COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 49

COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 49

The stay was refused because the proposed special leave grounds concerning the identity of the person instituting proceedings and the effect of ministerial powers under s6 had no real or substantial prospect of success, the Commonwealth was the registered proprietor and in possession of Cockatoo Island and was a proper plaintiff to enforce its property rights, and there was no basis to depart from the earlier Court of Appeal conclusion that the balance of convenience clearly favoured the injunction.

Jurisdiction
Australia
Judgment Date
12 March 2001
Procedural Posture
Application for Stay Pending Application for Special Leave to Appeal to the High Court / Court of Appeal Single Judge Application After Dismissal of Application for Leave to Appeal From Mandatory Interlocutory Relief
Outcome
Application dismissed with costs.
Legal Topics
['stay Pending Special Leave to Appeal' 'interlocutory Injunction' "registered Proprietor's Title" 'trespass to Land' 'commonwealth Proceedings']
['civil Procedure' 'appellate Procedure' 'property Law'] ['stay Pending Special Leave to Appeal' 'interlocutory Injunction' "registered Proprietor's Title" 'trespass to Land' 'commonwealth Proceedings']

Case Brief

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Procedural Posture

Application for Stay Pending Application for Special Leave to Appeal to the High Court / Court of Appeal Single Judge Application After Dismissal of Application for Leave to Appeal From Mandatory Interlocutory Relief

Legal Issues

  1. 1 ['Whether the conditional stay should be extended pending the hearing of an application for special leave to appeal to the High Court.' 'Whether the proposed special leave grounds had a substantial or real prospect of success.' 'Whether the Commonwealth of Australia was a proper plaintiff to enforce property rights in Cockatoo Island.' "Whether s6 of the Cockatoo and Schnapper Islands Act affected the Commonwealth's ability to bring the proceedings." 'Where the balance of convenience lay for interlocutory relief requiring the claimants to leave Cockatoo Island.']

Ratio Decidendi

The stay was refused because the proposed special leave grounds concerning the identity of the person instituting proceedings and the effect of ministerial powers under s6 had no real or substantial prospect of success, the Commonwealth was the registered proprietor and in possession of Cockatoo Island and was a proper plaintiff to enforce its property rights, and there was no basis to depart from the earlier Court of Appeal conclusion that the balance of convenience clearly favoured the injunction.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed with costs.']