Commonwealth of Australia v Coe

[2000] NSWSC 1243

CITATION:	COMMONWEALTH OF AUSTRALIA v COE [2000] NSWSC 1243 revised - 28/12/2000
FILE NUMBER(S):	SC 13261 of 2000
HEARING DATE(S):	19 December 2000
JUDGMENT DATE:	22 December 2000
PARTIES :	Plaintiff: Commonwealth of Australia Defendant: Isabel Coe as representative of persons collectively terming themselves "Members of the Aboriginal Tent Embassy" presently upon Cockatoo Island
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: Mr R Burbidge QC Mr TD Taylor Defendant: Mr B Brassil Mr Robert Corawa: Mr B Miles Wadjulabinna Nulyarimma, Robert Thorpe, Kevin Buzzacott (applying to intervene): Mr Lindon
SOLICITORS:	Plaintiff: Australian Government Solicitor Defendant: Bernard D Brassil & Co
DECISION:	The defendant and other persons collectively terming themselves members of the Aboriginal Tent Embassy presently upon Cockatoo Island their servants and or agents leave the land known as Cockatoo Island Sydney Harbour being land comprised in Folio Identifier 1/549630 by 4pm Thursday 28.12.2000; That the defendant and other persons collectively terming themselves members of the "Aboriginal Tent Embassy" presently upon Cockatoo Island their servants and or agents not return to nor enter upon the land known as Cockatoo Island Sydney Harbour being land comprised in Folio Identifier 1/549630 pending final determination of these proceedings and any related proceedings; Conditional on the Defendant filing on or before 27.12.2000 an application for leave to appeal to the Court of Appeal returnable before a Judge of that Court on 29.12.2000, I stay operation of the above orders up to 4pm on Wednesday 3.1.2001; I note the 10 persons listed on Exhibit D give an undertaking to the court in terms of the 1st and 3rd undertakings given to Kirby J on 13.12.2000; I grant liberty to apply on 24 hours' notice; Cost of the motion be the Plaintiff's costs in the cause

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NO: 13261 of 2000

Friday, 22 December 2000

HULME J
COMMONWEALTH OF AUSTRALIA v ISABEL COE AS REPRESENTATIVE OF PERSONS COLLECTIVELY TERMING THEMSELVES MEMBERS OF “ABORIGINAL TENT EMBASSY” PRESENTLY UPON COCKATOO ISLAND

JUDGMENT

HIS HONOUR:

1    By summons filed 8 December 2000, the plaintiff seeks, inter alia, a number of orders.

1. An order restraining the defendant and other persons collectively terming themselves members of the “Aboriginal Tent Embassy” presently upon Cockatoo Island their servants and or agents from entering upon the land known as Cockatoo Island, Sydney Harbour, being land comprised in Folio Identifier 1/549630.
2. An order restraining the defendant and other persons collectively terming themselves members of the “Aboriginal Tent Embassy” presently upon Cockatoo Island their servants and or agents from remaining upon land known as Cockatoo Island, Sydney Harbour, being land comprised in Folio Identifier 1/549630.
3. An order that the defendant and other persons collectively terming themselves members of the “Aboriginal Tent Embassy” presently upon Cockatoo Island their servants and or agents forthwith remove all their tents, equipment and property from the land known as Cockatoo Island, Sydney Harbour, being land comprised in Folio Identifier 1/549630.

2    Time for service of the summons was abridged and it came before Kirby J, the list judge, on 13 December. There was an appearance for both sides. The plaintiff sought an early hearing date, and Kirby J made the following orders:

1. List before duty judge at 10 am on Tuesday, 19 December 2000 for argument;
2. Order both parties to file affidavits by 12 noon on Monday 18.12.2000 identifying matters relevant to the issue of urgency;
3. I note that the defendant is to provide by the same time a broad outline of the basis upon which it resists the plaintiff's claim;
4. I note that the plaintiff will undertake inquiries in respect of the environmental impact statement and if possible make a copy available to the defendant.

3    Certain undertakings of the defendant were also noted.

4    It would appear from the Court file that Mr Brassil who appeared for the defendant also handed to Kirby J a draft notice of motion, seeking:

1. An adjournment of the proceedings so the defendants could file a notice under section 78B(1) of the Judiciary Act;
2. That the proceedings be struck out on the basis that the Supreme Court did not have jurisdiction, pursuant to section 38(a) of the Judiciary Act;
3. That the proceedings be struck out as disclosing no reasonable cause of action.

5    The plaintiff then filed a notice of motion of its own seeking orders:

1. That the defendant and other persons collectively terming themselves Members of the Aboriginal Tent Embassy presently upon Cockatoo Island, their servants and/or agents, forthwith leave the land known as Cockatoo Island Sydney Harbour being land comprised in folio identifier 1-549630;
2. That the defendant and other persons collectively terming themselves Members of the Aboriginal Tent Embassy presently upon Cockatoo Island, their servants and/or agent, not return to nor enter upon the land known as Cockatoo Island Sydney Harbour being land comprised in folio identifying 1-549630 pending final determination of those proceedings and any related proceedings.

