Contempt of Court—Order—Ex parte application—Persons affected not identified—Rules of the Supreme Court (Vict.). O. 52, r.3.
Decision
GIBBS C.J., MASON, WILSON, BRENNAN, DAWSON JJ.: Before the Court are an appeal brought by special leave from two decisions of the Supreme Court of Victoria (Brooking J.) and the return of an order nisi for writs of prohibition and certiorari directed to Brooking J., the Commonwealth and the Australian Telecommunications Commission ("Telecom").
2. In September and October 1983 the Commonwealth was the owner of land at South Yarra in Victoria on which there was erected a building which had been used by Telecom for offices but which had for some years been vacant. The building was described as a large mansion house, called "Bona Vista" and it was entered in the Register of the National Estate. The Commonwealth and Telecom wished to auction the property in November or December 1983. On about 4 September 1983 a group of trespassers broke into the building and commenced to occupy it. There was reason to believe that the trespassers were members of or were supported by bodies known as the Squatters' Union, the Western Region Resource Centre and the Tenants Advisory Service. A sign, headed "Squatters' Union Notice", was displayed at the premises and proclaimed that the house was occupied by persons unable to find housing that they could afford. Telecom made efforts to persuade the trespassers who were occupying the house to leave, not only by speaking to some of the occupants themselves but also by sending letters addressed to each of the three bodies mentioned. The trespassers however remained in occupation. On 26 September 1983 the Commonwealth and Telecom issued a writ out of the Supreme Court of Victoria claiming, inter alia, a representative order and an injunction. The defendants were Joan Doyle, Graham Brian Honner and Tammy Marie Van Hoof (although at that time the two last-mentioned defendants were described simply as Graham and Tammy). Joan Doyle was not an occupier but she was associated with the Squatters' Union and the Western Region Resource Centre and had apparently played some part in assisting the squatters in their occupation of Bona Vista. Graham Brian Honner and Tammy Marie Van Hoof had both become occupants of the building on 4 September. Each swore an affidavit on 29 September 1983 stating that on 22 September he or she had decided to leave Bona Vista and on 29 September was living elsewhere, but carefully omitting to state whether the departure occurred before the writ was issued on 26 September. An application was made by the plaintiffs on summons for a representative order and an interlocutory injunction, and on 4 October 1983, after a hearing at which the defendants were represented, Brooking J. indicated that he proposed to order that for the purposes of the…
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
AGLC
Doyle v The Commonwealth [1985] HCA 46
Case
[1985] HCA 46
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from a judgment of Brooking J. of the Supreme Court of Victoria. The appeal concerned an order made by Brooking J. on 7 October 1983, which the appellant sought to have set aside. The case involved an application for special leave to appeal against this order.
The central legal issue before the High Court was the validity of an order made by Brooking J. on 7 October 1983, particularly in light of the requirements of Order 52, rule 3 of the Rules of the Supreme Court (Vict.). This rule pertains to applications for contempt of court and the identification of persons affected by such orders.
The High Court allowed the appeal, finding that the order made by Brooking J. on 7 October 1983 was invalid. The Court rescinded the grant of special leave to appeal against the earlier judgment and order of Brooking J. made on 5 October 1983. The Court ordered that the order of 7 October 1983 be set aside and made no order as to the costs of the application for special leave to appeal.
Orders
Orders of the court
Rescind grant o f special leave to appeal against the judgment and order o f Brooking 1. made on 5 October 1983. No order as to the costs of the
application for special leave to appeal.
Appeal from the judgment and order of Brooking J. made on 7 October 1983 allowed
with costs. Order that the order made on 7 October 1983 be set aside.