Black v Rafa Pastoral Pty Ltd - [2009] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 6154 of 1991

ROBERT JOHN BLACK
ROBERT JOHN BLACK	Appellant
v
RAFA PASTORAL PTY LTD and ORS	Respondents

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APPLICATION ON SUMMONS

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JUDGES:	MAXWELL P and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2009
DATE OF JUDGMENT:	4 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 295

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INJUNCTION – Appeal from refusal to grant interlocutory injunction – Fresh evidence R 64.22 – Summary dismissal of appeal – Whether appeal an abuse of process – Inadequacy of notice of appeal – Content serving alien purpose – R 64.05 – Futility of appeal as property the subject of the application now sold –Yarra Valley Ranges v Russell [2009] VSCA 279 applied.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the 4th and 5th Respondents	Mr P Fary	N A Young & Co

MAXWELL P:

I will invite Redlich JA to deliver the judgment of the Court.

REDLICH JA:

The Court has before it two separate applications which arise out of proceedings in the Trial Division of the Supreme Court concerning a claim by Robert John Black, the applicant, over a property once owned by a family company in which he claims an interest. These proceedings have a long history, having been commenced by the applicant in 1991. The trial is now scheduled to take place next year.

The orders which are the subject of the present application concern a refusal by a judge of the Trial Division sitting in the Practice Court to grant an application in favour of the applicant restraining the respondents, being the family company, the trustees in bankruptcy of his late brother's estate, and the wife of his late brother, from disposing of or dealing with the property that is the subject of the applicant's proceedings. His Honour refused the injunction on the balance of convenience. The property was subsequently sold and the proceeds have been distributed. The applicant has commenced an appeal against the refusal to grant the injunction.

On 24 August 2009, the applicant filed an application on summons seeking to file new material on his prospective appeal. He appears in person today in support of that application.

By amended summons dated 12 October 2009, the fourth and fifth respondents, being the trustees in bankruptcy of the second respondent's estate, seek an order that the applicant's notice of appeal be struck out as constituting an abuse of process. They rely upon two distinct bases as occasioning the alleged abuse: first, that the grounds of appeal mistakenly attempt to litigate the issues which are the subject of the upcoming Trial Division litigation, so that, they submit, the appeal is doomed to fail; second, that as the property has been sold and the proceeds of sale distributed, the appeal against the refusal to grant injunctive relief has been rendered nugatory and is therefore oppressive and vexatious.

The dispute between the applicant and the respondent concerns the applicant's claim of an interest in a Traralgon property comprising a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSCA 295
Decision Date: 4 December 2009

CaseChat Overview and Summary

In Black v Rafa Pastoral Pty Ltd, the plaintiff sought an interlocutory injunction against the defendant, a pastoral company, in a dispute concerning land use and boundaries. The matter was heard and determined in the Supreme Court of Victoria. The plaintiff alleged that the defendant had encroached on their property and sought an injunction to prevent further encroachment and to compel the defendant to remove existing structures.

The central legal issues before the court involved the court's discretion to grant an interlocutory injunction, the relevance of fresh evidence under Rule 64.22, and the propriety of the defendant's conduct in relation to the notice of appeal. The court also considered the futility of the appeal given that the property in question had been sold since the initial application for the injunction.

The court dismissed the appeal, finding it to be an abuse of process. The notice of appeal was deemed inadequate as it did not properly serve the purpose of an appeal and instead appeared to serve an alien purpose. The court held that the appeal was futile since the property had already been sold, and there was no longer any live controversy. The court applied the principles from Yarra Valley Ranges v Russell [2009] VSCA 279, which held that an appeal becomes futile when the subject matter of the appeal no longer exists or is no longer capable of being the subject of the relief sought. Consequently, the appeal was summarily dismissed.

Orders