Kohen v Deerubbin Aboriginal Land Council

FEDERAL COURT OF AUSTRALIA

Kohen v Deerubbin Aboriginal Land Council [2001] FCA 343

Federal Court Rules, O 27 r 4A

JAMES LESLIE KOHEN v DEERUBBIN ABORIGINAL LAND COUNCIL
NG 6004 of 1998

MADGWICK J
7 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6004 of 1998

BETWEEN:

JAMES LESLIE KOHEN

APPLICANT

AND:

DEERUBBIN ABORIGINAL LAND COUNCIL

RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

7 MARCH 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The parts of the Schedule to the subpoena which are struck out in the draft Schedule appearing at page 19 of the affidavit of Mr Tony of 2 March 2001 are struck out.

2.Pursuant to order 27 rule 4A of the Federal Court Rules, the applicant is to pay Dr Kohen $5,000 costs to comply with the subpoena.

3.The Notice of Motion is otherwise dismissed.

4.The parties pay their own costs of this application.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6004 of 1998

BETWEEN:

JAMES LESLIE KOHEN
APPLICANT

AND:

DEERUBBIN ABORIGINAL LAND COUNCIL

RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This matter continues to have at its heart the probable inadequacy of the existing processes of the law to deal with the fundamental matters at issue in a practical, timely and, as far as possible, inexpensive way. 

2. Dr Kohen, an expert engaged by the applicants in the principal proceedings and the applicant on the Notice of Motion, seeks by Notice of Motion to strike out the subpoena issued by the third respondent in the principal proceedings, the Deerubbin Aboriginal Land Council (“the Council”).

3. The applicant in the principal proceedings says that he and persons he is associated with, are the descendants of the original inhabitants of an area now covering much of the area of the north-western suburbs of Sydney and adjacent agricultural and other lands. 

4. The Council was established under New South Wales law.  In an effort by the State Parliament to address some of the historical wrongs done to Aboriginal people in New South Wales, land councils such as the Council were established on the basis that, for each particular area, the council would be quite “democratically” constituted, that is by election of councillors from the adult Aboriginal persons living within the area covered by the council.  The Council succeeded, under New South Wales legislation, in acquiring title to the subject land which is about 25 acres of bushland in the Hawkesbury area. 

5. The Council, having had access to the expert reports sought to be relied upon by the applicant in the principal proceedings, remains apparently implacably of the view that the applicant, Mr Gale, and those associated with him, do not have the historical legitimacy, as the descendants of the original owners of the land, which they claim.  In these circumstances, the Council takes the view that it would be contrary to principle for it to involve Mr Gale and/or…