Burns J
In this matter, the Supreme Court of the ACT dismissed an application by Mr Mortimer for an interlocutory injunction. Mr Mortimer sought the injunction to prevent a proposed sub-division of land in Lawson by the Land and Development Agency until his common law native title rights had been determined. He argued that the Commonwealth could not prove valid extinguishment of his native title rights and claimed equitable relief under the Human Rights Act 2004 (ACT), asserting that recognition of his common law native title rights had been ignored due to his race. Mr Mortimer sought to have the hearing transferred to the Federal Court, as it concerned constitutional and native title matters.
Submissions
The Land Development Agency contended that Mr Mortimer’s application should be struck out on the basis that he had failed to satisfy the requirements of an injunction, native title rights over the land in Lawson had been validly extinguished, and there were no substantial issues to be tried before the Federal Court.
Decision
The Supreme Court affirmed that an applicant must satisfy two requirements to obtain an injunction: (1) that they have a prima facie case for relief, and (2) that the inconvenience or injury the plaintiff would suffer if an injunction were refused would outweigh the injury the defendant would face if the injunction were granted.
The Court held that Mr Mortimer failed to satisfy the first requirement in this case, as any alleged native title rights over the land had been extinguished when the land was sold by the Crown to a private land owner in 1833 and 1836 in a grant of fee simple. Burns J drew support from Fejo v Northern Territory (1998) 195 CLR 96, where it was stated that a grant in fee simple is the equivalent of full ownership of the land and will extinguish native title rights.
The Supreme Court held that Mr Mortimer had not demonstrated that he had a prima facie case and that the application for an interlocutory injunction should be refused.