Re Wilson; Ex parte Coe

[1992] HCATrans 248

~

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl06 of 1992
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against THE

HONOURABLE MR JUSTICE BAKER

and THE HONOURABLE

MR JUSTICE NYGH of the Family

Court of Australia

First Respondents

SALLY WILSON

Second Respondent

Ex parte -

PAUL THOMAS COE

Prosecutor/Applicant

DEANE J

(In Chambers)

Coe 1 28/8/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 28 AUGUST 1992, AT 10.01 AM

Copyright in the High Court of Australia

MR E. PETERSEN:  Your Honour, in this matter, if it please

the Court, I appear for the prosecutor, Paul Thomas

Coe. (instructed by the Aboriginal Legal Service)

HIS HONOUR:	Yes, Mr Petersen.
MR PETERSEN:	Your Honour, the initiating process in this

matter was filed in the Sydney Registry of this

Court yesterday, as I understand it.	We were
advised that it has been faxed to this Registry.	I
have to - - -

HIS HONOUR:  I have the Sydney file before me.

MR PETERSEN:  May it please the Court. Does that file,

Your Honour, contain the supporting affidavit of

Mr Bruce Robert Miles?

HIS HONOUR:  Yes. Mr Petersen, you can proceed on the basis

that I have, in a general way, read the documents

in the file. If there is anything in particular

that I might have missed in such a general reading

that you want to rely on, bring it directly to my

attention.

MR PETERSEN: Yes, Your Honour. In those circumstances, I

believe that Your Honour would have observed that

the most substantial proportion of the supporting

affidavit was the annexures A to H which are, of

course, voluminous in terms of the number of folios
but if Your Honour has read those in a general

sense, I would respectfully accept that that would

be probably sufficient for Your Honour's purposes.

HIS HONOUR:  Am I correct that what is involved is this:

there are lengthy proceedings in the Family Court;

orders have been made by a single judge of that

court that have not been stayed, and that the

effect of those orders is that the matrimonial home

will be offered for sale by auction tomorrow?

MR PETERSEN: That is correct, Your Honour.

HIS HONOUR:  It seems to me that there are two matters you

need to address. The first is were appellate

procedures available in the Family Court which have

not been pursued to stop that order being carried

into effect? The second is, on what grounds this

Court should grant an order nisi.

MR PETERSEN:  Your Honour, taking the second of those two

issues, in accordance with the practice notes of

this Court I have prepared not so much a summary of

the prosecutor's submissions as written submissions

running to some seven pages. If Your Honour

pleases, I would propose to hand up the original of

Coe 2 28/8/92

those written submissions, plus three copies for

the Registry.

HIS HONOUR:  Could I ask this: to what extent do they

diverge from paragraph 21 of Mr Miles' affidavit?

MR PETERSEN:  They do diverge, Your Honour, to the extent

that they place much greater emphasis upon the

jurisdictional issue which the prosecutor seeks to

raise before this Court.

HIS HONOUR:  Really that would be the only ground you would

get this order nisi, in any event; if you could

make out a prima facie case.

MR PETERSEN: Yes, I accept that, Your Honour.

HIS HONOUR:  If you care to hand up the document,

Mr Petersen.

MR PETERSEN:  Your Honour, I hand up one original copy of

submissions of the prosecutor signed by myself and

dated upon this date, together with three

photocopies of same.

HIS HONOUR:  Thank you. You sit down while I read this,

Mr Petersen. I have read that, Mr Petersen.

MR PETERSEN:  In relation to the second issue that

Your Honour has raised, our submission is that this

forum is the appropriate forum to seek a stay of

proceedings, notwithstanding the non-completion of

an appeal in the Full Court of the Family Court and

also notwithstanding an attempt to procure a stay

of proceedings in the Full Court of the Family
Court.

Our understanding of the situation with the rules of the Family Court, Your Honour, is that the

primary judge, or if that primary judge be not

available, some other judge at the first instance

is the judicial officer to whom a stay application

must be made in relation to the results of a

contested hearing in the Family Court. The act of

filing and commencing an appeal to the Full Court

of the Family Court does not act as a stay. That
application must be made to a single judge. If

that application is refused by a single judge, and

obviously Your Honour has noted the purpose of the

affidavit evidence has been to indicate to this

Court the efforts made by the prosecutor to obtain

such stay, but if that stay application is refused

by a single judge, then the appellant is thrown
back on the avenue of appeal that takes them to the

Full Court to appeal against that decision of a

single judge.

Coe 3 28/8/92

Under those circumstances, Your Honour, the

appellant would face the extremely prohibitive
reluctance of appeal courts to intervene in
appellate jurisdiction to interfere with what are
called interlocutory decisions by courts below.

That is to say there is a right of appeal from a

judgment or order following a contested hearing of

substantial issues, but the right of appeal in

relation to interlocutory matters is attended by

the reluctance of appellate courts, as a matter of

discretion, to interfere in those rulings of the

courts below.

