South Sydney City Council v Coe

CITATION : South Sydney City Council v Coe [2001] NSWLEC 32 APPLICANT South Sydney City Council PARTIES : RESPONDENT Coe FILE NUMBER(S) : 40118 of 2000 CORAM: Cowdroy J KEY ISSUES: Practice & Procedure :- Occupation of public land as a campsite or 'tent embassy' without approval - injunctive proceedings initiated by council - injunction granted - respondent thereafter seeking and obtaining council approval - discontinuance of proceedings by applicant - notice of motion seeking to set aside proceedings on grounds of abuse of process - whether injunctive proceedings constituted an abuse of process - nomination of appropriate respondent - claim to sovereignty - motion filed by respondent prior to discontinuance - motions dismissed. Environmental Planning and Assessment Act 1979 s 124(3) LEGISLATION CITED: Local Government Act 1993 s 68, s 697 Land and Environment Court Rules 1996 Pt 11 r 1 Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251; Burnley Borough Council v England (1977) 76 LGR 393; Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208 ; Grainger v Hill [1838] 4 Bing (NG) 212; 132 ER 769 ; King v Henderson [1898] A.C. 720 ; CASES CITED: Mason v Ryan 10 VLR 335 ; Packer v Meagher [1984] 3 NSWLR 486 ; Peek & Anor v New South Wales Egg Corporation (1986) 6 NSWLR 1 ; Rajski v Bainton (1990) 22 NSWLR 125 ; Re Majory [1955] Ch 600 ; Sea Culture International Pty Ltd v Scoles and Ors (1991) 32 FCR 275 ; Stafford Borough Council v Elkenfor Ltd [1977] 1 WLR 324; [1977] 2 All ER 519 DATES OF HEARING: 27/11/00, 22/2/01 DATE OF JUDGMENT: 03/28/2001

22. Ms Coe does not deny that she put herself forward as a representative or spokesperson of those engaged in the embassy and the person with whom the council was to conduct their negotiations. Since the embassy has no legal status it could not have been nominated as respondent. Ms Coe was the logical respondent to any proceedings in the absence of any other identified person who might have exercised measures of control over the embassy. In her affidavit affirmed on 28 August 2000 she affirms as follows:- It has fallen to me by traditional birthright as a Custodian of the Wiradjuri Nation, mandated by The Wiradjuri Council of Elders and endorsed by the Local Eora People represented by their Traditional Custodian Elder, Mr. Herbert Simms that permission was granted for me to give my support to the establishment of the Aboriginal Tent Embassy in Victoria Park until the end of October 2000. The leading role of the respondent is further evidenced by the subsequent events, namely the fact that on 23 August 2000 Ms Coe signed the application for the requisite permission to occupy the park.
23. Where evidence establishes a breach or potential breach of the provisions of the Act, the Court is empowered, inter alia to grant restraining orders against a person or persons who are in a position to cure that breach. In Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251 Stein J said:- The Court's power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach. In the circumstances of this case Ms Coe was such a party.

(2001) 113 LGERA 260

(1995) 89 LGERA 208

(1986) 6 NSWLR 1

(1990) 22 NSWLR 125

(1991) 32 FCR 275