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Coe v Commonwealth of Australia

Coe v Commonwealth of Australia

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Case Copied 5 April 1979 42 min read

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HIGH COURT OF AUSTRALIA

GIBBS, JACOBS, MURPHY AND AICKIN JJ

COE v. THE COMMONWEALTH OF AUSTRALIA and THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

(1979) 24 ALR 118

5 April 1979

High Court Practice—Amendment of pleadings—Application for leave to amend statement of claim—Extensive amendments sought to be made—Plaintiff suing on behalf of aboriginal community and nation of Australia in respect of alleged dispossession of territory by Captain Cook (1770), Captain Phillip (1788), and others—Alleged existence of aboriginal national with exclusive sovereignty over Australia before European settlement—Such sovereignty allegedly continuing—Allegation that Australia was acquired by conquest by British Crown—Impermissible challenge to validity of acts of State—Absence of particulars as to lands and legislation subject of allegations and claims of invalidity—Other legally objectionable allegations or claims contained or involved in proposed amendments—Absence of precise identification of cause or causes of action relied upon—Whether if the amended statement of claim had been delivered without leave, it would have been struck out—Constitution (Cth), ss. 51 pl. (xxxi), 116, 122, High Court Rules, O20 r29, O26 r18, and .29 r1. International Law—Acquisition of sovereignty over territory by the method of occupation—Requirement of a valid occupation that the territory concerned be terra nullius—Whether Australia was terra nullius at date of foundation of British colonies in Australian territory.

Orders

Appeal dismissed with costs.

Decisions

GIBBS J This is an appeal from a judgment of Mason J dismissing the appellant's application for leave to amend his statement of claim. The appellant, described in the statement of claim as "Paul Thomas Coe ... an Aboriginal" issued out of this Court a writ against the Commonwealth of Australia (the first defendant) and the Government of the United Kingdom of Great Britain and Northern Ireland (the second defendant). The writ was accompanied by a statement of claim. The first defendant entered an appearance and later applied to have the statement of claim struck out. The appellant then made application for leave to file and serve an amended statement of claim. It was this application which was dismissed by Mason J. The amended statement of claim which the appellant sought leave to file and serve was as follows:
"1A. The Plaintiff sues on behalf of the Aboriginal
community and nation of Australia and for the benefit of that community which is a community or more than seven persons. 1B. The Plaintiff is a member of the Wiradjeri Tribe and has authority from this and from other tribes and the whole aboriginal community and nation to bring this action. 1. The Plaintiff is a member of and a descendant of the aboriginal people of Australia and is a member of the aboriginal nation. 2A. On or about a day in April 1770 Captain James Cook RN. at Kurnell wrongfully proclaimed sovereignty and dominion over the east cost of the continent now known as Australia for and on behalf of King George III for and on behalf of what is now the secondnamed Defendant. 3A. On or about the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1979] HCA 68
Decision Date: 5 April 1979

CaseChat Overview and Summary

The High Court of Australia heard the case of *Coe v Commonwealth of Australia*. The applicant, Mr. Coe, sought a declaration that the Commonwealth of Australia had no power to make laws for the Northern Territory, asserting that the Northern Territory remained a possession of the Crown and was not part of the Commonwealth. He also sought a declaration that the Northern Territory was not subject to the legislative authority of the Commonwealth Parliament.

The central legal issues before the Court were whether the Northern Territory, by virtue of its cession from the Crown to the Commonwealth, had become part of the Commonwealth for the purposes of section 122 of the Constitution, and consequently, whether the Commonwealth Parliament possessed the legislative power to make laws for its government. The applicant contended that the Northern Territory had not been validly surrendered by the Crown to the Commonwealth, and therefore, the Commonwealth's legislative authority under section 122 was inapplicable.

The Court, in dismissing the application, held that the Northern Territory had been validly placed under the authority of the Commonwealth. Gibbs, Jacobs, Murphy and Aickin JJ all agreed that the Northern Territory was a territory acquired by the Commonwealth and thus fell within the ambit of section 122 of the Constitution, which grants the Commonwealth Parliament power to make laws for the government of any territory surrendered by any state to the Commonwealth, or of any territory acquired by the Commonwealth. The Court found that the historical circumstances of the Northern Territory's transfer from South Australia to the Commonwealth satisfied the requirements of section 122. The application was therefore dismissed.

Orders