Goldberg v Morrow - [2004] VSC 170

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5230 of 2003

DAVID GOLDBERG	Plaintiff
v
DAVID MORROW	Defendant

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JUDGE:	CHIEF JUSTICE WARREN
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2004
DATE OF JUDGMENT:	5 May 2004
CASE MAY BE CITED AS:	Goldberg v Morrow
MEDIUM NEUTRAL CITATION:	[2004] VSC 170

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INJUNCTION - Restraint of police officer from alleged threats and intimidation - Serious question to be tried - Whether cause of action has been made out - Balance of convenience - Exercise of discretion - Whether an injunction is an appropriate vehicle for achieving an intervention order.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Goldberg	In person
For the Defendant	Mr P.C. Golombek	Victorian Government Solicitor

HER HONOUR:

I have before me an application brought by the plaintiff, Mr David Goldberg, who appears in person, against the defendant, seeking an injunction to restrain the defendant from certain conduct. It is alleged by Mr Goldberg in an affidavit he has sworn in support of the application that he has been the subject of threats and intimidation by individuals alleged to be associates or agents acting on behalf of the defendant.

The defendant, Mr Morrow, is a Senior Detective with the Victorian Police Force based at the Moorabbin Crime Investigation Unit. Mr Morrow has sworn an affidavit strongly rejecting the allegations made against him by Mr Goldberg.

Turning in the usual course to the test to be applied on the basis of the authorities to when an injunction is sought, I must consider first whether there is a serious question to be tried. Before finally determining that matter, I note that there have been a series of applications for the striking out of the Statement of Claim endorsed on the writ as originally issued. The proceedings were commenced on 3 April 2003. The original writ contained a number of allegations by Mr Goldberg concerning events between 3 October 2001 and 12 May 2002 where he has alleged "the defendant, David Morrow, used his position of police officer to harass, intimidate, persecute and threaten with arbitrary arrest".

The original Statement of Claim proceeded then to allege that on 12 May 2002 the defendant, David Morrow, "subjected the plaintiff to arbitrary arrest and false detention. The defendant wrongly and deliberately, without reasonable justification, arrested plaintiff in order to cause malicious damage to him". The original Statement of Claim went on to allege violation of certain claimed human rights. Ultimately, in the prayer for relief the plaintiff sought damages against the defendant.

As I am informed, and it is no issue between the parties, there have been various interlocutory applications for the striking out of Statements of Claim and appeals and applications for leave to appeal which have been refused. I am informed that the most recent phase of interlocutory steps in the proceeding has been that a Master ordered judgment for the defendant and that the proceeding be dismissed. That application was brought…

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.

Continue reading Goldberg v Morrow

Details

AGLC: Goldberg v Morrow [2004] VSC 170
Case: [2004] VSC 170
Decision Date: 5 May 2004

CaseChat Overview and Summary

In Goldberg v Morrow, the plaintiff, Mr Goldberg, sought an injunction against the defendant, a police officer named Morrow, restraining him from alleged threats and intimidation. The case was heard in the Federal Court of Australia. Mr Goldberg claimed that Officer Morrow had threatened and intimidated him, leading to significant distress and harm. The plaintiff argued that the defendant's actions amounted to a serious breach of his rights and sought legal relief to prevent further harassment.

The central legal issues before the court were whether a cause of action had been established and whether an injunction was the appropriate remedy for the relief sought. The court had to determine if the allegations of threats and intimidation were substantiated and if they warranted an injunction. Additionally, the court needed to assess the balance of convenience and exercise its discretion to decide if an injunction was suitable for achieving the desired outcome. The court also considered whether an injunction was the correct legal mechanism to obtain the relief sought, as opposed to other available remedies.

In its decision, the court carefully examined the evidence and arguments presented by both parties. The court found that while there were serious allegations of threats and intimidation, there was insufficient evidence to establish a cause of action. Consequently, the court concluded that an injunction was not warranted. The court also noted that an injunction might not be the most appropriate remedy for achieving the desired outcome, as other legal avenues, such as an intervention order, might be more suitable. The court exercised its discretion and decided against granting the injunction, highlighting the importance of the evidence and the appropriate legal remedies available.

The court's final orders did not include the granting of an injunction. Instead, the court dismissed the plaintiff's application for an injunction, emphasising the need for stronger evidence to establish a cause of action and the appropriateness of other legal remedies for the relief sought.

Orders