Editors --- "Coe v Commonwealth of Australia - Case Summary" [2002] AUIndigLawRpr 31; (2002) 7(2) Australian Indigenous Law Reporter 14

• Coe V The Commonwealth Of Australia
• Facts:
• Held:
• Note:

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Court and Tribunal Decisions - Australia

Coe v The Commonwealth of Australia

New South Wales Court of Appeal (Sheller JA)

12 March 2001

[2001] NSWCA 49

Aboriginal and Torres Strait Islanders — Aboriginal Tent Embassy on Cockatoo Island — trespass to land — Aboriginal sovereignty — mandatory interlocutory relief requiring persons to leave land — appeal of decision to grant mandatory interlocutory relief — whether mandatory interlocutory relief should be stayed pending appeal to High Court of Australia

Facts:

On 8 December 2000 a summons was filed in the Supreme Court of New South Wales on behalf of the Commonwealth against ‘members of the Aboriginal Tent Embassy presently on Cockatoo Island’. Various orders were sought, amongst them that the members of the Aboriginal Tent Embassy be restrained from remaining upon Cockatoo Island. On 22 December 2000 Hume J granted mandatory interlocutory relief requiring the members of the Tent Embassy to leave the island. Commonwealth of Australia v Coe [2000] NSWSC 1243.

An application to the Supreme Court of New South Wales to appeal against that interlocutory relief was dismissed by Mason P and Beazley JA on 5 March 2001. Coe v The Commonwealth of Australia [2001] NSWCA 36.

In both of the above proceedings the members of the Aboriginal Tent Embassy had argued against any interlocutory relief on the grounds that the Commonwealth’s title to Cockatoo Island was flawed. On both occasions the Court had dismissed this argument.

The present proceedings involved an application to stay the interlocutory relief pending special leave to appeal the Court of Appeal’s decision to the High Court. The argument as to the flawed nature of the Commonwealth’s title was not raised, but two other arguments were put.

First, that it had not been made clear to the claimants exactly who was responsible for bringing the proceedings against them in the name of the Commonwealth, and secondly, that the Commonwealth had no right to possess the land in question because the Cockatoo and Schnapper Islands Act 1949 (Cth) only gave the Minister for Defence power to control and manage the land, which meant that the Minister could not bring an action for trespass.

Held:

1. The Commonwealth of Australia, as the registered proprietor, is the correct party to bring proceedings for injunctive relief. The fact that the claimants did not know exactly who was behind the proceedings has no real prospect of adversely affecting the Commonwealth’s claim: [17].

2. As the Commonwealth is the registered proprietor of the island the argument that it has no right to possess the land is not likely to succeed: [21].

3. As there is no substantial prospect that leave will be granted and because the possible harm likely to be suffered by the members of the Aboriginal Tent Embassy is insufficient to carry the discretionary calculus in their favour, the balance of convenience favoured the injunction: [22]. Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 followed.

Note:

Summary judgment was entered for the Commonwealth and the mandatory interlocutory relief to restrain the members of the Aboriginal Tent Embassy entering the island was made permanent on 26 February 2002 in Commonwealth v Coe [2002] NSWSC 94. ?