Under those circumstances, Your Honour,

combined with the circumstance that the appellant

in the Family Court, the prosecutor in this Court,

is manning a very challenge to the very

jurisdiction of the Family Court, both in the - - -

HIS HONOUR:  Mr Petersen, having read your submissions, I

think I can say this to you: if I were of the view

that there was any real prospect of your

submissions on jurisdiction being upheld by a Full

Court of this Court I would make the order nisi.

In other words, I do not think you really need to
be troubled, in view of the basis on which you seek

relief, about the matter I raise, namely the

failure to pursue appellate procedures within the

Family Court. ·

The problem that you do face is in persuading

me that there is any realistic chance of a Full

Court of this Court upholding those submissions.

MR PETERSEN:  In view of what has fallen from Your Honour, I

should not be labouring the second issue of

Jour Honour's question directed to me.

HIS HONOUR:  I have encouraged you slightly, but discouraged

you greatly, I think.

MR PETERSEN: All that I could add to the second issue to

what I have said already, Your Honour, is that we
would submit in relation to the second issue that
if the sale proceeds as is timetabled for tomorrow,

irreparable damage would be done, not only to the

plaintiff's or the prosecutor's personal situation
but also his family relationships and his case.

But as Your Honour has said, that issue does not arise if I fail on the jurisdictional point.

Your Honour, in relation to the jurisdictional

point which is the substantive body of the written

submissions beforfe Your Honour, I do not have a

great deal that I could usefully add to the

submissions before your Court that would not be

something of an act of disrespect to be saying

Coe 4 28/8/92

twice what has been said once. Your Honour, what I

should perhaps address which was not - - -

HIS HONOUR:  Can I just say this to you, that having

identified the argument, I would not really think

that there would have been much more that you could

say in that we are in the very unusual situation

where all members of the Court have recently been

concerned with this area of law to a considerable

extent. Needless to say, we have as much time as

you need, and if there is anything that you want to

put, put it, but I do not think you should really

feel that I am looking to you for the sort of

assistance that I would have needed if Mabo had not

been fairly recently decided.

MR PETERSEN:  Yes, Your Honour. Three additional

submissions arise out of what Your Honour has said.

The first thing is, Your Honour, that it is patent

in the written submissions, and also patent in what

I am about to say, that the prosecutor admits that

he cannot call to his assistance a great volume of

authority. In fact, Your Honour, I have brought to

Court two photocopies of judgments that appear in

the written submissions, that is to say the case of

R v Jack Congo Murrel, a case of 1836, and also the case of R v Wedge, a case of the year 1976, which

are fairly well known cases and oft cited in this

jurisdiction. It might be superfluous,

Your Honour, but I will hand up those photocopies

in the event that they may be of some assistance to

the Court.

As Your Honour would no doubt be already

aware, these have been for quite some time leading

cases in our common law system about the status of

Aboriginals before the Angle-Australian legal

system. We bring them to-Court today not to praise

them, but to endeavour to bury them; that is to

say, we submit with respect that the decision of

Your Honour and the remaining six Justices of the

Full Court has substantially dismembered the basis

upon which those leading cases were created and we

submit, unambiguously, that we invite this Court to

determine that those cases are wrong in law. In

that sense, Your Honour, we come here not to offer

authorities to the Court but to invite the Court to overrule the existing authorities and establish new
ones. That is the first point, Your Honour.

The second point, Your Honour, is that our

submission is that the case of EddyMabo v State of

Queensland has, in tact, left a large number of

questions unresolved for determination by this

Court. Your Honour is far more cognizant with the

facts and the details and particularities of that

case than I am, but if I might be permitted to

Coe 28/8/92

recount them: we are dealing in that particular

case with the status before Anglo-Australian law of

a property claim in relation to a Torres Strait

Island, in other words a substantially, if I might

use the phraseology, a case that. falls within the

tradition of land rights legislation and litigation

in Australia and our submission that to the extent

that findings of law have been made by the majority

in Mabo in relation to native title, where it is

claimed by indigenous occupants and where they

assert that that title has either not been

extinguished or is incapable of extinguishment, we

submit that that does not resolve the question of

the assertion of the continuation of other
Aboriginal law and custom. That is to say in the
case of Mabo we have an assertion before this
Court, eventually ruled in the affirmative, that

Aboriginal law and custom in the Murray Island

creates a system of native title. Whereas we

submit to this Court that it should recognise that

there is also a tradition of Aboriginal law and

custom which establishes Aboriginal law concerning

matrimonial matters. Our assertion is, with

respect, that that matter has not been resolved by

Mabo and should be resolved by this honourable

Court.

The third submission, Your Honour, is that we

commend to the Court, with respect, the public merit of determining these issues. Given that

there has been a fairly conclusive ruling on the
invalidity of arguments based upon terra nullius in
Australia, we now have the situation that the

status of the Aboriginal occupants of Australia and

their descendants today is now suspended in mid-

air. The legal foundation upon which they were

erected has been cut from underneath them and the

most unsatisfactory situation which emerges now is

that there is, in my submission, no conclusive

statement from a superior court in Australia of the

status of Aboriginal citizens before the Anglo-

Australian common law.

