Starkey on behalf of the Kokatha People v State of South Australia [2016] FCA 1577

Starkey on behalf of the Kokatha People v State of South Australia [2016] FCA 1577

The application for a stay could not succeed because a dismissal order is not executory. The interlocutory injunction was refused because the applicant’s undertaking as to damages was not adequate or of substance; without such an undertaking, the injunction should not be granted.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 December 2016
Procedural Posture
Interlocutory Application in an Appeal (native Title) / Application for Stay of Execution And/or Interlocutory Injunction Pending Appeal
Outcome
Application dismissed
Legal Topics
['stay of Execution' 'interlocutory Injunctions' 'undertakings as to Damages' 'balance of Convenience']
['native Title' 'practice and Procedure'] ['stay of Execution' 'interlocutory Injunctions' 'undertakings as to Damages' 'balance of Convenience']

Source-derived case record

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Procedural Posture

Interlocutory Application in an Appeal (native Title) / Application for Stay of Execution And/or Interlocutory Injunction Pending Appeal

Legal Issues

  1. 1 ['Whether a stay can be granted on an order dismissing a native title claim (i.e., an order with no executory effect)' 'Whether an interlocutory injunction should be granted restraining the respondents from applying to the Environment Resources and Development Court of South Australia under s 63N of the Mining Act 1971 (SA)' 'Adequacy of the undertaking as to damages provided by the applicant']

Ratio Decidendi

The application for a stay could not succeed because a dismissal order is not executory. The interlocutory injunction was refused because the applicant’s undertaking as to damages was not adequate or of substance; without such an undertaking, the injunction should not be granted.

Court Disposition

Application dismissed

Orders

  • ['Exhibits A1 and A2 to be placed in a sealed envelope and marked confidential, not to be opened without leave of a judge.' 'Exhibits A1 and A2 not to be distributed beyond counsel and solicitors for parties.' 'The interlocutory application filed 12 December 2016 is dismissed.' 'Costs reserved.']