Coe v the Commonwealth of Australia [2001] NSWCA 49 (12 March 2001)

Last Updated: 3 April 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 49 revised - 27/03/2001

FILE NUMBER(S):

40169/00

HEARING DATE(S): 12 March 2001

JUDGMENT DATE: 12/03/2001

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 FILE NUMBER(S): 13261/00

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:

R Killalea - Claimant

R J Burbidge QC/P T Taylor - Opponents

SOLICITORS:

Low and Associates - Claimant

Australian Government Solicitor - Opponents

CATCHWORDS:

LEGISLATION CITED:

Cockatoo and Snapper Islands Act 1949

Real Property Act 1900

Judiciary Act 1903

Financial Management and Accountability Act 1997

DECISION:

Application dismissed with costs.

JUDGMENT:

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.

[INTERRUPTION]

[UPON RESUMPTION]

12    This morning I began giving my reasons for judgment on this application. In the course of doing so an application was made by Mr Robert Corowa, who is one of the members of the Aboriginal tent embassy on Cockatoo Island and who, as I understand it, from what I have been informed and as appears from the document which is marked exhibit D before Hulme J, is a party represented in these proceedings by Ms Coe.

13    Mr Corowa was initially concerned by a statement that I had made in giving my reasons for judgment about the affidavit of Mr Bain. In the course of giving my reasons I had read out the first paragraph of Mr Bain's affidavit of 6 December 2000 and said that that paragraph had not been objected to at any time by the defendants, the applicants or the claimants before me. Some investigation then made of the transcript and it appears that the affidavit was indeed admitted without objection. Argument took place apparently at some later point about the effect of parts of the affidavit. I should point out that Mr Burbidge QC indicated to me that there were parts of the affidavit, but not paragraph 1, which were not pressed by the Commonwealth at the hearing.

14    To make it clear, if I have not already done this, the final part of the reasons for judgment of this Court given on 5 March 2001 was the statement "as accepted by the parties, the conditional stay expires 7 days from today". The nature of the application before me, as I previously indicated, was to seek to have that stay extended until the hearing of the special leave application in the High Court.

15    Mr Corowa put some further submissions to me from the bar table. In large measure those reflected what had already been put to me by Mr Killalea, counsel for the claimant. However, reference was made to the Commonwealth title to Cockatoo Island and some documents were tendered and admitted in evidence about that. Again, as I indicated when I referred to the judgment of this Court, the Court ruled at the beginning of that judgment that the Commonwealth was the registered proprietor of Cockatoo Island and referred to its ownership as established by s5 of the Cockatoo and Schnapper Islands Act. It appears that there may have been over the years some change in the area embraced by the concept of Cockatoo Island when talking of title. However that may be, it does not seem on the material before me at the moment that there is any way in which what the Court said previously can now be challenged.

16    On that basis I now return to the theme of the reasons for judgment that I was in the course of giving. The application to this Court is based upon material set out in the applicant's draft summary of argument prepared for the filing in due course in the special leave application.

17    Grounds advanced as set out in that document fall broadly under two heads. The first is described as identification of persons instituting proceedings in the name of the Commonwealth of Australia. Reference is made in the written material to a number of cases concerned with persons seeking to maintain proceedings but at the same time to enjoy a degree of secrecy. In the various passages referred to the Court has passed upon the obvious undesirability of such a process. On that basis, as I understand it, an argument is run that it has not been made plain to the claimant who exactly is responsible for bringing these proceedings against them. In effect, it is said that the name of the prosecuting party has not been truly disclosed. It is at least doubtful whether this point was a point that was run either before Hulme J or before the Court of Appeal. However to my mind, there can be no doubt whatever, as is explained in the reasons for judgment of this Court, that the Commonwealth of Australia brings these proceedings as it is entitled to do, claiming to be the registered proprietor of Cockatoo Island. That much at least has been found in favour of the Commonwealth. An examination of whether other parties such as the Attorney General or the Minister for Defence have some part to play in the initiation of proceedings or in the activities or protection of Cockatoo Island seem to me to play no part whatever in undermining the title of the Commonwealth to begin these proceedings.