6    On Tuesday last the proceedings came before me. Mr Burbidge QC, appearance for the Commonwealth sought to proceed. Mr Brassil who announced his appearance for the “defendants” sought an adjournment. A Mr Lindon sought leave to appear for three persons: Wiradjuri Nulyarimma from Queensland; Robert Thorpe from Gippsland; and Kevin Buzzacott from South Australia, on the grounds that they claimed there was a right, power or immunity which they wished to protect, the right, power or immunity being that neither the Commonwealth of Australia nor the various States and Territories had jurisdiction over the original owners of the subject land.

7    Mr Burbidge said that the plaintiff saw no need for such intervention. No party sought to force the decision at that stage and, because I was then unclear as to the extent of the issues, it seemed preferable to proceed on the basis that leave had been given, allowing Mr Lindon to participate, and reserving until later a decision of his clients' application.

8    Stripped to its bare bones, the case advanced by the plaintiff was as follows. It asserted:

(i) That it was the owner of Cockatoo Island;
(ii) That on 20 November last a number of persons calling themselves the "Aboriginal Tent Embassy" had landed on the island. They had been asked to leave but had not done so and had indicated that they intended to stay;
(iii) That these persons were trespassers; and
(iv) It was entitled to have them forced to leave.

9    No doubt in compliance with the third order of Justice Kirby, Mr Brassil wrote on 18 December to the solicitors for the plaintiff. So far as is relevant his letter reads:

“The writer indicated to His Honour on the last occasion that we would provide you with a broad outline of the basis on which our client intends to resist your client’s claim.
Our client has instructed us to defend the claim of the Commonwealth on the ground that there is an Aboriginal title to the land which pre-dates the title of the Commonwealth of Australia and which has not been extinguished. The islands of Sydney Harbour were not part of the act of possession by James Cook. Both Cook and Arthur Phillip had express instructions not to act contrary to the rights of the indigenous people. Journals written by some of the First Fleet recorded the ownership of the Harbour Islands by identifiable Aboriginal families, but the evidence is that Cockatoo Island was the meeting place of all of the different clans of aboriginal people. The Island was accordingly the joint property of all aboriginal people, not the property of any individual clan or family now extinct.”

10    Particularly, although I do not suggest exclusively, because the proceedings before me were not the final hearing of the suit, other matters intruded. No doubt with a view to establishing some urgency, the plaintiff adduced evidence to the effect that there were some hazards on the island, including contaminated soil and ground-water, underground storage tanks, including two cyanide waste tanks and a number of structurally unsound buildings, wharves and jetties.

11    There was evidence that the only electricity and potable water supply was to the guards' facility and that that facility also held the only functioning toilet on the island. Concern was expressed on behalf of the plaintiff that the presence of the defendants on the island left it exposed to action if any of the defendants were injured.

12    There was evidence that the island had been used for a considerable period as a general shipyard. In 1992 following the termination of shipyard activities the Department of Defence had retaken possession from a lessee and that since that time the island had been unoccupied, except for the presence of guards, although there had also been some activity associated with environmental assessment. Consideration is, or steps are, in train for the drawing up of a plan for the island's future use.

13    The adjournment application proceeded first. Ms Coe was called to give evidence on it. She gave evidence to the effect that the defendants had confined their presence to a stone and tin building on the top of the island where there was no health risk, there was potable water available there and a toilet had been put into working order. She also gave evidence that the island is fenced.

14    Ms Coe also said that the defendants had been led onto the island by a sacred healing fire and their presence on the island is to heal the island of contamination and because of concern about Aboriginal people who may have been killed there. She said that "there could have been a massacre" and that it was necessary to find out where her people had been buried. The process envisaged required that other Aborigines visit the island for ceremonies and she linked their presence there with stopping the genocide she asserted was still going on over Australia. The process might take over 200 years. I asked her a number of times why the process had to start on the island now rather than wait until the case was determined. I did not receive any satisfactory answer. In large part the questions were met with a re-assertion of the need to be there.

15    Later, an undertaking was offered by Mr Brassil that his clients would indemnify the plaintiff against any claim for personal injury that might be suffered on or travelling to the island.

16    The basis of the adjournment application advanced on behalf of the defendants is summarised on page 1 of the transcript in the following terms:

"The defendants presence on the island was important to the defendants for their purposes as Aboriginal people in re-establishing their contact with an island that was lost to them and to carry out religions ceremony on the island, that ceremony being of significant religions importance to the defendants."