Under those circumstances, Your Honour, our

submission is that there is merit and public

interest in this issue which does commend this case

to the Court as one worthy of hearing by the Full

Bench.

Your Honour, those three points are the only

three submissions at this stage I would add to the

written submissions, unless I can add any further

matters in reply to any queries by Your Honour.

HIS HONOUR:	Thank you, Mr Petersen.
Coe	28/8/92

HIS HONOUR: This is an application for orders nisi for

writs of prohibition and certiorari directed to the

Family Court of Australia.

The applicant, Mr Paul Coe, is an Australian

Aborigine who was born on a mission near Cowra and who identifies himself as a member of the Wiradjuri

people and is accepted by those people as one of

their number.

The material before me indicates that he

married Miss Sally Wilson, who is not an the applicant and Miss Wilson cohabited for some years. There are three children of the marriage,

two born before the date of marriage and one

subsequently.

The parties separated on 6 April 1990 when

Mr Coe left the former matrimonial home at 118

Catherine Street Leichhardt. He returned to that

home about a month later. Since then he has
remained in occupation of the home and the wife has

rented accommodation. During the course of the

marriage and since, Mr Coe has been absent either

overseas or in other parts of the country in

connection with his role as spokesman on Aboriginal

affairs.

On 18 May 1990, Ms Wilson commenced

proceedings in the Family Court of Australia

related to custody, access and property matters.

It is unnecessary that I trace the history of the

proceedings in the Family Court. It suffices to

say that the effect of an order made by that court

is that the former matrimonial home is to be

offered for sale by auction tomorrow.

Before the Family Court, and now in this

Court, the applicant has challenged, and
challenges, the jurisdiction of the Family Court.

The basis of that challenge is identified in

paragraph 21 of the supporting affidavit of Mr

Bruce Miles. It is as follows:

(a) The prosecutor identifies with a

genealogical line of Aboriginal people who

have a long and unbroken tradition of

resistance to the (Murphy J): "unprovoked

aggression, conquest, and attempted genocide"

to which the prosecutor and his forebears have

subjected.

(b) The prosecutor is not an Australian

citizen and denies that he has ever received

or been given the protection which is an

essential precondition of any allegiance that

Coe 28/8/92

may be demanded from him or owed by him to the

Commonwealth and State authorities which may

purport to exercise jurisdiction, management

or control over himself, his property, or his
children.

(c) In relation to the Prosecutor the legitimacy.

(d) denial of custody is a further act of

attempted genocide.

(e) The Family Court has no jurisdiction over

the Prosecutor's children, as Aboriginal
children.

(f) 118 Catherine Street was purchased by the

prosecutor with financial assistance in the
form of a loan provided by the Aboriginal

Development Commission. '

(g) such funds of the Aboriginal Development
Commission as are received from the
Commonwealth Government are received by the

Aboriginal Development Commission for and on

behalf of Aboriginal persons as partial

compensation for Aboriginal land torn from

them.

(h) all funds held by the Aboriginal

Development Commission (and its successors in

title) are funds bearing the character of
trust funds to be held on trust for the

benefit and compensation of the Aboriginal
people and to be disbursed to Aboriginal
people as individuals and responsible members

of the Aboriginal people.

(i) the prosecutor has obligations in

relation to an extended family, according to

Aboriginal customs and traditions to hold and make available 118 Catherine Street to members

of this family and wider Aboriginal Community

for their benefit, use, and enjoyment.

(j) therefore 118 Catherine Street is the

property of the prosecutor, the prosecutor's

immediate family, and the prosecutor's

extended family and as such is Aboriginal

property and is outside the jurisdiction of

the Family Court of Australia.

(k) the forced sale of 118 Catherine Street

would be a further act of dispossession of the

Aboriginal people.

Coe 8 28/8/92

(1) the custody issue should not be separated

from the property issue involving

118 Catherine Street.

(m) If the Family Court does have a

jurisdiction over Aboriginal people in general, there was and is a subsisting

marriage under Aboriginal law and custom

between the Prosecutor and Sally Wilson and

Aboriginal law and customs have survived the

enactment of and have precedence (over] the

Marriage Act 1961 (Cth), and the Family Law

Act 1975 (Cth).

This statement of the grounds of challenge to

has been expanded in the written and oral	the jurisdiction of the Family Court of Australia
submissions of Mr Petersen of Counsel in the course of proceedings before me. Mr Petersen's written
submissions will be kept with the Court file in the
matter.

If I had been of the view that there was a

realistic prospect that the Full Court of this

Court would rule that the Family Court of Australia

lacked jurisdiction on the grounds, and for the

reasons, upon which the applicant relies, I would

have had no hesitation in making orders nisi for

prohibition and certiorari returnable before the

Full Court of the Court. I have, however, come to

the firm view that there is no realistic prospect

that a Full Court of this Court would so hold.

Accordingly the application for orders nisi is

refused.

MR PETERSEN:	May it please the Court.
HIS HONOUR:	The Court will now adjourn.
AT 10.26 AM THE MATTER WAS ADJOURNED SINE DIE

Coe 9 28/8/92