Williams v House [2001] FCA 1639 (9 November 2001)

Last Updated: 5 August 2002

FEDERAL COURT OF AUSTRALIA

Williams v House [2001] FCA 1639

NEVILLE WILLIAMS, DONALD THOMAS BELL, JANNETTE KAYE PHILLIPS, KEVIN BUZZACOTT AND DARREN BLOOMFIELD v MATILDA HOUSE

A 66 OF 2001

DOWSETT J

9 NOVEMBER 2001

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 66 OF 2001

BETWEEN:	NEVILLE WILLIAMS FIRST APPLICANT DONALD THOMAS BELL SECOND APPLICANT JANNETTE KAYE PHILLIPS THIRD APPLICANT KEVIN BUZZACOTT FOURTH APPLICANT DARREN BLOOMFIELD FIFTH APPLICANT
AND:	MATILDA HOUSE RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	9 NOVEMBER 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. Kevin Buzzacott and Darren Bloomfield be joined as applicants to these proceedings.

2. The applicants by their counsel undertake to pay any damages which the Court may determine have been suffered by any person as a result of the grant of this injunction

3. Upon the giving of those undertakings, there will be an injunction restraining the respondent by herself, her servants, agents or otherwise howsoever from damaging any structures or property situated at the Aboriginal Embassy site as described in the Register of the National Estate, a copy of the relevant entry in which being attached to this judgment, such injunction to remain in place until further order.

4. The applicant serve a copy of these orders upon the respondent as soon as possible.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 66 OF 2001

BETWEEN:	NEVILLE WILLIAMS FIRST APPLICANT DONALD THOMAS BELL SECOND APPLICANT JANNETTE KAYE PHILLIPS THIRD APPLICANT KEVIN BUZZACOTT FOURTH APPLICANT DARREN BLOOMFIELD FIFTH APPLICANT
AND:	MATILDA HOUSE RESPONDENT

JUDGE:	DOWSETT J
DATE:	9 NOVEMBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application made by Neville Williams, Donald Thomas Bell and Jannette Kaye Phillips who are, as I understand it, resident in Canberra and are involved in what is described as the Aboriginal Embassy outside Old Parliament House. Mr Kevin Buzzacott and Mr Darren Bloomfield, who reside at the Aboriginal Embassy, have also been joined as applicants.

2 The applicants allege that on Monday of this week, a group of women, led by the respondent, came to the Embassy and destroyed certain structures. One member of the group offered violence to one of the other persons at the site. The group threatened to return on Friday, that is today, to pull down the rest of the Embassy. I am told that the residents of the site are now greatly concerned at the possibility that they might return, as threatened and do further damage to the site and/or assault somebody who is there. I am not willing to make any injunction as to assault at this stage. I am not satisfied that Ms House has demonstrated any intention to assault anybody, although some other, unidentified person did so. Attempts have been made to serve Ms House but they have been unsuccessful. No attempt was made until very late in the day. There is no reason to believe that she is avoiding service or has in any way contributed to the inability to serve her.

3 The application was initially brought under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). It has become evident that the applicants are unable to rely on any provision of that Act. Although the Embassy has been entered on the Register of the National Estate, as appears from Exhibit 1, there is no declaration in respect of it pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The legislation which regulates the Register of the National Estate is the Australian Heritage Commission Act 1975 (Cth), however, there appears to be no enforcement provision in that legislation which would assist the present applicants. In those circumstances, it seems to me that the only possible basis for any relief designed to avoid further confrontation at the site is by way of an injunction of a kind which might be broadly described as "to keep the peace". This is not an injunction which I would normally be inclined to make. However, it seems to me that there are reasons why I should at least consider taking that step in this case. I will return to them in a moment.

4 A rather more pressing concern is the jurisdiction of this Court to make any order of that kind. Prima facie, at least, it does not arise under any federal legislation. It was submitted, however, that because the site is located in the Australian Capital Territory, the cross-vesting legislation may survive to the extent necessary to confer the jurisdiction of the Supreme Court of the Australian Capital Territory upon this Court. That is undoubtedly a difficult question. For the purpose of making this interim order, I am prepared to proceed upon that basis.

5 The delay from last Monday until today in seeking interim relief is also of some concern. It would normally be thought to be unfair to Ms House that she should be, in effect, deprived of an opportunity to appear here today because the application is made at such a late stage. I have taken that matter into account but have determined that I should, nonetheless, proceed. My reasons for doing so, notwithstanding the unusual nature of case, appear below.

6 Firstly, two of the applicants are residents at the site and therefore might be seen to have some sort of quasi-proprietary interest in the protection which is sought. I appreciate that the expression "quasi-proprietary interest" is vague and may well be meaningless. I intend it to describe people who reside on the site on a permanent or semi-permanent basis. Secondly, the site has been entered in the Register of the National Estate. That, I think, offers a special public interest in ensuring that unlawful damage is avoided. Thirdly, I keep in mind that a national election is to be held this weekend. It would be particularly inappropriate for there to be violence at the site during the election.

7 Having regard to these matters, I am inclined to grant limited relief, although I do so with considerable hesitation and with full awareness of some, if not all, of the problems which would normally lie in the pathway of an application for relief of this kind. The injunction will have the effect of restraining unlawful acts. If Ms House is not minded to commit such acts, then she will have suffered no loss. The only concern, of course, is that she will have an injunction made against her. Such an order should not be made unless it is at least prima facie justified. Nonetheless, I consider that the public interest in maintaining the peace is such that I should intervene.

8 The applicants will be required to give the usual undertaking as to damages in this form:

That the applicants, by their counsel undertake to pay any damages which the Court may determine have been suffered by any person as a result of the grant of this injunction.

I will also require an undertaking that the applicants will serve a copy of this order upon the respondent as soon as possible.

9 Upon those undertakings being given there will be an injunction until further order restraining the respondent by herself, her servants, agents or otherwise howsoever from damaging any structures or property situated at the Aboriginal Embassy site as described in

the Register of the National Estate, a copy of the relevant entry in which is attached to this judgment.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 24 December 2001

Counsel for the Applicant:	Ms Gillespie
Counsel for the Respondent:	No Appearance
Solicitor for the Respondent:	No Appearance
Date of Hearing:	9 November 2001
Date of Judgment:	9 November 2001

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