17    At page 33 it was expressed this way:

"From the defendants' perspective there is a need, a perceived need in them to remain on the island, that no prejudice to the Commonwealth has been established."

18    Emphasis was placed on the absence of prejudice to the plaintiff if the adjournment was granted and the defendants allowed to stay until the final conclusion of proceedings. There was some suggestion, although the transcript is not completely clear, that the defendants wanted time also to explore their title. There was no suggestion that this would or could be done shortly or otherwise than as preparation of the suit.

19    I refused the application saying I would give my reasons later. In essence they are that the desire, however strongly held, of a party to proceedings to enjoy until their conclusion the right disputed in those proceedings, does not provide any reasonable basis for adjourning a claim for interlocutory relief prior to examining that claim. The contrary view would mean that a claim for interlocutory relief, however strong it might be, would not even be examined. I also took the view that the plaintiff's application should not have to await the defendants' preparation of the suit. After all, the defendants had brought the issue to the fore by going to the island. They could have raised it by instituting proceedings for declaratory relief without doing that.

20    Mr Lindon, in support of the application, sought to rely on section 78B(1) of the Judiciary Act which provides that a Court in the circumstances there set out should not proceed. I do not see in these proceedings any of those circumstances. Nor do I see any grounds as envisaged by section 40 of that Act to which reference was also made. My attention was invited also to section 116 and section 51(26) (31) of the constitution.

21    Section 116 in short prohibits the Commonwealth making a law for establishing any religion or imposing any religions observance or prohibiting the free exercise of any religion. Section 51(26) gives the Commonwealth Parliament power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws, and section 51(31) empowers the Commonwealth to make laws for the acquisition of property on just terms. The Commonwealth's claim here does not depend on any law of its own. Its claim is under state law and thus those provisions of the constitution have no relevance at all.

22    Before I leave the topics of the adjournment application, there are two other matters to which I should refer. Firstly, I saw no adequate reason to doubt Ms Coe's evidence as to the defendants' use of the island to this time. So long as they continue to restrict themselves to the area presently used, and until the plaintiff wishes to actually use, or repair in, that area, then, subject to one qualification, the prospect of the plaintiff suffering loss from the defendants' presence on the island is remote. Of course one must recognise their claim to the whole of the island and to the possibility that they may seek to exercise that claim. The qualification arises from the need the plaintiff perceives to have more - at least an extra two - security guards on the island than before the defendants went there. Given it conceives its rights have been infringed by the defendants who claim to be entitled to all of the land, that perception cannot be characterised as unreasonable. Over the period this case may well take to resolve if appeals are instituted, the cost of those extra guards is likely to be in the hundreds of thousands of dollars.

23    The second matter to which I would refer, in case it is of relevance in another Court is this. I should record that Mr Burbidge said that if actually being on the island was important to the defendants' claim in the suit, his client would not seek to take advantage in the proceedings of any absence due to the defendants’ forced removal at this stage.

24    I turn to the plaintiff's claim for interlocutory relief. In evidence was a photocopy of deposited plan 549630 indicating it related to Torrens Title land, together with an electronic Land Titles Office search of lot 1 in that deposited plan showing that the Commonwealth of Australia was named in the First Schedule of the Certificate of Title. It is thus the registered proprietor of the land. There was a notation:

"Second schedule
1. Reservations and conditions in the Crown Grant of portion 562."

25    Neither the Crown Grant nor the Certificate of Title itself were in evidence. There was nothing in the documents which were to prove that they related to Cockatoo Island other than that it was clear from the deposited plan that it was an island in the Parramatta River having an area specified. Of itself that would not be sufficient to prove ownership although in the paragraph of the affidavit referring to the documents as being annexed the only land mentioned is Cockatoo Island and as to that, it is asserted that the island was owned by the Commonwealth. There was no objection to this evidence and indeed it seems common ground that the plaintiff is, on the Torrens Title Register, the registered owner of the property at this time - see page 16 of the transcript and Mr Brassil's letter of 18 December.

26    Although, there is no direct evidence that the plaintiff's interest in the land is one in fee simple, that seems to me the appropriate inference to be drawn at an interlocutory stage from the evidence and the way the case has proceeded.

27    I deal with below, the issues raised in Mr Brassil's letter.

28    There was no dispute as to the matters in the paragraph I have numbered (ii) above. i.e. the landing, staying and refusal to leave the island and, in any event, those matters are clearly established. It follows as an elementary proposition of Australian, or more precisely New South Wales law that, subject to the issues raised in Mr Brassil's letter, the proposition I have numbered (iii), namely that the defendants were trespassers, is also established.

29    To the issues in Mr Brassil's letter I now turn.

30    In Mabo v Queenland (No 2) (1991-92) 175 CLR 1, the case which really established the existence of native title in Australia and which went on to consider the impact of white settlement within Australia on such title, there are some passages very pertinent to the defendants' claim here. At page 68 Brennan J said:

"A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title."