18    An argument was run at one stage that the Commonwealth was not in possession of the land in question and on that basis could not maintain an action for trespass. However, there is nothing placed before me which would lead me to have any doubt but that the Commonwealth was not only the registered proprietor but was, at the material time, in possession of Cockatoo Island.

19    This argument, which I have put in short terms, is the first argument that the claimants propose to pursue, so I am told, in the special leave application. As I have said, it is not an argument that, as far has I can see, has previously been put before the Court. In my view, on the material that has been placed before me, it has no real prospect of success.

20    The second argument advanced is put under the heading "Specific ministerial power" and proceedings in the name of the Commonwealth of Australia. In large measure, this argument was based on the terms of s6 of the Cockatoo and Schnapper Island Act whereunder the Minister for Defence has power, subject to any lease of Cockatoo Island or Schnapper Island, to control and manage those lands and the works and establishments on those lands. Again, as I understand it on the basis that I have already adverted to of material placed before the Court, it is submitted that the Minister had the right to possession of the land and, accordingly, the Commonwealth had no cause of action.

21    Again for reasons that I have already adverted to I am not persuaded that there is any basis whatever for such a contention. In any event, the matter was ruled upon in this Court in para 8 of the reasons for judgment of 5 March 2001. Their Honours said:

"....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."

22    It would be very unusual indeed for a single Judge of this Court, on an application of this type, to form a view that what their Honours said was incorrect. In any event, I am not persuaded from anything that has been put to me, that it is incorrect and, in my opinion, the chances of success of the claimants on the special leave application based on that second ground are slight and the ground is not likely to succeed.

In the matter of Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 at 685, Brennan J said:

"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of stay will cause loss to the respondent; and fourthly, where the balance of convenience lies."

23    Already two members of this Court have said that in 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, the balance of convenience clearly favoured the injunction.

24    As I have said, I am not persuaded that the special leave applications, based on the grounds that have been put to me, have any real prospect of success. Nothing that has been put before me suggests that what was said by two members of the Court in the passage that I have just read out about the balance of convenience should be second-guessed by me.

25    Accordingly, for all those reasons, in my opinion, this application should be dismissed.

[COUNSEL ADDRESSED ON COSTS]

26    On the question of costs Mr Killalea has referred me to exhibit A, which is a letter addressed by his instructing solicitors to Mr Greg Kaffner, a solicitor in the Australian Government Solicitor's Office. The relevant part of the letter reads:

"Please advise,

1. who instructed the Australian Government Solicitors?

2. If not instructed by the Attorney General, please provide a copy of the Attorney General's appointment of the person who instructed you."

27    The response came back from Mr Kaffner, dated 9 March 2001, referring to that letter which had been sent by facsimile:

"Please note that in order for me to provide my client with considered advice it would be appreciated if you could advise as to the basis upon which you seek the information sought at sub-paragraphs 1 and 2 of your aforementioned letter."

28    In the course of argument, the Crown tendered a document described as "Appointment (Suits by Commonwealth - Chief Executives)" dated 9 February 2000. According to that the Attorney General on that date, acting under s61 of the Judiciary Act 1903, revoked the appointment in force under s61 of the Judiciary Act dated 31 August 1999 and appointed each person who was chief executive of an agency for s5 of the Financial Management and Accountability Act 1997 to bring suits in the name of the Commonwealth. That document was said to answer the allegation made on behalf of the claimant about the true nature or true instigator of the proceedings here in question.

29    Although I think there is some force in the suggestion that the letter written in response to the first part of exhibit A could have been fuller, I am not persuaded that in the circumstances it is a matter which should deny the Commonwealth the costs of this application against it, which have failed.

30    Accordingly, my order will be that the application is dismissed with costs.

*****

LAST UPDATED: 27/03/2001