4 This application brought by Isabell Coe, as representative of the persons to whom I have referred, is for a stay by this Court of the relief stated as granted by the Court of Appeal on 5 March against the relief granted by Hulme J on 22 December 2000, and that its stay be extended pending the hearing of an application for special leave to appeal to the High Court from the Court of Appeal's judgment of 5 March 2001. The application is supported by the affidavit of Charles Paget Whiting of 9 March 2001 which deposes to the filing of an application for special leave to appeal to the High Court. 5 In the course of reasons that this Court gave on the leave application, the Court said that the Commonwealth of Australia is the registered proprietor of Cockatoo Island, its ownership being established by s5 of the Cockatoo and Schnapper Islands Act 1949. Their Honours observed that 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; s42 of the Real Property Act 1900. 6 Their Honours dealt, in the reasons for judgment, with a claim advanced in this Court that the Commonwealth title was flawed because it depended ultimately upon the validity of the Crown's acquisition of sovereignty over eastern Australia. The claimants contended that as Aboriginal people they are, in some way, unaffected by the usual incidents of the law of real property. That argument, which failed in the Court of Appeal, is, I have been informed, not now pressed nor is it intended to press it on the application for special leave. 7 Their Honours then said in para 8 of the reasons for judgment, "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 prospects of success in the litigation as very high." 8 Their Honours then went on: "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…" and a reference was made to Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853. Their Honours observed that the balance of convenience clearly favoured the injunction. 9 After stating that the application was dismissed with costs their Honours said: "As accepted by the parties, the conditional stay expires 7 days from today." In accordance with that order the conditional stay expires today which explains the urgency of the application now made to me. 10 The reference in the reasons for judgment to the affidavit of Bain is a reference to an affidavit of Ross Kenneth Bain of 6 December 2000 filed in the common law proceedings. In the course of that affidavit, Mr Bain said: "I am employed by the Commonwealth Department of Defence and am currently the Acting Head of Defence Estate. I have the authority of the defendant (sic) to swear this affidavit." 11 Quite clearly, the reference in the second sentence to the defendant is a mistake. It should be read as a reference to the plaintiff, Commonwealth of Australia. No objection was taken to that paragraph of the affidavit.