31    At page 69 His Honour said:

“1. The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian Municipal court.
2. On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
3. Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.
4. Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold…"

32    Chief Justice Mason and McHugh J at page 15 agreed with the judgment of Brennan J. Justices Deane and Gaudron had this to say:

“It follows from what had been said in earlier parts of this judgment that the application of settled principle to well known facts leads to the conclusion that the common law applicable to the Colony in 1788, and thereafter until altered by valid legislation, preserved and protected the pre-existing claims of Aboriginal tribes or communities to particular areas of land with which they were specially identified, either solely or with others, by occupation or use for economic, social or ritual purposes.” - at p100.
“The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only…
“The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.” - at p110.

33    Between them, these judges made up a majority of the Court. The effect of the passages to which I have referred is to recognise that there was, prior to settlement, Aboriginal title to the lands in Australia but to hold that that title was lost when and to the extent that grants of estates of freehold or in fee simple were made in respect of the land over which the Crown took sovereignty.

34    That conclusion answers the first of the claims advanced in Mr Brassil's letter. I can pass over the second of the issues raised in Mr Brassil's letter of 18 December. There was no evidence of what land was the subject of Captain Cook's claim, although as he did not enter Sydney Harbour and thus could not have known what was in it, it is unlikely that he drew any distinction between the islands in the harbour and the mainland surrounding it.

35    For sovereignty was also claimed implicitly if not expressly in 1788 when white settlement commenced. I was referred by Mr Miles, who appeared for Mr Corowa, one of the defendants, to the publication Historical Records of Australia, series 1, volume 1. That reproduces Governor Phillips' first and second commissions and instructions. For present purposes it is sufficient to refer to the first commission. Governor Phillip was appointed Governor of, "our territory called New South Wales, extending from the northern cape or extremity of the coast called Cape York, in the latitude of 10 degrees 37 minutes south, to the southern extremity of the said territory of New South Wales or South Cape, in the latitude of 43 degrees 39 minutes south, and to all the country inland to the westward as far as the 135th degree of longitude"… I need not continue.

36    It is a notorious historical fact that Governor Phillip subsequently asserted control (and a right to control), that is, sovereignty over an expanding area commencing at Sydney Cove. It is inconceivable that he made an exception of one or more islands in Sydney Harbour. Indeed, the evidence in the electronic Land Titles Office search of the existence of a Crown grant is a demonstration that sovereignty was asserted at the time of that grant. Thus, so long as the law is set forth in the passage from the High Court's decision in Mabo (No. 2), to which I have referred, the plaintiff's title to Cockatoo Island seems certain. If so, the defendants are trespassing.

37    Patel v Smith (1997) 1 WLR 853 makes it clear that, excepting unusual circumstances, a landowner is entitled to have a trespasser removed from his land, particularly if there is no other appropriate way of the landowner's rights to enjoy his own land being vindicated.

38    In those circumstances, I can only assess the plaintiff's prospects of success in the litigation as high, indeed very high. Given that view, it seems to me that it is appropriate that orders, more or less along the lines asked for in the Notice of Motion, be made. In coming to that conclusion, I am influenced also by the fact that, given the defendants have in their view been dispossessed for some 200 years, dispossession for a limited further time is not likely to occasion them a great deal of further trauma. They chose not to assert their title or their claim through the courts when, if convinced of the rightness of their cause, they could have done so.

39    The current situation is of their own making and in so far as I need consider the balance of convenience, I think that also argues strongly in favour of the plaintiff succeeding in its Notice of Motion. I will now provide the parties with an opportunity of saying anything they wish to as to the precise form of the orders to be made.

……………….

Late the following orders were made:-

1. The defendant and other persons collectively terming themselves members of the Aboriginal Tent Embassy presently upon Cockatoo Island their servants and or agents leave the land known as Cockatoo Island Sydney Harbour being land comprised in Folio Identifier 1/549630 by 4pm Thursday 28.12.2000,

2. That the defendant and other persons collectively terming themselves members of the "Aboriginal Tent Embassy" presently upon Cockatoo Island their servants and or agents not return to nor enter upon the land known as Cockatoo Island Sydney Harbour being land comprised in Folio Identifier 1/549630 pending final determination of these proceedings and any related proceedings.

3. Conditional on the Defendant filing on or before 27.12.2000 an application for leave to appeal to the Court of Appeal returnable before a Judge of that Court on 29.12.2000, I stay operation of the above orders up to 4pm on Wednesday 3.1.2001.

4. I note the 10 persons listed on Exhibit D give an undertaking to the court in terms of the 1st and 3rd undertakings given to Kirby J on 13.12.2000.

5. I grant liberty to apply on 24 hours' notice.

6. Cost of the motion be the Plaintiff's costs in the cause.

Last Modified: 12/29/2000