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:

1. 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.

1. 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.

1. 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".

1. 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.

1. 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 by the defendant following the last strike out application which was successful, and it was brought on the basis that there was no Statement of Claim endorsed on the writ.

1. I am informed that subsequently there was an appeal brought before Nettle J and that, on 6 November 2003, his Honour ordered judgment for the defendant and that the proceeding be dismissed.  It seems that the latter order of Nettle J is itself now the subject of an appeal to the Court of Appeal instituted on 11 November 2003.  That appeal remains on foot.  Hence at this point in time there is no Statement of Claim endorsed on the writ or filed in support of the plaintiff 's claim.

1. In any case, the original event that is the pivotal event for the purposes of the Statement of Claim is said to have occurred on 12 May 2002 and not the events deposed to in the affidavit filed by the plaintiff, Mr Goldberg, on 28 April 2004 as to the most recent events said to have occurred on 17 April 2004.

1. Turning then to whether there is a serious question to be tried, I would need to be satisfied that the plaintiff has disclosed a cause of action against the defendant.  On  the basis of  the pleadings, of which there are none, there is no cause of action made out.  Even if it transpired that leave was granted in some shape or form by a court for the filing of a further amended Statement of Claim, I have difficulty on the face of the affidavit in comprehending precisely what the claim or the cause of action is that Mr Goldberg would allege.

1. Weighing those matters up, it seems to me that there is not a serious question to be tried.  In any event, assuming that there was for the purposes of the present application, I turn then to consider the next test, that is whether the balance of convenience favours Mr Goldberg.  I make a number of observations.

1. First, the allegations made by Mr Goldberg against Mr Morrow are of a serious nature, particularly given regard to the position that Mr Morrow holds.  I note that, as a matter of principle, where allegations of a criminal nature are made  the issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional and the courts have generally been reluctant to grant such orders and have approached that matter with some hesitation.

1. Nevertheless, turning to the seriousness of the allegations, I have considered carefully the affidavit filed by Mr Goldberg in support of his application.  I note that in a number of respects it does not accord with the Rules.  It seems to me on its face to be insufficient to make out the seriousness of the allegations that he alleges. On that basis, I would have some hesitation in finding that the discretion should be exercised.

1. There is a further matter.  Considering the relief sought by the plaintiff  in his summons, the nature of the injunction sought is wide and in many respects unclear and uncertain.  I would not be disposed to exercise the discretion in his favour on the basis of the injunction as articulated in the summons.

1. There is a remaining matter and this weighs particularly in the exercise of the discretion and affects the balance of convenience.  In effect, it seems to me, it might well be said that the nature of the relief sought by the plaintiff  is more properly characterised as an intervention order.  I observe that such application can be made in another jurisdiction.  In any event, it seems to me that using the vehicle of an injunction to achieve the effect of an intervention order is not an appropriate use of the Rules and provisions relating to this court. In any event, I note that an intervention order has not been sought. 

1. Weighing all these matters up, I am not satisfied that it is appropriate to exercise the discretion in the matter sought by the plaintiff.  I make one remaining observation.  In the course of argument in response to a submission by Mr Golombek of counsel for the plaintiff, Mr Goldberg indicated that he is not frightened or in fear of the defendant.  However, he wishes the defendant to cease the conduct he alleges.  That being the case, I have difficulty in seeing that even if the events alleged by Mr Goldberg were established at a trial, damages in all likelihood would not be the appropriate remedy.  The general principle applied by the courts is that where damages is an appropriate remedy it is a factor that is taken into account in the exercise of the discretion.  It seems to me on that further basis, therefore, that the discretion should not be exercised as sought by Mr Goldberg.

1. In the circumstances, I am not satisfied that the orders should be made and I am satisfied that the summons should be dismissed.

(Discussion ensued.)

1. The remaining matter to be considered is the question of costs.  It seems to me on its face that there is no special or unusual aspect of this proceeding such that costs should not follow the event in the ordinary course.  Accordingly, the orders I will make in this matter are as follows.

(1)The plaintiff's summons filed 29 April 2004 be dismissed.

(2)The plaintiff pay the defendant's costs of the summons.

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