COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 36

COE v THE COMMONWEALTH OF AUSTRALIA [2001] NSWCA 36

The application for leave to appeal was dismissed because the claimants' challenge to the Commonwealth's title based on asserted Aboriginal sovereignty and invalid Crown acquisition of sovereignty was untenable in domestic law, Mabo v Queensland (No 2) remained binding on the inability to challenge the act of State establishing New South Wales, the Commonwealth had very high prospects of success in enforcing its property rights, and the balance of convenience clearly favoured the injunction.

Jurisdiction
Australia
Judgment Date
05 March 2001
Procedural Posture
Application for Leave to Appeal; Trespass to Land; Claim of Aboriginal Sovereignty / Court of Appeal Application for Leave to Appeal From Mandatory Interlocutory Relief Requiring the Claimants to Leave Cockatoo Island
Outcome
Application dismissed with costs.
Legal Topics
['trespass to Land' 'aboriginal Sovereignty' 'crown Acquisition of Sovereignty' 'registered Title' 'interlocutory Injunction' 'leave to Appeal' 'balance of Convenience']
['property Law' 'constitutional Law' 'aboriginal Law' 'civil Procedure'] ['trespass to Land' 'aboriginal Sovereignty' 'crown Acquisition of Sovereignty' 'registered Title' 'interlocutory Injunction' 'leave to Appeal' 'balance of Convenience']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal; Trespass to Land; Claim of Aboriginal Sovereignty / Court of Appeal Application for Leave to Appeal From Mandatory Interlocutory Relief Requiring the Claimants to Leave Cockatoo Island

Legal Issues

  1. 1 ['Whether the claimants had an arguable basis to resist interlocutory relief requiring them to leave Cockatoo Island.' "Whether the Commonwealth's registered title to Cockatoo Island could be impugned by a claim that the Crown's acquisition of sovereignty over eastern Australia was invalid because there was no treaty with Aboriginal peoples." 'Whether asserted Aboriginal sovereignty could create immunity from Commonwealth and New South Wales statute law, the common law of Australia, or otherwise valid property rights.' 'Whether Mabo v Queensland (No 2) had been undermined by Sue v Hill in relation to the inability of a domestic court to question the act of State establishing New South Wales.' 'Whether the balance of convenience favoured the interlocutory injunction.']

Ratio Decidendi

The application for leave to appeal was dismissed because the claimants' challenge to the Commonwealth's title based on asserted Aboriginal sovereignty and invalid Crown acquisition of sovereignty was untenable in domestic law, Mabo v Queensland (No 2) remained binding on the inability to challenge the act of State establishing New South Wales, the Commonwealth had very high prospects of success in enforcing its property rights, and the balance of convenience clearly favoured the injunction.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed with costs.' 'The conditional stay expires 7 days from 5 March 2001.']