Boreham v The Commonwealth [1953] HCA 56

Boreham v The Commonwealth [1953] HCA 56

The injunction was refused because the plaintiffs were residing on a public reserve in a continuing offence against State law, the Commonwealth was in de-facto possession and could rely on possessory rights against trespassers, and equity would not intervene to maintain the plaintiffs in that illegal position; any tort claim was left to common law remedies if a tort were committed.

Jurisdiction
Australia
Procedural Posture
Application for Interlocutory Injunction and Appeal / Appeal From Order Refusing an Interim Injunction; Application for Injunction Refused
Outcome
Appeal dismissed and application refused with costs.
Legal Topics
['interlocutory Injunction' 'public Reserve' 'possessory Title' 'trespass' 'illegal Occupation']
['equity' 'property Law' 'tort Law'] ['interlocutory Injunction' 'public Reserve' 'possessory Title' 'trespass' 'illegal Occupation']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction and Appeal / Appeal From Order Refusing an Interim Injunction; Application for Injunction Refused

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted an interlocutory injunction restraining the defendants from ejecting them from Bunnerong Park.' 'Whether the Commonwealth could rely on de-facto possession or possessory title against the plaintiffs as trespassers.' 'Whether equity should intervene where the injunction would maintain the plaintiffs in a continuing offence against State law.']

Ratio Decidendi

The injunction was refused because the plaintiffs were residing on a public reserve in a continuing offence against State law, the Commonwealth was in de-facto possession and could rely on possessory rights against trespassers, and equity would not intervene to maintain the plaintiffs in that illegal position; any tort claim was left to common law remedies if a tort were committed.

Court Disposition

Appeal dismissed and application refused with costs.

Orders

  • ['Appeal dismissed and application refused with costs.']