Kennedy v Stockland Developments Pty Ltd & Anor (No 3)

This case concerned earthworks undertaken by Stockland on land known as “Wilkies Walk”, being land of significance to Aboriginal people, and protests by Aboriginal people who sought to prevent the works from taking place. Justice Sheahan had granted an injunction restraining unauthorised members of the public from entering upon any part of the land specified in the orders. EDO NSW, on behalf of Mr Kennedy, sought that the injunction be dissolved on the basis that it was made on an ex parte basis without affording Mr Kennedy an opportunity to be heard, its terms were too wide, and that it impermissibly infringed a common law right of free speech or a common law right to protest.

The Court dismissed the application, holding that the ex parte order was justified in circumstances where the protest on the development site appeared to be ongoing and Mr Kennedy’s representative could have requested an opportunity to be heard in relation to the injunction. The Court was satisfied that the terms of the injunction were not too wide. In relation to common law rights of free speech and to protest, the court held that the cases cited did not stand as authority for the proposition that there exists at common law in Australia a right to free speech or a right to protest, and that the injunction did not prevent protests taking place on public lands (only on Stockland’s lands). Mr Kennedy was ordered to pay Stockland’s costs of the motion.

Judgment